[Federal Register Volume 89, Number 83 (Monday, April 29, 2024)]
[Rules and Regulations]
[Pages 33898-34069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08333]



[[Page 33897]]

Vol. 89

Monday,

No. 83

April 29, 2024

Part III





Department of Labor





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Employment and Training Administration





Wage and Hour Division





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20 CFR Parts 651, 653, 655, et al.

29 CFR Part 501





Improving Protections for Workers in Temporary Agricultural Employment 
in the United States; Final Rule

  Federal Register / Vol. 89, No. 83 / Monday, April 29, 2024 / Rules 
and Regulations  

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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Parts 651, 653, 655, and 658

Wage and Hour Division

29 CFR Part 501

[DOL Docket No. ETA-2023-0003]
RIN 1205-AC12


Improving Protections for Workers in Temporary Agricultural 
Employment in the United States

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

ACTION: Final rule.

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SUMMARY: The Department of Labor (Department or DOL) is amending its 
regulations governing the certification of temporary employment of 
nonimmigrant workers employed in temporary or seasonal agricultural 
employment and the enforcement of the contractual obligations 
applicable to employers of these nonimmigrant workers. The revisions in 
this final rule focus on strengthening protections for temporary 
agricultural workers and enhancing the Department's capabilities to 
monitor program compliance and take necessary enforcement actions 
against program violators.

DATES: This final rule is effective June 28, 2024.

FOR FURTHER INFORMATION CONTACT: For further information regarding 20 
CFR parts 651, 653, and 658, contact Kimberly Vitelli, Administrator, 
Office of Workforce Investment, Employment and Training Administration, 
Department of Labor, Room C-4526, 200 Constitution Avenue NW, 
Washington, DC 20210, telephone: (202) 693-3980 (this is not a toll-
free number). For further information regarding 20 CFR part 655, 
contact Brian Pasternak, Administrator, Office of Foreign Labor 
Certification, Employment and Training Administration, Department of 
Labor, 200 Constitution Avenue NW, Room N-5311, Washington, DC 20210, 
telephone: (202) 693-8200 (this is not a toll-free number). For further 
information regarding 29 CFR part 501, contact Daniel Navarrete, Acting 
Director of the Division of Regulations, Legislation, and 
Interpretation, Wage and Hour Division, Department of Labor, Room S-
3018, 200 Constitution Avenue NW, Washington, DC 20210, telephone: 
(202) 693-0406 (this is not a toll-free number). For persons with a 
hearing or speech disability who need assistance to use the telephone 
system, please dial 711 to access telecommunications relay services.

SUPPLEMENTARY INFORMATION:

Preamble Table of Contents

I. Acronyms and Abbreviations
II. Background
    A. Legal Authority
    B. Current Regulatory Framework
    C. Need for Rulemaking
III. General Comments on the Proposed Rule
IV. Overview of This Final Rule
    A. Summary of Major Provisions of this Final Rule
    B. Section-by-Section Analyses
    C. Transition Procedures
V. Discussion of Revisions to Employment Service Regulations
    A. Introduction
    B. 20 CFR part 651--General Provisions Governing the Wagner-
Peyser Act Employment Service
    C. 20 CFR part 653--Services of the Wagner-Peyser Act Employment 
Service System
    D. 20 CFR part 658, subpart F--Discontinuation of Services to 
Employers by the Wagner-Peyser Act Employment Service
VI. Discussion of Revisions to 20 CFR part 655, subpart B
    A. Introductory Sections
    B. Prefiling Procedures
    C. Application for Temporary Employment Certification Filing 
Procedures
    D. Labor Certification Determinations
    E. Post-Certification
    F. Integrity Measures
VII. Discussion of Revisions to 29 CFR part 501
    A. Section 501.3, Definitions
    B. Section 501.4, Discrimination prohibited
    C. Section 501.10, Severability
    D. Sections 501.20, 501.33, 501.42, Debarment and revocation
    E. Section 501.33, Request for hearing
VIII. Administrative Information
    A. Executive Order 12866: Regulatory Planning and Review, 
Executive Order 14094: Modernizing Regulatory Review, and Executive 
Order 13563: Improving Regulation and Regulatory Review
    B. Regulatory Flexibility Analysis, Small Business Regulatory 
Enforcement Fairness Act, Executive Order 13272: Proper 
Consideration of Small Entities in Agency Rulemaking
    C. Paperwork Reduction Act
    D. Small Business Regulatory Enforcement Fairness Act of 1996 
(Congressional Review Act)
    E. Unfunded Mandates Reform Act of 1995
    F. Executive Order 13132 (Federalism)
    G. Executive Order 13175 (Consultation and Coordination with 
Indian Tribal Governments)

I. Acronyms and Abbreviations

ADA Americans with Disabilities Act
AEWR Adverse effect wage rate
AIE Area(s) of intended employment
ALJ Administrative Law Judge
ALRA California Agricultural Labor Relations Act
ALRB California Agricultural Labor Relations Board
ARB Administrative Review Board
ARIMA Autoregressive integrated moving average
ARS Agricultural Recruitment System
ATV All-terrain vehicle
BALCA Board of Alien Labor Certification Appeals
BLS Bureau of Labor Statistics
CAGR Compound annual growth rate
CBA Collective bargaining agreement
CFR Code of Federal Regulations
CO Certifying Officer
CRA Congressional Review Act
CY Calendar year
DBA Doing business as
DHS Department of Homeland Security
DOJ Department of Justice
DOL Department of Labor
EEOC Equal Employment Opportunity Commission
E.O. Executive Order
ES Employment Service
ES system Employment Service system
ETA Employment and Training Administration
FDA Food and Drug Administration
FEIN Federal Employer Identification Number
FLAG Foreign Labor Application Gateway
FLS Farm Labor Survey
FLSA Fair Labor Standards Act
FMVSS Federal Motor Vehicle Safety Standards
FOIA Freedom of Information Act
FR Federal Register
FRN Federal Register notice
FY Fiscal year
GAO Government Accountability Office
GVWR Gross Vehicle Weight Rating
H-2ALC H-2A labor contractor
HR Human resources
ICR Information Collection Request
IFR Interim final rule
INA Immigration and Nationality Act
MSFW Migrant or seasonal farmworker
MSPA Migrant and Seasonal Agricultural Worker Protection Act
NAICS North American Industry Classification System
NARA National Archives and Records Administration
NHTSA National Highway Traffic Safety Administration
NIOSH National Institute for Occupational Safety and Health
NLRA National Labor Relations Act
NLRB National Labor Relations Board
NOD Notice of Deficiency
NPC National Processing Center
NPRM Notice of proposed rulemaking
NPWC National Prevailing Wage Center
OALJ Office of Administrative Law Judges
OEWS Occupational Employment and Wage Statistics
OFLC Office of Foreign Labor Certification
OHV Off-highway vehicle
OIG Office of Inspector General
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
OSHA Occupational Safety and Health Administration

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OWI Office of Workforce Investment
PII Personally identifiable information
PRA Paperwork Reduction Act
Pub.L. Public Law
RFA Regulatory Flexibility Act
RIN Regulation Identifier Number
ROPS Roll-Over Protective Structure
SBA Small Business Administration
SBREFA Small Business Regulatory Enforcement Fairness Act of 1996
Sec. Section of a Public Law
Secretary Secretary of Labor
SOC Standard Occupational Classification
SORN System of Records Notice
Stat. U.S. Statutes at Large
SUSB Statistics of U.S. Businesses
SWA State workforce agency
TVPA Victims of Trafficking and Violence Protection Act of 2000
UMRA Unfunded Mandates Reform Act of 1995
U.S.C. United States Code
USCIS U.S. Citizenship and Immigration Services
USDA U.S. Department of Agriculture
U.S.DOT U.S. Department of Transportation
VSL Value of a statistical life
WHD Wage and Hour Division

II. Background

A. Legal Authority

1. Immigration and Nationality Act
    The Immigration and Nationality Act (INA), as amended by the 
Immigration Reform and Control Act of 1986, establishes an ``H-2A'' 
nonimmigrant visa classification for a worker ``having a residence in a 
foreign country which he has no intention of abandoning who is coming 
temporarily to the United States to perform agricultural labor or 
services . . . of a temporary or seasonal nature.'' 8 U.S.C. 
1101(a)(15)(H)(ii)(a); see also 8 U.S.C. 1184(c)(1) and 1188.\1\ 
Permanent, year-round job opportunities cannot be classified as 
temporary or seasonal. 87 FR 61660, 61684 (Oct. 12, 2022); \2\ see also 
8 U.S.C. 1101(a)(15)(H)(ii)(a) (the INA permits only ``agricultural 
labor or services . . . of a temporary or seasonal nature'' to be 
performed under the H-2A visa category).
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    \1\ For ease of reference, sections of the INA are referred to 
by their corresponding section in the United States Code.
    \2\ Final Rule, Temporary Agricultural Employment of H-2A 
Nonimmigrants in the United States, 87 FR 61660 (Oct. 12, 2022) 
(2022 H-2A Final Rule).
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    The H-2A nonimmigrant worker visa program enables U.S. agricultural 
employers to employ foreign workers on a temporary basis to perform 
temporary or seasonal agricultural labor or services only where the 
Secretary of Labor (Secretary) certifies that: (1) there are not 
sufficient workers who are able, willing, and qualified, and who will 
be available at the time and place needed, to perform the labor or 
services involved in the petition; and (2) the employment of the 
foreign worker in such labor or services will not adversely affect the 
wages and working conditions of workers in the United States similarly 
employed. 8 U.S.C. 1188(a)(1).\3\ The INA prohibits the Secretary from 
issuing this certification--known as a ``temporary agricultural labor 
certification''--unless both of the above-referenced conditions are 
met. The INA further prohibits the Secretary from issuing a temporary 
agricultural labor certification if any of the conditions in 8 U.S.C. 
1188(b) apply concerning strikes or lock-outs, labor certification 
program debarments, workers' compensation assurances, and positive 
recruitment.
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    \3\ Following certification by DOL, the employer must file an H-
2A petition (defined at 20 CFR 655.103(b) as the U.S. Citizenship 
and Immigration Services (USCIS) Form I-129, Petition for a 
Nonimmigrant Worker, with H Supplement or successor form and/or 
supplement, and accompanying documentation required by DHS for 
employers seeking to employ foreign persons as H-2A nonimmigrant 
workers) with USCIS, requesting one or more workers not to exceed 
the total listed on the temporary agricultural labor certification. 
Generally, USCIS must approve this petition before the worker(s) can 
be considered eligible for an H-2A visa or for H-2A nonimmigrant 
status. The limited exceptions from this requirement may be found at 
8 CFR 274a.12(b)(20) and (21).
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    The Secretary has delegated the authority to issue temporary 
agricultural labor certifications to the Assistant Secretary for 
Employment and Training, who in turn has delegated that authority to 
the Employment and Training Administration's (ETA) OFLC. See 
Secretary's Order 06-2010 (Oct. 20, 2010), 75 FR 66268 (Oct. 27, 2010). 
In addition, the Secretary has delegated to WHD the responsibility 
under 8 U.S.C. 1188(g)(2) to assure employer compliance with the terms 
and conditions of employment under the H-2A program. See Secretary's 
Order 01-2014 (Dec. 19, 2014), 79 FR 77527 (Dec. 24, 2014). Pursuant to 
the INA and implementing regulations promulgated by DOL and the 
Department of Homeland Security (DHS), DOL evaluates an employer's need 
for agricultural labor or services to determine whether it is seasonal 
or temporary during the review of an H-2A Application. 20 CFR 
655.161(a); 8 CFR 214.2(h)(5)(i)(A) and (h)(5)(iv).
2. Wagner-Peyser Act
    The Wagner-Peyser Act of 1933 established the United States 
Employment Service (ES), a nationwide system to improve the functioning 
of the nation's labor markets by bringing together individuals seeking 
employment with employers seeking workers. 29 U.S.C. 49 et seq. Section 
3(a) of the Act sets forth the basic responsibilities of the Department 
in the ES, which include assisting in coordinating the State public 
employment service offices throughout the country and in increasing 
their usefulness by prescribing standards for efficiency, promoting 
uniformity in procedures, and maintaining a system of clearing labor 
between the States. 29 U.S.C. 49b. The Act further authorizes the 
Department ``to make such rules and regulations as may be necessary to 
carry out [its] provisions.'' 29 U.S.C. 49k.
    Consistent with the aims of sec. 3(a), the ES system provides labor 
exchange services to its participants and has undergone numerous 
changes to align its activities with broader national workforce 
development policies and statutory requirements. The Workforce 
Innovation and Opportunity Act (Pub. L. 113-128), passed in 2014, 
expanded upon the previous workforce reforms in the Workforce 
Investment Act of 1998 and, among other things, identified the ES 
system as a core program in the One-Stop local delivery system, also 
called the American Job Center network.
    In 1974, the case National Ass'n for the Advancement of Colored 
People (NAACP), Western Region, et al. v. Brennan et al., No. 2010-72, 
1974 WL 229 (D.D.C. Aug. 13, 1974), resulted in a detailed court order 
mandating various Federal and State actions consistent with applicable 
law (Richey Order). The Richey Order required the Department to 
implement and maintain a Federal and State monitoring and advocacy 
system and set forth requirements to ensure the delivery of ES 
services, benefits, and protections to migrant or seasonal farmworkers 
(MSFWs) on a non-discriminatory basis, and to provide such services in 
a manner that is qualitatively equivalent and quantitatively 
proportionate to those provided to non-farmworkers. In 1977 and 1980, 
consistent with its authority under the Wagner-Peyser Act, the 
Department published regulations at 20 CFR parts 651, 653, and 658 to 
implement the requirements of the Richey Order. Part 653 sets forth 
standards and procedures for providing services to MSFWs and provides 
regulations governing the Agricultural Recruitment System (ARS), a 
system for interstate and intrastate agricultural job recruitment. Part 
658 sets forth standards and procedures for the administrative handling 
of complaints alleging violations of ES regulations and of employment-
related laws, the discontinuation of services provided by the ES system 
to employers, the review and assessment of State agency compliance with 
ES regulations, and the process the Department must follow if

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State agencies are not complying with the ES regulations.

B. Current Regulatory Framework

    Since 1987, the Department has operated the H-2A temporary 
agricultural labor certification program under regulations promulgated 
pursuant to the INA. The standards and procedures applicable to the 
certification and employment of workers under the H-2A program are 
found in 20 CFR part 655, subpart B, and 29 CFR part 501. The majority 
of the Department's current regulations governing the H-2A program were 
published in 2010 and many were strengthened in a final rule the 
Department published in October 2022.\4\ The Department incorporated 
the provisions for employment of workers in the herding and production 
of livestock on the range into the H-2A regulations, with 
modifications, in 2015.\5\ The provisions governing the employment of 
workers in the herding and production of livestock on the range are 
codified at 20 CFR 655.200 through 655.235.\6\ Relatedly, the 
regulations implementing the Wagner-Peyser Act at 20 CFR parts 651, 
653, and 658 establish the ARS, through which employers can recruit 
U.S. workers for agricultural employment opportunities, and which 
prospective H-2A employers must use to recruit U.S. workers as a 
condition of receiving a temporary agricultural labor certification.
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    \4\ Final Rule, Temporary Agricultural Employment of H-2A Aliens 
in the United States, 75 FR 6884 (Feb. 12, 2010) (2010 H-2A Final 
Rule); Final Rule, Temporary Agricultural Employment of H-2A 
Nonimmigrants in the United States, 87 FR 61660 (Oct. 12, 2022) 
(2022 H-2A Final Rule).
    \5\ Final Rule, Temporary Agricultural Employment of H-2A 
Foreign Workers in the Herding or Production of Livestock on the 
Range in the United States, 80 FR 62958 (Oct. 16, 2015) (2015 H-2A 
Herder Final Rule).
    \6\ Consistent with a court-approved settlement agreement in 
Hispanic Affairs Project, et al. v. Scalia, et al., No. 15-cv-1562 
(D.D.C.), the Department recently rescinded 20 CFR 655.215(b)(2). 
See Final Rule, Adjudication of Temporary and Seasonal Need for 
Herding and Production of Livestock on the Range Applications Under 
the H-2A Program, 86 FR 71373 (Dec. 16, 2021) (2021 H-2A Herder 
Final Rule).
    .
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C. Need for Rulemaking

    This final rule aims to address some concerns expressed by various 
stakeholders during rulemaking. It also responds to recent court 
decisions and program experience indicating a need to enhance the 
Department's ability to enforce regulations related to foreign labor 
recruitment, to improve accountability for successors in interest and 
employers who use various methods to attempt to evade the law and 
regulatory requirements, and to enhance worker protections, as 
explained further in the sections that follow.
    In particular and as noted above, the Department recently published 
the 2022 H-2A Final Rule, which strengthened worker protections in the 
H-2A program, clarified the obligations of joint employers and the 
existing prohibitions on fees related to foreign labor recruitment, 
authorized debarment of agents and attorneys for their own misconduct, 
enhanced surety bond obligations and related enforcement authorization, 
modernized the prevailing wage determination process, enhanced 
regulation of H-2A labor contractors (H-2ALCs), and provided additional 
safeguards related to employer-provided housing and wage obligations. 
See 87 FR 61660. In response to the notice of proposed rulemaking 
(NPRM) published prior to the 2022 H-2A Final Rule, the Department 
received many comments suggesting changes that were beyond the scope of 
that rulemaking, such as suggestions relating to increased enforcement 
and transparency regarding the foreign labor recruitment process, 
increased worker protections, revisions to the definition of employer, 
stronger integrity provisions to account for complex business 
organizations and for methods used to circumvent the regulations, 
strengthening provisions related to piece rate pay, and suggestions to 
revise the Wagner-Peyser Act regulations to ensure stronger protections 
for workers in the event of harmful last-minute start date delays.
    After careful consideration of comments from the public, the 
Department is adopting important provisions in this final rule that 
will further strengthen protections for agricultural workers and 
enhance the Department's enforcement capabilities, thereby permitting 
more effective enforcement against fraud and program violations. These 
revisions will help prevent exploitation and abuse of agricultural 
workers and ensure that unscrupulous employers do not financially gain 
from their violations or contribute to economic and workforce 
instability by circumventing the law, both of which would adversely 
affect the wages and working conditions of workers in the United States 
similarly employed, and undermine the Department's ability to determine 
whether there are, in fact, insufficient U.S. workers for proposed H-2A 
jobs. It is the Department's policy to maintain robust protections for 
workers and vigorously enforce all laws within its jurisdiction 
governing the administration and enforcement of nonimmigrant visa 
programs. This includes the coordination of the administration and 
enforcement activities of ETA, WHD, and the Department's Office of the 
Solicitor in the promotion of the hiring of U.S. workers and the 
safeguarding of wages and working conditions for workers in the United 
States. In addition, these agencies make criminal referrals to the 
Department's Office of Inspector General (OIG) in appropriate 
circumstances, such as when the agencies encounter visa-related fraud. 
The Department has determined through program experience, recent 
litigation, challenges in enforcement, comments on this rulemaking as 
well as on prior rulemakings, and reports from various stakeholders 
that it is necessary to adopt stronger protections for agricultural 
workers to better ensure that employers, agents, attorneys, and labor 
recruiters comply with the law, and to enhance program integrity by 
improving the Department's ability to monitor compliance and 
investigate and pursue remedies from program violators. The recent 
surge in use of the H-2A program amplifies these needs.\7\
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    \7\ See, e.g., OFLC, Performance Data, https://www.dol.gov/agencies/eta/foreign-labor/performance (last accessed Feb. 8, 2024) 
(providing disclosure data for the H-2A labor certification program 
since Fiscal Year (FY) 2008).
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III. General Comments on the Proposed Rule

    On September 15, 2023, the Department published an NPRM requesting 
public comments on proposals intended to improve protections for 
workers in temporary agricultural employment in the United States. See 
88 FR 63750 (Sept. 15, 2023).\8\ The proposed revisions focused on 
strengthening protections for temporary agricultural workers and 
enhancing the Department's capabilities to monitor program compliance 
and take necessary enforcement actions against program violators. The 
NPRM invited written comments from the public on all aspects of the 
proposed amendments to the regulations. A 60-day comment period allowed 
for the public to inspect the proposed rule and provide comments 
through November 14, 2023.
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    \8\ NPRM, Improving Protections for Workers in Temporary 
Agricultural Employment in the United States, 88 FR 63750 (Sept. 15, 
2023) (2023 NPRM).
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    The Department received a total of 12,928 public comments in 
response to the NPRM before the end of the comment period. Included in 
these comments were multiple form letter campaigns, which were received 
as bundled submissions to the

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Regulations.gov website. After accounting for duplicate submissions, 
the Department received comments from 8,725 unique commenters. Comments 
can be viewed online at https://www.regulations.gov/docket/ETA-2023-0003. The commenters represented a wide range of stakeholders from the 
public, private, and not-for-profit sectors. The Department received 
comments from a geographically diverse cross-section of stakeholders 
within the agricultural sector, including farmworkers, workers' rights 
advocacy organizations, farm owners, farm labor contractors, trade 
associations for agricultural products and services, not-for-profit 
organizations representing agricultural issues, and other organizations 
with an interest in agricultural activities. Public sector commenters 
included Federal elected officials, State officials, and agencies 
representing State governments. Private sector commenters included 
business owners, recruiting companies, and law firms. Not-for-profit 
sector commenters included both industry organizations (e.g., 
professional associations) and worker advocacy organizations.
    The Department recognizes and appreciates the value of comments, 
ideas, and suggestions from all those who commented on the proposal, 
and this final rule was developed after review and consideration of all 
public comments timely received in response to the NPRM. Some comments 
provided general opinions on the proposed rule, or on agricultural 
labor generally, and the Department thanks the commenters for their 
time to submit their feedback. Where public comments provided 
substantive feedback on specific proposals in the NPRM, they have been 
responded to in the sections that follow. When the Department has made 
changes from the NPRM as a result of public comment, those changes are 
identified in the sections below.

IV. Overview of This Final Rule

A. Summary of Major Provisions of This Final Rule

1. Protections for Worker Voice and Empowerment
    In this final rule, the Department is adopting several revisions to 
Sec.  655.135 that will provide stronger protections for workers 
protected by the H-2A program to advocate on behalf of themselves and 
their coworkers regarding their working conditions and prevent 
employers from suppressing this activity. As detailed in Section VI, 
the Department believes that these protections are important to prevent 
adverse effect on the working conditions of workers in the United 
States similarly employed. 8 U.S.C. 1188(a)(1). Specifically, the 
Department is broadening Sec.  655.135(h), which prohibits unfair 
treatment by employers, by expanding and explicitly protecting certain 
activities all workers must be able to engage in without fear of 
intimidation, threats, and other forms of retaliation. For those 
workers engaged in agriculture as defined and applied in 29 U.S.C. 
203(f) of the Fair Labor Standards Act (FLSA) (``FLSA agriculture''), 
who are exempt from the protections of the National Labor Relations Act 
(NLRA), 29 U.S.C. 151 et seq., the Department also revises Sec.  
655.135(h) to include some new protections to safeguard collective 
action and concerted activity for mutual aid and protection, and, in a 
change responsive to comments, to allow those workers to decline to 
attend or listen to employer speech regarding protected activities 
without fear of retaliation.\9\
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    \9\ As discussed further in Section VI.C.2.b below, the NLRA 
excludes from its protections workers who are engaged in FLSA 
agriculture. See definition of ``employee'' at 29 U.S.C. 152(3) 
(excluding ``any individual employed as an agricultural laborer''). 
Congress has provided that the definition of ``agricultural'' in 
sec. 3(f) of the FLSA also applies to the NLRA. See, e.g., Holly 
Farms Corp. et al. v. NLRB, 517 U.S. 392, 397-98 (1996). The H-2A 
statute and the Department, however, define ``agricultural labor or 
services'' under the H-2A program more broadly to include FLSA 
agriculture as well as other activities. See 8 U.S.C. 
1101(a)(15)(H)(ii)(a); 20 CFR 655.103(c). Certain provisions of this 
final rule apply only to workers or persons engaged in FLSA 
agriculture (who are excluded from the NLRA's protections). 
Therefore, workers who are not engaged in FLSA agriculture (e.g., 
those in logging occupations) will not be covered by the provisions 
of this final rule that are limited to workers or persons engaged in 
FLSA agriculture. However, the vast majority of such workers are 
already covered by the NLRA as ``employees'' under 29 U.S.C. 152(3). 
Nothing in this final rule alters or circumscribes the rights of 
workers who are already protected by the NLRA to engage in conduct 
and exercise rights afforded under that law.
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    The Department also finalizes one of the provisions initially 
proposed at Sec.  655.135(m) to require employers to permit workers 
engaged in FLSA agriculture to designate a representative of their 
choosing in certain interviews, with minor changes in response to 
comments, and adopts a new provision at Sec.  655.135(n) to permit 
workers to invite or accept guests to worker housing (which has been 
substantially revised in response to comments received). New Sec.  
655.135(m) and (n) are intended, like the revisions and additions to 
Sec.  655.135(h), to strengthen the ability of workers to advocate on 
behalf of themselves and their coworkers regarding their required terms 
and conditions of employment, to better protect against adverse effect 
on similarly employed workers in the United States.
    The final rule does not require H-2A employers to recognize labor 
organizations or to engage in any collective bargaining activities such 
as those that may be required by the NLRA itself or by a State law such 
as the California Agricultural Labor Relations Act (ALRA), Cal. Lab. 
Code Sec.  1140 et seq., nor does it create any independent rights or 
obligations for labor organizations. Instead, this final rule requires 
employers to provide assurances that they will not intimidate, 
threaten, or otherwise discriminate against certain workers or others 
for engaging in ``activities related to self-organization,'' including 
``concerted activities for the purpose of mutual aid or protection 
relating to wages or working conditions,'' or refusing to engage in 
such activities. 20 CFR 655.135(h)(2). Such activities may include 
seeking to form, join, or assist a labor organization, but also 
encompasses numerous other ways that workers can engage, individually 
or collectively, to enforce their rights, as further discussed below.
2. Clarification of Termination for Cause
    In this final rule, the Department adopts with modifications the 
NPRM definition of ``termination for cause'' at Sec.  655.122(n) by 
adopting five criteria that must be satisfied to ensure that 
disciplinary and termination processes are justified and reasonable, 
which are intended to promote the integrity and regularity of any such 
processes. These changes will help to ensure employers do not 
arbitrarily and unjustly terminate workers, thereby stripping them of 
essential rights to which they would otherwise be entitled under the H-
2A program. Moreover, these changes will assist the Department in 
determining whether an individual worker was terminated without cause 
where the employer gives pretextual reasons for a termination, and will 
provide regulatory certainty to employers by providing clear 
guidelines. In response to comments, the Department adopts minor 
modifications from the NPRM in this final rule to clarify the 
definition of termination for cause, the criteria that an employer must 
meet to terminate a worker for cause, and the types of terminations 
that are not ``for cause.''
3. Immediate Effective Date for Updated AEWR
    The Department adopts the proposed revisions to Sec.  655.120(b)(2) 
to designate the effective date of each updated adverse effect wage 
rate (AEWR) as its date of publication in the Federal

[[Page 33902]]

Register, and revises paragraph (b)(3) to state that the employer will 
be obligated to pay the updated AEWR immediately upon publication of 
the new AEWR in the Federal Register. If the update falls in the middle 
of a pay period, the employer may pay the updated AEWR at the end of 
the following pay period, but the employer must provide retroactive pay 
for all hours worked during the period in which the AEWR was updated, 
beginning immediately on the date the Department publishes the notice 
in the Federal Register. This change is intended to help ensure workers 
are paid at least the updated AEWR, as soon as it is published, for all 
work they perform, and thereby help to ensure that the employment of H-
2A workers does not adversely affect the wages and working conditions 
of workers in the United States similarly employed.
4. Enhanced Transparency for Job Opportunity and Foreign Labor 
Recruitment
    The Department is adopting the proposed changes for new disclosure 
requirements to enhance transparency in the foreign worker recruitment 
chain and bolster the Department's capacity to protect vulnerable 
agricultural workers from exploitation and abuse, as explained more 
fully below. This final rule includes a new Sec.  655.137, Disclosure 
of foreign worker recruitment, and a new Sec.  655.135(p), Foreign 
worker recruitment, which are similar to the regulations governing 
disclosure of foreign worker recruitment in the H-2B program. The 
provisions require an employer and its attorney or agent, as 
applicable, to provide a copy of all agreements with any agent or 
recruiter that the employer engages or plans to engage in the 
recruitment of prospective H-2A workers, regardless of whether the 
agent or recruiter is located in the United States or abroad. The 
provisions also require the employer to disclose the identity (i.e., 
name and, if applicable, identification/registration number) and 
geographic location of persons and entities hired by or working for the 
foreign labor recruiter and any of the agents or employees of those 
persons and entities who will recruit or solicit prospective H-2A 
workers. As explained more fully below, the Department will gather the 
additional recruitment chain information when the employer files its H-
2A Application and will require the employer to submit a Form ETA-
9142A, Appendix D, which mirrors the Form ETA-9142B, Appendix C. 
Consistent with current practice in the H-2B program, Sec.  655.137(d) 
provides for the Department's public disclosure of the names of the 
agents and foreign labor recruiters used by employers. These additional 
disclosures of information about the recruitment chain are necessary 
for the Department to carry out its enforcement obligations, protect 
vulnerable agricultural workers and program integrity, and ensure 
equitable administration of the H-2A program for law abiding employers.
    The Department also is adopting, with minor changes, the proposal 
to require the employer to provide the full name, date of birth, 
address, telephone number, and email address of all owner(s) of the 
employer(s), any person or entity who is an operator of the place(s) of 
employment (including the fixed-site agricultural business that 
contracts with the H-2ALC), and any person who manages or supervises 
the H-2A workers and workers in corresponding employment under the H-2A 
Application. The Department has revised the Form ETA-9142A to require, 
where applicable, additional information about prior trade or doing 
business as (DBA) names the employer has used in the most recent 3-year 
period preceding its filing of the H-2A Application. Sections 655.130 
and 655.167 clarify that the employer must continue to update the 
information required by the above paragraphs until the end of the work 
contract period, including extensions thereto, and retain this 
information for a period of 3 years from the date of certification and 
produce it upon request by the Department. These disclosure 
requirements will help prevent adverse effects on the working 
conditions of workers in the United States similarly employed by 
increasing transparency in the international recruitment chain, aiding 
the Department in assessing the nature of the job opportunity and the 
employer's need, enhancing the Department's ability to enforce the 
prohibition against recruitment-related fees and to pursue remedies 
from program violators, assisting the Department in identifying 
potential successors in interest to debarred employers, and better 
protecting agricultural workers from abuse and exploitation in the 
United States and abroad.
5. Enhanced Transparency and Protections for Agricultural Workers
a. Disclosure of Minimum Productivity Standards, Applicable Wage Rates, 
and Overtime Opportunities
    In this final rule, the Department adopts the proposal to revise 
Sec.  655.122(l) to require employers to disclose any minimum 
productivity standards they will impose as a condition of job 
retention, regardless of whether the employer pays on a piece rate or 
hourly basis. This is intended to help ensure that agricultural workers 
are fully apprised of the material terms and conditions of employment, 
including any productivity standards that may serve as a basis for 
termination for cause. An existing regulatory provision, Sec.  
655.122(b), would require that any such minimum productivity standard 
be bona fide and normal and accepted among non-H-2A employers in the 
same or comparable occupations and crops. This revision is intended to 
ensure that workers are aware of productivity standards that are a 
condition of job retention before accepting the job, and that an 
employer cannot raise productivity standards mid-contract with the goal 
of terminating workers.
    The Department also adopts revisions at Sec. Sec.  655.120(a) and 
655.122(l), with minor changes responsive to comments, to require 
employers to offer and advertise on the job order any applicable 
prevailing piece rate, the highest applicable hourly wage rate, and any 
other rate the employer intends to pay, and to pay workers the highest 
of these wage rates, as calculated at the time work is performed. The 
Department also adopts proposed new provisions, at Sec.  655.122(l)(4) 
and Sec.  655.210(g)(3) of this final rule, that explicitly require the 
employer to specify in the job order any applicable overtime premium 
wage rate(s) for overtime hours worked and the circumstances under 
which the wage rate(s) for such overtime hours will be paid. These 
revisions are intended to help ensure that agricultural workers are 
fully apprised of the material terms and conditions of employment, and 
to aid the Department in its administration and enforcement of the H-2A 
program.
b. Enhanced Protections for Workers Through the ES System
    The Department adopts revisions to the Wagner-Peyser Act 
implementing regulations at 20 CFR 653.501 to clarify an employer's 
obligations in the event of a delayed start date and to make conforming 
revisions to the H-2A regulations at 20 CFR 655.145 and a new Sec.  
655.175 to clarify pre-certification H-2A Application amendments and 
employer obligations in the event of post-certification changes to the 
start date. As noted above, the previous regulations require an 
employer to provide notice to the ES Office holding the job order of 
delayed start dates and impose obligations on employers that

[[Page 33903]]

fail to provide the requisite notice, but do not require employers to 
notify workers directly of any such delay.
    The Department adopts revisions to part 658, subpart F, and related 
definitions at Sec.  651.10, regarding the discontinuation of Wagner-
Peyser Act ES services to employers. The Department clarifies and 
expands the scope of entities whose ES services can be discontinued to 
also include agents, farm labor contractors, joint employers, and 
successors in interest. The Department also adopts revisions to clarify 
the bases for discontinuation at Sec.  658.501, and to clarify and 
streamline the discontinuation procedures at Sec. Sec.  658.502 through 
658.504, including the notice requirements for SWAs, evidentiary 
requirements for employers, when and how employers may request a 
hearing, and procedures for requesting reinstatement. These changes are 
designed to increase the reach and utility of the discontinuation of 
services regulations, which, as discussed in the NPRM, SWAs have 
infrequently used relative to the number of complaints and apparent 
violations that SWAs processed in recent years. See 88 FR 63761. These 
changes are described in more detail below.
c. Enhanced Transportation Safety Requirements
    The Department adopts the proposal, with minor modifications, to 
revise Sec.  655.122(h)(4) to require the provision, maintenance, and 
wearing of seat belts in most employer-provided transportation, which 
would reduce the hazards associated with agricultural worker 
transportation. Specifically, as explained in detail below, the 
Department revises Sec.  655.122(h)(4) to prohibit an employer from 
operating any employer-provided transportation unless all passengers 
and the driver are properly restrained by seat belts meeting standards 
established by the U.S. Department of Transportation (U.S. DOT), as 
long as the transportation was manufactured with seat belts pursuant to 
U.S. DOT's Federal Motor Vehicle Safety Standards (FMVSS). Essentially, 
if the vehicle is manufactured with seat belts, this final rule would 
require the employer to retain and maintain those seat belts in good 
working order and ensure that each worker is wearing a seat belt before 
the vehicle is operated. In response to public comment, the Department 
clarifies in this final rule that an employer must not allow any other 
person, in addition to the employer, to operate employer-provided 
transportation unless seat belts are provided, maintained, and worn.
d. Protection Against Passport and Other Immigration Document 
Withholding
    The Department adopts the proposal to create a new Sec.  655.135(o) 
that will directly prohibit an employer from holding or confiscating a 
worker's passport, visa, or other immigration or government 
identification documents. This prohibition is independent of whether 
the employer is otherwise in compliance with the Victims of Trafficking 
and Violence Protection Act of 2000 (TVPA), Public Law 106-386 (2000), 
18 U.S.C. 1592(a), as required under the current H-2A regulations. This 
change is intended to better protect workers from potential labor 
trafficking.
e. Protections in the Event of a Minor Delay in the Start of Work
    The Department adopts the proposal to create a new Sec.  655.175 
that addresses post-certification changes currently addressed at Sec.  
655.145(b) and creates new obligations and procedures in the event an 
employer must briefly delay the start of work due to unforeseen 
circumstances that jeopardize crops or commodities prior to the 
expiration of an additional recruitment period. Section 655.175 limits 
minor delays to 14 calendar days or less and requires the employer to 
notify each worker and the SWA of any minor delay in the start of work. 
Consistent with Sec.  653.501(c), Sec.  655.175 includes new 
compensation obligations that require the employer to pay workers the 
applicable wage rate for each day work is delayed, for a period of up 
to 14 calendar days, starting with the certified start date, if the 
employer fails to provide 10 business days' notice of the delay.
6. Enhanced Integrity and Enforcement Capabilities
a. Enhancements to the Department's Ability To Apply Orders of 
Debarment Against Successors in Interest
    The Department adopts a new Sec.  655.104 regarding successors in 
interest, revised from the NPRM based on comments received, which 
clarifies the liability of successors in interest for debarment 
purposes and streamlines the Department's procedures to deny temporary 
agricultural labor certifications filed by or on behalf of successors 
in interest to debarred employers, agents, and attorneys. The 
Department adopts conforming revisions to Sec. Sec.  655.103(b), 
655.181, and 655.182 and 29 CFR 501.20. These revisions are intended to 
better reflect the liability of successors in interest under the well-
established successorship doctrine, and to better ensure that debarred 
entities do not circumvent the effects of debarment.
b. Defining the Single Employer Test for Assessing Temporary Need, or 
for Enforcement of Contractual Obligations
    The Department adopts the proposal to define the term single 
employer at a new Sec.  655.103(e) and adopts factors to determine if 
multiple nominally separate employers are acting as one. Defining the 
term would codify the Department's long-standing practice of using the 
single employer test (sometimes referred to as an ``integrated 
employer'' test), or similar analysis, to determine if separate 
employers are a single employer for purposes of assessing seasonal or 
temporary need, or for enforcement of contractual obligations. In 
relation to seasonal or temporary need, the Department has received 
applications for temporary agricultural labor certification that 
purport to be for job opportunities with different employers when, in 
reality, the workers hired under these certifications are employed by 
companies so intertwined that they are operating as a de facto single 
employer in one area of intended employment (AIE) for a period of need 
that is not truly temporary or seasonal. In its enforcement experience, 
the Department has increasingly encountered H-2A employers that purport 
to employ H-2A workers under one corporate entity and non-H-2A workers 
under another, creating the appearance that the H-2A employer has no 
workers in corresponding employment when actually, the corporate 
entities are so intertwined that all of the workers are employed by a 
single H-2A employer. Some employers have attempted to use these 
arrangements to avoid the obligation to provide certain H-2A program 
requirements to workers in corresponding employment, including the 
required wage rate. Codifying the definition of single employer will 
prevent employers from using their corporate structures to circumvent 
statutory and regulatory requirements.

B. Section-by-Section Analyses

    Sections V through VII of the preamble provide the Department's 
responses to public comments received on the NPRM and rationale for the 
amendments adopted to 20 CFR parts 651, 653, 658, and 655, and 29 CFR 
part 501, section by section, and generally follow the outline of the 
regulations. Within each section of the preamble, the Department has 
noted and responded to those public comments that are addressed to that 
particular section of this final rule. If a proposed change is

[[Page 33904]]

not addressed in the discussion below, it is because the public 
comments did not substantively address that specific provision and no 
changes have been made to the proposed regulatory text. The Department 
received some comments on the NPRM that were outside the scope of the 
proposed regulations, and the Department offers no substantive response 
to such comments. The Department has also made some non-substantive 
changes to improve readability and conform the document stylistically.

C. Transition Procedures

    The Department is providing a short transition period for receiving 
and processing criteria clearance orders and Applications for Temporary 
Employment Certification in order to promote an orderly and seamless 
implementation of the changes required by this final rule. This 
transition period will provide the Department with the necessary time 
to implement changes to Office of Management and Budget (OMB)-approved 
application forms within the Foreign Labor Application Gateway (FLAG) 
System and to its standard operating procedures and policies, and to 
provide training and technical assistance to the Office of Foreign 
Labor Certification (OFLC), Wage and Hour Division (WHD), State 
workforce agencies (SWAs), employers, and other stakeholders in order 
to familiarize them with changes required by this final rule.
    The Department's regulations require that an employer submit a 
completed job order on Form ETA-790/790A (including all required 
addenda), an Application for Temporary Employment Certification on Form 
ETA-9142A (including all required addenda), and all required supporting 
documentation with the National Processing Center (NPC), using the 
electronic method(s) designated by the OFLC Administrator. Except where 
the employer has received prior approval from the OFLC Administrator to 
submit by mail as set forth in Sec.  655.130(c)(2) or has been granted 
a reasonable accommodation as set forth in Sec.  655.130(c)(3), the NPC 
will return without review any job order or Application for Temporary 
Employment Certification submitted using a method other than the 
designated electronic method(s).
    In order to promote an orderly and seamless transition to this 
final rule, the NPC will process all H-2A applications submitted on or 
after 12:00 a.m. Eastern Daylight Time, August 29, 2024, in accordance 
with 20 CFR part 655, subpart B. in effect as of June 28, 2024.
    The NPC will continue to process all H-2A applications submitted 
before 7:00 p.m. Eastern Daylight Time on or before August 28, 2024, in 
accordance with 20 CFR part 655, subpart B in effect as of the calendar 
day before the effective date as stated in this rule. The Department 
will use the 5 hours between 7:00 p.m. Eastern Daylight Time on August 
28, 2024, and 12:00 a.m. Eastern Daylight Time on August 29, 2024, to 
initiate procedures to deploy and test changes to the FLAG System in 
order to effectively implement the new changes. No job orders or 
applications can be filed during this timeframe. All initiated, but 
unsubmitted, H-2A applications in FLAG as of 7:00 p.m. Eastern Daylight 
Time on August 28, 2024, will be deleted as of that time.
    The Department believes this short transition period will provide 
employers, or their authorized agents or attorneys, with adequate time 
to plan and prepare their job orders and Applications for Temporary 
Employment Certification for submission under this final rule and to 
collect all necessary information that must be filed or retained in 
support of an H-2A application.
    After the transition period, FLAG will not permit an employer to 
file prior versions of forms.

V. Discussion of Revisions to Employment Service Regulations

A. Introduction

    In this final rule, the Department revises the ES regulations (20 
CFR parts 651 through 654 and 658) that implement the Wagner-Peyser Act 
of 1933. These regulations include the provision of ES services with a 
particular emphasis on MSFWs, as well as provisions governing the 
discontinuation of ES services to employers. This final rule updates 
the language and content of the regulations to, among other things, 
improve and strengthen the regulations governing discontinuation of ES 
services to employers, including the applicable bases and procedures. 
In some areas, this final rule establishes entirely new 
responsibilities and procedures; in other areas, this final rule 
clarifies and updates pre-existing requirements. The revisions make 
important changes to the following components of the ES system: 
definitions, requirements for processing clearance orders, and the 
discontinuation of ES services provided to employers.
    Within the revisions to the ES regulations, the Department is 
adopting the following modifications to the proposed regulatory 
amendments in the NPRM as a result of public comments received: (1) 
revising the new successor in interest definition in Sec.  651.10 to 
omit unnecessary and potentially contradictory language; (2) revising 
provisions on the discontinuation of services list in new Sec.  
653.501(b)(4) to allow employers to submit requests for determinations 
to the Administrator of ETA's Office of Workforce Investment (OWI); (3) 
clarifying the requirements in Sec.  653.501(c)(1)(iv)(E) for 
disclosure of wages on the clearance order; (4) revising the provisions 
in Sec.  653.501(c) on delays in the start of work to clarify the 
applicability of the housing requirement to migrant workers, replace 
the proposed subsistence requirement with a requirement that the 
employer provide or pay all benefits and expenses listed on the 
clearance order, and incorporate requirements on method of delivery and 
language access for notifications to workers; and (5) providing that 
the SWA must consider whether there is a basis to discontinue services 
in cases of alleged misrepresentation or noncompliance in connection 
with a current or prior temporary labor certification, if the 
circumstances occurred within the previous 3 years. Additionally, the 
Department is adopting the following modifications to proposed 
amendments in the NPRM for clarity and consistency: (1) revising the 
employment-related laws definition in Sec.  651.10 to clarify that it 
includes ``rules'' and ``standards''; (2) relocating language on 
liability of successors from the new successor in interest definition 
in Sec.  651.10 to Sec.  658.500; (3) making minor conforming changes 
to the assurances and delayed start requirements in Sec.  
653.501(c)(3)(i) and (iv) and Sec.  653.501(c)(5); and (4) 
incorporating into Sec.  658.501(b) existing obligations on SWAs under 
part 655, subpart B, and 29 CFR parts 501 and 503 to notify OFLC and 
WHD in cases of alleged misrepresentation or noncompliance with 
temporary labor certification requirements.
    Note that on November 24, 2023, the Department issued a final rule 
regarding Wagner-Peyser Act staffing (Staffing Final Rule). 88 FR 82658 
(Nov. 24, 2023). In the NPRM to the Staffing Final Rule (Staffing 
NPRM), 87 FR 23700 (Apr. 20, 2022), the Department proposed changes to 
several sections in 20 CFR parts 653 and 658 that govern the provision 
of ES services to MSFWs. As relevant here, in the Staffing NPRM, the 
Department proposed changes to 20 CFR 653.501(b)(4) and (c)(3) (ES 
office and SWA requirements for processing clearance orders); Sec.  
658.501(a)(4), (b),

[[Page 33905]]

and (c) (bases for discontinuation of ES services); Sec.  658.502(a) 
and (b) (notification requirements for discontinuation of ES services); 
and Sec.  658.504(a) and (b) (procedures for reinstatement of ES 
services). 87 FR at 23717, 23722, 23736, 23740-23741.
    In the NPRM to this final rule, which the Department published on 
September 15, 2023, the Department proposed further changes to the 
above-named provisions. In some instances, these changes conflicted 
with changes proposed in the Staffing NPRM. Because the Department had 
not yet issued the Staffing Final Rule when the NPRM to this rule was 
published, the Department recognized that the proposed changes in this 
rulemaking might generate questions within the regulated community 
about how the Department ultimately proposed to revise these 
provisions, including how the proposed changes in this rulemaking would 
affect the proposed changes in the Staffing NPRM, and what the 
Department might do in finalizing the changes proposed in the Staffing 
NPRM. As discussed in the NPRM to this final rule, where the proposed 
changes in this rulemaking conflicted or intersected with changes 
proposed in the Staffing NPRM, the Department is using this rulemaking 
as the operative proceeding to provide notice and an opportunity to 
comment on the proposed changes to the provisions referenced above. 
Accordingly, the Department did not finalize changes to the above 
referenced provisions in the Staffing Final Rule. The Staffing Final 
Rule notified the public that changes to the above referenced 
provisions would be made through this rulemaking. 88 FR at 82708-82709, 
82710. The Department has concluded that the proposed changes to these 
provisions are better suited for this rulemaking because they are meant 
to strengthen protections for agricultural workers and, therefore, 
better align with the overall purpose of this rulemaking. Further, the 
Department has concluded that this is the most transparent approach to 
address the overlap and is the approach that best minimizes confusion 
within the regulated community while ensuring the public the full 
opportunity to receive notice and provide comments on the proposed 
changes.

B. 20 CFR Part 651--General Provisions Governing the Wagner-Peyser Act 
Employment Service

    Part 651 (Sec.  651.10) sets forth definitions for parts 652, 653, 
654, and 658. In the NPRM, the Department proposed to add or revise the 
following definitions primarily to clarify aspects of its 
discontinuation of Wagner-Peyser Act ES services regulation at 20 CFR 
part 658, subpart F, including new provisions added in this rulemaking 
that expand the scope of entities whose services can be discontinued. 
Where appropriate, as discussed below, the Department has sought to 
align these new definitions with the same or similar definitions at 20 
CFR 655.103. The Department received comments on each of the proposed 
additions and revisions, and it notes that many commenters did not 
raise objections to the proposed changes. After carefully considering 
these comments, the Department adopts most of the additions and 
revisions as proposed, with exceptions, as discussed in detail below.
1. Agent
    The Department proposed to add a definition to Sec.  651.10 for 
agent to establish that an agent is a legal entity or person, such as 
an association of employers, or an attorney for an association, that is 
authorized to act on behalf of the employer for purposes of recruitment 
of workers through the clearance system and is not itself an employer 
or joint employer, as defined in this section, with respect to a 
specific job order. The Department has observed that individuals and 
entities meeting the proposed definition of agent often engage the ES 
clearance system by submitting clearance orders on behalf of employers, 
as defined in part 651, and control many aspects of employers' 
recruitment activities relating to clearance orders. Adding this 
proposed definition clarifies that agents (which include attorneys) are 
among the entities subject to discontinuation of services as a result 
of the proposed changes to part 658. Additionally, because an 
employer's agent for purposes of the ES clearance system is often the 
same agent that an employer uses for purposes of the H-2A labor 
certification process, the Department proposed a definition of agent at 
Sec.  651.10 that aligns with the definition of agent in Sec.  655.103.
    Farmworker Justice, in comments joined by 40 signatories, including 
advocacy organizations and legal services providers, supported 
inclusion of the proposed definition, stating that to the greatest 
extent feasible, the Sec.  651.10 definition should be consistent with 
that used in the H-2A regulations at Sec.  655.103(b). Farmworker 
Justice suggested that the Department clarify that agents who assist in 
the preparation and submission of criteria clearance orders (clearance 
orders placed in connection with H-2A applications) on behalf of their 
principals must obtain certificates of registration as farm labor 
contractors under the Migrant and Seasonal Agricultural Worker 
Protection Act (MSPA). They stated that criteria clearance orders, 
currently submitted using Form ETA-790/790A, are used to recruit U.S. 
workers for the positions for which H-2A workers are requested. In such 
situations, Farmworker Justice said, the agent is being paid by the 
employer for recruiting MSFWs, thereby falling squarely within the 
definition of farm labor contractor under MSPA.
    Relatedly, Mid-Atlantic Solutions, LLC d/b/a m[aacute]sLabor and 
AgWorks H2, LLC (m[aacute]sLabor) and McCorkle Nurseries, Inc. 
suggested that the Department remove the reference to recruitment from 
the definition to avoid potential implications under the MSPA. 
M[aacute]sLabor stated that the qualifier, for purposes of recruitment 
of workers through the clearance system, was likely intended to refer 
to the employer's purposes in placing the job order, rather than the 
agent's--i.e., the employer is placing a job order for purposes of 
recruitment and the agent is acting on the employer's behalf in the 
placement of the job order)--and that such language may inadvertently 
imply that an agent acting on behalf of an employer for the submission 
of a job order is itself, as the agent, engaged in the recruitment or 
solicitation or both of U.S. farmworkers. M[aacute]sLabor stated that 
because the Department considers recruitment and solicitation 
activities to be farm labor contracting activities under MSPA, an 
interpretation to this effect would mean that agents using the ES, in 
all cases, would be obligated to obtain a Farm Labor Contractor 
Certificate of Registration under MSPA.
    M[aacute]sLabor further stated that not all agents are engaged in 
activities that would traditionally be construed as recruitment or 
solicitation of workers. Some agents play no representative role 
throughout the recruitment process, and they instead engage purely in 
document preparation services by recording the employer's intent on the 
relevant government forms. Others offer services in both document 
preparation and written or verbal communication with the applicable 
government agencies for processing purposes but stop short of any 
direct assistance with recruitment. Others, like m[aacute]sLabor, offer 
comprehensive services wherein the agent is also authorized to conduct 
interviews with potential applicants and document hiring dispositions. 
M[aacute]sLabor stated that only the latter (i.e., comprehensive) 
service can be construed as recruitment or solicitation or both and 
therefore only agents offering this range of services ought to

[[Page 33906]]

be carefully considered within MSPA's jurisdiction. M[aacute]sLabor 
suggested that the Department revise the proposed definition to state 
that an agent is a legal person or entity that is authorized to act on 
behalf of the employer for any purpose related to the employer's use of 
the clearance system, and is not itself an employer or joint employer, 
as defined in this section, with respect to a specific job order. 
Additionally, m[aacute]sLabor suggested modifying the definition to 
more clearly delineate between recruitment conducted by an employer and 
recruitment conducted by the agent or attorney directly, by defining 
agent to mean a legal person or entity authorized to act on behalf of 
the employer for purposes of the employer's recruitment of workers. 
M[aacute]sLabor emphasized recruitment by ``the employer'' as distinct 
from recruitment by the agent, arguing the ES definition of agent 
should not imply that agents acting as recruiters on behalf of 
employers in the submission of job orders are acting as recruiters for 
MSPA purposes, and therefore subject to MSPA requirements, in all 
cases.
    An agent and a law firm, USA Farm Labor, Inc. (USAFL) and the Hall 
Law Office, PLLC (Hall Global) (together, USAFL and Hall Global), 
agreed with m[aacute]sLabor and further stated the proposed definition 
conflates the role of attorney and agent. They stated that an agent in 
the context of the H-2A Program refers to a company that provides 
specialized services focused on preparing, managing, and filing H-2A-
related paperwork. While attorneys can be said to be agents because 
they are hired by a principal to act on the principal's behalf, 
attorney conduct is normally regulated by the highest court in various 
jurisdictions, and regulatory concerns with respect to agents and 
attorneys are different. The primary issue for attorneys is protecting 
the sanctity of the attorney-client relationship as well as the 
distinction between lawyer and client. Clients are entitled to zealous 
representation within the bounds of the law, which includes making 
arguments seeking the modification or reversal of existing law. By 
conflating attorney with agent, the commenters argued, the Department 
creates ambiguity as to whether it intends to respect, as required by 
law, 5 U.S.C. 500, that nothing in this definition nor elsewhere in the 
regulations supplants an attorney's duties under State law or their 
ability to zealously represent their client within the bounds of the 
law.
    The Department acknowledges commenters' suggestions and concerns 
regarding potential MSPA implications raised by the proposed agent 
definition. The Department notes that the definitions set forth in 
Sec.  651.10 govern the Wagner-Peyser ES and do not govern any 
obligations under the MSPA. Whether an agent meets the definition of a 
farm labor contractor under the MSPA is a fact-specific inquiry 
governed by the MSPA and its implementing regulations.
    Relatedly, regarding opposition from m[aacute]sLabor, McCorkle 
Nurseries, Inc., and USAFL and Hall Global regarding use of the word 
recruitment in the proposed agent definition, the Department declines 
to remove it. The Department acknowledges commenters' concerns but 
reiterates that these definitions are specific to 20 CFR part 651 and 
do not confer any obligations under MSPA. As discussed in the NPRM, the 
proposed definition of agent is meant to encompass those entities that 
act on behalf of employers that utilize the ES clearance system, 
including, for example, by controlling aspects of employers' 
recruitment activities relating to clearance orders. The inquiry of 
whether an entity is engaged in activities that bring them within the 
definition of farm labor contractor under the MSPA is fact-specific and 
must be addressed on a case-by-case basis under that law and its 
implementing regulations.
    Finally, the Department disagrees with USAFL and Hall Global's 
concern that the proposed definition conflates the roles of attorneys 
and agents and may impede on an attorney's duty to provide zealous 
representation to their clients. An attorney who engages the ES system 
on behalf of an employer must do so in conformance with the 
requirements of the ES regulations and must advise their employer-
client to use the ES system in conformance with the regulations. 
Zealous representation within the bounds of law is a fundamental 
component of the attorney-client relationship, which the Department 
presumes includes advising clients on compliance with all applicable 
laws and regulations. By including agents here, the Department does not 
intend to hold agents, including attorneys, accountable for the acts of 
the employers they represent. Rather, the inclusion of the definition 
of agent, and the inclusion of attorneys in that definition, recognizes 
that attorneys can and do serve as agents in interactions with the ES 
system, and is meant to hold them accountable for compliance and their 
own misconduct that meets the bases described at Sec.  658.501, 
independent of any violation by the employers they represent (87 FR 
61660, 61662 (Nov. 14, 2022)). The Department reiterates that agents 
who engage the ES clearance system should be subject to 
discontinuation, if appropriate, and that inclusion of attorneys is 
necessary to align the definition of agent here with the definition of 
agent in Sec.  655.103. For these reasons and the reasons set forth in 
the NPRM, the Department adopts the definition for agent, as proposed.
2. Criteria and Non-Criteria Clearance Orders
    The Department proposed to add definitions to Sec.  651.10 for 
criteria clearance order and non-criteria clearance order because they 
are terms that are used in the ES regulations but were previously 
undefined. The Department proposed that the term criteria clearance 
order means a clearance order that is attached to an application for 
foreign temporary agricultural workers pursuant to part 655, subpart B, 
of this chapter; and the term non-criteria clearance order means a 
clearance order that is not attached to an application for foreign 
temporary agricultural workers pursuant to part 655, subpart B, of this 
chapter. By defining these terms, it will be clearer which orders must 
comply with both the requirements at part 653, subpart F, and part 655, 
subpart B, and which orders do not have to comply with the requirements 
at part 655, subpart B.
    The Department received a comment from Farmworker Justice in 
support of the proposed definitions. Farmworker Justice agreed that 
clarification is needed regarding which provisions in part 653, subpart 
F, and part 655, subpart B, apply to the various agricultural clearance 
orders filed with the Department and with the SWAs. They suggested that 
the Department use this rulemaking to further clarify and unequivocally 
state that the normal and accepted standard articulated in Sec.  
655.122(b) applies only to job qualifications in criteria clearance 
orders, and that all other working conditions be assessed under 
prevailing practices as articulated in Sec.  653.501(c)(2)(i). 
Farmworker Justice stated that U.S. workers have seen their working 
conditions consistently eroded in recent years because SWAs have 
evaluated the working conditions set out in criteria clearance orders 
under the normal and accepted standard in Sec.  655.122(b) rather than 
the more rigorous prevailing practice standard required under Sec.  
653.501(c)(2)(i). Additionally, m[aacute]sLabor stated that it had no 
substantive objections to the proposed definitions.
    The Department appreciates these comments. The Department believes 
the

[[Page 33907]]

definition for criteria clearance order makes clear that such orders 
must comply with the requirements at part 655, subpart B (which in 
Sec.  655.121 include the requirements at part 653, subpart F and at 
Sec.  655.122). Moreover, the definition for non-criteria clearance 
order makes clear that such orders do not have to comply with the 
requirements at part 655, subpart B. The Department believes these 
definitions sufficiently distinguish between criteria and non-criteria 
clearance orders. For these reasons and the reasons set forth in the 
NPRM, the Department adopts the definitions, as proposed.
    As to the request for clarification regarding application of the 
normal and accepted standard in Sec.  655.122(b) and the prevailing 
practices standard in Sec.  653.501(c)(2)(i) to criteria clearance 
orders, this request is beyond the scope of these changes, which are 
merely to adopt definitions for terms currently in use in the ES 
regulations, found at parts 651, 652, 653, 654, and 658. For 
information on the normal and accepted standard and the prevailing 
practices standard as they apply to criteria clearance orders, see, for 
example, Sec. Sec.  655.103 and 655.122, the discussion of Sec.  
655.122(l)(3) below, and Segura Portugal v. Louisiana Workforce 
Commission, OALJ No. 2022-WPA-00001 (OALJ Dec. 5, 2023) (holding that 
work rules in employer's criteria clearance order were not included 
within the meaning of prevailing working conditions under Sec.  
653.501(c)(2)(i)); see also ETA Handbook 398 (53 FR 22076, 22095-22097 
(June 13, 1988)).
3. Discontinuation of Services
    The Department proposed to add to Sec.  651.10 a definition for 
discontinuation of services because it is referenced throughout the ES 
regulations and is the subject of part 658, subpart F, but was 
previously undefined. Under the proposed discontinuation of services 
definition, the scope of services to which discontinuation applies 
includes any Wagner-Peyser Act ES service provided by the ES to 
employers pursuant to parts 652 and 653, and the scope of individuals 
and entities to whom discontinuation applies includes employers, as 
defined in part 651, and agents, farm labor contractors, joint 
employers, and successors in interest, as proposed to be defined in 
part 651.
    The Department received supportive and opposing comments to the 
proposed definition. Farmworker Justice supported the proposed 
definition, stating that it would provide clarity to both SWAs and 
employers regarding which services are discontinued, and which entities 
may be subject to the discontinuation of services described in 658, 
subpart F. Specifically, Farmworker Justice stated that the definition 
is broad in scope, which is crucial for SWAs to take meaningful 
enforcement action against entities that act or have acted on behalf of 
problem employers, or are simply a reconstitution of a prior bad actor 
under a new name. Farmworker Justice also stated that the proposed 
definition would clarify that discontinuation of services impacts all 
ES services in parts 652 and 653, including ES services in another 
State, thereby preventing bad actors from continuing to receive 
services, absent reinstatement, elsewhere or for non-criteria orders. 
Farmworker Justice recommended that the Department consider adding 
language to the definition to clarify that SWAs cannot process H-2A 
applications for employers whose services are discontinued.
    M[aacute]sLabor stated they had no substantive objection to the 
proposed definition of discontinuation of services. However, USAFL and 
Hall Global stated that discontinuation of services should only apply 
to services not necessary for participation in the H-2A program. Wafla, 
an agricultural employer membership organization, expressed concerns 
that the proposed definition would include entities other than the 
employer. The organization contended that attorneys, agents, 
associations, joint employers, farm labor contractors, and any other 
entity that is not the principal employer to H-2A workers and that was 
not involved with a potential rule violation should not be subject to 
discontinuation of services. Wafla was also concerned that 
discontinuation of services to an agent would negatively affect the 
agent's other employer-clients, stating that if a SWA or DOL finds a 
problem with an agent, all of that agent's H-2 clients may be debarred 
from the program. Separately, the National Cotton Ginners Association 
and Texas Cotton Ginners' Association commented that though an employer 
may use an agent for recruitment services with the contracted 
stipulations that the agent/recruiter must follow all applicable labor 
rules, the employer has no ability to verify actions taken by these 
agents. They stated that the proposed rule allows SWAs to discontinue 
services to an employer due to potential violations that may be outside 
of the employer's control.
    The Department agrees that broadening the scope of entities subject 
to discontinuation is crucial to ensuring meaningful application of the 
discontinuation of services provisions at part 658, subpart F. However, 
the Department clarifies that the proposed changes are meant to hold 
agents, farm labor contractors, joint employers, and successors in 
interest accountable for their own compliance with ES regulations. They 
are not meant to hold entities such as agents, attorneys, or farm labor 
contractors accountable for the independent actions of the employers 
they represent. SWAs should not initiate a discontinuation action 
against an entity that has not met one or more of the bases for 
discontinuation under Sec.  658.501(a). For example, if an employer is 
subject to discontinuation of services because it refused to cooperate 
in field checks conducted pursuant to Sec.  653.503, as described at 
Sec.  658.501(a)(7), but the employer's agent was not involved in the 
refusal, the SWA may not initiate or apply discontinuation of services 
to the agent. Conversely, if an agent is subject to discontinuation of 
services because it was found by a final determination by an 
appropriate enforcement agency to have violated an employment-related 
law and notification of this final determination has been provided to 
the Department or the SWA by that enforcement agency, as described at 
Sec.  658.501(a)(4), but the enforcement agency did not also find that 
the employer engaged in violations, then the SWA would not have a basis 
to discontinue services to the employer under Sec.  658.501(a)(4). 
However, it is possible that there may be cases where it is appropriate 
and necessary to discontinue services to an employer and its agent. For 
example, if an agent and employer both knowingly misrepresent the 
number of workers needed for a clearance order or both knowingly cause 
workers to work at locations or to complete duties that are not 
described on the approved clearance order, it would be appropriate to 
initiate discontinuation against the employer as well as the agent. The 
proposed definition allows SWAs to take appropriate action against 
noncompliant entities while allowing those entities who are not 
responsible for the action or behavior giving rise to the 
discontinuation action to continue receiving ES services; and the 
ability of the SWAs to pursue discontinuation against multiple types of 
entities aligns with the scope of entities subject to the debarment 
procedures in part 655, subpart B. The Department also notes that there 
may be cases where it is appropriate and necessary to discontinue 
services to more than one entity regarding the same or similar 
violation (for example, to the employer,

[[Page 33908]]

agent, farm labor contractor, joint employer, or successor in 
interest). Finally, the Department notes that a SWA's initiation of the 
discontinuation procedures against entities such as agents/attorneys 
would not necessarily impact the processing and clearance of an 
employer's pending job order, as in most cases the SWA will continue to 
provide services until the discontinuation action becomes final, 
including the disposition of any appeals filed by such agents/
attorneys.
    As to the commenter recommendation that discontinuation of services 
should only apply to services not necessary for participation in the H-
2A program, the Department disagrees. Discontinuation has historically 
applied to ES services available under part 653, which includes access 
to the ARS. Prospective H-2A employers must use the ARS to recruit U.S. 
workers as a condition of receiving a temporary agricultural labor 
certification, and the H-2A regulations provide that employers and 
entities who file applications for temporary agricultural labor 
certification under 20 CFR part 655, subpart B must comply with the ARS 
requirements at part 653, subpart F. See, e.g., Sec.  655.121 and 
Sec. Sec.  655.131-132. The Department, therefore, declines to adopt 
the recommendation.
    Relatedly, the Department has considered the recommendation to add 
clarifying language that SWAs cannot process H-2A applications for 
employers with discontinued services. The Department declines to do so 
because it believes that the definition already includes effective 
language explaining that entities with discontinued services cannot 
participate in or receive any Wagner-Peyser Act ES services provided by 
the ES to employers pursuant to parts 652 and 653. Therefore, SWAs must 
reject both criteria and non-criteria job orders submitted by employers 
with discontinued services for either local recruitment or intrastate 
clearance, which would therefore preclude such employers from 
participating in the H-2A program.
    The Department believes that the proposed changes will allow SWAs 
to better protect workers and that the regulations are sufficiently 
clear that discontinuation of services must only be applied to entities 
that meet the bases described at part 658, subpart F. Therefore, the 
Department adopts the definition for discontinuation of services, as 
proposed.
4. Employment-Related Laws
    The Department proposed to revise the definition of employment-
related laws to clarify that the term means those laws and implementing 
regulations that relate to the employment relationship, such as those 
enforced by the Department's WHD, Occupational Safety and Health 
Administration (OSHA), or by other Federal, State, or local agencies. 
The pre-existing definition of this term did not include implementing 
regulations. Revising the definition clarifies its meaning and scope 
for ES staff who observe or process complaints relating to violations 
of employment-related laws, such as outreach workers, complaint system 
representatives, and those who conduct field checks.
    The Department received supportive comments from the Washington 
State Employment Security Department and Washington State Department of 
Labor and Industries (Washington State) and Farmworker Justice. 
Washington State agreed that the new definition clarifies the meaning 
and scope of employment-related laws for SWA staff. Farmworker Justice 
stated that the proposed revision would help ES staff and characterized 
it as a common-sense clarification, not an actual change, to the scope 
of violations that require ES staff to proceed with discontinuation. 
Farmworker Justice further stated that a broad reading of the laws 
covered and agencies involved is necessary to accomplish meaningful 
enforcement, and that farmworker protections would be gutted if the 
associated implementing regulations were not also enforced.
    M[aacute]sLabor stated it had no substantive objection to the 
proposed definition of employment-related laws. USAFL and Hall Global 
stated that the Department should clarify that employment-related laws 
apply only when their jurisdictional requirements and any other 
substantive limitations prescribed by statute or common law have been 
met. They also stated that the Department should clarify that the 
agency with primary jurisdiction over the relevant laws and 
implementing regulations retains primary jurisdiction. They expressed 
concern that SWAs might misinterpret laws or implementing regulations 
and sought clarification that the agency with jurisdiction over the 
implementing regulations would be the authority on how to apply those 
regulations, not the SWA.
    The Department appreciates the comments and agrees that the 
proposed definition provides needed clarity for SWAs and meaningfully 
improves worker protections. The Department notes that while SWAs may 
assess an entity's compliance with employment-related laws in carrying 
out its obligations under the ES regulations, for example by reviewing 
clearance orders to ensure their terms and conditions comply with 
employment-related laws, or by observing and referring apparent 
violations of employment-related laws to an appropriate enforcement 
agency, SWAs are not enforcement agents for employment-related laws 
(unless otherwise authorized). See 81 FR 56072, 56282 (Aug. 19, 2016). 
If the employment-related law at issue is not clear or otherwise does 
not allow the SWA to determine if there is a violation of the law, the 
SWA must consult with the relevant enforcement agency to ensure a 
consistent interpretation. The Department, therefore, agrees that the 
agency with jurisdiction over the applicable laws and implementing 
regulations would retain jurisdiction and be the final authority on how 
to apply those regulations, not the SWA. Regarding commenter concern 
that SWAs might misinterpret laws or implementing regulations, the 
Department notes that the Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for Federal Awards, at 2 CFR 
200.303(a) and (b), broadly require SWAs to comply with Federal 
statutes, regulations, and the terms and conditions of their Federal 
award, and require that each SWA establish and maintain effective 
internal controls over its ES program, including controls that provide 
reasonable assurance that the SWA is managing the ES program in 
compliance with Federal statutes, regulations, and the terms and 
conditions of the applicable Federal award. Therefore, SWAs must have 
internal controls (for example policies and procedures) to ensure that 
their assessments and determinations regarding an entity's compliance 
with employment-related laws are correct, and if not the Department can 
take corrective action. For these reasons, the Department finalizes the 
definition of employment-related laws with the two changes discussed 
below.
    Finally, to provide increased clarity, the Department is including 
in the final definition the terms ``rules'' and ``standards'' to make 
clear that employment-related laws include not only ``regulations,'' 
but also any other administrative requirement carrying the force of 
law, that relates to the employment relationship. For example, the 
Occupational Safety and Health Act of 1970 authorizes OSHA to 
promulgate occupational safety and health standards pursuant to the 
requirements of sec. 6 of the Act, 29 U.S.C. 655. These standards, 
which relate to the

[[Page 33909]]

employment relationship and are enforced by OSHA, are properly within 
the scope of employment-related laws. The Department is including this 
additional language in the definition to minimize any risk of confusion 
that could be caused by the use of ``regulations'' alone and to clarify 
rather than expand the scope of this definition.
5. Farm Labor Contractor
    The Department proposed to add to Sec.  651.10 a definition for 
farm labor contractor as any person or entity, excluding agricultural 
employers, agricultural associations, or employees of agricultural 
employers or agricultural associations, who, for any money or other 
valuable consideration paid or promised to be paid, recruits, solicits, 
hires, employs, furnishes, or transports any MSFW. The Department 
proposed to add this definition because the term is used throughout the 
ES regulations, most notably in part 653, subpart F, which recognizes 
that farm labor contractors use the ES clearance system, but it has 
never been defined. Adding this proposed definition also clarifies the 
entities subject to discontinuation of services as a result of the 
proposed changes to part 658, subpart F. As with the term agent, 
because many farm labor contractors that use the ES clearance system 
also seek temporary agricultural labor certifications from OFLC as H-
2ALCs under part 655, subpart B, the Department proposed a definition 
of farm labor contractor that both aligns with the definition of H-2A 
labor contractor at 20 CFR 655.103 and with the definitions under MSPA 
of farm labor contractor and farm labor contracting activity at 29 
U.S.C. 1802 and 29 CFR 500.20 to maintain consistency between 
Departmental program areas.
    M[aacute]sLabor stated that it had no substantive objections to the 
proposed definition. Farmworker Justice expressed concern that because 
the proposed definition is drawn from the definitions of farm labor 
contractor and farm labor contracting activity under MSPA, and MSPA 
does not include H-2A workers in its definition for MSFWs at 29 U.S.C. 
1802(7), ES staff may mistakenly assume that H-2A workers would be 
excluded from the NPRM's definition of farm labor contractor due to its 
reference to MSFWs. Farmworker Justice stated that this is problematic 
because farm labor contractors who employ or furnish exclusively H-2A 
workers should also be subject to discontinuation under part 658 in 
appropriate circumstances. Farmworker Justice suggested that the 
Department clarify that the MSFW definition at Sec.  651.10, which does 
not specifically exclude H-2A workers, is the applicable reference in 
the new farm labor contractor definition. Farmworker Justice stated 
that this would be consistent with longstanding Departmental 
interpretation that has included foreign workers legally authorized to 
work in the United States in the Wagner-Peyser Act definition of 
migrant farmworkers.
    The Department clarifies that the reference to MSFWs in its 
proposed definition means MSFW as defined in Sec.  651.10, and that 
definition does not exclude H-2A workers. Under Sec.  651.10, the term 
farmworker, as it appears in the term MSFW (migrant or seasonal 
farmworker), means an individual employed in farmwork; and under Sec.  
651.10, the term farmwork is defined to also include any service or 
activity covered under the definition of agricultural labor or services 
at Sec.  655.103(c).The Department notes that it added the terms 
farmwork and farmworker to Sec.  651.10 in 2016 to align them with OFLC 
and WHD definitions and to clarify and expand the types of work 
covered. See 80 FR 20690, 20800 (Apr. 16, 2015). The term farmworker at 
Sec.  651.10 replaced the prior term agricultural worker, which the 
Department defined in 1980 to include certain farmworkers, whether 
citizens or not, who were legally allowed to work in the United States. 
See 45 FR 39454, 39457 (June 10, 1980). The Department did not include 
this work authorization language in its 2016 farmworker definition--not 
to make any substantive change--but to align the definition with other 
programs, and because it determined it unnecessary to mention 
immigration status for only a subset of programs. See 81 FR 56072, 
56256 (Aug. 19, 2016). Accordingly, given the Department's longstanding 
interpretation, the term MSFW under Sec.  651.10 does not exclude H-2A 
workers, and the proposed farm labor contractor definition here 
encompasses those contractors who interact with the ES clearance system 
for purposes of the H-2A program. The Department further notes that 
even where farm labor contractors only employ or furnish H-2A workers, 
they must first engage the ARS for recruitment of U.S. workers as a 
condition of receiving a temporary agricultural labor certification. 
Because entities who engage the ES system for temporary agricultural 
labor certification purposes are subject to ARS requirements (see Sec.  
655.121), the Department believes they should be subject to 
discontinuation of ES services (including the ARS), if applicable. For 
these reasons, the Department adopts the definition for farm labor 
contractor, as proposed.
6. Joint Employer
    The Department recognizes that joint employment relationships are 
common in agriculture, and that joint employers who submit clearance 
orders to the ARS are required to comply with the requirements in part 
653, subpart F, including when filing a joint application for temporary 
agricultural labor certification under 20 CFR part 655, subpart B. See 
Sec.  655.131. The Department, therefore, proposed to add a definition 
for joint employer to Sec.  651.10 to clarify how the concept will be 
applied in the ES system and to clarify the entities subject to 
discontinuation of services as a result of the proposed changes to part 
658, subpart F. The proposed definition is also intended to ensure 
consistency with recent changes to the Department's H-2A regulation, 
see 87 FR at 61793-61794, and as with the definitions of agent and farm 
labor contractor, the proposed definition is modeled on the definition 
of joint employment at Sec.  655.103 because of the connection between 
the ES system and H-2A labor certification program.
    Farmworker Justice supported inclusion of the joint employer 
definition, stating that the proposed definition makes clear that, when 
a fixed-site employer or H-2ALC unlawfully permits another, non-
petitioning employer not listed on the clearance order to employ an H-
2A worker, or otherwise permits an H-2A worker to provide services to 
such a non-petitioning employer, both the petitioning employer and the 
non-petitioning employer jointly employ the worker. M[aacute]sLabor 
also stated that it had no substantive objections to the proposed 
definition.
    The Department appreciates commenter support and adopts the 
definition for joint employer, as proposed.
7. Successor in Interest
    The Department proposed to add to Sec.  651.10 a definition for 
successor in interest that describes the inexhaustive factors that SWAs 
should use to determine if an entity is a successor in interest to 
another entity, and described successors in interest as any entity that 
is controlling and carrying on the business of a previous employer, 
agent, or farm labor contractor, regardless of whether such successor 
in interest has succeeded to all the rights and liabilities of the 
predecessor entity. The proposed definition allows SWAs and

[[Page 33910]]

stakeholders to better understand which entities may be subject to 
discontinuation as a result of the proposed changes to part 658, 
subpart F. To maintain consistency between the regulations governing 
the ES system and the regulations governing the H-2A labor 
certification program, the Department proposed to adapt the definition 
of successor in interest as proposed in Sec.  655.104.
    Washington State supported the proposed definition, stating that it 
will better position the SWA to identify such entities and determine if 
an entity so identified is subject to prior debarment orders when 
evaluating criteria clearance orders (Form ETA-790/790A). Farmworker 
Justice also agreed with inclusion of the definition and suggested that 
the Department devote resources to training SWAs on how to analyze the 
successor in interest factors to ensure that employers who have had 
services discontinued are not evading sanction with a simple rebrand. 
The Farm Labor Organizing Committee of the AFL-CIO (FLOC) endorsed the 
definition, stating that the proposed changes in Sec.  651.10 and Sec.  
655.104 clarify the consequences to H-2A employers and labor 
contractors who try to avoid their responsibilities for violations of 
the law by transferring their operations to a new person or entity 
(usually an associate or family member), while all the time retaining 
control. In instances where farm labor contractors propose to furnish 
H-2A labor to farms as a replacement for farm labor contractors that 
have since been sanctioned or debarred or both, FLOC suggested that 
there be a presumption that the new farm labor contractor is a 
successor in interest of the discontinued predecessor; and the 
prospective new farm labor contractor should be required to prove that 
they are simply using the equipment and machinery of the previous labor 
contractor.
    M[aacute]sLabor, McCorkle Nurseries, Inc., and an individual asked 
that the Department reconsider the scope of the definition, 
particularly the language that allows for construing entities as 
successors in interest regardless of whether they have succeeded to all 
the rights and liabilities of the predecessor entity. M[aacute]sLabor 
further explained that this language may prove problematic as it 
relates to asset purchase arrangements. Specifically, because an 
acquiring entity may be construed as a successor in interest regardless 
of whether it has succeeded to the rights and liabilities of the 
predecessor, and because the factors used to determine successorship 
include factors relating to the physical assets or core operations of 
the business itself (for example, use of the same facilities, 
similarity in machinery, equipment, and production methods, and 
similarity of products and services), m[aacute]sLabor stated that the 
proposed definition opens the door for asset purchases alone to trigger 
successor in interest obligations and liability. M[aacute]sLabor 
provided an example, where Farm A is debarred from the H-2A program and 
subsequently sells its farming property and all the fixtures, 
buildings, and equipment on its premises to Farm B. M[aacute]sLabor 
said it is conceivable that Farm B will be considered a successor in 
interest to Farm A simply by virtue of taking over the farming 
operation at the acquired property, and that this would be the case 
even if Farm B is a model employer that had nothing to do with Farm A's 
violations. M[aacute]sLabor stated this possibility would discourage 
potential acquisitions by good, compliant employers.
    The Department appreciates commenter support for the successor in 
interest definition. The Department agrees that the new definition will 
help SWAs identify entities that reincorporate themselves into another 
entity with the same interests or operations so as to avoid 
discontinuation of ES services. Additionally, the Department agrees 
with providing SWAs training on how to analyze the successor in 
interest factors so as to avoid a scenario where the sale of property, 
fixtures, and equipment alone triggers joint employment concerns. The 
Department will issue further guidance on application of the new 
successor in interest definition. The Department declines to adopt any 
presumption that a new farm labor contractor or entity is a successor 
in interest of a discontinued predecessor. Successor in interest 
inquiries are factor driven and case specific, and the Department 
believes that the factors outlined in the new definition are sufficient 
to guide the inquiry. The discussion of the parallel provisions on 
successors in interest at Sec.  655.104 further address commenters' 
concerns and provides additional explanation of the Department's 
reasons for adopting these factors, as well as the language on 
successor liability addressed below.
    The Department has decided to relocate some of the proposed 
language in the definition describing the scope of liability of 
successors in interest for ES violations of predecessor entities, from 
Sec.  651.10 to Sec.  658.500. Relocating this language places the 
focus of the definition squarely on the factors that SWAs will consider 
in order to determine whether an entity constitutes a successor in 
interest. The Department believes that the language on the liability of 
successors is more appropriate to include in part 658, subpart F, which 
similarly describes the situations in which entities are subject to 
discontinuation actions by SWAs. The discussion of Sec.  658.500 below 
addresses the comments received on this language, as well as the 
Department's decision not to finalize the proposed introductory 
language of the successor in interest definition (``A successor in 
interest includes any entity that is controlling and carrying on the 
business of a previous employer, agent, or farm labor contractor . . 
.''). The Department adopts the remaining language in the successor in 
interest definition, as proposed.
8. Week
    The Department proposed to add to Sec.  651.10 a definition for 
week to clarify that a week, as used in parts 652, 653, 654, and 658, 
means 7 consecutive calendar days. The proposed definition allows for 
SWAs and employers to calculate time periods used in the ES regulations 
uniformly, including for wage calculations and other time-related 
procedures.
    M[aacute]sLabor commented that they had no substantive objections 
to the proposed definition. The Department did not receive any other 
comments on this proposed change.
    The Department appreciates the comment indicating that the H-2A 
employer agent organization did not object to the proposed definition. 
The Department adopts the definition of week, as proposed.

C. 20 CFR Part 653--Services of the Wagner-Peyser Act Employment 
Service System

    Part 653 sets forth the principal regulations of the ES concerning 
the provision of services for MSFWs consistent with the requirement 
that all services of the workforce development system be available to 
all job seekers in an equitable fashion and in a way ``that meets their 
unique needs.'' 20 CFR 653.100(a). Part 653 also describes requirements 
for participation in the ARS. Subpart F provides the requirements that 
SWAs and employers must follow when employers seek access to the ARS by 
submitting clearance orders for temporary or seasonal farmwork. Section 
653.501 provides the responsibilities of ES Offices and SWAs when they 
review clearance orders submitted by employers, and the process by 
which

[[Page 33911]]

they place approved clearance orders into intra- and interstate 
clearance.
1. Section 653.501(b), ES Office Responsibilities
    The Department proposed to add a fourth paragraph to Sec.  
653.501(b), at Sec.  653.501(b)(4), which would require ES staff to 
consult the OFLC and WHD H-2A and H-2B debarment lists, and an OWI 
discontinuation of services list, before placing a job order into 
intrastate or interstate clearance. The Department further proposed a 
new paragraph (b)(4)(i), which states that SWAs must initiate 
discontinuation of ES services if the employer seeking placement of a 
clearance order is on a debarment list, and new paragraph (b)(4)(ii), 
which states that SWAs must not approve clearance orders from employers 
whose ES services have been discontinued by any State. Finally, the 
Department proposed a new paragraph (b)(4)(iii) to make clear that the 
provisions in paragraph (b)(4) apply to all entities subject to 
discontinuation under part 658, subpart F, and not just to employers as 
defined in Sec.  651.10. The Department's response to public comments 
received on Sec.  653.501(b) is set forth below. For the reasons 
discussed in the NPRM and below, the Department adopts Sec.  
653.501(b), with edits.
    Several organizations, including United Farm Workers (UFW) (joined 
by 59 signatories, including advocacy organizations and legal services 
providers), the UFW Foundation and UFW (hereinafter, the UFW 
Foundation), the North Carolina Justice Center, United Migrant 
Opportunity Service (UMOS), Pineros y Campesinos Unidos del Noroeste 
(PCUN), Central Coast Alliance United for a Sustainable Economy 
(CAUSE), and Green America expressed uniform support for requiring 
initiation of discontinuation procedures where an employer is on an H-
2A or H-2B debarment list and for prohibiting clearance orders from 
employers who have been discontinued in another State. In contrast, 
several trade associations, including the Western Growers Trade 
Association, wafla, AmericanHort, Michigan Farm Bureau, Florida 
Strawberry Growers Association (FSGA), National Council of Farmer 
Cooperatives (NCFC), and the U.S. Apple Association (USApple), along 
with Willoway Plant Nursery, opposed or expressed concerns regarding 
the proposed changes, stating that they do not provide sufficient 
safeguards or an appeal process, particularly where a SWA mistakes one 
employer for another when consulting the debarment and discontinuation 
lists. These commenters cautioned that even minor delays in processing 
a clearance order could result in irreparable harm to an employer, such 
as diminished crop yield and monetary loss. In circumstances where a 
SWA does not process a clearance order for an employer because that 
employer has the same or similar business name as another employer on 
the debarment or discontinuation lists, commenters stated that the 
Department must have safeguards in place for employers to demonstrate 
that they are not, in fact, the employer named on the lists.
    Relatedly, Washington State requested that the Department ensure 
that the debarment and discontinuation lists are accurate, updated, and 
easily accessible. Washington State suggested that OFLC add an 
eligibility checker tool to its Foreign Labor Application Gateway 
system where employer names are searchable, the debarment and 
discontinuation lists are updated automatically, and the system alerts 
SWAs if employers are potentially ineligible due to debarment. They 
further suggested that the Department create a standard letter 
notifying applicants of the impact of debarment and making clear that 
SWAs are bound to deny clearance orders on this basis.
    Finally, wafla opposed proposed new paragraph (b)(4)(iii), which 
clarifies that proposed Sec.  653.501(b) applies to all entities 
subject to discontinuation, including agents, farm labor contractors, 
joint employers, and successors in interest as adopted in Sec.  651.10 
and Sec.  658.500(b), and not just employers. Wafla stated that only 
principals should be subject to discontinuation, that moving beyond the 
employer-employee relationship penalizes third parties that may have 
had no fault in causing discontinuation, and that unrelated clients of 
third parties may unjustifiably experience the effects of 
discontinuation as a result.
    The Department appreciates the views and recommendations of 
commenters that supported, opposed, and raised concerns with the 
proposed changes to Sec.  653.501(b). Regarding commenter requests for 
adequate safeguards to ensure against SWAs mistaking one employer for 
another when consulting the debarment and discontinuation lists, the 
Department will issue guidance on SWA consultation of the lists, 
including guidance on identifying employers/entities and successors in 
interest to employers/entities who are on the lists. Regarding the due 
process concerns raised by commenters, as discussed below, the 
Department believes that the clearance order review processes at Sec.  
653.501 and Sec.  655.121, the discontinuation of services procedures 
at part 658, subpart F, and the procedures for filing a complaint at 
part 658, subpart E, provide adequate process and safeguard against 
unwarranted or harmful delays in processing clearance orders.
    First, under proposed paragraph (b)(4)(i), a SWA must initiate 
discontinuation of ES services pursuant to Sec.  658.501(a)(4) if an 
employer seeking placement of a clearance order in the ARS is on the H-
2A or H-2B debarment list. The employer may contest the SWA's 
notification of intent to discontinue services in accordance with 
proposed Sec.  658.502(a)(4). In the specific circumstance raised by 
some commenters (e.g., Michigan Farm Bureau, FSGA, AmericanHort), where 
an employer with the same or similar name incorrectly appears on a 
debarment list, the employer may contest the proposed discontinuation 
by submitting evidence that they are not, in fact, the employer listed 
on the applicable debarment list. During this time, the SWA must 
continue to process the employer's clearance orders, without delay, as 
no final determination on discontinuation has yet been issued and taken 
effect. Where the SWA ultimately issues a final determination to 
discontinue services under proposed Sec.  658.503(a), if an employer 
appeals by timely requesting a hearing, the request stays the 
discontinuation pending the outcome of the hearing. The SWA must 
continue to process the employer's clearance orders, without delay, 
while the matter is on appeal.
    Second, under paragraph (b)(4)(ii), SWAs must not approve clearance 
orders from employers whose ES services have been discontinued by any 
State. In the specific circumstance raised by commenters, where an 
employer believes they have been incorrectly identified as having been 
placed on the discontinuation of services list, the employer and the 
SWA may resolve any such discrepancy in the clearance order review 
processes described in Sec.  655.121 (for criteria clearance orders) 
and Sec.  653.501 (for non-criteria clearance orders). For criteria 
clearance orders, that process includes initial review, a deficiency 
notice, where applicable, an opportunity for an employer to respond, a 
final determination from the SWA, and allowance for employers to file 
an emergency Application for Temporary Employment Certification where 
they disagree with the SWA's final determination (see Sec. Sec.  
655.160, 655.164, and 655.171). For non-criteria clearance orders, 
under Sec.  653.501, SWAs must review and approve clearance orders

[[Page 33912]]

within 10 business days of receipt of the order. Within that timeframe, 
SWAs should attempt to resolve any discrepancy regarding an employer's 
placement on the discontinuation of services list. For example, where 
Employer A Corp. files a non-criteria clearance order and a similarly 
named employer (e.g., Employer A. Inc.) is on the discontinuation of 
services list, the SWA should review and consider relevant information, 
such as Federal Employer Identification Numbers (FEINs), Employer A, 
Inc.'s final determination on discontinuation, or any information 
provided by Employer A. Corp. indicating that they are not the named 
employer on the list, prior to approving or denying the clearance 
order. Where the SWA denies a non-criteria clearance order under Sec.  
653.501 because the employer is named on the discontinuation of 
services list, the employer may timely appeal the discontinuation or 
seek reinstatement of services under Sec.  658.504. As discussed above, 
the Department will issue guidance on use of the discontinuation of 
services list when processing clearance orders.
    The OWI discontinuation of services list will be publicly available 
online and regularly updated with information from States so employers 
can check the list before they submit their clearance order. In 
addition, the Department will further revise Sec.  653.501(b)(4)(ii) to 
specify that employers may submit requests to the OWI Administrator to 
determine whether they are on the OWI discontinuation of services list. 
If the OWI Administrator indicates that the employer is not on the 
discontinuation of services list, then the SWA must approve the 
clearance order if all other requirements have been met.
    Finally, as to consultation of either the debarment lists under 
proposed paragraph (b)(4)(i) or the discontinuation list under proposed 
paragraph (b)(4)(ii), the Department notes that where an employer 
believes a SWA has violated proposed paragraph (b)(4) when consulting 
the lists, the employer may file a complaint against the SWA under part 
658, subpart E. Complaints against SWAs regarding ES regulations are 
processed pursuant to Sec.  658.411(d). In sum, in all instances of 
consultation of the debarment and discontinuation lists, the Department 
believes that its clearance order review processes at Sec.  653.501 and 
Sec.  655.121, and its procedures at part 658, subparts E and F, 
provide sufficient safeguards against unwarranted and harmful delays in 
processing clearance orders, even where an employer believes they have 
been incorrectly placed, or incorrectly identified as having been 
placed, on the lists.
    Regarding Washington State's request that the Department ensure 
that debarment and discontinuation lists are accurate, updated, and 
easily accessible, the Department appreciates the request and suggested 
methods for doing so. The Department notes that it has proposed a 10-
working-day requirement in Sec.  658.503 and Sec.  658.504 for SWAs to 
notify OWI of any final, effective determination to discontinue ES 
services, and any determination to reinstate services. As discussed in 
the NPRM, the Department believes that these requirements will help 
facilitate prompt implementation and maintenance of the discontinuation 
of services list, and prompt access to ES services for employers who 
have been reinstated. The Department will issue guidance on maintenance 
and use of the discontinuation list. The Department updates the 
debarment list promptly upon finalizing debarment of an employer from 
the H-2A program. An up-to-date debarment list is publicly available on 
the OFLC website.
    The Department appreciates Washington State's suggestion that the 
Department create a standard letter notifying applicants of the impact 
of debarment and making clear that SWAs are bound to deny clearance 
orders on this basis. Depending on the violation at issue, debarment is 
undertaken by either OFLC or WHD, and the relevant debarring agency is 
responsible for communicating the consequences of such action to the 
entity it seeks to debar and will review its communication as it 
implements this final rule. The Department reiterates that under 
proposed Sec.  501(b)(4)(ii), SWAs are not bound to deny clearance 
orders to employers who are debarred. Rather, SWAs are required to 
initiate discontinuation of services to employers who are on the 
Department's debarment lists. Only where the discontinuation of 
services has been finalized must the SWA deny an employer's clearance 
order.
    Finally, regarding wafla's opposition to proposed new paragraph 
(b)(4)(iii), the Department disagrees that discontinuation should apply 
only to principals. As explained more fully below in Section V.D, to 
better protect workers, the Department believes that all entities who 
engage in the ES clearance system, including agents, farm labor 
contractors, joint employers, and successors in interest, should be 
subject to possible discontinuation. Moreover, in clarifying and 
expanding the entities subject to discontinuation, the Department is 
aligning the ES regulations with existing H-2A regulations at part 655, 
subpart B, which already permit debarment of agents, farm labor 
contractors, joint employers, and successors in interest. Regarding 
wafla's concern about the possible effects of discontinuation on third 
parties and their clients, the Department believes any such effects are 
the same or similar as the effects of debarment on the same third 
parties in the existing H-2A context, and the Department did not 
receive comments and is not otherwise aware that there have been any 
unjustifiable effects to these entities under the debarment process.
2. Section 653.501(c), SWA Responsibilities
    Section 653.501(c)(3) lists the assurances that each clearance 
order must include before the SWA can place it into clearance. The 
Department proposed to revise Sec.  653.501(c) to require that, in the 
event the employer's date of need changes from the date the employer 
indicated on the clearance order, the employer must notify the SWA and 
all workers placed on the clearance order of the change at least 10 
business days before the original start date. The Department further 
proposed that employers that fail to comply with these notice 
requirements must provide housing and subsistence to all workers placed 
on the clearance order who are already traveling to the place of 
employment, without cost to the workers, until work commences, and must 
pay all workers placed on the clearance order the applicable wages for 
each day work is delayed for a period of up to 2 weeks, starting with 
the originally anticipated date of need. The proposed revisions are 
meant to improve notification requirements and wage protections for 
workers, as well as align with current Sec.  655.145(b) and proposed 
Sec.  655.175 protections in the H-2A program regulations. To 
accomplish these changes, the Department proposed several specific 
revisions, which are discussed in detail below.
    First, the Department proposed to revise Sec.  653.501(c)(3)(i) to 
remove the requirement that the SWA must make a record of the 
notification and attempt to inform referred workers of the change in 
the date of need. The current language improperly incorporates a SWA 
requirement into the employer assurances and, as discussed below, the 
Department proposed to shift these responsibilities to the employer. 
The Department also proposed to move language in paragraph (c)(3)(i) 
regarding the employer's notice to the order-holding office to Sec.  
653.501(c)(3)(iv),

[[Page 33913]]

which contains other instructions the employer must follow when giving 
notice of changed terms and conditions of employment. The Department 
did not receive comments on these specific changes and adopts them, as 
proposed, with additional changes (the substitution of ``placed'' for 
``referred'' and ``14 calendar days'' for ``week'') to conform to the 
other provisions of Sec.  653.501(c) discussed below.
    Second, the Department proposed to remove a redundancy in the first 
sentence of paragraph (c)(3)(iv), which currently states that the 
employer must expeditiously notify the order-holding office or SWA 
immediately. Because immediate notice is expeditious, the use of the 
word expeditiously is not necessary. The Department did not receive 
comments on this change and adopts it, as proposed.
    Third, in paragraph (c)(3)(iv), the Department proposed that the 
assurance on the clearance order require that when there is a change to 
the start date of need, the employer, rather than the order-holding 
office or SWA, notify the office or SWA and each worker placed on the 
order. The Department further proposed that notification be in writing 
(email and other forms of electronic written notification are 
acceptable) at least 10 business days prior to the original date of 
need, and that the employer must maintain records of the notification 
and the date notification was provided to the order-holding office or 
SWA and workers for 3 years. In paragraph (c)(5), the Department 
similarly proposed to specify that the employer must notify the office 
or SWA and each worker placed on the order, to align this paragraph 
with paragraph (c)(3)(iv).
    Wafla, Farmworker Justice, and Washington State supported shifting 
the notification requirement from the SWA to the employer. Wafla stated 
that given the variability of crops, crop maturation, weather, work 
schedules, or over-recruitment in agriculture, the employer knows the 
conditions on the ground and is capable and should be empowered to make 
this decision and provide the proposed notification. Farmworker Justice 
described it as a common-sense change where the employer, who has been 
in prior contact with the workers, either directly or through agents, 
is much more likely than the SWA to have the most current and effective 
contact information; and the employer, rather than the SWA, can more 
quickly reach workers, when time is critical, by going directly to the 
workers rather than roundabout through the SWA. Both Farmworker Justice 
and Washington State stated that the proposed change reduces the burden 
on SWAs, whose resources, as Farmworker Justice stated, are reportedly 
already stretched thin. On the other hand, an individual who operates a 
family farm opposed the employer notification requirement, stating that 
it would be very difficult and expensive to contact workers 
individually within 10 days of the start date.
    Several commenters raised concerns about employers providing 
effective notification to workers. M[aacute]sLabor, whose comments 
USAFL and Hall Global endorsed, stated that it would be unduly 
burdensome to require employers to notify workers in writing of a delay 
at least 10 business days before the original date of need because many 
U.S. applicants do not provide an email address and employers would 
need to notify workers by mail, which may not be feasible within 10 
business days. M[aacute]sLabor said the notification requirement 
creates perverse incentives in that workers who are aware of its 
limitations may intentionally avoid giving an employer a means for 
written notice in order to guarantee payment if there is a delay. USAFL 
and Hall Global additionally cautioned the Department against imposing 
unnecessary formal notice requirements. They raised concerns with 
information overload and stated that workers often receive notice and 
ignore it. They stated that formal notice is not needed where the 
employer is working with the workers to get them to its workplace, and 
that any information conveyed in that scenario is a natural part of 
working together. They requested that the Department look at each 
formal notice that it demands to make sure it is really justified and 
necessary.
    Farmworker Justice requested that the Department improve the notice 
requirements, stating that relying on employers to give notices raises 
concern as to whether meaningful and effective notice will actually be 
received. Farmworker Justice suggested that the Department require that 
notice be received, and that employers provide notices in languages 
spoken by workers. Farmworker Justice also requested employers be 
required to use the most reliable or speediest form of communication. 
For example, they suggested, if the employer has a worker's mailing 
address and phone number, then the employer should be required to send 
a text message or use a different available phone-based application 
that the worker may use. Farmworker Justice also noted that the 
Department did not propose to require employers to contact farm labor 
contractors or local recruiters if they are not able to contact workers 
directly to ensure workers get the message.
    In response to the m[aacute]sLabor comments, the Department notes 
that employers may provide written notice to each worker who has been 
placed on the clearance order using postal mail, email, or other forms 
of electronic written notification, including by text message. Because 
employers have a variety of options available to provide the notice, 
and must use electronic means when the worker provides an email address 
or their phone number, the Department thinks that it will be a 
minimally burdensome requirement on employers in the event they are 
required to provide notice. In response to Farmworker Justice's 
comments, the Department considered requiring proof that workers have 
actually received the employer's written notification; however, the 
Department believes that it will not be possible or practicable for 
employers to be able to document proof of receipt in all cases. The 
Department notes that under the proposed changes, employers will be 
required to maintain records showing that the notification was 
provided. The Department believes that it is reasonable to expect that 
most workers will receive written notice sent through either postal 
mail or electronic written mail or other electronic means before they 
need to depart for the original date of need. Therefore, the Department 
is revising paragraphs (c)(3)(iv) and (c)(5) to indicate that employers 
must send written notification at least 10 business days before the 
original date of need.
    The Department agrees with Farmworker Justice that it is important 
for employers to provide notifications in languages spoken by workers 
and is further revising paragraph (c)(3)(iv) to align employer notices 
with 29 CFR 38.9 language access requirements. The Department made 
similar changes more broadly to align part 653 with these obligations 
as part of the Wagner-Peyser Act Staffing Final Rule, 88 FR 82658 (Nov. 
24, 2023), which recognized that language access is crucial for 
individuals with limited English proficiency. The Department reiterates 
the importance of these non-discrimination obligations and believes 
that providing notification to workers in accordance with 29 CFR 38.9 
is necessary to ensure that workers receive effective notice that 
apprises them of delays in the start of work. Employers and SWAs may 
work together as necessary and appropriate to fulfill these 
obligations. Additionally, the Department is further revising paragraph 
(c)(3)(iv) to state that if a worker provides electronic contact

[[Page 33914]]

information, such as an email address or telephone number, the employer 
will send notice using one of the electronic contact methods provided. 
If the employer provides non-written telephonic notice, such as a phone 
call, voice message, or an equivalent, the employer will also send 
written notice using the email or postal address provided by the worker 
at least 10 business days prior to the original date of need.
    However, the Department declines to require employers to contact 
farm labor contractors or local recruiters if they are not able to 
contact workers directly because it would be difficult to measure when 
an employer met its responsibilities in notifying workers. Moreover, 
the purpose of these changes is to streamline communication with 
workers by requiring direct communication between the employer and 
worker, and the suggestion to permit third parties to engage in the 
communication undermines the changes being made in this rule. The 
Department believes that the adopted changes will increase the 
likelihood that workers will receive required notices, while making the 
requirements achievable for employers. The Department also identified 
that it would help clarify that the notice requirements to which 
paragraph (c)(5) refers are notices assured in paragraph (c)(3)(iv) of 
this section.
    The Department adopts the notice requirements in paragraphs 
(c)(3)(iv) and (c)(5) proposed in the NPRM, with further revision to 
clarify that the employer's written notice must be sent at least 10 
business days prior to the original date of need, must be given in 
languages workers understand, and that the employer must provide 
electronic notification, if available. The Department has revised 
paragraph (c)(5) to refer to the assurance in paragraph (c)(3)(iv).
    Fourth, in paragraphs (c)(3)(iv) and (c)(5), the Department 
proposed to require that notification be provided to workers placed on 
the order rather than eligible workers referred from the order. 
Relatedly, in paragraph (c)(5), the Department proposed to remove 
language stating that employers must pay only workers who are eligible 
pursuant to paragraph (d)(4).
    Farmworker Justice supported the proposed change, stating that it 
reduces the burden on employers by clarifying that only workers who are 
placed on the order, rather than all workers referred, are covered by 
the notice requirements. Washington State similarly stated that the 
proposed change slightly reduces the burden on SWAs by clarifying that 
neither SWAs nor employers need to notify SWA referrals of delays in 
start dates.
    The Department appreciates commenter support and adopts this 
change, as proposed.
    Fifth, in paragraphs (c)(3)(iv) and (c)(5), the Department proposed 
that where an employer fails to provide adequate notice of a change to 
the anticipated start date of need, the employer must provide housing 
and subsistence to all workers placed on the clearance order who are 
already traveling to the place of employment, without cost to the 
workers, until work commences.
    The Department received several supportive comments regarding the 
proposal to require employers to provide housing and subsistence to 
workers. Wafla, an employer agent organization, agreed that the 
employer should provide housing and subsistence to all workers already 
traveling to the place of employment under these conditions. Catholic 
Charities USA (CCUSA) and the United States Conference of Catholic 
Bishops (USCCB) (together, CCUSA and USCCB) also agreed, noting that 
the proposal was designed to ensure workers are not deprived of basic 
needs because of delays. CCUSA and USCCB further stated that the 
provision would respect the reliance interests of workers and protect 
against financial hardships beyond their control. The Alliance to End 
Human Trafficking commented that the proposed regulation would help 
people who are otherwise vulnerable to trafficking to obtain the 
necessary support when disruptions to their employment occur through no 
fault of their own. CCUSA and USCCB and the Alliance to End Human 
Trafficking each indicated that the Department should finalize the 
change, as proposed.
    On the other hand, McCorkle Nurseries, Inc. and m[aacute]sLabor 
expressed concern regarding the housing requirement, stating that it 
would extend housing obligations to U.S. workers who were otherwise 
ineligible for employer-provided housing. Additionally, m[aacute]sLabor 
opposed the subsistence requirement. M[aacute]sLabor stated that there 
was a contradiction in requiring subsistence to avoid financial 
hardship because, under the proposed rule, employers would also be 
required to pay workers up to 2 weeks of wages. Therefore, workers 
would be paid as if there were no delay to the start date and financial 
hardship would not exist. M[aacute]sLabor stated that because paying 
wages in this circumstance moots the need for meal subsistence, as 
workers will have the income to be able to purchase food, the 
Department should either keep the wage guarantee or keep the 
subsistence requirement, but not both.
    Regarding housing, the Department notes that employers would only 
be required to provide housing to workers who are eligible for housing 
under Sec.  653.501(c)(3)(vi), which requires the availability of 
housing for only those workers, and when applicable, family members, 
who are not reasonably able to return to their residence in the same 
day. Because such housing is already required to be available and to 
meet applicable housing standards prior to the start date of work, the 
Department does not think that providing housing in the event of a 
delay in the start date will create a burden or hardship for the 
employer. To clarify the scope of this requirement, the Department is 
further revising paragraphs (c)(3)(iv) and (c)(5) to specify that 
employers must provide the housing described in the clearance order to 
all migrant workers placed on the clearance order who are already 
traveling to the place of employment, without cost to the workers, 
until work commences.
    The Department has considered each comment regarding the proposed 
subsistence carefully. The Department recognizes the concern raised by 
m[aacute]sLabor about the burden to employers when the benefit would 
not be otherwise available if there had been no delay in the start 
date. In light of this concern, the Department has decided not to 
finalize the subsistence provision. However, the Department remains 
concerned about workers being left in a worse position than they would 
have been had there been no delay. Accordingly, the Department is 
adding to paragraphs (c)(3)(iv) and (c)(5) that employers that fail to 
provide the required notice must pay all placed workers for the hours 
listed on the clearance order and provide or pay all other benefits and 
expenses described on the clearance order. This revision will ensure 
that workers receive the full monetary and non-monetary benefits they 
would have received if work had started on time. Therefore, if, for 
example, the clearance order includes as a benefit some form of payment 
for or access to food or meals, such as employer-provided lunches, an 
employer-organized food truck at the property, or simply employer-
provided access to a grocer, then the worker would be entitled to those 
benefits to ensure they are kept whole.
    Sixth, in paragraphs (c)(3)(iv) and (c)(5), the Department proposed 
that where an employer fails to provide adequate notice of a change to 
the

[[Page 33915]]

anticipated date of need, the employer must also pay workers for each 
day work is delayed up to 2 weeks starting with the originally 
anticipated date of need or provide alternative work. In paragraph 
(c)(5), the Department proposed that the employer pay the specified 
hourly rate of pay on the clearance order, or if the pay listed on the 
clearance order is a piece-rate, the higher of the Federal or State 
minimum wage, or if applicable, any prevailing wage. For criteria 
clearance orders, the employer would be required to pay the rate of pay 
specified at 20 CFR 655.175(b)(2)(ii). These proposed edits would align 
the wage requirement in this paragraph with proposed wage requirements 
in part 655, subpart B, as applicable. The Department also proposed 
language clarifying that alternative work must be stated on the 
approved clearance order.
    Several organizations submitted supportive comments regarding the 
proposal to require employers pay up to 2 weeks of wages, when 
employers do not properly notify workers. The UFW Foundation, UFW, 
North Carolina Justice Center, UMOS, PCUN, CAUSE, and Green America 
noted that employers would have to pay such wages if the job started on 
time and said that the rule proposed a safety net during a particularly 
vulnerable time, when farmworkers have little or no savings and are 
awaiting their first paycheck. The UFW Foundation shared stories of 
multiple farmworkers who experienced delayed start dates, one up to 15 
days, which caused the farmworkers to go into debt because their cost 
of living continued, despite their income being delayed. One farmworker 
described repeatedly traveling back and forth to the job site each day 
during a delay, where they were told work was not available that day. 
The farmworker spent time, energy, and money for gas during the delay. 
The farmworker further stated that workers return each day only to find 
they have been replaced, leaving them with no money to pay their 
mortgages or to purchase groceries. The Agricultural Workers Advocacy 
Coalition (AWAC) also supported the wage requirement, stating that 
numerous workers on the Eastern Shore have experienced significant 
delays in receiving wages at the start of their contracts and have had 
to go for lengthy periods without enough money to even buy food. 
Farmworker Justice said the increase to 2 weeks wages was warranted 
given incoming travel costs and potential economic harm to workers 
impacted by delay. The Alliance to End Human Trafficking stated that 
the proposal would help people who are otherwise vulnerable to 
trafficking to obtain the necessary support when disruptions to their 
employment occur through no fault of their own. Marylanders for Food 
and Farmworker Protection stated the proposal promotes accountability, 
and CCUSA and USCCB stated that the proposed changes are designed to 
ensure workers are not deprived of basic needs because of delays.
    USA Farmers, a national trade association that exclusively 
represents agricultural employers of H-2A foreign workers, opposed the 
2-week wage requirement, calling it unreasonable. USA Farmers proposed 
that instead of requiring wage payment for up to 2 weeks, the 
Department instead should align the period of payment to correspond to 
the number of days the employer was late in providing the notice after 
the employer knew that start date would change. M[aacute]sLabor, whose 
comments USAFL and Hall Global endorsed, and McCorkle Industries, Inc. 
contended that there are already procedural protections to prevent 
financial hardship, including the preexisting guarantee of the first 
week wages as well as existing H-2A employer obligations under the 
three-fourths guarantee. They described the proposal to extend wages up 
to 2 weeks as unduly punitive and redundant. M[aacute]sLabor also 
stated that the requirement for wage payments to all workers placed on 
the clearance order extends the wage rate guarantee to H-2A workers, 
which it described as a drastic expansion of existing requirements. 
USAFL and Hall Global further stated that the Department did not 
disclose the reason why any change to the existing regulation was 
warranted and requested that the Department provide a factual basis for 
why one week of pay is not sufficient. M[aacute]sLabor noted that an 
employer requesting a delay to the start date is itself experiencing 
hardship and said that the Department must strike an appropriate 
balance of the equities. M[aacute]sLabor said that tipping the scales 
too heavily in favor of the workers by dramatically increasing the 
costs to employers is not equitable.
    Wafla disagreed that an employer should be required to pay workers' 
wages when they do not meet the 10-business-day notice provision. Wafla 
said that some delays are due to surprise events, like an unexpected, 
unforeseeable weather storm or an act of God, and that such events 
should be considered as valid reasons to delay notification of workers 
after the 10 business days. The Agricultural Justice Project stated 
that the wage requirement was fair but noted that this level of detail 
will make the application process even more daunting for smaller farms 
while larger business have designated staff or contracted specialists 
to handle these matters. They stated that honest employers will be 
penalized here because of the work of other unscrupulous employers who 
will find new loopholes or workarounds to evade these provisions, 
particularly where the chance of enforcement is low.
    Regarding alternative work, Farmworker Justice said the proposed 
rule makes clear that alternative work must be in the approved job 
order, and that this is an important clarification to deter unsafe and 
uncompensated work. USA Farmers commented that it is not logical to 
limit alternative work to work described on the clearance order. USA 
Farmers contended that if the employer is offering work included in the 
job order, then there would be no need for the employer to delay the 
start date of work because the alternative work would already be a part 
of the job order. M[aacute]sLabor also commented that limiting 
alternative work to work described on the clearance order makes sense 
for H-2A workers who cannot perform duties outside the scope of the job 
order, but not for U.S. workers who are not subject to similar 
limitations. M[aacute]sLabor stated that it is unclear why the employer 
should be restricted to work activities within the scope of the job 
order for U.S. workers, and why an employer may not count other 
alternative work if the job duties anticipated are not available. 
M[aacute]sLabor contended that if an employer finds such alternative 
work, the work would also be compensable, and expressed concern that 
workers might receive double payment.
    Regarding the methods for calculating wages, wafla expressed 
concern that the required wages would need to be hourly, piece rate, or 
any prevailing wage listed in the job order. Wafla asked how an 
employer can pay a piece rate to a worker when work has not yet 
started, and no piece rate has been established. Wafla suggested that 
the provision require only payment of the hourly rate listed in the job 
order and nothing more.
    The Department agrees that expanding the wage payment requirement 
in the event of a delay, about which the employer failed to provide 
required notice, to 2 weeks is necessary for worker protection. As 
stated in the NPRM, the Department has made a policy decision that one 
week of wages is insufficient to protect workers from the financial 
hardships associated with a delayed starting date when such

[[Page 33916]]

delays were not communicated, particularly if a worker traveled for the 
job. Instead of adjusting the number of days wages must be paid to be 
equal to the number of days the employer's notice was late, as USA 
Farmers suggested, the Department is finalizing its proposed 
requirement that the number of days wages must be paid must be equal to 
the number of days work is delayed, up to 2 weeks. This helps ensure 
workers receive compensation commensurate with the amount of financial 
impact they experience due to the delay.
    While it may add an additional cost, these requirements are not 
intended to be punitive to employers. Instead, the wage payment is 
designed to be protective for workers by ensuring that they are not 
disadvantaged due to circumstances beyond their control. The Department 
notes that in lieu of paying the 2 weeks' worth of wages, if the 
employer fails to comply with the notice requirements, employers can 
provide workers alternative work if such alternative work is listed on 
the approved clearance order. The Department has determined that this 
alternative effectively addresses the hardship concern by providing the 
worker a source of income, which would otherwise have been available 
but for the delay, while continuing to allow the employer flexibility 
to adjust their anticipated start date. Alternative work may be 
provided to help employers recover from unexpected weather events or 
acts of God. Finally, the requirement to pay up to 14 days of wages 
does not mean that workers will receive more money than they otherwise 
would have under the offered and agreed-upon terms of the clearance 
order, had the work begun on time. For example, if a delay lasts 10 
days and the workers begin work on the 11th day, the employer, if 
having not provided adequate notice and not providing alternative work, 
is required to pay the worker only what they originally promised to 
pay.
    As described in the discussion for parallel proposals in Sec.  
655.175, the Department disagrees that preexisting protections are 
sufficient to prevent financial hardship, including the preexisting 
requirements to pay one week of wages as well as existing H-2A employer 
obligations under the three-fourths guarantee. The requirements in 
Sec.  653.501(c) ensure workers receive the first 2 weeks of wages at 
the beginning of the contract term and with the first scheduled 
paycheck. This helps avoid financial hardship workers might experience 
at the beginning of work, which is distinct from the three-fourths 
guarantee described for criteria clearance orders in part 655. The 
Department also notes that the requirements in Sec.  653.501(c) apply 
to both criteria and non-criteria clearance orders, so this provision 
provides a necessary protection to workers not otherwise covered by the 
requirements in the Department's H-2A regulations.
    The Department notes that the option for an employer to provide 
alternative work is preexisting and the Department did not propose to 
change that part of the regulation, except to clarify that the 
alternative work must be in the approved clearance order. The addition 
of approved is intended to clarify the existing regulation but not to 
change its meaning. Regardless, the Department believes it is important 
to retain the option to provide alternative work and that any 
alternative work must be described in the clearance order. Maintaining 
this option provides employers with flexibility to employ workers 
through other duties that are useful to the employer, though not their 
primary or anticipated need. For example, if an employer files a 
clearance order for apple pickers, the employer might include a 
description of alternative work that explains workers may be required 
to perform related work to prepare or maintain growing areas or to 
prepare containers and other specific support activities. In the event 
of a delay related to weather conditions, where the employer failed to 
properly notify workers, the employer could offer alternative work that 
would help the business be ready for work to start or to recover from 
the weather condition that caused the delay. Such work would be 
considered alternative because the primary job duties for the workers 
would be apple picking but, if apple picking is not possible, workers 
could be offered work that supports the primary work activity or 
business. The Department maintains that it is necessary for the 
alternative work to be described in the clearance order so that 
potential applicants have adequate notice of the duties they may be 
asked to perform, which are material terms and conditions. Applicants 
may decide to apply or not to apply based on the alternative work 
described in clearance orders. For these reasons, the Department 
declines to revise the option to provide alternative work and the 
specification that any alternative work must be described on the 
clearance order.
    Additionally, though the Department did not receive comments 
requesting the Department to align the language of Sec.  
653.501(c)(3)(iv) and (c)(3)(5) with the parallel requirements in part 
655, the Department has determined that it would be clearer to revise 
Sec.  653.501(c)(3)(iv) and (c)(3)(5) so that the wage requirement is 
stated in days, instead of weeks, to be consistent with Sec.  655.175. 
This revision does not change the proposed requirement.
    The Department is finalizing the proposal to expand the period 
during which employers must pay the applicable wage to 2 weeks, from 
the current 1-week period, with one edit to describe the required 2-
week period as 14 calendar days.
    Finally, in paragraph (c)(5), the Department proposed new language 
instructing SWAs to process noncompliance with the employer's 
obligations in paragraph (c)(5) as an apparent violation pursuant to 
Sec.  658.419. The Department did not receive comments on this change 
and adopts it, as proposed.
3. Section 653.501(d), Processing Clearance Orders
    The Department proposed to remove paragraphs (d)(4), (7), and (8) 
in their entirety because, with the proposed change in paragraph (c) to 
have employers notify workers of any change in the start date, the 
requirement that the applicant holding office notify workers of any 
changes is no longer relevant or necessary.
    Farmworker Justice supported the removal of paragraph (d)(4), 
stating that it eliminates an additional obstacle for U.S. workers in 
that previously they had to contact the ES Office to verify the 
original date of need to be eligible for the first week's pay. The 
Department did not receive any other comments.
    The Department appreciates commenter support and adopts the removal 
of paragraphs (d)(4), (7), and (8), as proposed.

D. 20 CFR Part 658, Subpart F--Discontinuation of Services to Employers 
by the Wagner-Peyser Act Employment Service

    This subpart sets forth the regulations governing the 
discontinuation of Wagner-Peyser Act ES services to employers. The 
Department adopts revisions throughout this subpart to clarify the 
bases and process for discontinuing services. The Department also 
reorganizes these regulations to more accurately group subjects and to 
more logically arrange procedural steps, including when and how 
employers may request a hearing. Finally, the Department clarifies what 
ES services would be unavailable after discontinuation and the entities 
subject to discontinuation.

[[Page 33917]]

    The Department believes that revising the regulations, as described 
below, provides SWAs the needed additional clarity to better implement 
the discontinuation provisions and would allow ETA, including its 
regional offices, to better monitor and support SWAs to ensure they 
initiate discontinuation of services as required by the regulations. 
This will improve worker protection by preventing noncompliant 
employers from using the ES service to obtain workers (including H-2A 
workers, as employers seeking to use the H-2A visa program must first 
file a clearance order through the ES) which, in turn, aids the 
Department in ensuring a fair labor exchange system for compliant 
employers, and meeting its statutory obligations to maintain and 
increase the usefulness of the ES system. Additionally, the proposed 
clarifications and improvements to the discontinuation procedures 
provide greater certainty to employers seeking to provide information 
to SWAs in response to a notice of intent to discontinue, or seeking to 
reinstate services, and protect employers' interests by ensuring that 
they receive informative and timely determinations from SWAs. Specific 
changes are discussed below.
1. General Comments
    The Department received several supporting and opposing comments on 
the general revisions to discontinuation of services provisions in part 
658. The National Women's Law Center said that improving protections 
for both H-2A and corresponding workers is key to ensuring that abusive 
employers do not take advantage of the H-2A program to discriminate 
against their non-H-2A workforce and exploit the vulnerability of H-2A 
workers. It described the changes proposed to the discontinuation of 
services provisions as key improvements. Farmworker Justice said that 
discontinuation provides vital protections for workers who want to 
receive what they are owed and work under improved conditions without 
losing their jobs altogether. According to Farmworker Justice, unlike 
debarment, which is a discretionary sanction, discontinuation of 
services is mandatory whenever an H-2A employer is determined to have 
violated an employment-related law. Farmworker Justice further said 
that the detailed provisions for reinstatement of services can ensure 
farmworkers impacted by the employer's violations receive restitution, 
which may not routinely occur in debarment cases, and also highlighted 
the importance of corrective action plans described in part 658. 
Farmworker Justice also noted underapplication of the pre-existing 
discontinuation of services regulations by SWAs and said that, if 
properly applied, discontinuation of services would be a major 
deterrent to employers who might otherwise violate the law.
    The U.S. Chamber of Commerce stated that it was concerned that the 
proposed revisions to the Wagner-Peyser ES regulations would have a 
significantly negative impact upon employers' ability to obtain and 
retain H-2A workers. The U.S. Chamber of Commerce said that the 
proposed revisions would incur additional processing costs, increase 
the likelihood of delays in obtaining workers, and create significant 
risks for business disruptions should employers run afoul of the new 
requirements in the middle of the seasons. The U.S. Chamber of Commerce 
stated that additional operating costs would affect American consumers 
in the form of higher food prices.
    USA Farmers described the proposed regulations as an attempt to 
weaponize the Wagner-Peyser system against farmers and U.S. workers 
seeking agricultural employment and that the changes could block 
employers from utilizing the ARS for minor or unproven alleged 
violations of regulations and deny employers due process. USA Farmers 
contended that there is no rational need for the changes. USA Farmers 
stated that the Department already has a robust debarment program with 
due process rights. They argued that, as a result of this proposal, 
employers with violations that are not serious enough to warrant 
debarment by the Department will nonetheless effectively be debarred. 
USA Farmers also stated that the process to request a hearing and for 
SWAs to make decisions is flawed.
    USAFL and Hall Global stated that the Department should defer 
adoption of the proposal and engage in detailed discussions with 
stakeholders. USAFL and Hall Global noted that discontinuation of 
services applies to the H-2A program and to non-H-2A related services 
and that, because the H-2A regulations mandate that a prospective H-2A 
employer access the interstate clearance system, discontinuation of 
services can amount to a permanent debarment of an employer.
    The Northwest Horticultural Council (NHC) said that it is aware 
that many SWAs have limited resources and are often short staffed, 
which may contribute to the low use of discontinuation of services. NHC 
noted that many SWAs work closely with growers where clarification or 
questions may arise rather than simply discontinuing access to the 
services, which the commenter said it believes should be encouraged. 
NHC stated a concern that the proposed expansion of those subject to 
discontinuation of services, as well as the proposal to remove SWA 
discretion prior to discontinuation, will lead to delays in processing 
clearance orders for all employers, not just those subject to 
additional scrutiny. Additionally, NHC had concerns about limited 
employer recourse to the Department if there is ongoing conflict with 
the respective SWA.
    The Department agrees with the comments from National Women's Law 
Center and Farmworker Justice, and believes that the changes are 
necessary to ensure worker protections, while offering adequate due 
process to employers. The Department notes that employers that comply 
with applicable laws and regulations should not experience delays or 
expenses related to these procedures because they will not have met the 
bases described at Sec.  658.501 that mandate SWAs to initiate 
procedures for discontinuation of services. As described in greater 
detail in the following comment responses, the bases at Sec.  658.501 
in many cases describe that, to meet the basis for discontinuation, the 
employer must have refused to comply with the stated requirements. The 
bases that describe employer refusal to comply assume that the SWA has 
already attempted to resolve issues, which provided the employer with 
an opportunity to avoid initiation of discontinuation of services. For 
example, the SWA may be required to initiate discontinuation of 
services after the SWA attempted to informally resolve apparent 
violations under Sec.  658.419 or complaints under Sec.  658.411. The 
Department believes that the provisions of part 658, subpart F clearly 
explain that discontinuation of services is not the SWA's first 
response when it identifies apparent violations, or in response to 
complaints, except in cases where immediate discontinuation is 
warranted. The Department further notes that where immediate 
discontinuation is warranted, under Sec.  658.502(b), the employer must 
also have met one of the stated bases at Sec.  658.501(a), therefore, 
employers are not at risk of experiencing discontinuation of services 
for unsubstantiated claims, as some commenters suggested. The 
Department affirms that employers must comply with all applicable 
employment-related laws, as well as the full terms and

[[Page 33918]]

conditions of clearance orders, to employ workers through the ES 
system. The Department maintains that all ES regulations and 
employment-related laws are important and notes that the preexisting 
bases at Sec.  658.501 similarly required SWAs to initiate 
discontinuation of services to employers who failed to comply with such 
requirements.
    The Department will discuss comments specific to each of the 
proposed changes below but wishes to provide a response to these 
general comments to indicate that the interest of worker protection is 
compelling and supports the Department's determination to implement 
most of the changes, as proposed. The Department maintains that there 
are adequate procedural protections to protect the due process rights 
of employers, including several mechanisms to allow employers to 
respond to and resolve identified noncompliance, prior to 
discontinuation of services. The Department also maintains that the 
purpose and application of discontinuation of services is distinct from 
debarment actions, which more narrowly apply to certain programs. The 
proposed changes foster a culture of compliance between employers, 
workers, and SWAs, which is necessary to uphold the laws of the United 
States and their implementing regulations.
2. Section 658.500, Scope and Purpose of Subpart F
    The Department proposed to revise Sec.  658.500, which describes 
the scope and purpose of subpart F, to add language consistent with 
proposed revisions to Sec.  658.503 that discontinued services include 
services otherwise available under parts 652 and 653. This revision 
clarifies the scope of services discontinued to include the labor 
exchange services--such as recruitment, career, and labor market 
information services--available to employers under part 652.
    Farmworker Justice supported the proposed change, stating that it 
provides needed clarification that all job services in parts 652 and 
653 are impacted by discontinuation. Additionally, the UFW Foundation, 
UFW, North Carolina Justice Center, UMOS, PCUN, CAUSE, and Green 
America expressed general support for inclusion of labor exchange 
services at part 652. On the other hand, USAFL and Hall Global stated 
that discontinuation of services should only apply to services not 
necessary for participation in the H-2A program, meaning 
discontinuation should only apply to the services available at part 
652, and not part 653.
    The Department appreciates commenter support for this 
clarification. Regarding the recommendation that discontinuation of 
services should only apply to services not necessary for participation 
in the H-2A program, the Department disagrees. Discontinuation has 
historically applied to ES services available under part 653, including 
access to the ARS. As explained above, prospective H-2A employers must 
use the ARS to recruit U.S. workers as a condition of receiving a 
temporary agricultural labor certification, and employers and entities 
who file applications for temporary agricultural labor certification 
under 20 CFR part 655, subpart B must comply with the ARS requirements 
at part 653, subpart F. See, e.g., Sec. Sec.  655.121 and 
655.131655.133. The Department, therefore, declines to adopt the 
recommendation. and adopts this paragraph, as proposed.
    The Department also proposed to add paragraph (b) to Sec.  658.500, 
which would explain that for purposes of this subpart, employer refers 
to employers, as defined at Sec.  651.10, and agents, farm labor 
contractors, joint employers, and successors in interest, as proposed 
to be defined at Sec.  651.10. Proposed paragraph (b) therefore 
describes which entities may experience discontinuation of services. 
Each of these entities may engage in the ES clearance system by 
creating or submitting clearance orders, or by managing or utilizing 
workers placed on ES clearance orders. Agents and farm labor 
contractors often engage the ES clearance system by submitting 
clearance orders and controlling many aspects of recruitment activities 
relating to clearance orders. Joint employers may utilize workers 
placed on clearance orders in the same or similar manner as the 
employer, defined at Sec.  651.10, with whom they jointly employ those 
workers, and each joint employer is responsible for the violations of 
the other joint employers. A successor in interest may have 
reincorporated itself from an employer whose ES services have been 
discontinued into another business entity that maintains the same 
operations or interests, allowing that entity to undermine the effect 
of the discontinuation of the original entity in contravention of the 
purpose of the discontinuation regulation. The revisions were proposed 
to clarify and expand the entities who engage the ES clearance system 
and are, thus, subject to discontinuation. Specifically, the proposed 
change would make it clear that agents, farm labor contractors, joint 
employers, and any successor in interest to an agent, farm labor 
contractor, or joint employer, are subject to discontinuation of 
services.
    Finally, as the proposed agents, farm labor contractors, joint 
employers, and successors in interest also seek temporary agricultural 
labor certifications from OFLC under part 655, subpart B, adding these 
entities here brings the discontinuation regulation in line with the 
existing H-2A regulations, which permit the debarment of agents, farm 
labor contractors, joint employers, and successors in interest, as well 
as fixed-site H-2A employers, and agricultural associations. For the 
reasons set forth in the NPRM and below, the Department adopts the 
proposed paragraph (b), with one addition.
    The UFW Foundation, UFW, North Carolina Justice Center, UMOS, PCUN, 
CAUSE, and Green America all expressed support for greater 
accountability to third parties, stating one of the strongest 
protections in the proposed rule would be a series of changes that 
would strengthen enforcement actions against employers' agents, 
contractors, joint employers, and successors in interest. Similarly, 
the National Women's Law Center stated that the proposed rule would 
improve administration of the H-2A program, including discontinuation 
of services, to help prevent employers and their agents from abusing 
the H-2A program.
    Several commenters expressed concern that the proposed changes 
would make third parties liable for the actions of employers, and 
employers liable for the actions of third parties. The Arizona Farm 
Bureau Federation, North Carolina Farm Bureau Federation, Inc., Golden 
Plain Farms, Inc., Western Range Association, and Roossinck Orchards, 
Inc. opposed the proposed changes, stating that they hold farmers 
responsible for violations committed by farm labor contractors, 
recruiters, attorneys, etc. Similarly, wafla stated that the inclusion 
of entities who are not the principal employer, have no clear control 
of day-to-day workplace conditions, and have nothing to do with 
potential rule violations giving rise to discontinuation is overbroad. 
The American Immigration Lawyers Association (AILA) opposed inclusion 
of successors in interest, stating that successors in interest are not 
responsible for issues created by former owners and should not have to 
answer for those issues merely by purchasing a business. The National 
Cotton Ginners Association and Texas Cotton Ginners' Association 
opposed the inclusion of agents, stating that the rule makes small 
agricultural business that rely on agents for recruitment services 
subject to

[[Page 33919]]

discontinuation because of potential violations by the agent that may 
be outside of the employer's control. The Mountain Plains Agricultural 
Service stated that the proposal extends enforcement of employment-
related laws to agents that are not employers and not subject to said 
laws and regulations. Relatedly, the International Fresh Produce 
Association (IFPA), the Georgia Fruit and Vegetable Growers Association 
(GFVGA), U.S. Custom Harvesters, Inc., Texas International Produce 
Association (TIPA), NHC, the U.S. Chamber of Commerce, Titan Farms, 
LLC, Demaray Harvesting and Trucking, LLC, an individual, and an 
anonymous commenter all opposed the changes stating that they do not 
make clear who--whether the filing entity, the underlying employer, or 
both--will be subject to discontinuation of services when a SWA 
determines that a basis for discontinuation exists.
    Additionally, commenters opposed the inclusion of agents and 
attorneys because of the legal and ethical duties they owe to their 
clients. USApple stated that agents and attorneys are legally and 
ethically bound to carry out their clients' intentions, and the 
proposed rule would allow for discontinuation of services to agents and 
attorneys where their client refuses to, for example, modify a job 
order. Similarly, m[aacute]sLabor stated that agents and attorneys are 
not free to unilaterally take action that is contrary to the intent of 
the client, and if an employer disagrees in good faith with the SWA and 
instructs the agent or attorney not to modify an application in 
accordance with the SWA's instructions, the agent is therefore duty-
bound to follow that instruction and push back against the SWA.
    Several commenters asked that the Department consider the economic 
implications of the proposed changes and their potential effect on the 
industry. IFPA, GFVGA, U.S. Custom Harvesters, Inc., TIPA, NHC, the 
U.S. Chamber of Commerce, Titan Farms, LLC, Demaray Harvesting and 
Trucking, LLC, an individual, and an anonymous commenter all stated 
that agents and attorneys play an invaluable role in processing 
criteria clearance orders, certifications, and petitions for 
employers--particularly for small farm employers without staff or 
expertise to undertake the process. Discontinuation of services to 
third parties would impact farm employers across the country who, in 
good faith, rely on that third party and could not anticipate the SWA 
action. Because the timing for filing a clearance order and date of 
need is incredibly tight, under the proposed rule, farmers will suffer 
significant financial losses caused by circumstances over which they 
have no control, leaving them with crops in the field and no harvesters 
to collect them. Additionally, farmers will have increased costs 
associated with hiring a new third party to file their clearance orders 
or redirect staff resources to undertake the task while the company is 
preparing for harvest.
    Relatedly, wafla stated that discontinuation to an attorney or 
filing agent would negatively impact the other clients that attorney or 
agent serves, such that all of that attorney's or agent's clients would 
be debarred from the program. M[aacute]sLabor stated that 
discontinuation to an attorney or agent would preclude that agent or 
attorney from filing job orders in that State for its other clients. 
The Western Range Association stated that discontinuation to agents 
would be disconcerting to the entire industry because there are only 
two agents that the majority of ranchers in its service area use. 
USApple stated that discontinuation to an attorney or agent would reach 
much further than a single clearance order to affect many employers and 
upwards of hundreds, if not thousands, of workers. The Wyoming 
Department of Agriculture stated that discontinuation to any affiliate 
of the employer would result in a domino effect of reduced services and 
job opportunities for employees who work with agents, attorneys, or 
others due to their names being placed on the discontinuation list.
    The Department reiterates that all entities who engage the ES 
clearance system, including agents (which include attorneys), farm 
labor contractors, joint employers, and successors in interest, should 
be subject to discontinuation, if appropriate. The proposed changes are 
meant to hold these entities accountable for compliance with ES 
regulations. They are not meant to hold, for example, agents, 
attorneys, or farm labor contractors accountable for the actions of the 
employers they represent, or vice versa. For example, if an employer is 
discontinued because, under Sec.  658.501(a)(4), they are found by a 
final determination by OSHA or WHD to have violated an employment-
related law, the discontinuation is not imputed to the employer's agent 
who had nothing to do with the violation. If an employer is 
discontinued because, under Sec.  658.501(a)(1), they refuse to correct 
terms and conditions in the job order that are contrary to employment-
related laws, and the employer's agent made a good-faith attempt to 
bring the employer's terms and conditions into compliance, the 
discontinuation is not imputed to the employer's agent. Conversely, an 
agent or farm labor contractor's noncompliance would not necessarily be 
imputed to an employer. Thus, under the proposed rule, an agent, 
attorney, or farm labor contractor who is blameless would not be 
subject to discontinuation based on the acts of the employer, and an 
employer who is blameless would not be subject to discontinuation based 
on the acts of their agent, attorney, or farm labor contractor. As to 
joint employers and successors in interest, the Department reiterates 
that joint employers who utilize workers placed on clearance orders 
should be subject to discontinuation; and successors in interest, who 
maintain the same or similar operations as the former employer whose 
services have been discontinued, should also be subject to 
discontinuation.
    Regarding the legal and ethical duties that agents and attorneys 
owe to their clients, the proposed changes do not interfere with those 
duties. For example, an agent or attorney who engages the ES system on 
behalf of an employer must do so in conformance with the requirements 
of the ES regulations and must advise their employer-client to use the 
ES system in conformance with the regulations. In the example provided 
by commenters, if an employer refuses to modify a job order to comply 
with employment-related laws, the agent or attorney will have 
presumably advised the employer to bring the terms or conditions in the 
job order into compliance. In that instance, and as noted above, a 
blameless agent or attorney would not be subject to discontinuation 
based on the acts of the employer.
    The Department recognizes and acknowledges the critical role that 
agents and attorneys play in navigating the ES system for the employers 
they serve. The Department also recognizes that the discontinuation of 
services to an agent or attorney may have an economic impact on the 
industry, particularly for small farms that rely heavily on agent/
attorney services. However, the Department considers requiring SWAs to 
discontinue services to agents and attorneys, where appropriate, 
necessary to protect the integrity of the ES system and protect users--
both workers and employers--of the ES system. Without the ability to 
discontinue services to agents and attorneys, SWAs would have no 
mechanism to prevent agents or attorneys that violated ES regulations 
from accessing the ES system. The impact to the industry may be 
mitigated in light of other changes made to the

[[Page 33920]]

discontinuation regulations. Specifically, the discontinuation action 
will be stayed pending any appeal of a final SWA decision to 
discontinue services to an agent or attorney; alternatively, an agent 
or attorney can have services reinstated at any time if they have 
resolved the issues leading to the discontinuation. In addition, the 
Department reiterates that inclusion of agents, farm labor contractors, 
joint employers, and successors in interest is necessary to align the 
definition of agent here with the definition of agent in Sec.  655.103; 
and that the economic effects of discontinuation to third parties are 
the same or similar as the effects of debarment on the same third 
parties in the existing H-2A context. Finally, as noted in the 
discussion of the successor in interest definition in Sec.  651.10, the 
Department is relocating part of that proposed definition, on liability 
of successors in interest, to this section of part 658 (``A successor 
in interest to an employer, agent, or farm labor contractor may be held 
liable for the duties and obligations of that employer, agent, or farm 
labor contractor for purposes of recruitment of workers through the ES 
clearance system or enforcement of ES regulations, regardless of 
whether such successor in interest has succeeded to all the rights and 
liabilities of the predecessor entity.'') As with the separate 
structure of Sec.  655.104(a) and (b), the Department is separating the 
language relating to liability for discontinuation purposes from the 
definitional language of Sec.  651.10 and has determined this liability 
language is more appropriately located in part 658, subpart F, which 
generally describes the situations in which entities are subject to 
discontinuation of services, Regarding the concerns commenters raised 
with the scope of successor liability and the language in proposed 
Sec. Sec.  651.10 and 655.104, ``regardless of whether such successor 
in interest has succeeded to all the rights and liabilities of the 
predecessor entity,'' the Department is retaining this and other 
proposed language on successors as part of Sec.  658.500--and is not 
finalizing the remainder of the proposed sentence (``A successor in 
interest includes an[y] entity that is controlling and carrying on the 
business of a previous employer, agent, or farm labor contractor'')--
for the reasons stated in the discussion of Sec.  655.104 below.
3. Section 658.501, Basis for Discontinuation of Services
    Section 658.501 describes eight bases for which SWA officials must 
initiate discontinuation of services to employers. The Department 
proposed several edits to paragraphs (a)(1) through (7), except 
paragraph (a)(3), including a substantive revision to paragraph (a)(4).
    In paragraph (a)(1), the Department proposed to state that SWA 
officials must discontinue services to employers who submit and refuse 
to correct or withdraw job orders containing terms and conditions 
contrary to employment-related laws. The existing regulation contains 
the terms alter and specifications. The Department proposed to change 
alter to correct to more clearly articulate that the employer must 
specifically correct the noncompliant term or condition rather than 
simply change the term or condition, which might not result in 
correction of the noncompliance. The Department also proposed to change 
specifications to terms and conditions to align the language in 
paragraph (a)(1) with the language used in Sec.  653.501. For the 
reasons discussed in the NPRM and below, the Department adopts 
paragraph (a)(1) as proposed.
    Several trade associations, including the Florida Fruit and 
Vegetable Association (FFVA), GFVGA, Western Growers, USA Farmers, 
USApple, NHC, Snake River Farmers' Association (SRFA), AmericanHort, 
NCFC, IFPA, wafla, and FSGA, along with m[aacute]sLabor, USAFL and Hall 
Global, the Michigan Farm Bureau, McCorkle Nurseries, Inc., Northern 
Family Farms, LLP, Mountain Plains Agricultural Service, Willoway 
Nurseries, an individual, and an anonymous commenter, opposed or 
expressed concerns regarding the Department's proposal to change the 
word ``alter'' to ``correct.'' These commenters stated that SWAs often 
misstate, misinterpret, or incorrectly apply the meaning of various 
employment-related laws when processing jobs orders. Some cautioned 
that SWAs do not have sufficient familiarity with applicable laws to 
make determinations as to whether the terms and conditions in an 
employer's job order comply with employment-related laws. Others stated 
that SWAs have limited resources to conduct fact investigations in 
making such determinations. One commenter noted that the NPRM does not 
indicate whether SWAs will receive training or guidance on applicable 
State and Federal laws.
    Additionally, commenters raised concerns as to how disagreements 
between employers and SWAs under proposed paragraph (a)(1) will be 
resolved. Some stated that use of the proposed ``correct'' presumes 
that the SWA's interpretation of employment-related laws is accurate, 
does not allow employers to challenge the SWA's interpretation, flips 
the burden of demonstrating a basis for discontinuation onto employers, 
and requires employers to prove a negative. Others stated that proposed 
paragraph (a)(1) is vague, does not allow employers to resolve 
disagreements with SWAs in good faith, and allows for discontinuation 
where the employer's alleged noncompliance with employment-related laws 
has not been adjudicated on the merits.
    In the H-2A context, several commenters questioned the interplay 
between proposed paragraph (a)(1) and the emergency application 
procedures at Sec. Sec.  655.121 and 655.134, which allow employers to 
appeal to a DOL Certifying Officer (CO) where they are unable to 
resolve outstanding deficiencies in the contents of H-2A job orders 
with the SWA. Because proposed Sec.  658.501 describes the 
circumstances in which SWAs must initiate discontinuation, commenters 
asked whether every emergency application will automatically require 
initiation of discontinuation proceedings. Additionally, commenters 
asked whether employers would undergo discontinuation proceedings 
before the DOL CO resolves the emergency application; and whether the 
SWA would still be under an obligation to discontinue services after a 
CO has determined that a job order is, in fact, compliant with 
employment-related laws. Commenters stated that SWAs frequently assert 
that the contents of a job order are contrary to employment-related 
laws--only to have the CO overturn that determination in a subsequent 
emergency filing under Sec.  655.134.
    Finally, commenters opposed application of proposed paragraph 
(a)(1) to agents and attorneys. One commenter stated that proposed 
paragraph (a)(1) extends enforcement of employment-related laws to 
agents, who are not employers and, thus, not subject to said laws. 
Another commenter stated that application to agents and attorneys may 
unlawfully force agents and attorneys to violate legal and ethical 
duties to their clients by requiring them to change terms and 
conditions in job orders contrary to the express wishes of their 
clients. That commenter also expressed concern with the effect of 
proposed paragraph (a)(1) on agents and attorneys, stating that a SWA's 
incorrect interpretation of an employment-related law, and subsequent 
discontinuation of services, could lead to irreparable harm to that 
agent or attorney's business, and

[[Page 33921]]

to the clients who use the agent or attorney to file job orders.
    Commenters suggested several changes to proposed paragraph (a)(1), 
including: (1) requiring an enforcement agency to make a predicate 
finding of a violation of an employment-related law; (2) limiting 
proposed paragraph (a)(1) to repeated failures to correct or withdraw 
job orders that have already been adjudicated; (3) allowing employers 
to contest discontinuation by demonstrating that the matter has not 
been adjudicated on the merits; (4) clarifying that failure to include 
State and local laws in a job order is not a basis to refuse to open a 
job order or discontinue services; (5) automatically staying 
discontinuation proceedings if an employer files an emergency 
application under Sec.  655.121, Sec.  655.134, or Sec.  655.171 until 
the CO or Administrative Law Judge (ALJ) reaches a final determination 
on the merits; (6) automatically terminating discontinuation if a CO 
issues a Notice of Acceptance under Sec.  655.143; (7) modifying Sec.  
658.504 to require reinstatement where a CO determines that the job 
order is compliant with employment-related laws; (8) allowing employers 
to appeal directly to an ALJ in lieu of a State hearing official; and 
(9) excluding application to agents and attorneys.
    The Department appreciates commenters' views and recommendations. 
The Department emphasizes that its proposal to change the word alter to 
correct in paragraph (a)(1) is a clarifying edit that is not intended 
to make any substantive change to the regulation. As discussed above, 
the proposed change more clearly articulates that employers must 
correct terms and conditions in job orders that are contrary to 
employment-related laws, rather than simply change them. For example, 
Sec.  653.501(d)(2) provides that SWAs may place an intrastate or 
interstate order seeking workers to perform farmwork for a specific 
farm labor contractor or for a worker preferred by an employer, 
provided the order meets ES non-discrimination criteria. It further 
states that an order would not meet such criteria, for example, if it 
requested a white male crew leader or any white male crew leader. In 
this example, were an employer to subsequently change this term from 
``white male crew leader'' to ``white crew leader,'' the employer has 
altered the term but has not corrected it to bring it in compliance 
with non-discrimination laws (including, e.g., the requirement at Sec.  
653.501(c)(1)(ii) that clearance orders not contain an unlawful 
discriminatory specification). The word correct, therefore, better 
aligns with the intent of paragraph (a)(1), which is to ensure that 
clearance order terms and conditions comport with employment-related 
laws and that SWAs take appropriate action where such terms and 
conditions are not corrected.
    The Department further emphasizes that proposed paragraph (a)(1) 
does not impose any new requirements, and the discontinuation process 
is separate and distinct from the review process for criteria clearance 
orders (orders that are attached to H-2A applications) in Sec.  
655.121. That process includes an initial review, a deficiency notice, 
where applicable, an opportunity for an employer to respond, a final 
determination from the SWA, and an allowance for employers to file an 
emergency Application for Temporary Employment Certification when the 
SWA and the employer are unable to resolve outstanding deficiencies 
regarding the contents of criteria clearance orders. Where the SWA 
ultimately approves a criteria clearance order there would be no basis 
for the SWA to initiate discontinuation proceedings. Where the SWA 
disapproves the order and the employer files an emergency application, 
a CO will review and approve or deny certification (see Sec.  655.160). 
Where the CO denies certification, and the employer does not appeal, 
the CO's written determination is final (see Sec.  655.164). Where the 
employer appeals, an ALJ will issue a written determination (see Sec.  
655.171). Applicable here, only where there is a final determination 
from either the CO or ALJ that the terms and conditions in an 
employer's criteria clearance order are contrary to employment-related 
laws, and the employer refused to bring the terms and conditions into 
compliance, would the SWA have reason to initiate a discontinuation 
action.
    For non-criteria clearance orders (orders that are not attached to 
H-2A applications), under Sec.  653.501, SWAs must review and approve 
clearance orders within 10 business days of receipt of the order. Where 
a SWA reviews and approves the clearance order, there would be no basis 
for the SWA to initiate discontinuation proceedings. Where a SWA 
reviews and the terms and conditions of the order are contrary to 
employment-related laws, and the employer updates the order by 
correcting the terms and conditions, there would be no basis for 
discontinuation. However, where a SWA reviews and the terms and 
conditions of the order are contrary to employment-related laws, and 
the employer refuses to bring the terms and conditions into compliance 
or to withdraw the clearance order, the SWA must initiate 
discontinuation of services under Sec.  658.501(a)(1). Only where the 
SWA denies the clearance order because the employer refused to bring 
the terms and conditions into compliance, would the SWA have reason to 
initiate a discontinuation action.
    As noted in the NPRM, the Department intends to increase the reach 
and utility of the discontinuation of services provisions, which SWAs 
have underutilized in recent years. While proposed paragraph (a)(1) 
does not include any substantive changes or new requirements, the 
Department recognizes and appreciates the concerns and recommendations 
raised by commenters--particularly those regarding effective and 
efficient resolution of employer and SWA disagreements, and the 
interplay of proposed paragraph (a)(1) and the H-2A emergency 
application process. In addition to the discussion above, the 
Department intends to issue further guidance on this basis for 
discontinuation.
    Regarding application of proposed paragraph (a)(1) to agents and 
attorneys, the Department disagrees with commenter concerns. The 
Department reiterates that agents, attorneys, and other entities who 
engage the ES clearance system should be subject to discontinuation if 
they meet a basis for discontinuation; and that the effects and reach 
of discontinuation on agents/attorneys will be the same or similar as 
the effect of debarment on agents/attorneys in the existing H-2A 
context. As to the commenter concern that the proposal may unlawfully 
force agents and attorneys to violate legal and ethical duties to their 
clients by requiring them to change terms and conditions in job orders 
contrary to the express wishes of their clients, the Department 
emphasizes that paragraph (a)(1) is intended to ensure terms and 
conditions in clearance orders comply with employment-related laws. It 
does not require or compel agents/attorneys to violate any legal or 
ethical duties to their clients. To the extent an employer includes 
terms or conditions that violate employment-related laws, the 
employer's agent or attorney--who has professional and ethical duties 
relating to representation of the employer--would advise the employer 
to bring the term or condition into compliance. Discontinuation of 
services would not apply to an agent or attorney who attempted to bring 
the employer's terms and conditions into compliance. On the

[[Page 33922]]

other hand, a SWA would initiate discontinuation procedures where, for 
example, an agent/attorney instructs an employer to include in its 
clearance order a rate of pay that is contrary to employment-related 
laws and refuses to correct the rate of pay. An agent or attorney who 
is blameless would not be subject to discontinuation based on the acts 
of the employer, just as an employer who is blameless would not be 
subject to discontinuation based on the acts of their agent/attorney. 
Additionally, where there is, in fact, a good-faith disagreement with 
the SWA as to whether a term or condition complies, the procedures at 
Sec.  658.502(a)(1) allow for submission of evidence to show that the 
terms and conditions are not contrary to employment-related laws; and 
the procedures at Sec. Sec.  658.503 and 658.504 allow for appeal.
    The Department proposed to reorganize paragraph (a)(2) for clarity 
by moving the language regarding withdrawal of job orders that do not 
contain required assurances to earlier in the sentence. The Department 
also proposed to remove language in paragraph (a)(2) that currently 
limits this basis for discontinuation to only those assurances 
involving employment-related laws. The Department proposed to remove 
this language because employers must provide all assurances described 
at Sec.  653.501(c)(3), which include more than the assurance to comply 
with employment-related laws.
    Wafla opposed the proposed removal of language that limits this 
basis for discontinuation to assurances involving employment-related 
laws. Wafla stated that the proposed change broadens the scope of 
discontinuation beyond employment related laws, and that 
discontinuation of services can be for any H-2A assurance violation.
    The Department notes that the proposal did not broaden the scope of 
discontinuation beyond those assurances listed in Sec.  653.501(c)(3). 
The proposed change to paragraph (a)(2) was made because the Department 
thought that discontinuation was appropriate where an employer refused 
to include any assurance required by subpart F of Part 653. The 
proposed change makes clear that employers must provide all assurances 
described at Sec.  653.501(c)(3) when requesting the placement of a job 
order into clearance, and that SWAs must provide the same treatment to 
all required assurances (i.e., the SWA will initiate discontinuation 
for employers' refusals), regardless of which assurance is involved. 
For these reasons and the reasons set forth in the NPRM, the Department 
adopts paragraph (a)(2) as proposed.
    The Department proposed to amend paragraph (a)(4) to add that SWA 
officials must initiate procedures for discontinuation of services for 
employers who are currently debarred from participating in the 
Department's H-2A or H-2B foreign labor certification programs. It 
proposed no changes to the regulatory text that states that SWA 
officials must initiate procedures for discontinuation of services to 
employers who are found by a final determination by an appropriate 
enforcement agency to have violated any employment-related laws and 
notification of this final determination has been provided to the 
Department or the SWA by that enforcement agency. The Department 
received numerous comments on proposed paragraph (a)(4), though the 
vast majority of them related to this existing language in Sec.  
658.501(a)(4) where no changes were proposed.
    The Department also requested comments on whether the SWAs should 
also initiate discontinuation of services to employers who are debarred 
from participation in any of the Department's foreign labor 
certification programs. The Department did not receive many comments in 
relation to this question.
    After careful consideration of the comments, the Department has 
adopted the proposed language without change. The comments are 
discussed in detail below.
    In relation to the portion of (a)(4) that states that 
discontinuation of services must be initiated for employers who are 
found by a final determination by an appropriate enforcement agency to 
have violated any employment-related laws, the Department received many 
comments expressing opposition. IFPA, U.S. Custom Harvesters, Inc., 
GFVGA, NHC, USApple, TIPA, Titan Farms, LLC, wafla, Texas Cotton 
Ginners' Association, Wyoming Department of Agriculture, Burley and 
Dark Tobacco Producer Association, and a couple of individuals believed 
that the ``new'' proposal would result in discontinuation of services 
for minor infractions by employers who are acting in good faith to 
comply with regulations. For example, wafla expressed concerns that 
this proposal would allow discontinuation of services for minor 
paperwork violations, or a lack of documented safety meeting records. 
The commenters explained that there are a lot of regulations and stated 
that even the best employers have unintentional violations as a result 
of misunderstanding the requirements or conflicting guidance from 
government agencies.
    The commenters also alleged that the discontinuation of services 
based on minor infractions would lead to delays in processing as well 
as the cost of time for agents/attorneys to respond to the 
discontinuation notice. Instead, they argued that discontinuation of 
services should be a result of willful violations that affect the 
health and safety of workers.
    NCFC, Western Growers, AmericanHort, and Willoway Nurseries also 
objected to this provision. They explained that sometimes WHD may cite 
an employer for a violation but ultimately decide not to debar that 
employer, and in such a case, it argued that the SWA should not then 
effectively debar an employer by discontinuing services. They stated 
that if the Federal government, via WHD, already conducted an 
investigation and issued what it viewed to be an appropriate citation 
without debarment, then the SWA should not then subsequently try to 
issue another punitive sentence against the employer by discontinuing 
services.
    The Department thanks the commenters for their concerns but 
believes they are unfounded. The provision of paragraph (a)(4) relating 
to a final determination by an appropriate enforcement agency to have 
violated any employment-related laws is not new--it has been a part of 
the regulations for over 40 years and the Department did not propose 
any changes regarding that aspect of paragraph (a)(4) in this 
rulemaking.
    Regardless, the Department disagrees with the argument that more 
minor infractions, as opposed to willful violations, do not warrant a 
sanction such as discontinuation of services--if an employer has been 
found by an enforcement agency to have violated an employment-related 
law, then discontinuation is appropriate to protect the integrity of 
the ES system and protect workers. They may rebut the proposed 
discontinuation or apply for reinstatement after a final 
discontinuation order has been issued by, among other methods, 
providing evidence that they have adequately responded to any findings, 
including any restitution or payment of fines. The Department does not 
believe it unreasonable to require an employer, who has been found in a 
final determination to have violated an employment-related law to have 
to remedy the violation or appeal the discontinuation before they are 
permitted to recruit workers through the ES system. While the 
Department does not think that this provision will lead to any greater 
delays than may currently

[[Page 33923]]

occur under this pre-existing ground, as noted above the Department 
thinks that the benefit of the provision outweighs any potential delay 
that may occur.
    Finally, the Department is also unconvinced by the notion that if 
an enforcement agency, such as WHD, decides to issue a final 
determination against an employer, but ultimately not debar the 
employer, this prevents or should prevent the SWA from discontinuing 
services. Debarment is not the same as a discontinuation of services--
while discontinuation would preclude an employer's ability to access 
the H-2A program, they are different actions taken by different actors 
with different consequences under different authority. As discussed in 
the NPRM, the goal of discontinuation is to protect workers and the 
integrity of the ES system by preventing employers from using the 
system to recruit workers if they have misused the ES system or 
otherwise engaged in actions that are harmful to workers until they 
have corrected the issue(s) giving rise to their discontinuation. 
Sections 658.502 and 658.504 explain that an employer can respond to a 
proposed discontinuation or seek reinstatement if they have responded 
to the findings of an enforcement agency, including payment of 
restitution or fines, and establish that they have addressed or revised 
any policies, procedures, or conditions that gave rise to the 
violation(s). The ability to seek reinstatement is an important 
distinction from debarment, which is for a set period of time 
regardless of any remedial action taken by the debarred entity.
    IFPA, GFVGA, NHC, and an anonymous commenter stated that this 
proposal to allow for discontinuation of services for an employment-law 
related violation was overly punitive because the underlying issue 
would have already been cited by another agency, and a final 
determination would have already been reached. They also argued that 
this went beyond the legal purview of the SWA in its review of the job 
orders.
    The Department disagrees. Again, as noted above, the Department 
thinks that it is reasonable for an employer to have to remedy their 
violations before being allowed to receive services. Until those 
violations are remedied, it is appropriate and well within the purview 
of a SWA to discontinue ES services to better protect workers, and to 
maintain the proper functioning of the ES system by serving employers 
who demonstrate the ability to comply with State and Federal laws 
governing the employment relationship.
    Wafla, USA Farmers, AgriMACS, Inc., and one individual argued that 
this proposal lacked due process, but it is unclear if this comment 
related specifically to provision (a)(4), or how this section lacks due 
process. USA Farmers elaborated that with regard to H-2A applications, 
the Department will not refuse to process them simply because an 
employer is under investigation by WHD, for example, but in this 
context, an employer would have their services discontinued without an 
appeals process.
    The SWA must initiate discontinuation of services to employers who 
are found by a final determination by an appropriate enforcement agency 
to have violated employment-related laws, or those who have already 
been debarred. First, in both instances, employees would have had the 
opportunity to go through appropriate procedures, including, in the 
case of H-2A and H-2B findings (including those resulting in 
debarment), a robust appellate process. Second, this provision only 
relates to the initiation of the discontinuation of services. Employers 
will still have 20 working days to respond to the discontinuation 
notice pursuant to Sec.  658.502 and may appeal a final determination 
regarding discontinuation of services pursuant to Sec.  658.504. As 
discussed throughout the preamble, if a final determination regarding 
discontinuation is appealed then the effect of the discontinuation is 
generally stayed. The Department therefore thinks that this provides 
entities with ample due process protections.
    U.S. Custom Harvesters, Inc., IFPA, GFVGA, NHC, TIPA, and one 
individual requested the Department identify a look back period so that 
they could know whether noncompliance adjudications or settlements from 
previous years would affect them.
    In the NPRM, in the section of the preamble discussing Sec.  
658.501(b), the Department had asked commenters if SWAs should limit 
their examination of previous labor certifications or potential 
violations of a labor certification to a certain time period. 88 FR at 
63763. The Department believes that this comment is more appropriately 
addressed in the section relating to Sec.  658.501(b). To the extent 
the comment is relevant to this provision, while the Department did not 
propose a look-back period or suggest that it was contemplating adding 
such a provision, we note that H-2A and H-2B program debarments are 
time limited and that an employer whose services have been discontinued 
as a result of an H-2A or H-2B debarment can seek reinstatement once 
their period of debarment has ended.
    An anonymous commenter opposed the new provision of the regulation 
that requires discontinuation for employers who are currently debarred 
from participating in the H-2A or H-2B foreign labor certification 
programs pursuant to Sec.  655.73 or Sec.  655.182 of this chapter or 
29 CFR 501.20 or 503.24. They argued that this would be overly punitive 
and that debarment is a harsh enough punishment. They explained that if 
they were a farm that was dependent on H-2A workers and was debarred, 
and then subsequently not able to hire U.S. workers via the SWA, they 
would need to go out of business or alter their business significantly. 
Another anonymous commenter stated it did not support expanding or 
empowering SWA authority under a Federal program.
    The Department does not believe it punitive to initiate 
discontinuation of services against a debarred H-2A or H-2B employer, 
but rather believes it is necessary to protect workers and effectuate 
the purpose of the ES system, which is to improve the functioning of 
the nation's labor markets by bringing together individuals who are 
seeking employment and employers who are seeking workers. As stated in 
the NPRM, the Department recognizes that many employers who use the ARS 
also seek temporary agricultural labor certifications from OFLC under 
part 655, subpart B. These employers may attempt to recruit workers 
through non-criteria orders in the ARS if they are prohibited from 
using the H-2A program as a result of their debarment. The Department 
does not want the ES system to facilitate placement of U.S. workers 
with employers whom the Department has determined should not be 
permitted to employ nonimmigrant workers through its H-2A and H-2B 
programs, particularly where the U.S. workers may perform similar work 
and, thus, be subject to the same or similar violations giving rise to 
the employer's debarment.
    This requirement will protect workers who use the ARS by ensuring 
that ES offices do not place U.S. workers with H-2A/H-2B debarred 
employers during any such period of debarment. Debarment is a serious 
sanction that, in the case of H-2A employers for example, results from 
a finding not only that an employer violated a material term or 
condition of its temporary agricultural labor certification, but also 
that the violation is so substantial as to merit debarment, and it is 
imposed only after an employer has exhausted or forfeited an 
opportunity to respond to

[[Page 33924]]

the debarment action, appeal it, or both. Violations may be related to 
worker safety, failure to provide required wages or working conditions, 
failure to comply with recruitment requirements or participate in 
required investigations or audits, or failure to pay required fees, 
among other substantial violations. Entities that have committed such 
violations should be excluded from participation in the ES, and the 
Department is better able to protect U.S. workers by ensuring that they 
will not be placed with debarred employers that have substantially 
violated a material term or condition of their temporary agricultural 
labor certification.
    The new regulatory provision would also ensure that the ES system 
would have more resources to assist law-abiding employers to recruit 
available U.S. workers for jobs because SWAs would spend less time and 
resources serving noncompliant employers, and law-abiding employers 
would receive referrals of qualified U.S. workers that might otherwise 
go to noncompliant employers.
    UMOS, Green America, CAUSE, PCUN, North Carolina Justice Center, 
UFW, the UFW Foundation, and CCUSA and USCCB provided generalized 
support for the provision that requires the initiation of 
discontinuation of services against employers who are debarred from H-
2A and H-2B labor certification programs without much further 
elaboration.
    The Agricultural Justice Project and an individual supported 
expanding the provision to require SWAs to initiate discontinuation 
proceedings against employers who are debarred from any of the 
Department's other foreign labor certification programs. The 
Agricultural Justice Project stated that doing so will help stop repeat 
violators. An individual expressed the opinion that requiring a 
discontinuation of services against employers debarred from other 
programs would not have ``any negative effect.'' Also, it would provide 
more consistent outcomes between DOL and SWA actions rather than 
allowing employers to circumvent debarment.
    The Colorado Department of Labor and Employment did not directly 
oppose the expansion to include other debarred employers but noted that 
it would be difficult to initiate a discontinuation of services because 
they are not as knowledgeable about the rules and regulations that 
govern the programs not administered by the SWAs.
    The Department thanks commenters for their supportive comments. As 
noted above, the Department will adopt the proposed regulation without 
change. It is true that expanding the provision to require an 
initiation of discontinuation of services against an employer who is 
debarred from any foreign labor certification program may deter repeat 
violators, or those who attempt to circumvent debarment in one program 
by using another. However, at this time, the Department will not expand 
this provision to include employers who are debarred under any foreign 
labor certification program, only the H-2A and H-2B programs. The 
Department did not receive a significant number of comments in support 
of the expansion. Furthermore, the Department, as articulated above, 
has had more experience with H-2 employers who use or misuse the ES 
system and will therefore focus current efforts on employers that have 
been debarred from the H-2A and H-2B programs. Finally, the Department 
appreciates the comment from the Colorado Department of Labor and 
Employment and, should expansion be proposed again, will consider if 
additional guidance to SWAs will be needed.
    Finally, the Department did receive some additional comments that 
offered conditional support, suggestions, or both. The Colorado 
Department of Labor and Employment lamented that enforcement agencies 
do not have a standard practice of sharing findings with the SWA. It 
suggested that if a debarment action is taken against an H-2A or H-2B 
employer, the Department should immediately inform the SWAs of said 
debarment. Another anonymous commenter suggested something similar as 
well.
    Farmworker Justice echoed some of these concerns noting that SWA 
officials have informed them that they have been unable to discontinue 
services in some instances because they were not given the final 
investigative determinations by enforcement agencies. Farmworker 
Justice further explained that, allegedly, SWA officials have been told 
to file Freedom of Information Act (FOIA) requests for information on 
employers, but if they do not know which employers are being 
investigated, they cannot submit such a request. Farmworker Justice 
suggested that the Department adjust Sec.  501(a)(4) to adopt more 
expansive language from Sec.  501(a)(3) to trigger mandatory 
discontinuation of services whenever the SWA learns of a final 
determination from the enforcement agency, or via another manner.
    Farmworker Justice also suggested the Department require its 
agencies to notify SWAs of final determinations where an employer was 
found to have violated an employment-related law or regulation. In 
support of expanding discontinuation of services, Farmworker Justice 
noted that discontinuation, unlike debarment, can result in more 
farmworkers receiving restitution, and an employer adopting corrective 
action plans.
    The Department thanks the commenters for their suggestions but 
declines to adopt further changes to the regulatory text. Many SWAs 
have existing relationships with the Department's enforcement agencies, 
and the Department will continue to engage with appropriate enforcement 
agencies to encourage the sharing of information with SWAs where 
appropriate to provide SWAs the information necessary to initiate a 
discontinuation action.
    The Department notes that a SWA may also learn of a final 
determination of noncompliance issued by an appropriate enforcement 
agency through sources other than the enforcement agency (e.g., through 
a press release, a newspaper, or farmworker advocates). While the 
initial information the SWA receives from another source would not 
require the SWA to initiate discontinuation of services, the 
information might constitute an apparent violation, which Sec.  651.10 
defines as a suspected violation of employment-related laws or ES 
regulations by an employer that an ES staff member observes, has reason 
to believe, or regarding which an ES staff member receives information 
(other than a complaint as defined in this part). Under Sec.  
658.419(b), if the employer has filed a job order with the ES office 
within the past 12 months, the ES office must attempt informal 
resolution of the apparent violation as described at Sec.  658.411. As 
a part of the SWA's informal resolution attempt, the SWA may contact 
the enforcement agency to confirm the final determination and, at that 
point, the enforcement agency may provide notice to the SWA of the 
final determination, which would prompt the SWA to initiate 
discontinuation of services.
    The Department further notes that under Sec.  658.501(a)(3), which 
the Department did not propose to revise, a SWA must initiate 
procedures for discontinuation of services to employers that the SWA 
finds, either through field checks or otherwise, to have either 
misrepresented the terms or conditions of employment specified on job 
orders or failed to comply fully with assurances made on job orders. 
Therefore, if a SWA obtains sufficient facts evidencing that an 
employer failed to comply fully with assurances made on job/clearance 
orders and, after reviewing the matter, determines that

[[Page 33925]]

discontinuation is warranted, it should initiate discontinuation even 
absent a final determination from an enforcement agency. For example, 
if a SWA has sufficient evidence that an employer violated an 
employment-related law relative to a clearance order and after 
reviewing or investigating the matter as appropriate, the SWA 
determines that the employer did not comply with the required assurance 
at Sec.  653.501(c)(3)(iii) that the working conditions comply with 
applicable Federal and State minimum wage, child labor, social 
security, health and safety, farm labor contractor registration and 
other employment-related laws, the SWA should initiate discontinuation 
of services citing Sec.  658.501(a)(3). This could occur in situations 
where the SWA has conclusive evidence of a violation. For example, 
there have been several recent cases where employers were on video 
threatening workers with physical violence in retaliation for workers 
asserting their employment-related rights. The Department notes that, 
in addition to initiating discontinuation of services, SWAs are 
required to refer unresolved apparent violations and complaints that 
involve employment-related laws to applicable enforcement agencies, as 
described at part 658, subpart E.
    The Department is committed to providing protections for both U.S. 
workers and H-2A workers, as well as providing a fair and equitable ES 
system for employers. In light of the above-discussed comments, the 
Department adopts the proposed regulatory language at Sec.  
658.501(a)(4) without change.
    The Department proposed to amend Sec.  658.501(a)(5) by adding that 
this basis for discontinuing services includes employers who are found 
to have violated ES regulations pursuant to Sec.  658.411 or Sec.  
658.419. This edit is intended to clarify that ES violations may also 
be found as a result of apparent violations that are described at 
Sec. Sec.  651.10 and 658.419 (i.e., violations that ES staff observe 
or about which they otherwise receive information).
    USA Farmers opposed the inclusion of apparent violations, stating 
that, as proposed, a mere suspicion of a violation now constitutes a 
finding of a violation under proposed paragraph (a)(5). Washington 
State inquired generally as to whether the proposed changes in the H-2A 
program will result in additional findings during field checks or 
apparent violations or complaints. As to the H-2A program, they stated 
that while they provide business services and help ensure employer 
compliance through outreach and technical assistance, using 
discontinuation of ES services when warranted, SWAs are not enforcement 
agencies with jurisdiction over H-2A program violations. SWAs should 
not be positioned as a substitute for timely and comprehensive WHD 
enforcement of potential violations of H-2A rules.
    The Department appreciates the commenters' concerns. As noted in 
the proposed rule, the change in paragraph (a)(5) is a clarifying edit 
that does not make any substantive change or impose any new 
requirement. Section 658.411, entitled ``Action on complaints,'' 
addresses complaints filed with the ES. However, under Sec.  658.419, 
apparent violations are also documented and processed under the ES 
Complaint System (see part 658, subpart E), including, in some 
instances, pursuant to procedures in Sec.  658.411. The Department's 
change just clarifies that ES violations triggering discontinuation may 
be found as a result of either the complaints or apparent violations 
that are processed in the ES Complaint System. The Department 
emphasizes that discontinuation under paragraph (a)(5) is limited to 
findings of violations of ES regulations only and does not require or 
compel SWAs to make formal findings regarding apparent violations of 
other employment-related laws. Nor does it allow SWAs to initiate 
discontinuation based on suspicion alone. Rather, the SWA must make 
formal findings as it relates to the apparent violation of ES 
regulations before the requirement to initiate discontinuation is 
triggered. As to apparent violations of employment-related laws, the 
Department notes that Sec.  658.419 continues to provide for informal 
resolution and referral to appropriate enforcement agencies. Where an 
informal resolution of ES violations is reached that remedies the 
immediate violation and ensures future compliance, the Department does 
not think that discontinuation would be appropriate. Further, neither 
Sec.  658.419 nor proposed paragraph (a)(5) impede on WHD's enforcement 
authority over the H-2A program or the enforcement authority of other 
appropriate agencies, and none of the changes made in this regulation 
are meant to give SWAs authority to enforce the requirements of the H-
2A program. For these reasons and the reasons set forth in the NPRM, 
the Department adopts paragraph (a)(5), as proposed.
a. Section 658.501(a)(6)
    The Department proposed to amend paragraph (a)(6) by clarifying 
that discontinuation of services on the basis of failure to accept 
qualified workers would be appropriate only for employers placing 
criteria clearance orders. The requirement to accept qualified workers 
referred through the clearance system applies only to criteria 
clearance orders filed pursuant to Sec.  655.121. For non-criteria 
clearance orders, the regulations at part 653, subpart F, do not 
require employers to hire all qualified workers referred through the 
ES, so this basis for discontinuation does not apply to non-criteria 
clearance orders.
    USAFL and Hall Global commented that the final rule should modify 
paragraph (a)(6) to only permit SWAs to initiate discontinuation of 
services for employers that willfully refuse to accept qualified 
workers referred through the clearance system. As an example, they 
described a rancher who advertises a ranch hand job with an experience 
requirement. If the SWA refers a person who had experience but two 
decades in the past and in a different country, that person has no 
experience with modern U.S. production methods, and it is unclear 
whether that person is qualified. They explained that adding the word 
willfully would allow the employer to use its best good-faith judgment 
even in cases where the SWA or enforcement agency may disagree in 
similar good faith. They also contended that instead of qualified 
workers, the proposal should apply to workers who are able, willing, 
and qualified, and who will be available at the time and place needed 
to conform to 8 U.S.C. 1188.
    The Department does not find it appropriate to add that an employer 
must willfully refuse to accept qualified workers, as the commenter 
described. The example the commenter provided describes a situation 
where a SWA or an enforcement agency may disagree with an employer 
regarding a worker's qualifications. While SWAs are responsible for 
making accurate determinations, under Sec.  658.502(a)(6), the employer 
may present evidence to the SWA that workers were not qualified upon 
initial notification or during the 20 days that the employer has to 
respond to the SWA's intent to discontinue services. The Department 
also notes that the corresponding requirement in Sec.  655.135(c)(3) 
requires that 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). Under Sec.  655.135(c)(3), the employer must 
accept and hire all applicants who are qualified and who will be 
available for the job opportunity, and U.S. applicants can be rejected 
only for lawful, job-related reasons, and those not rejected on this 
basis will be hired. The requirements in part 655, subpart B do

[[Page 33926]]

not state or contemplate a willfulness standard. The Department 
declines to add a willfulness requirement here because it would not 
align with the requirements in part 655, subpart B.
    The Department also declines to further revise Sec.  658.501(a)(6) 
to expand the description of qualified workers. The Department notes, 
however, that as the change proposed and adopted by the Department is 
meant to clarify that Sec.  658.501(a)(6) applies to criteria orders, 
SWAs should be applying this basis for discontinuation of services in 
light of the standards outlined in part 655, subpart B. Finally, the 
Department notes that proposed Sec.  658.502(a)(6) allows employers to 
avoid discontinuation by providing evidence that the workers were not 
available or qualified.
    The Department adopts paragraph (a)(6), as proposed.
b. Section 658.501(a)(7)
    In paragraph (a)(7), the Department proposed to remove the words in 
the conduct of, which are currently present but do not add meaning and 
are therefore extraneous and unnecessary.
    USAFL and Hall Global commented that the Department should revise 
paragraph (a)(7) to include a scienter element, which requires that an 
individual have both knowledge that an act or conduct is wrongful, and 
intent to act despite that knowledge. They contended that paragraph 
(a)(7) should begin with the words bad faith refusal and that the bad-
faith standard should have a subjective and objective component. Citing 
Rule 11 of the Federal Rules of Civil Procedure, they stated that bad 
faith would not exist if the employer or legal counsel subjectively 
believed that the refusal was warranted by existing law or by a 
nonfrivolous argument for extending, modifying, or reversing existing 
law or for establishing new law, and that a reasonable person would 
agree that the refusal may be reasonably warranted by existing law or 
by a nonfrivolous argument for extending, modifying, or reversing 
existing law or for establishing new law. They stated that a bad-faith 
standard would provide a mechanism to effectively petition to redress 
grievances and ensure that issues are resolved cooperatively early on 
rather than having an enforcement proceeding reversed.
    The Department declines to adopt a bad-faith standard. The 
Department's proposed change to paragraph (a)(7) is a clarifying edit 
that does not make any substantive change. Additionally, the 
commenters' recommendation exceeds the scope of the Department's 
proposed change and, if adopted, would deprive the full regulated 
community of its opportunity to comment. Even if it were not beyond the 
scope of the non-substantive clarifying edit, the Department thinks 
that implementing this suggestion would not be appropriate. The ES has 
a responsibility for conducting unannounced field checks on 
agricultural orders where U.S. workers have been placed, and employers 
utilizing ES services must assure that ES staff have reasonable access 
to workers so that ES staff can adequately fulfill their field check 
duties. See 45 FR 39454, 39455 (June 10, 1980). The field check 
provisions at Sec.  653.503 reflect the Department's longstanding 
recognition that ES staff must abide by applicable laws when entering 
employer premises while employers must simultaneously allow the ES 
reasonable access to placed workers. See id. The Department believes 
that this balance of ES and employer obligations sufficiently mitigates 
against circumstances where, as the commenters describe, an employer's 
refusal to participate in a field check is warranted by existing law. 
As such, the Department does not view a ``bad faith refusal'' standard 
as necessary or appropriate. For these reasons, the Department adopts 
paragraph (a)(7), as proposed.
c. Section 658.501(a)(8)
    Paragraph (a)(8) requires SWAs to initiate discontinuation of 
services to employers who repeatedly cause the initiation of 
discontinuation procedures pursuant to paragraphs (a)(1) through (7) of 
this section. The Department did not propose changes to paragraph 
(a)(8) in the NPRM but received several comments, discussed below.
    The Michigan Farm Bureau, Western Growers, FSGA, NCFC, USApple, 
FFVA, AmericanHort, and Willoway Nurseries all stated that the 
Department should provide more clarity on what repeatedly causes the 
initiation of discontinuation of services under paragraph (a)(8). The 
commenters asked whether there is a prescribed number of times 
discontinuation must be initiated to be considered repeated. The 
commenters stated that the Department's intent and how the basis for 
discontinuation would be implemented is not clear. The commenters 
stated that employers are concerned that simple disagreements on terms 
and conditions and relevant labor laws might lead to SWAs initiating 
discontinuation services more often, which could also result in SWAs 
citing the basis in paragraph (a)(8) more frequently. USAFL and Hall 
Global also stated that the Department should eliminate paragraph 
(a)(8) entirely.
    Willoway Nurseries, Michigan Farm Bureau, FSGA, NCFC, FFVA, and 
AmericanHort asked how paragraph (a)(8) affects criteria employers that 
file emergency applications under part 655, subpart B. They asked 
whether each time an employer files an emergency H-2A application 
because of a dispute with the SWA, the SWA will initiate 
discontinuation of services, and argued that, if so, there will be 
increased discontinuation actions under Sec.  658.501(a)(8).
    The Department appreciates these comments. As the Department did 
not propose to revise paragraph (a)(8), the comments exceed the scope 
of this rulemaking. Making changes to this paragraph through this final 
rule would deprive the full regulated community of its right to comment 
on any changes. Therefore, the Department declines to revise paragraph 
(a)(8).
d. Section 658.501(b)
    Current Sec.  658.501(b) explains the circumstances and procedures 
for immediate discontinuation of services. The Department proposed to 
move paragraph (b) to Sec. Sec.  658.502 and 658.503 to clarify that 
existing paragraph (b) is not an independent basis for discontinuation 
and to better align it with the discontinuation procedures in 
Sec. Sec.  658.502 and 658.503. The Department did not receive any 
comments on this proposed change and adopts it, as proposed.
e. Section 658.501(c)
    The Department proposed to redesignate current Sec.  658.501(c), 
which recognizes the unique interplay between the ES and H visa 
programs, to Sec.  658.501(b), with revisions. The proposed Sec.  
658.501(b) explained what a SWA would be required to do when it has 
learned that an employer participating in the ES system may not have 
complied with the terms of its temporary agricultural labor 
certification under, for example, the H-2A and H-2B programs. The 
current regulation states that SWA officials must engage in the 
procedures for discontinuation of services to employers pursuant to 
paragraphs (a)(1) through (8) of Sec.  658.501. The Department proposed 
to clarify that SWA officials must determine whether the SWA must 
initiate discontinuation of services pursuant to Sec.  658.501(a). The 
proposed change would clarify that SWAs cannot proceed with 
discontinuation procedures based solely on information that an employer 
may have violated the terms of its temporary agricultural labor

[[Page 33927]]

certification. Rather, SWAs must take that information and look to 
paragraph (a) to determine whether one of the bases for discontinuation 
applies. Once a SWA determines that one of the bases for 
discontinuation under paragraph (a) does apply, then the SWA must 
initiate discontinuation of services. Finally, as the proposed 
paragraph (b) would apply to both currently active and previous labor 
certifications, in the NPRM, the Department invited comments on whether 
it would be appropriate to limit the scope of previous labor 
certifications or potential violations of a labor certification to a 
particular time period.
    The Department received comments from Willoway Nurseries, Michigan 
Farm Bureau, Western Growers, FSGA, NCFC, USApple, FFVA, and 
AmericanHort, who each opined that it would be appropriate to limit the 
scope of previous labor certifications or potential violations of a 
labor certification to the previous 3 years. The commenters cited that 
employers in the H-2A and H-2B program are only required to maintain 
records under those programs for 3 years. They said that a longer time 
period would frustrate fact finding because employers may not have 
records beyond 3 years. Additionally, the commenters noted, WHD 
generally limits the investigative period for its H-2 investigations to 
no more than 3 years and the FLSA has a 3-year statute of limitations 
for willful violations and 2-year statute of limitations for non-
willful violations. USA Farmers stated that if the Department finalizes 
any of the suggested changes for discontinuation of services, as to 
prior labor certifications, the SWAs should use only violations that 
are finalized after the date of this final rule when making a decision 
about discontinuing services. They stated that prior to the NPRM, 
employers would not expect that a minor violation could result in 
discontinuation of servicers; and that oftentimes employers choose to 
just pay fines for alleged violations because challenging them will 
often cost more money in legal fees even if the challenge is 
successful. They stated that under the current system, an employer has 
no idea that a minor violation can effectively get them debarred from 
the H-2A program, and that using a prior violation that the employer 
had no way of knowing would be used to exclude them from the program is 
unjust.
    The Department agrees with the commenters that it is appropriate to 
limit the scope of previous labor certifications or potential 
violations of a labor certification, which SWAs must consider in 
determining whether there is a basis under paragraph (a) for which the 
SWA must initiate discontinuation of services. The Department also 
acknowledges that part 655 requires employers to retain certain records 
for not less than 3 years after the date of the certification. See 
Sec.  655.122(j)(4) and (n); Sec.  655.167(b); and Sec.  
655.173(b)(1)(i). Additionally, 2 CFR 200.334 generally requires SWAs 
to keep records pertinent to the ES program for 3 years from the date 
of submission of the final grant expenditure report. For these reasons, 
records necessary to determine if any basis under paragraph (a) is met 
should be available within a 3-year lookback. Finally, the Department 
does not find it appropriate to limit the applicability of proposed 
Sec.  658.501(b) to violations that are finalized after the date of 
this final rule.
    The Department noted in the preamble that this provision, which is 
substantively the same as the current regulation, would apply to both 
active and previous labor certifications. Regardless of whether an 
employer has already resolved a matter with, for example, WHD, 
including through a settlement, a SWA would have a basis to initiate a 
discontinuation action if sufficient facts exist under Sec.  658.501, 
but, as discussed below under Sec.  658.502, an employer can respond to 
a proposed SWA's notice of intent to discontinue services by providing 
evidence that it has taken all actions required by the enforcement 
agency, including payment of restitution or fines, and that they have 
addressed or revised any policies, procedures, or conditions that gave 
rise to the violation(s). When considering an employer's response to a 
notice of intent to discontinue, SWAs will consider and assess the 
evidence provided by an employer that they have, in fact, corrected 
policies, procedures, or conditions responsible for the violation and 
that the same or similar violations are not likely to occur in the 
future. The Department notes that, in order to avoid discontinuation of 
services, the employer must provide the evidence requested in the SWA's 
notice of intent to discontinue services, as described in Sec.  
658.502.
    Accordingly, the Department is revising proposed paragraph (b) to 
limit the scope of previous labor certifications or potential 
violations of a labor certification that prompt SWAs to determine 
whether there is a basis under paragraph (a) to initiate 
discontinuation of services to the 3 previous years. The Department is 
making additional changes to incorporate the existing obligations on 
SWAs and ES offices under part 655 and 29 CFR parts 501 and 503 to 
notify OFLC and WHD upon receiving information that an employer may 
have committed fraud or misrepresentation in applying for a labor 
certification or may have violated its terms. The Department otherwise 
adopts changes to this section as proposed.
4. Section 658.502, Notification to Employers
    Section 658.502 describes the notification and procedural 
requirements a SWA must follow when it intends to discontinue services 
to an employer. The Department proposed several changes throughout 
Sec.  658.502 to clarify and streamline these requirements.
    First, the Department proposed to revise the section heading to 
state that it relates to notification to employers of the SWA's intent 
to discontinue services. This change clarifies that this section 
relates only to initial notices proposing discontinuation and not to 
the final notices described in Sec.  658.503. The Department did not 
receive comments on this change and adopts the section heading at Sec.  
658.502, as proposed.
    Second, the Department proposed to add introductory language to the 
beginning of paragraph (a) to clarify that the procedures at paragraphs 
(a)(1) through (a)(8) relating to notification of intent to discontinue 
services apply where the SWA determines that there is an applicable 
basis for discontinuation under Sec.  658.501(a), but do not apply to 
immediate discontinuation. The Department proposed additional revisions 
to paragraph (a) to clarify that the initial notices must provide the 
reasons for proposing discontinuation and must state that the SWA 
intends to discontinue services in accordance with this section. The 
proposed language removes the reference to part 654, to which 
discontinuation of services does not apply. The Department notes that 
if more than one basis under paragraph (a) applies, the SWA must 
initiate discontinuation under all applicable bases. The Department did 
not receive comments on these changes and adopts paragraph (a), as 
proposed.
    Third, paragraphs (a)(1) through (7) provide specific notification 
requirements for each of the corresponding bases for discontinuation of 
services outlined in Sec.  658.501(a)(1) through (7). The Department 
proposed to remove language in Sec.  658.502(a)(1) through (7) that 
describes the applicable bases for discontinuation and instead cross-
reference the applicable citations for clarity. For example, the 
Department proposed to revise Sec.  658.502(a)(1) to state that the 
paragraph applies where

[[Page 33928]]

the proposed discontinuation is based on Sec.  658.501(a)(1). This 
would replace current language that describes Sec.  658.501(a)(1) and 
more clearly and succinctly directs the SWA to Sec.  658.501(a)(1) as 
the applicable basis. The Department did not receive comments on these 
changes and adopts them throughout paragraphs (a)(1) through (7), as 
proposed.
    Fourth, the NPRM proposed to remove language in Sec.  658.502(a)(1) 
through (7) and Sec.  658.502(b) and (d) providing employers the 
opportunity for a pre-discontinuation hearing--while maintaining the 
opportunity for employers to submit evidence contesting a SWA's notice 
of intent to discontinue services under Sec.  658.502 and the 
opportunity for a post-discontinuation hearing in Sec.  658.504. The 
Department proposed this change to better align the hearing procedures 
for discontinuation of services at part 658, subpart F, with the 
hearing procedures for the ES Complaint System at Sec. Sec.  658.411(d) 
and 658.417, which allow for a hearing by a State hearing official only 
after the SWA issues a final decision on a complaint. This change also 
allows for a more efficient process without removing due process 
protections for employers and ensures that post-discontinuation 
hearings are decided on a more complete record. Having carefully 
considered the public comments, the Department adopts the language of 
the NPRM without change in the final rule.
    The comments shared by several trade associations, employers/
farmers, SWAs and H-2A consulting firms generally opposed the NPRM 
proposal to remove the option of a pre-discontinuation hearing 
asserting it would penalize employers by denying them access to the 
clearance system prior to the notice or opportunity to refute the 
alleged claims. USA Farmers asserted that the Department sought to 
weaponize the Wagner-Peyser system by creating a ``backdoor'' debarment 
process without meaningful due process. Other trade associations, such 
as IFPA and the U.S. Chamber of Commerce, as well as a couple of farm 
employers, submitted similar comments noting that the proposal took a 
guilty-first mentality and sharing the same due process concern. The 
American Farm Bureau Federation, for example, opposed the proposed 
change in the NPRM by arguing that failing to provide an employer the 
opportunity of a hearing before discontinuation would be burdensome and 
disruptive to the operation of any business, but it would be 
particularly injurious to America's farmers and ranchers.
    Other commenters expressed similar concerns that the proposal would 
allow for immediate discontinuation, without notice or opportunity to 
refute claims against the employer or affiliate, and effectively debar 
employers from the H-2A program. The same commenters and others also 
worried that this proposal would cause an increase in notices sent 
without proper basis and cautioned that the proposed change might not 
protect employers from frivolous charges based on small infractions, 
such as failure to notify the ES of a delayed start date for a single 
employee. The lack of a pre-discontinuation hearing might place an 
employer or affiliate immediately on the discontinuation list and could 
cause a reduction of services and job opportunities for employees who 
work with agents, attorneys, or others due to their names being placed 
on the discontinuation list. A couple of commenters emphasized that the 
ability to present facts and information to refute the evidence the SWA 
is relying on to an impartial hearing officer is integral to an 
efficient clearance system.
    Similarly, other commenters were concerned that the proposal would 
provide SWA officials sole discretion over an employer's ability to 
participate in the H-2A program. IFPA cautioned that removing the 
option of a pre-discontinuation hearing would lead to delays in 
processing clearance orders for all employers, not just those subject 
to additional scrutiny. M[aacute]sLabor urged the Department to adopt 
reasonable standards to protect due process, and also cautioned against 
conferring broad powers to SWAs while limiting an employer or agent's 
recourse in contesting or refuting the SWA's findings, since, it 
argued, such actions would likely result in irreparable harm to the 
impacted businesses. An anonymous commenter expressed concern that the 
proposal would shift the burden of proof to the employer to show 
program compliance, instead of the SWA demonstrating noncompliance 
prior to issuing a notice of discontinuation.
    USA Farmers referred to a purported case involving a farm where the 
SWA pursued discontinuation of services based on what the commenter 
perceived to be mere allegations, which the commenter claimed had 
disastrous results for the farm and was an egregious denial of the 
farm's due process rights, but the commenter provided no further 
explanation or details of the case.
    After reviewing these comments, the Department has decided to adopt 
the NPRM proposal without change. The Department believes that removing 
the opportunity for a pre-discontinuation hearing allows SWAs to 
resolve discontinuation proceedings while providing sufficient due 
process expeditiously and fairly to employers. As discussed in the 
NPRM, the current process allows employers to bypass a formal decision 
from the SWA anytime they request a hearing and, because State 
administrative hearings may take several months to complete, 
inadvertently prolong any formal determinations. The proposed change 
allows for a more complete record than would result from an immediate 
appeal of a notice from the SWA proposing discontinuation as the record 
would include the employer's response to the proposed discontinuation, 
including relevant evidence and argument, as well as the SWA's final 
determination with the SWA's response to the employer's evidence and 
arguments.
    The Department recognizes the commenters' concerns regarding due 
process, but the Department believes both the States and employers have 
sufficient time to address and resolve any disputes under the NPRM 
proposal. The Department's decision to remove the pre-discontinuation 
hearing is not injurious or disruptive to employers given that they 
still have the opportunity to submit rebuttal evidence to the SWA under 
the procedures in Sec.  658.502 to resolve the SWA's initial findings. 
Once the SWA issues its final decision to discontinue services under 
the proposed Sec.  658.503(a), the decision letter must specify the 
reasons for its final determination and state that the discontinuation 
of services is effective 20 working days from the date of the 
determination. The final determination also must notify employers that 
they may request reinstatement or appeal the discontinuation 
determination by requesting a hearing pursuant to Sec.  658.504, and 
that a request for a hearing stays the discontinuation pending the 
outcome. The stay during the 20-day period allows SWAs to continue 
processing an employer's clearance orders, as no final determination on 
discontinuation has taken effect. A timely filing of an appeal also 
stays the discontinuation determination pending the outcome of the 
appeal. Contrary to the concerns of many commenters, the changes the 
Department is adopting will not result in the immediate discontinuation 
of services or limit employers' access to the clearance system; rather, 
the proposal provides sufficient due process to employers to refute any 
claims in the SWA's final determination, maintains employers' access to 
the ES system

[[Page 33929]]

pending resolution of a discontinuation action, and enables the 
development of a more complete record in the event of an appeal.
    By staying the effect of discontinuation during an employer's 
appeal, the Department's process also provides the same due process 
rights to employers available in the current H-2A debarment procedures 
found at Sec.  655.182(f)(3) and 29 CFR 501.20(e). Both sections grant 
stays in the debarment action so long as employers file timely appeals, 
and the stay continues through the appeal process. As with an H-2A 
debarment proceeding, an employer would not appear on a discontinuation 
list until final resolution of the discontinuation proceeding, 
including resolution of any appeals. Allowing employers to request a 
hearing only after issuance of a final determination is akin to the 
current OFLC process for H-2A labor certification applications under 
Sec. Sec.  655.141 and 655.164, which provides employers the 
opportunity to remedy deficiencies in their applications before the CO 
issues a denial, but only allows employers to appeal after a denial has 
been issued, and not in response to a Notice of Deficiency (NOD). 
Providing for the opportunity to submit rebuttal evidence prior to the 
final determination and file an appeal after the final determination is 
also similar to the Department's audit resolution process for grant 
recipients under 2 CFR part 2900. The Department believes that the 
proposed discontinuation process is efficient, fair, and reasonable, 
and that because employers will have a full opportunity to contest the 
SWA's findings before they take effect, employers will be adequately 
safeguarded from the risk of erroneous deprivation of services.
    As mentioned in previous sections, the Department also maintains 
that the purpose and application of discontinuation of services is 
distinct from debarment actions, which more narrowly apply to certain 
programs with different consequences under different authorities, 
though it notes that the process afforded employers under this 
regulation is similar to the process provided in a debarment 
proceeding. For these reasons, the Department adopts the changes to 
Sec.  658.502(a)(1) through (7), as proposed.
    Finally, in Sec.  658.502(a)(1) through (7), the Department 
proposed changing the language that SWAs must notify employers that all 
employment services will be terminated to state that all ES services 
will be terminated. The proposed language would clarify that the 
services at issue are specific to the ES. The Department did not 
receive comments on this change and adopts it throughout paragraphs 
(a)(1) through (7), as proposed.
    In addition to the changes described above, the Department proposed 
further revisions to paragraphs (a)(1) through (7) to provide greater 
detail and specificity regarding the type of information that SWAs must 
provide to employers when proposing to discontinue services. The 
proposed changes ensure that SWAs adequately explain their reasons for 
proposing discontinuation, and that employers have sufficient factual 
detail to respond to the proposed discontinuation. In these paragraphs, 
the Department also proposed small changes for clarity, including 
rewording sentences so they use the active voice. Specific proposed 
changes are discussed below.
    M[aacute]sLabor and USAFL and Hall Global expressed general, 
overall support for these proposed changes, stating that they include a 
greater level of detail and specificity regarding what SWAs must 
provide to justify discontinuation of services, and that they support 
and concur with the Department's reasoning in making the changes. 
Western Growers, Michigan Farm Bureau, AmericanHort, Willoway 
Nurseries, FSGA, NCFC, USApple, and FFVA expressed concern that 
employers, agents, attorneys, agricultural associations, joint 
employers, farm labor contractors, and successors in interest would 
likely receive more notices of intent to discontinue services and 
recommended that the Department provide clear instruction to SWAs 
regarding information they must include in notices. Additionally, they 
stated that it is prudent that the Department is providing instruction 
to the SWAs regarding what must be in the notices.
    The Department thanks commenters for their support for these 
proposed changes. Given the greater level of detail and specificity 
regarding what SWAs must provide to justify discontinuation of 
services, the Department agrees with commenters that additional 
guidance for SWAs will help facilitate effective implementation of the 
notice requirement. As discussed throughout this final rule, the 
Department will issue guidance on the discontinuation of services 
regulation, including the SWA notification requirements in Sec.  
658.502.
a. Section 658.502(a)(1)
    The Department proposed to revise paragraph (a)(1) to replace 
references to specifications with terms and conditions to clarify that 
the notification specifically involves terms and conditions of the job 
order, to align this paragraph with the proposed changes to Sec.  
658.501(a)(1), discussed above.
    USAFL and Hall Global suggested that paragraph (a)(1)(i), which 
allows employers to submit evidence that the terms and conditions on 
clearance orders are not contrary to employment-related laws, should 
expressly permit legal argument. They further stated that SWAs should 
be allowed to invoke paragraph (a)(1) only when an agency with primary 
jurisdiction over the alleged violation has made a preliminary 
determination, with employer participation, that the language is in 
violation of employment-related laws. Additionally, they asked the 
Department to allow employers to contest and stay discontinuation 
pursuant to Sec.  658.501(a)(1) by demonstrating that the matter has 
not yet been adjudicated on the merits. The commenters also added that 
the regulation should specify that the terms and conditions are those 
in Sec.  655.122 and that the SWA may not add to them.
    The Department appreciates the commenters' recommendations but 
declines to adopt them because they are beyond the scope of the non-
substantive changes to this paragraph. Additionally, the Department 
believes a revision to expressly permit legal argument is unnecessary 
because submission of legal argument is not prohibited under Sec.  
658.502(a). The Department declines to specify that the terms and 
conditions in this paragraph mean only those terms and conditions in 
Sec.  655.122 because Sec. Sec.  658.501(a)(1) and 658.502(a)(1) apply 
to criteria and non-criteria orders, such that the terms and conditions 
in part 653, subpart F, and part 655, subpart B are applicable. 
Finally, as discussed above in the discussion of Sec.  658.501(a)(1), 
the Department recognizes and appreciates the concerns and 
recommendations raised by commenters regarding effective and efficient 
resolution of employer and SWA disagreements under Sec. Sec.  
658.501(a)(1) and 658.502(a)(1). The Department intends to issue 
further guidance on discontinuation, including the notification and 
response procedures outlined in this paragraph. The Department adopts 
paragraph (a)(1), as proposed.
b. Section 658.502(a)(2)
    In paragraph (a)(2), the Department proposed to add language 
explaining that SWAs must specify the assurances involved and must 
explain how the employer refused to provide the assurances. The 
Department also proposed a revision to paragraph (a)(2)(ii) to align 
this paragraph with the proposed changes to Sec.  658.501(a)(2),

[[Page 33930]]

discussed above, regarding the scope of the required assurances.
    USAFL and Hall Global stated that the regulation should specify in 
an appropriate section that the required assurances are those specified 
in Sec.  655.135 and that the SWA may not add to them.
    The Department declines to adopt the commenters' recommendation 
because it is outside the scope of the proposed changes in this 
paragraph. Additionally, the Department disagrees that assurances 
described in paragraph (a)(2) should be limited or otherwise pertain to 
those that are described in part 655, subpart B. Section 658.501(a)(2) 
states that the referenced assurances are those assurances required 
pursuant to the ARS for U.S. workers at part 653, subpart F, of this 
chapter. Accordingly, the assurances referenced in this paragraph are 
limited to those assurances listed in part 653, subpart F. The 
Department adopts paragraph (a)(2), as proposed.
c. Section 658.502(a)(3)
    In paragraph (a)(3), to provide clearer direction to SWAs and 
better notice to entities receiving a notice, the Department proposed 
to add language stating that SWAs must specify the terms and conditions 
the employer misrepresented or the assurances with which the employer 
did not fully comply, and explain how the employer misrepresented the 
terms or conditions or failed to comply with assurances on the job 
order. In paragraph (a)(3)(iii), the Department proposed to remove the 
requirement that employers provide resolution of a complaint which is 
satisfactory to a complainant referred by the ES, replacing it with the 
requirement that an employer provide adequate evidence that it has 
resolved the misrepresentation of terms and conditions of employment or 
noncompliance with assurance. Evidence is adequate if the SWA could 
reasonably conclude that the employer has resolved the 
misrepresentation or noncompliance. The proposed change removes 
unnecessary and out-of-place language regarding ES complaints, which 
are addressed in paragraph (a)(5), and better aligns Sec.  
658.502(a)(3) with proposed Sec.  658.501(a)(3). The Department also 
proposed combining paragraphs (a)(3)(iii) and (iv) to make clear that 
employers need to provide the information in paragraphs (a)(3)(iii) and 
(iv) together.
    USAFL and Hall Global commented that the regulation should specify 
what misrepresentation means so that it identifies serious wrongdoing 
for which a serious penalty might be warranted and so that there is a 
uniform Federal standard as to its meaning. They stated that an 
employer in Michigan should be no better or worse than an employer in 
California. They suggested that the Department adopt the California 
misrepresentation standard because California offers wide-ranging 
worker protections and a large portion of H-2A workers work in that 
State. They stated that under the California standard, 
misrepresentation means: (1) a misrepresentation of a past or existing 
material fact; (2) without reasonable grounds for believing it to be 
true; (3) with intent to induce another's reliance on the fact 
misrepresented; (4) justifiable reliance thereon by the party to whom 
the misrepresentation was directed; and (5) damages. See Petersen v. 
Allstate Indem. Co., 281 FRD. 413, 417 (C.D. Cal. 2012). They stated 
that this would allow the enforcement system to expend resources going 
after true and damaging misrepresentations rather than good-faith 
errors.
    The Department declines to adopt the standard articulated in 
Petersen as it represents California's negligent misrepresentation 
standard (a misrepresentation made without reasonable ground for 
believing it to be true) and does not encompass intentional 
misrepresentation (a misrepresentation with knowledge of falsity). See 
Nazemi v. Specialized Loan Servicing, LLC, 637 F. Supp. 3d 856, 861 
(C.D. Cal. 2022). The Department believes that any misrepresentation of 
the terms and conditions specified on the job order, whether 
intentional or negligent, is a basis for discontinuation. Job orders 
represent offers of employment and must include all material terms and 
conditions. Where a job order contains false, erroneous, or misleading 
statements regarding a term or condition of employment, for example an 
omission of a required job duty or an incorrect statement regarding 
rate or frequency of pay, potential workers are not fully apprised of 
the terms under which they might be employed and may rely (or 
reasonably be expected to rely) on the incorrect terms and conditions 
to their detriment. While this is important for all job orders, it is 
especially important in the case of intrastate and interstate clearance 
orders, through which employers recruit migrant farmworkers from 
outside of the commuting distance. Such workers rely on the accuracy of 
job orders to decide whether they will accept the offered employment, 
for which they must travel and are not able to return home within the 
same day, should they find that the employment is different than 
described. For criteria clearance orders, which represent most of the 
clearance orders SWAs process, H-2A workers travel from other countries 
for the advertised work and may have limited resources in the event of 
misrepresentation. Thus, it is critical that employers, agents, farm 
labor contractors, etc. do not misrepresent, intentionally or 
negligently, any terms or conditions on job orders. Finally, contrary 
to the commenter's concern, the Department thinks that this approach 
can be uniformly applied by the SWAs and is concerned that a multi-
factor test could be inconsistently implemented or applied in States 
and, therefore, thinks that the commenter's suggestion will lead to 
less, not more, uniformity. The Department will issue guidance on Sec.  
658.501(a)(3) and Sec.  658.502(a)(3) to ensure uniform application of 
these provisions.
    Additionally, as discussed above, the Department intends for SWAs 
to initiate discontinuation proceedings against the party responsible 
for the misrepresentation. Where an employer reasonably relies on their 
agent or attorney regarding the contents of the clearance order, or the 
agent or attorney reasonably relies on an employer's description of the 
terms and conditions of the job, the Department does not anticipate 
that the SWA would initiate proceedings against those parties. While a 
SWA may initiate discontinuation against multiple parties, the ability 
for the SWA to initiate proceedings against only the party responsible 
for the misrepresentation will protect entities that act in good faith 
in the development and submission of clearance orders. For these 
reasons, the Department declines to adopt the California negligent 
misrepresentation standard suggested by commenters. The Department 
adopts paragraph (a)(3), as proposed.
d. Section 658.502(a)(4)
    In paragraph (a)(4), the Department proposed to add language that 
SWAs must provide evidence of the final determination by an enforcement 
agency of a violation of an employment-related law or debarment with 
the notice of intent to discontinue services. For final determinations, 
the Department proposed adding language clarifying that the SWA must 
specify--as discussed in the final determination or debarment--the 
enforcement agency's findings of facts and conclusions of law as to the 
employment-related law violation(s). For final debarment orders, the 
Department proposed adding language requiring the SWA to specify the 
time

[[Page 33931]]

period for which the employer is debarred from participating in one of 
the Department's foreign labor certification programs.
    The Department also proposed revisions to Sec.  658.502(a)(4)(i) 
through (iii) to clarify and explain the evidence and assurances that 
the employer may provide to avoid discontinuation of services. In 
paragraph (a)(4)(i), the Department proposed to remove existing 
language stating that the employer may provide evidence that the 
enforcement agency reversed its ruling and that the employer did not 
violate employment-related laws; and to replace it with language 
stating that the employer may provide evidence that the determination 
at issue is not final because, for example, it has been stayed pending 
appeal, overturned, or reversed. The Department proposed a new 
paragraph (a)(4)(ii) that requires employers to submit evidence that 
their period of debarment is no longer in effect and that they have 
taken all actions required by the enforcement agency as a consequence 
of the violation. The proposed paragraph (a)(4)(ii)(B) incorporated 
existing language and was meant to more clearly encompass any and all 
actions required by final determination but does not substantively 
change what an employer has to show under current Sec.  
658.502(a)(4)(ii). The Department did not receive any comments on these 
proposed changes and adopts paragraph (a)(4), as proposed.
e. Section 658.502(a)(5)
    In paragraph (a)(5), the Department proposed new language to 
clarify that the SWA must specify which ES regulation the employer has 
violated and must provide basic facts to explain the violation. The 
proposed language ensures that SWAs provide sufficient factual detail 
regarding the ES violation at issue so the employer can respond. The 
Department did not receive comments on this change and adopts, 
paragraph (a)(5), as proposed.
f. Section 658.502(a)(6)
    The Department proposed to revise Sec.  658.502(a)(6) to explain 
that SWAs must state that the job order at issue was filed pursuant to 
part 655, subpart B and specify the name of each worker who was 
referred and not accepted. The proposed revision would be consistent 
with the proposed change to Sec.  658.501(a)(6) and would ensure that 
SWAs provide sufficient factual detail regarding the workers at issue 
so the employer can respond. In paragraph (a)(6)(iii), the Department 
proposed changing and to or to decouple paragraph (a)(6)(iii) from the 
assurances required in existing paragraph (a)(6)(iv), as it is not 
necessary for employers that did not violate the requirement to provide 
assurances of future compliance. The Department proposed a new 
paragraph (a)(6)(iv), to add an option for the employer to show that it 
was not required to accept the referred workers, because the time 
period under 20 CFR 655.135(d) had lapsed, and a new paragraph 
(a)(6)(v), to add an option for the employer to show that, after 
initial refusal, it subsequently accepted and offered the job to the 
referred workers or to show that it had provided all appropriate relief 
imposed as a result of the refusal. Finally, the Department proposed to 
move existing paragraph (a)(6)(iv) to paragraph (a)(6)(vi) to maintain 
the requirement that the employer provide assurances that qualified 
workers referred in the future will be accepted; and add new language 
to clarify the assurance that is required depending on whether the 
period described in 20 CFR 655.135(d) has lapsed, as after the end of 
the period the employer would no longer be required to accept referred 
workers on the particular clearance order involved. This change would 
provide a means of ensuring future compliance with the requirement that 
employers submitting criteria clearance orders hire all qualified 
workers referred to the order, as described in part 655, subpart B.
    M[aacute]sLabor and USAFL and Hall Global stated that they support 
the Department's proposal to add new paragraph (a)(6)(v), as written. 
They also supported the Department's proposal to require SWAs to 
provide the precise factual and legal basis, including concrete 
information regarding the specific job order and workers involved, for 
any initiation of discontinuation procedures.
    The Department appreciates the supportive comments and adopts 
paragraph (a)(6), as proposed.
g. Section 658.502(a)(7)
    In paragraph (a)(7), the Department proposed clarifying edits that 
provide clearer direction to the SWA but that do not change the 
regulation's meaning, including rephrasing sentences and changing the 
pronoun used for employers to it instead of he/she. The Department did 
not receive comments on these clarifications and adopts paragraph 
(a)(7), as proposed.
h. Section 658.502(a)(8)
    The Department proposed to add a new paragraph (a)(8) to explain 
information the SWA must include in its notice to an employer proposing 
to discontinue services where the decision is based on Sec.  
658.501(a)(8) (repeatedly causes the initiation of discontinuation of 
services). The Department proposed that the SWA must list and provide 
basic facts explaining the prior instances where the employer has 
repeatedly caused initiation of discontinuation proceedings to provide 
notice of the basis for the SWA's action and to facilitate the 
employer's response. The Department proposed that the SWA must notify 
the employer that all ES services will be terminated unless the 
employer within that time provides adequate evidence that the SWA's 
initiation of discontinuation in prior proceedings was unfounded. The 
proposed paragraph (a)(8) would replace existing paragraph (c), which 
discusses discontinuation based on Sec.  658.501(a)(8) but does not 
include clear direction to the SWA and does not provide sufficient 
notice to employers to allow them to respond. The Department did not 
receive comments on these changes and adopts paragraph (a)(8), as 
proposed.
i. Section 658.502(b) and (d)
    The Department proposed to remove existing Sec.  658.502(b) and (d) 
because these paragraphs pertain to the employer's pre-determination 
opportunity to request a hearing. As described in the discussion of 
Sec.  658.502(a)(1) through (7) above, the Department proposed to 
eliminate the opportunity for an employer to request a hearing until 
after the SWA has provided its final notice on discontinuation of 
services to the employer. The Department received several comments 
regarding the removal of the opportunity for a pre-discontinuation 
hearing, which are summarized and addressed above. For the reasons 
fully explained in the discussion of Sec.  658.502(a)(1) through (7), 
the Department adopts the NPRM's proposed removal of existing Sec.  
658.502(b) and (d) without modification.
    The Department proposed a new Sec.  658.502(b) to explain the 
circumstances that warrant immediate discontinuation of services. The 
proposed addition replaces existing Sec.  658.501(b), in part, and 
states that SWA officials must discontinue services immediately, in 
accordance with Sec.  658.503, without providing the notice of intent 
and opportunity to respond described in this section, if an employer 
has met any of the bases for discontinuation of services under Sec.  
658.501(a) and, in the judgment of the State Administrator, exhaustion 
of the administrative procedures set forth in

[[Page 33932]]

this section would cause substantial harm to workers. The prior version 
of Sec.  658.501(b) stated that SWA officials may discontinue services 
immediately in these circumstances, whereas the proposed new Sec.  
658.502(b) states that SWAs must discontinue services immediately. 
Additionally, the prior Sec.  658.501(b) allows for discontinuation 
when there would be substantial harm to a significant number of 
workers, whereas the proposed new Sec.  658.502(b) requires immediate 
discontinuation when there would be substantial harm to workers. The 
Department proposed these changes because it thought that immediate 
discontinuation is warranted where the harm at issue would involve only 
one or a small number of workers, and that where such harm would occur, 
SWAs must be required to initiate discontinuation to prevent the harm 
from actually occurring to workers. Finally, this proposed paragraph 
clarified that immediate discontinuation is appropriate only when a 
basis under proposed Sec.  658.501 exists and the SWA determines that 
substantial harm would occur; risk of substantial harm alone is not 
enough for a SWA to immediately discontinue services.
    UMOS, Green America, CAUSE, PCUN, the North Carolina Justice 
Center, UFW, and the UFW Foundation expressed general support for 
requiring SWAs to immediately discontinue services in circumstances 
where it is warranted. In contrast, IFPA, GFVGA, NHC, Titan Farms, LLC, 
U.S. Custom Harvesters, Inc., Demaray Harvesting and Trucking, LLC, 
TIPA, the U.S. Chamber of Commerce, the American Farm Bureau 
Federation, USA Farmers, the Wyoming Department of Agriculture, wafla, 
an individual, and an anonymous commenter opposed the proposed changes 
to Sec.  658.502(b), citing due process concerns. Specifically, they 
stated that the proposed changes do not define ``substantial harm'' and 
give State Administrators broad and vague discretion to determine what 
it means. They expressed concern that allegations of substantial harm 
to a single worker could give rise to immediate discontinuation, and 
that such allegations do not require any verification prior to 
immediate discontinuation. IFPA and TIPA both stated that the proposed 
changes pave the way for abuse by singularly disgruntled employees. 
Overall, commenters stated that the proposed changes curtail the rights 
of employers to meaningfully address allegations of substantial harm 
and will cause significant economic loss through delays or ultimate 
denial of access to the H- 2A program. They stated that mandatory, 
immediate discontinuation must be substantiated, must be based on more 
than one claim by a single worker, must be reserved for egregious acts 
causing significant harm, and must provide an opportunity for review 
prior to discontinuation.
    Regarding what constitutes substantial harm, as discussed in the 
NPRM, the Department envisions immediate discontinuation in situations 
involving significant health and safety issues, including, but not 
limited to, physical violence, sexual harassment, assault, coercion, 
and human trafficking. The Department envisions a SWA will also 
consider immediate discontinuation of services when employers cause 
substantial risk of injuries due to unsafe working conditions like heat 
stress, infectious disease, exposure to chemicals or pesticides, and 
work-related machinery. Thus, where the State Administrator determines 
that exhaustion of the administrative procedures set forth in this 
section would cause such harm, the Department thinks immediate 
discontinuation is warranted to protect the safety and welfare of 
workers.
    As discussed above, the Department believes that immediate 
discontinuation is warranted even where the harm at issue would involve 
only one or a small number of workers. The Department understands 
commenters' concerns that the allegations of a single employee, such as 
a disgruntled employee, could lead to immediate discontinuation. 
However, the Department believes that its proposed changes to the 
immediate discontinuation regulation safeguard against these concerns. 
The Department reiterates that immediate discontinuation is appropriate 
only where a basis under proposed Sec.  658.501 exists; and is reserved 
only for those situations where the State Administrator determines that 
substantial harm to at least one worker will occur if action is not 
immediately taken. Thus, even where a single employee makes an 
allegation, the SWA must first have sufficient factual information--
e.g., a finding via a field check that an employer has misrepresented 
the terms in its job order (Sec.  658.501(a)(3)) or a finding of 
violations of ES regulations (Sec.  658.501(a)(5))--to articulate a 
basis for discontinuation. The SWA must then have a sufficient basis, 
supported by factual detail, to support its determination that not 
taking immediate action would cause substantial harm to workers (see 
proposed Sec.  658.503(b)). For example, the SWA may rely on 
observation or findings of substantial harm from field checks and 
determine that such harm will continue if the SWA does not take 
immediate action. Similarly, the SWA may receive documentation or 
photos from public sources, such as newspapers, that an employer's 
working conditions have caused substantial harm to workers; and, after 
verifying or corroborating its accuracy, determine that such harm will 
continue if the SWA does not take immediate action. In all instances, 
there must be a basis for discontinuation that is supported by factual 
detail and a determination, with sufficient reasoning supported by 
factual detail, that exhaustion of administrative procedures would 
cause substantial harm. The Department will issue further guidance on 
immediate discontinuation, including the circumstances giving rise to 
immediate discontinuation.
    As discussed in the NPRM and below, where a SWA issues a 
determination to immediately discontinue services, the discontinuation 
is effective the date of the notice. An employer's appeal will not stay 
the discontinuation, and the SWA will not process that employer's 
clearance orders during the period of discontinuation. Regarding 
commenter concerns that immediate discontinuation curtails the rights 
of employers to meaningfully address allegations of substantial harm, 
the Department emphasizes that, at any time following the issuance of 
the discontinuation notification, employers may rebut a SWA's 
determination via the reinstatement process (see proposed Sec. Sec.  
658.503(b) and 658.504). Regarding commenter concerns that immediate 
discontinuation will cause employers economic loss through delays or 
ultimate denial of access to the H-2A program, the Department believes 
that any delayed access to the ES Clearance System as a result of 
immediate discontinuation is warranted, as any burden employers face by 
not having access to ES services is outweighed by the Department's 
interest in protecting workers from the harmful, potentially dangerous 
situations giving rise to immediate discontinuation. Moreover, the 
Department notes that in lieu of an appeal, an employer subject to 
immediate discontinuation may request reinstatement from the SWA under 
proposed Sec.  658.504(b). Thus, the burden to any employer is 
mitigated by the opportunity to request reinstatement, and the proposed 
20-day timeframe for the SWA to respond to such a request may provide 
for timely and efficient resolution of an immediate discontinuation.

[[Page 33933]]

5. Section 658.503, Discontinuation of Services
    Section 658.503 describes the procedural requirements a SWA must 
follow when issuing a final determination regarding discontinuation of 
services to an employer. The Department proposed to revise paragraph 
(a) to require that within 20 working days of receipt of the employer's 
response to the SWA's notification under Sec.  658.502, or at least 20 
working days after the SWA's notification is received by the employer 
if the SWA does not receive a response, the SWA must notify the 
employer of its final determination. When the SWA sends its 
notification, the Department proposed that it do so in a manner that 
allows the SWA to track receipt of the notification, such as certified 
mail. If the SWA determines that the employer did not provide a 
satisfactory response in accordance with Sec.  658.502 the SWA's 
notification must specify the reasons for its determination, state that 
the discontinuation of services is effective 20 working days from the 
date of the notification, state that the employer may request 
reinstatement or a hearing pursuant to Sec.  658.504, and state that a 
request for a hearing stays the discontinuation pending the outcome of 
the hearing. The Department proposed this stay pending appeal and the 
20-working-day period to ensure that employers are provided an 
opportunity to challenge the SWA's determination before losing access 
to all ES services. Staying the effect of discontinuation during the 
pendency of an appeal is appropriate to allow for full adjudication and 
resolution of any issues related to the SWA's findings before they 
become final and binding on the employer and the ES system, mitigating 
the risk that an employer is erroneously deprived of access to 
services, similar to the procedures in Sec.  658.502. Additionally, 
placing the effective date at the end of the 20-day period, rather than 
at the issuance of the notification, avoids depriving appealing 
employers of ES services for a short period of time prior to their 
request for hearing. This also makes for a more efficient process for 
SWAs and ETA, as these agencies would otherwise expend time and 
resources to effectuate a discontinuation that may be premature--if the 
employer requests a hearing a short time later, agencies would need to 
use additional resources to then stay the discontinuation they just 
effectuated. To facilitate implementation and maintenance of the 
proposed OWI discontinuation of services list, discussed above, the 
Department proposed that the SWA must also notify OWI of any final 
determination to discontinue ES services, including any decision on 
appeal upholding a SWA's determination to discontinue services. 
Proposed Sec.  658.503(a) removed language regarding pre-
discontinuation hearings to correspond with proposed changes to Sec.  
658.502.
    The Department did not receive comments that identified Sec.  
658.503(a). However, the Department received many comments regarding 
the proposal to remove pre-discontinuation hearings through revisions 
to Sec.  658.502, which the Department discussed above in the response 
to that section. The Department finalizes the changes to Sec.  
658.503(a) as proposed.
a. Section 658.503(b)
    The Department proposed to add a new Sec.  658.503(b) to explain 
the procedures for immediate discontinuation of services and to 
incorporate them into the general discontinuation procedures at Sec.  
658.503. The proposed new paragraph (b) replaces existing Sec.  
658.501(b), in part, and states that the SWA must notify the employer 
in writing that its services are discontinued as of the date of the 
notice. The proposed provision would also require that the notification 
must also state that the employer may request reinstatement or a 
hearing pursuant to Sec.  658.504, and that a request for a hearing 
relating to immediate discontinuation would not stay the 
discontinuation pending the outcome of the hearing. The proposed new 
Sec.  658.503(b) adds that SWAs must specify the facts supporting the 
applicable basis for discontinuation under Sec.  658.501(a) and the 
reasons that exhaustion of the administrative procedures would cause 
substantial harm to workers. The proposed addition ensures that 
employers have sufficient information regarding the SWA's rationale for 
immediate discontinuation and makes clear that employers have recourse 
to the State administrative hearing process or reinstatement process if 
a SWA immediately discontinues services. While discontinuation under a 
determination issued under Sec.  658.503(a) is delayed until the 
employer's time to appeal the determination has ended, in proposing 
this provision the Department determined that the circumstances 
justifying a notice of immediate discontinuation also justify that the 
discontinuation be effective immediately, and that it remain in effect 
unless the employer is reinstated or the determination is overturned. 
As noted in the NPRM and as discussed above, immediate discontinuation 
is reserved for those situations where the State Administrator 
determines that substantial harm to at least one worker will occur if 
action is not immediately taken. Delaying the effective date of the 
discontinuation would undermine the protection that the immediate 
discontinuation procedure is designed to provide. Finally, as with 
proposed Sec.  658.503(a), to facilitate implementation and maintenance 
of the proposed OWI discontinuation of services list, discussed above, 
the Department proposed that the SWA must also notify OWI within 10 
days of any determination to immediately discontinue ES services.
    Wafla opposed the proposed change that would mean a request for a 
hearing does not stay discontinuation, stating that it allows SWAs to 
discontinue services without full due process. The Colorado Department 
of Labor and Employment asked that the Department provide examples of 
information evidencing that employers have made threats or perpetuated 
violence or other substantial harm, and whether a complaint or 
allegation alone is sufficient to immediately discontinue services. 
IFPA, GFVGA, TIPA, NHC, Titan Farms, LLC, and an individual asked that 
the Department substantiate its rationale for the proposed changes with 
evidence and verified data, particularly as it pertains to the 
Department stating that it received information regarding violations 
over the last several years. The commenters stated that the Department 
did not provide further information, such as whether that information 
included mere allegations by an unhappy employee, or whether the 
alleged incidents were isolated or represented a statistically valid 
percentage of violation to justify the proposed changes to immediate 
discontinuation.
    The Department appreciates the commenters' concerns and requests 
for clarification. As to the Department's proposal that a request for a 
hearing will not stay discontinuation, the Department reiterates that 
employers who experience immediate discontinuation of services have 
recourse to the State administrative hearing process or reinstatement 
process. In instances that would give rise to an immediate 
discontinuation, the Department believes that its interest in 
protecting workers from the harmful, potentially dangerous situations 
giving rise to immediate discontinuation outweighs any burden employers 
may experience while services are discontinued. The burden to any 
employer is mitigated by the

[[Page 33934]]

opportunity to request reinstatement from the SWA, and that the 
proposed 20-day timeframe for the SWA to respond to such a request may 
provide for timely and efficient resolution of an immediate 
discontinuation.
    As to the SWA's request for examples of information or evidence 
that would demonstrate substantial harm, the Department emphasizes that 
a complaint or allegation alone is insufficient to warrant immediate 
discontinuation. The State Administrator must have information 
evidencing that substantial harm to workers will occur if action is not 
immediately taken. For example, the SWA may rely on observation or 
findings of substantial harm from field checks and determine that such 
harm will continue if the SWA does not take immediate action. 
Similarly, the SWA may receive documentation or photos from public 
sources, such as newspapers, indicating that an employer's working 
conditions have caused substantial harm to workers; and, after 
verifying or corroborating its accuracy, determine that such harm will 
continue if the SWA does not take immediate action. The Department 
further reiterates that immediate discontinuation is appropriate only 
where there is a basis to discontinue services under Sec.  658.501(a).
    Finally, as to the request that the Department substantiate its 
rationale for the proposed changes, particularly as it pertains to the 
Department stating that it received information regarding violations 
over the last several years, the Department reiterates that the ability 
of SWAs to immediately discontinue services to employers due to 
substantial harm is not new. The Department confirms that SWAs have 
obtained conclusive evidence of employers in Virginia and Louisiana 
\10\ threatening workers with physical violence in retaliation for 
workers asserting their employment-related rights, which could warrant 
immediate discontinuation of services. In these cases, evidence 
included video and audio recordings. For these reasons and the reasons 
set forth in the NPRM, the Department adopts Sec.  658.503(b), as 
proposed.
---------------------------------------------------------------------------

    \10\ See, e.g., DOL, News Release, Federal Court Orders 
Louisiana Farm, Owners to Stop Retaliation After Operator Denied 
Workers' Request for Water, Screamed Obscenities, Fired Shots (Oct. 
28, 2021), https://www.dol.gov/newsroom/releases/whd/whd20211028-0.
---------------------------------------------------------------------------

b. Section 658.503(c) and (d)
    The Department proposed to move current Sec.  658.503(b), which 
requires the SWA to notify the relevant ETA regional office if services 
are discontinued to an employer subject to Federal Contractor Job 
Listing Requirements, to proposed new paragraph (c) and to make minor 
edits to use active voice and to improve clarity. The Department 
proposed to add paragraph (d) to require SWAs to notify the complainant 
of the employer's discontinuation of services, if the discontinuation 
of services is based on a complaint filed pursuant to Sec.  658.411. 
This requirement would align with Sec.  658.411(b)(2) and (d). The 
Department did not receive comments on these changes and adopts them, 
as proposed.
c. Section 658.503(e)
    The Department proposed to add a new paragraph (e) to explain the 
effect discontinuation of services has on employers. The proposed new 
paragraph explains that employers that experience discontinuation of 
services may not use any ES activities described in parts 652 and 653, 
and that SWAs must remove the employer's active job orders from the 
clearance system and must not process any future job orders from the 
employer for as long as services are discontinued. The Department 
proposed that an employer's loss of access to ES services applies in 
all locations throughout the country where such services may be 
available. Through the NPRM, the Department solicited comments on the 
effect on both workers and employers of removing active job orders, 
particularly criteria orders.
    The Department received a comment from wafla that disagreed that an 
employer's loss of access to ES services should apply in all locations 
throughout the country where such services may be available. Wafla said 
that the proposed change would allow SWA staff from different sides of 
the country to determine actions of other SWAs and alleged that this 
would cause due process concerns. They expressed concern that 
enforcement could be inconsistent and subjective between States. Wafla 
was also concerned that SWAs might initiate discontinuation of services 
to multistate employer organizations as a result of frontline 
supervisors or rogue individual management in different locations and 
said that national employers may not be aware of all supervisor actions 
in their companies. Wafla contended that if a violation is found in one 
State related to a supervisor or manager, the employer should have an 
opportunity to evaluate their management in different States without 
fear of one bad actor causing discontinuation of services, including 
access to the H-2A program for the entire company.
    The Department believes it is necessary to establish that 
discontinuation of services in one State means that the employer cannot 
participate in or receive Wagner-Peyser Act ES Services provided by any 
SWA in any other State. The ES System is a national labor exchange 
service that facilitates job recruitment and placement across the 
States. The Department has an interest in ensuring proper, effective, 
and lawful use of the ES System, and the discontinuation provisions at 
part 658, subpart F are meant to prevent employers who do not comply 
with ES regulations from accessing ES services. As discussed in the 
NPRM, if the effect of discontinuation were limited to only the State 
that discontinued services, it would frustrate the purpose of 
discontinuation.
    The Department disagrees that the proposed national effect of 
discontinuation would create inconsistencies or due process concerns. 
The regulations in part 658, subpart F prescribe uniform standards that 
all SWAs must follow, and against which the Department monitors and 
assesses SWA performance. If a SWA is not complying with the 
requirements in this part, the Department will take appropriate action. 
Moreover, the proposed OWI discontinuation of services list provides a 
mechanism to ensure that SWAs are not providing services to employers 
whose services have been discontinued, thereby facilitating consistent 
application of the discontinuation provisions across the States. The 
Department believes that these regulations provide sufficient due 
process as they provide employers several opportunities to address the 
SWA's action--first by responding to the SWA's initial notice under 
Sec.  658.502, then by appealing the SWA's final determination by 
requesting a hearing or by requesting reinstatement (including 
requesting a hearing if the SWA denies the request for reinstatement) 
under Sec.  658.504. If the employer requests a hearing, the SWA must 
follow procedures at Sec.  658.417. As described at Sec.  658.418(c), 
all decisions of a State hearing official must be accompanied by a 
written notice informing the parties that they may appeal the decision 
in writing with the ETA Regional Administrator, within 20 working days 
of the certified date of receipt of the decision. As noted above, if an 
employer requests a hearing in response to a SWA's decision to 
discontinue services, the discontinuation is stayed pending the outcome 
of the appeal, thereby

[[Page 33935]]

providing employers an opportunity to challenge the discontinuation 
before losing access to all ES services. Employers may also file 
complaints against the SWA or ETA regional office under part 658, 
subpart E if they believe the SWA's discontinuation of services 
procedures are not compliant with ES regulations. These complaints are 
processed pursuant to Sec.  658.411(d).
    Employers, including multistate employers, are responsible for 
ensuring that their staff do not perpetrate violations that cause SWAs 
to initiate discontinuation of services. If an employer identifies that 
an individual staff member is responsible for a violation that is not 
pervasive throughout the company, the employer has an opportunity to 
present that evidence along with remedial actions the employer has 
taken to resolve the violation and prevent future offenses, during the 
period described in Sec.  658.502 or as part of a request for 
reinstatement pursuant to Sec.  658.504.
    The Department maintains that it is critical to worker protection 
for discontinuation of services to apply nationally to prevent 
discontinued employers from filing job orders or using other ES 
services without first resolving the violation at issue. Accordingly, 
the Department adopts paragraph (e), as proposed.
d. Section 658.503(f)
    The Department proposed new paragraph (f) to explain that SWAs must 
continue to provide the full range of ES and other appropriate services 
to workers whose employers' services have been discontinued. The 
proposed new paragraph makes it clear that discontinuation of services 
to employers does not, and should not, negatively affect workers. SWAs 
must continue to provide necessary support to workers, including 
outreach to MSFWs, access to the ES and Employment-Related Law 
Complaint System, and all available ES services. The Department did not 
receive any comments on this provision and adopts the changes to 
paragraph (f), as proposed.
e. Section 658.504
    Section 658.504 describes the procedural requirements for seeking 
reinstatement of ES services, which can be done either by requesting 
that the SWA reconsider its decision or by requesting a hearing. The 
Department proposed to restructure this section to more clearly explain 
how services may be reinstated, the timeframes in which the employers 
and SWA must act, and the circumstances under which services must be 
reinstated.
    The Department proposed to revise paragraph (a) to make clear that 
employers have two avenues with which to seek reinstatement of 
services--via a hearing or a written request to the SWA at any time 
following the discontinuation. The revised paragraph (a) adds the new 
requirement that an employer who requests a hearing following 
discontinuation do so within 20 working days of the date of 
discontinuation.
    The National Council of Agricultural Employers (NCAE), Ventura 
County Agricultural Association, Florida Citrus Mutual, and Labor 
Services International opposed the new requirement that the employer 
file an appeal within 20 working days of the SWA's final determination, 
stating that the requirement raises due process concerns and is 
arbitrary and capricious.
    As discussed in the NPRM, the Department believes that both the 
State and the employer have an interest in timely and efficient 
adjudication of disputes. For example, SWAs have an interest in 
resolving discontinuation proceedings quickly and efficiently so that 
it can better protect workers who use the ES system and so that it uses 
Federal funds efficiently. Employers have an interest in quick and 
efficient access to the ES clearance system as part of their business 
operations, which includes efficient and timely resolution of 
discontinuation proceedings. The Department continues to think that 
providing 20 working days to appeal a final discontinuation 
determination balances the needs and interests of the SWAs and 
employers. In addition, the proposed 20-day requirement aligns with 
proposed Sec.  658.503, which provides that a SWA's final determination 
is effective 20 working days from the date of notification, and that a 
timely appeal stays the discontinuation. Taken together, the stay 
pending appeal and the 20-day requirements in proposed Sec. Sec.  
658.503 and 658.504 ensure that employers who timely appeal can 
challenge a SWA's determination without losing access to ES services 
during the appeal process while ensuring timely and efficient 
adjudication of discontinuation matters. The Department further notes 
that the proposed 20-working-day requirement aligns with a similar 
requirement in the prior regulation as well as the new paragraph (b), 
which states that employers may request a hearing within 20 working 
days of a SWA's reinstatement determination. Finally, the Department 
notes that there is no time limit for requesting reinstatement under 
Sec.  658.504, so if an employer missed the 20-day deadline to appeal, 
they could seek reinstatement at any time and appeal an adverse 
reinstatement decision. For these reasons, the Department adopts Sec.  
658.504(a), as proposed.
f. Section 658.504(b)
    The Department proposed to revise Sec.  658.504(b) by combining the 
parts of Sec.  658.504(a) and (b) into a new Sec.  658.504(b) to more 
clearly explain the circumstances and procedures under which SWAs must 
reinstate services when an employer submits a written request for 
reinstatement. The Department proposed new paragraph (b)(1), which 
retains the current 20-day timeline in existing paragraph (b) within 
which the SWA must notify the employer whether it grants or denies the 
employer's reinstatement request. The proposed paragraph (b)(1) also 
requires that if the SWA denies the request, the SWA must specify the 
reasons for the denial and must notify the employer that it may request 
a hearing, in accordance with proposed paragraph (c), within 20 working 
days.
    The Department also proposed to move current paragraph (a)(2), 
which describes the evidence necessary for reinstatement, to proposed 
paragraph (b)(2) to align with the overall restructuring of the 
section. The Department also proposed to remove the word any to require 
that the employer show evidence that all applicable specific policies, 
procedures, or conditions responsible for the previous discontinuation 
are corrected, instead of any policies, procedures, or conditions 
responsible for the previous discontinuation. The Department is 
concerned that the current language could permit reinstatement despite 
an employer not correcting all relevant policies, procedures, or 
conditions, which would be inconsistent with the purpose of 
discontinuation. Finally, the Department also proposed to change the 
pronoun used for employers to it instead of his/her.
    Farmworker Justice supported the proposed changes to paragraph (b) 
and suggested that the Department provide examples of employer action 
that would constitute adequate evidence of corrective action and 
restitution, as described under proposed paragraph (b)(2). For example, 
under proposed Sec.  658.504(b)(2)(i), Farmworker Justice suggested 
that the Department require that corrective action plans be disclosed 
in future job orders as evidence that policies, procedures, or 
conditions responsible for the previous discontinuation of services 
have been

[[Page 33936]]

corrected; that corrective actions plans be in English and the native 
language of workers at the site; and that the Department create an 
anonymous tip line for workplaces subject to a corrective action plan 
to report any noncompliance with the plan. Farmworker Justice also 
suggested that the Department provide a nonexhaustive list of the types 
of restitution that may be available to employers under proposed Sec.  
658.504(b)(2)(i), and suggested liquidated damages paid to the workers 
for housing violations set on a scale based on the severity of the 
violation, damages paid to non-H-2A workers who were offered fewer 
hours than their H-2A counterparts, and damages to workers assigned 
non-agricultural duties.
    The Department notes that it did not make any substantive edits to 
proposed paragraph (b). The Department's proposal was limited to 
restructuring paragraph (b) to more clearly explain how services may be 
reinstated. The Department moved existing paragraph (a)(2) to proposed 
paragraph (b)(2), and existing paragraph (b) to proposed paragraph 
(b)(1), with minor clarifying edits. While the Department appreciates 
the commenter's suggestions, they are outside of the scope of the 
proposed changes in this paragraph. Accordingly, the Department adopts 
paragraph (b), as proposed, without change.
g. Section 658.504(c)
    The Department proposed to revise Sec.  658.504(c) to explain the 
circumstances and procedures under which SWAs must reinstate services 
when an employer submits a timely, written request for a hearing. The 
proposed revisions maintain the procedures in existing paragraphs 
(a)(1), (c), and (d), but have reorganized them into the same paragraph 
for clarity. The Department also proposed to replace the abbreviated 
term Federal ALJ in the existing regulation with Federal Administrative 
Law Judge, commonly abbreviated as ALJ.
    M[aacute]sLabor submitted comments that USAFL and Hall Global 
adopted. They recommended that the Department modify paragraph (c)(2) 
to also state that SWAs must reinstate services where a CO determines 
that a job order is compliant with all employment-related laws, as 
evidenced through the CO issuing a Notice of Acceptance. 
M[aacute]sLabor also said that the Department should modify the hearing 
procedures to allow the employer to appeal directly to an ALJ in lieu 
of a State hearing official and that, at minimum, the Department should 
permit an appeal to an ALJ if the basis for the SWA's discontinuation 
is a dispute about Federal employment-related laws.
    The Department declines to modify paragraph (c)(2) to require SWAs 
to reinstate services if a CO determines that the job order was 
compliant with all employment-related laws, as evidenced through the CO 
issuing a Notice of Acceptance. Such a change would exceed the scope of 
proposals that the Department made in this section and, were the 
Department to implement it in this final rule, it would deprive the 
public of its right to comment. The Department did not propose 
substantive changes in paragraph (c)(2); rather it proposed to maintain 
the procedures in existing paragraphs (a)(1), (c), and (d), and to 
reorganize them for clarity. The Department notes that an employer may 
provide evidence during a hearing or other appeal procedures that a CO 
issued a Notice of Acceptance related to a criteria clearance order. 
The Department also notes that employers may submit such evidence to 
SWAs during the 20-day response period before SWAs make a final 
determination to discontinue services, which is described at Sec.  
658.502. This evidence will be evaluated based on the particular facts 
and circumstances. As mentioned in other sections, the Department plans 
to provide guidance to SWAs regarding these procedures for 
discontinuation of services, including reinstatement.
    Similarly, the Department declines to modify the hearing procedures 
to allow the employer to appeal directly to an ALJ in lieu of a State 
hearing official or to permit a direct appeal to an ALJ if the basis 
for the SWA's discontinuation is a dispute about Federal employment-
related laws. These changes are also outside of the scope of the non-
substantive clarifying edits to this paragraph. Regardless, the 
Department notes that the State hearing process is long established and 
remains necessary because States have an interest in hearing issues 
involving employers in their territories. Additionally, SWAs carry out 
requirements of the Wagner-Peyser Act ES, which is a Federal grant 
program, and have authority to apply the requirements of the Federal 
program. As described at Sec.  658.504(c)(1), if the employer submits a 
timely request for a hearing, the SWA must follow the procedures set 
forth in Sec.  658.417. Section 658.417(a) states that a State hearing 
official may be any State official authorized to hold hearings under 
State law. Examples of hearing officials are referees in State 
unemployment compensation hearings and officials of the State agency 
authorized to preside at State administrative hearings. Pre-existing 
regulations at Sec.  658.418(a)(4) further state that a State hearing 
official may render rulings as are appropriate to resolve the issues in 
question. While a State hearing official does not have authority or 
jurisdiction to consider the validity or constitutionality of the ES 
regulations or of the Federal statutes under which they are 
promulgated, the State hearing official does have jurisdiction to rule 
on employer compliance with Federal ES regulations.
    For the reasons described above, the Department adopts Sec.  
658.504(c), as proposed.
h. Section 658.504(d)
    The Department proposed a new paragraph (d) to require that SWAs 
notify OWI of any determination to reinstate ES services, or any 
decision on appeal upholding a SWA's determination to discontinue 
services, within 10 working days of the date of issuance of the 
determination.
    The Department received a comment from the Colorado Department of 
Labor and Employment that asked how SWAs would know if an employer is 
reinstated in the State that discontinued services to the employer, and 
whether the discontinuation of services list will be updated when an 
employer is removed from the list.
    The Department notes that the purpose of new paragraph (d), is to 
facilitate the Department's ability to update and keep the 
discontinuation of services list accurate. The list will be updated 
continually as SWAs notify ETA of determinations regarding 
discontinuation and reinstatement. SWAs will know if an employer has 
been reinstated because the employer will have been removed from the 
list. The Department expects that SWAs will regularly consult the 
discontinuation of services list and will provide further guidance 
regarding notification procedures relating to its maintenance and use. 
The Department adopts new paragraph (d), as proposed.

VI. Discussion of Revisions to 20 CFR Part 655, Subpart B

A. Introductory Sections

1. Section 655.103(e), Defining Single Employer Test
    In the NPRM the Department proposed to define a new term, ``single 
employer,'' to codify and clarify its long-standing approach to 
determine if multiple separate employers are operating as one employer 
for the purposes of the H-2A program. As

[[Page 33937]]

noted in the NPRM, the Department has encountered numerous instances 
over at least the last decade where it appears separate entities are 
using their corporate structure--intentionally or otherwise--to bypass 
statutory and regulatory requirements to receive a temporary 
agricultural labor certification or to circumvent regulations aimed at 
protecting workers in the United States. See, e.g., Lancaster Truck 
Line, 2014-TLC-00004, at *2-3, 5 (BALCA Nov. 26, 2013) (employer was 
``frank about separating the legal entities of his operation'' from his 
father to ``comply with the H-2A program's seasonal permitting 
restrictions'' and the ALJ held the attempt to divide work did not 
demonstrate temporary need).
    The Department received numerous comments both opposed to and in 
support of this proposal and will address the comments in turn. Several 
comments from advocacy organizations, States, an individual, U.S. House 
Members, and U.S. Senators expressed general support for the proposal 
without further elaboration. Numerous other commenters expressed at 
least some support for the additional definition and will be discussed 
further below. The remaining comments opposed the addition of the 
definition of the single employer test. After careful consideration, 
the Department will incorporate the proposed definition of the single 
employer test, also known as the integrated employer test, into the 
regulations without change.
    This section discusses: (1) the definition and use by OFLC; (2) the 
authority by which the Department adds this definition to the 
regulation; (3) the Four Factor Test, various business structures, and 
NODs; (4) Board of Alien Labor Certification Appeals (BALCA) case law 
and ``joint employers''; (5) other OFLC-related comments pertaining to 
the new definition; and (6) application of the test during enforcement 
by WHD.
a. Definition and Use by OFLC
    As noted in the NPRM, the Department already applies a single 
employer test in the H-2A program in certain contexts. OFLC currently 
uses this test to determine if multiple nominally separate employers 
should be considered as one entity for the purposes of determining 
whether an applicant for labor certification has a temporary or 
seasonal need, and WHD uses this test to determine whether H-2A 
employers complied with program requirements. This test originated with 
the National Labor Relations Board (NLRB) and has been adopted by 
courts and Federal agencies under a wide variety of statutes. See South 
Prairie Const. Co. v. Local No. 627, Int'l Union of Operating Eng'rs, 
AFL-CIO, 425 U.S. 800, 803 (1975) (NLRA); see also Knitter v. Corvias 
Military Living LLC, 758 F.3d 1214, 1215 (10th Cir. 2014) (Title VII); 
Bristol v. Bd. Of Cty. Comm'rs, 312 F.3d 1213, 1218 (10th Cir. 2002) 
(Americans with Disabilities Act (ADA)). As the Second Circuit has 
explained, the single employer test may be used to determine liability 
for employment-related violations, as well as to determine employer 
coverage. Murray v. Miner, 74 F.3d 402, 404 n.1 (2d Cir. 1996). The 
policy underlying the doctrine is ``fairness . . . where two nominally 
independent entities do not act under an arm's length relationship.'' 
Id. at 405. Consistent with judicial and administrative decisions, the 
Department has typically looked to four factors to determine whether 
the entities at issue should be considered a single employer for 
purposes of temporary need and compliance: (1) common management; (2) 
interrelation between operations; (3) centralized control of labor 
relations; and (4) degree of common ownership/financial control (the 
``Four Factor Test''). See, e.g., Sugar Loaf Cattle Co., 2016-TLC-
00033, at *6 (BALCA Apr. 6, 2016) (citing to Spurlino Materials LLC v. 
NLRB, 805 F.3d 1131, 1141 (D.C. Cir. 2015)). The new definition 
incorporates the four factors noted above and, as under current 
practice, the Department will consider the totality of the 
circumstances surrounding the relationship among the entities, with no 
one factor determinative in the analysis. The factors will be discussed 
in further detail below.
    The Department's main purpose in determining whether two or more 
entities are operating as one is preventing employers from utilizing 
corporate structure to circumvent the program's statutory and 
regulatory requirements. As such, the Department's focus when examining 
whether two or more employers are a single employer is both the 
relationship between the employers themselves and each employer's use 
of the H-2A program. See Knitter v. Corvias Military Living LLC, 758 
F.3d 1214, 1227 (10th Cir. 2014) (Title VII case in which the court 
noted that ``the single employer test focuses on the relationship 
between the potential employers themselves''). The Department 
emphasizes again that no one factor is determinative as to whether 
entities are acting as one.
    The California Labor & Workforce Development Agency (California 
LWDA) supported the proposal and echoed the concerns of the Department 
by explaining that it had ``encountered numerous instances . . . where 
related entities use separate corporate structures to evade statutory 
and regulatory wage and hour requirements.'' As examples it noted that 
its Labor Commissioner's Office has discovered some agricultural 
employers who ``attempt to insulate themselves from liability'' via 
their multiple entities, as well as instances where businesses have 
separated their corporations to hire less than the minimum numbers of 
workers that would trigger minimum wage and overtime obligations. An 
individual also expressed support for the proposal and believes it will 
help ensure consistent application by BALCA. They nevertheless 
expressed concern that the employers who are already exploiting the 
system via their corporate structures would develop other methods to 
continue to do so, and then suggested that there is no clear solution 
for the issue other than continuing to find the separate entities who 
are so intertwined as to be a single employer. The Department 
appreciates and shares the concern about corporations utilizing their 
structures to circumvent regulatory requirements and agrees that 
determining which separate entities are so intertwined as to be a 
single employer is a way to ensure statutory compliance.
    As noted in the NPRM and adopted in this final rule, OFLC's COs 
will use the single employer test to determine if an employer's need is 
truly temporary or seasonal. As noted below in the Authority section, 
sec. 101(a)(15)(H)(ii)(a) of the INA permits only ``agricultural labor 
or services . . . of a temporary or seasonal nature'' to be performed 
under the H-2A visa category. 8 U.S.C. 1101(a)(15)(H)(ii)(a). Thus, as 
part of the Department's adjudication of applications for temporary 
agricultural labor certification, the Department assesses on a case-by-
case basis whether the employer has established a temporary or seasonal 
need for the agricultural work to be performed. See 8 U.S.C. 
1101(a)(15)(H)(ii)(a); 20 CFR 655.103(d), 655.161(a).
    Some nominally distinct employers have agricultural operations such 
that when they apply for H-2A workers it appears that two or more 
separate entities are each requesting a different temporary 
agricultural labor certification. However, in reality, the workers on 
these certifications are employed by a single enterprise in the same 
AIE and in the same job opportunity for longer than the attested period 
of need on any one application.

[[Page 33938]]

For example, if Employer A has a need for two Agricultural Equipment 
Operators from February to December, and Employer B has a need for two 
Agricultural Equipment Operators from December to February at the same 
worksite, this may reflect a single year-round need for Agricultural 
Equipment Operators. See, e.g., Katie Heger, 2014-TLC-00001, at *6 
(BALCA Nov. 12, 2013) (``Considering that the [two entities] appear to 
function as a single business entity and have identified sequential 
dates of need for the same work, their `temporary' needs merge into a 
single year-round need for equipment operators.''). In these 
situations, the two nominally separate employers may be applying for 
certification for, and advertising for, one continuous, sometimes 
permanent, job opportunity, which calls into question whether either 
employer has a temporary or seasonal need.
    The issue of whether an employer or nominally distinct employers 
have truly established a temporary need only arises when employers are 
filing multiple applications for the same or similar job opportunities 
in the same AIE, such that the combined period of need is continuous or 
permanent. It should be noted that determinations by OFLC and WHD as to 
single employer status may differ based on the evidence and information 
available at the time of assessment, though generally the agencies 
expect to reach the same conclusions when assessing single employer 
status.
Authority
    An anonymous commenter and the Cato Institute, a public policy 
organization, alleged that the Department had failed to document its 
authority for adding this definition to the regulations. In particular, 
the Cato Institute argued that the Department provided no legal 
justification and instead used ``circular reasoning'' to justify the 
new definition. An anonymous commenter argued that the Department must 
provide statutory authority based on the INA and the authority granted 
to the Department in relation to the H-2A program, rather than looking 
to the NLRB as justification.
    The Department articulated its authority for this proposal in the 
NPRM (see 88 FR at 63769) but will nevertheless explain in more detail 
the legal basis for the addition of this regulatory text in this final 
rule. The INA permits H-2A nonimmigrant workers to come ``temporarily 
to the United States to perform agricultural labor or services . . . of 
a temporary or seasonal nature,'' and authorizes the Secretary to issue 
regulations. 8 U.S.C. 1101(a)(15)(H)(ii). The Department must evaluate 
the temporary or seasonal nature of the work, pursuant to the statutory 
definition of H-2A workers. 8 U.S.C. 1101(a)(15)(H)(ii) (describing a 
nonimmigrant ``who is coming temporarily to the United States''); 8 CFR 
214.2(h)(5)(iv)(B) (``In temporary agricultural labor certification 
proceedings the Department of Labor separately tests whether employment 
qualifies as temporary or seasonal.''); see also 52 FR 20496, 20497-
20498 (June 1, 1987) \11\ (``What is relevant to the temporary alien 
agricultural labor certification determination is the employer's 
assessment--evaluated, as required by statute, by DOL--of its need for 
a short-term (as opposed to permanent) employee. The issue to be 
decided is whether the employer has demonstrated a temporary need for a 
worker in some area of agriculture.'' (emphasis in original)). 
Furthermore, the Secretary is authorized to take enforcement action 
``to assure employer compliance with terms and conditions of employment 
under this section [8 U.S.C. 1188].'' 8 U.S.C. 1188(g)(2).
---------------------------------------------------------------------------

    \11\ Interim Final Rule; Request for Comments, Labor 
Certification Process for the Temporary Employment of Aliens in 
Agriculture and Logging in the United States, 52 FR 20496 (June 1, 
1987) (1987 H-2A IFR).
---------------------------------------------------------------------------

    Therefore, the Department has the authority to publish regulations 
with respect to the employers--as defined by DOL's long-standing 
definition discussed further below--who are applying for an H-2A labor 
certification and to determine the true nature of those employers' need 
for temporary workers, as well as whether the employment of such 
workers will have an adverse effect upon wages and working conditions 
of workers in the United States similarly employed.
    A trade association, agents, and a policy organization argued that 
the Department is not allowed to model its definition of the single 
employer test after the definition used by the NLRB because the 
definitions arise in entirely different contexts and the NLRA does not 
cover agricultural workers. See 29 U.S.C. 152(3). An agent, 
m[aacute]sLabor, pointed to BALCA's decision in Mid-State Farms, LLC, 
2021-TLC-00115 (BALCA Apr. 16, 2021) for support of this proposition. 
The ALJ in that case noted that the single employer test was developed 
by the NLRB, and that the ``concerns of the NLRB, or for that matter 
cases under Title VII, are not the same as those under the INA.'' Id. 
at *22. The ALJ also stated that ``[t]he policy behind the use of the 
`Single Employer Test' appears to be in favor of broadening 
jurisdiction in collective bargaining cases and widening the number of 
employers who fall under its dictates'' and then declared that this 
``over-inclusive policy'' is not appropriate for the H-2A program. Id. 
An anonymous commenter agreed with the ALJ's sentiment and argued that 
the single employer framework in the H-2A context is too broad and 
overinclusive. The Department disagrees.
    This rulemaking abrogates Mid-State Farms, LLC to the extent that 
it found that the single employer test was inappropriate in the H-2A 
context. As discussed further below, the Department believes that the 
single employer test may actually be the most appropriate way to assess 
temporary or seasonal need in certain circumstances. The Department has 
authority to craft regulations relating to the H-2A program and has the 
authority to overturn ALJ decisions. 8 U.S.C. 1101(a)(15)(H)(ii); 5 
U.S.C. 305 (providing for continuing review of agency operations); see 
also 85 FR 30608, 30611 (May 20, 2020) (final rule allowing the 
Secretary to review decisions issued by BALCA ``lest disagreement on 
law and policy within the Department lead to protracted uncertainty and 
intractable problems''). The Department is not convinced by the ALJ's 
logic set forth in Mid-State Farms, LLC that because the single 
employer test originated in a different context, it may not be used in 
the context of foreign labor certifications. Nor is the Department 
convinced by the ALJ's policy-related conclusion that the test is not 
appropriate because allegedly it is used to broaden the jurisdiction of 
the NLRB and is ``over-inclusive.'' Mid-State Farms, LLC, 2021-TLC-
00115, at *22 (Apr. 16, 2021). The INA authorized the Secretary, not 
ALJs, to promulgate appropriate regulations, adopt appropriate legal 
standards, and make policy. 8 U.S.C. 1101(a)(15)(H)(ii); see also supra 
``Authority.''
    Furthermore, while the single employer test included in the 
regulations may have originated with the NLRB, as noted above, the 
concept of a ``single'' or ``integrated'' employer evolved from common 
law, not statute.\12\ It has been adopted by courts

[[Page 33939]]

and Federal agencies under a wide variety of statutes. See supra 
``Definition and Use by OFLC.'' While the Department agrees that the 
concept of a single or integrated employer may sometimes be utilized 
differently under the NLRA--or Title VII or the ADA--that does not 
preclude the Department from adopting the test for use in the H-2A 
context. For the reasons discussed in the NPRM and below, the 
Department thinks that this test is appropriate to assess the nature of 
an employer's need.
---------------------------------------------------------------------------

    \12\ See Crandley, M., The Failure of the Integrated Enterprise 
Test: Why Courts Need to Find New Answers to the Multiple-Employer 
Puzzle in Federal Discrimination Cases (2000), 75 Ind. L. J., pp. 
1041, 1052, 1057 (explaining that the test arose in the NLRB in the 
late 1940s and 1950s, and first appeared in Equal Employment 
Opportunity Commission (EEOC) administrative decisions in the 
1970s). As noted below, 8 U.S.C. 1188 does not define ``employer'' 
and the common law definition applies. See Nationwide Mut. Ins. Co. 
v. Darden, 503 U.S. 318, 322 (1992) (`` `[W]here Congress uses terms 
that have accumulated settled meaning under . . . the common law, a 
court must infer, unless the statute otherwise dictates, that 
Congress means to incorporate the established meaning of these 
terms.' '') (citations omitted).
---------------------------------------------------------------------------

    The Cato Institute stated that the term ``employer'' as used in the 
INA ``clearly'' does not apply to related businesses. It also argued 
that Congress could have defined ``employer'' to include other entities 
if it had chosen to do so. As an example, it pointed to how Congress 
articulated a definition of ``employer'' in the context of the H-1B 
program, or how Congress discussed the concept of a ``joint employer'' 
in the INA. It then stated that the ``absence of this defining language 
limits the meaning of this term to its ordinary definition: the 
employer entity that has submitted the petition.''
    The Department agrees that the INA does not define the word 
``employer'' in the context of the H-2A program at 8 U.S.C. 1101 and 8 
U.S.C. 1188 and thus the common law definition is applied. ``[W]here 
Congress uses terms that have accumulated settled meaning under . . . 
the common law, a court must infer, unless the statute otherwise 
dictates, that Congress means to incorporate the established meaning of 
these terms.'' Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322 
(1992) (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 
730, 739 (1989)). The common law definition for ``employer'' is the 
basis for the Department's regulatory definition of ``employer.'' See 
20 CFR 655.103(b); 84 FR 36168, 36174 (July 26, 2019) \13\ (footnote 
omitted) (``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. 
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.''); 73 FR 8538, 8555 (Feb. 
13, 2008) (``The Department is proposing to include the definition of 
employee and to modify the definition of employer to conform these 
definitions to those used in other Department-administered programs. 
The definition of employee conforms to the Supreme Court's holding in 
Nationwide Mutual Insurance v. Darden, 503 U.S. 318, 322-324 
(1992).''); see also 20 CFR 655.103(b) (defining an employee as ``[a] 
person who is engaged to perform work for an employer, as defined under 
the general common law of agency''). Congress authorized the Secretary 
to implement the statute via regulations, and they do so by 
appropriately using the common law definition of the term. 8 U.S.C. 
1101(a)(15)(H)(ii). The Department disagrees with, and does not accept, 
the Cato Institute's articulated definition--that an ``employer'' is 
the ``entity that has submitted the petition''--a definition that is 
not included in the statute, not found in common law, is not a 
generally established meaning of the term, and is inconsistent with the 
Department's regulatory definition and historic practice in the H-2A 
program.
---------------------------------------------------------------------------

    \13\ NPRM, Temporary Agricultural Employment of H-2A 
Nonimmigrants in the United States, 84 FR 36168 (July 26, 2019) 
(2019 H-2A NPRM).
---------------------------------------------------------------------------

    The Cato Institute argued that the Department may not define 
``employer'' at all, stating that the Department must utilize DHS's 
definition of ``employer.'' The commenter claims, with no support, that 
``DHS now has sole authority over deciding the outcome of a petition 
and who is a petitioner, meaning that DHS's definition of `employer' 
governs the meaning of employer in section 218 [8 U.S.C. 1188].'' The 
Cato Institute also argued that ``INA section 218 clearly defines a 
petitioning employer . . .'' but provides no citation for this 
definition. A definition of ``petitioning employer'' does not appear in 
INA sec. 218. See 8 U.S.C. 1188(i) (the ``Definitions'' section).
    The Department is not convinced by the Cato Institute's arguments. 
While DHS does have authority to adjudicate the H-2A petition, Congress 
clearly envisioned that DOL would play a crucial role in the process as 
the Secretary issues certifications, assesses temporary need, and takes 
actions to ensure employer compliance with the terms and conditions of 
employment, including promulgating regulations to effectuate their 
responsibilities under the INA. 8 U.S.C. 1101(a)(15)(H)(ii); 8 U.S.C. 
1188(a)-(g)(2). DHS did not reference its own definition of employer 
when it recognized the Department's nonexclusive responsibility to 
assess an employer's need as either seasonal or temporary. 8 U.S.C. 
1188(a); 8 CFR 214.2(h)(5)(iv)(B) (``In temporary agricultural labor 
certification proceedings the Department of Labor separately tests 
whether employment qualifies as temporary or seasonal.''). Therefore, 
in carrying out this responsibility, the Secretary is authorized to 
adopt a common law definition of the term ``employer.''
    In discussing the Department's authority in this space, the Cato 
Institute claimed that the Department may ``only deny a certification'' 
when certification would ``adversely affect'' workers in the United 
States similarly employed, or when workers in the United States are not 
able to perform the labor or services in the petition. In actuality, 
the Department may deny a certification for a number of reasons, as 
outlined in the statute at 8 U.S.C. 1188(b), and may only issue a 
certification if the ``employer has complied with the criteria for 
certification'' and ``the employer does not actually have, or has not 
been provided with referrals of, qualified eligible individuals who 
have indicated their availability to perform such labor or services on 
the terms and conditions of a job offer which meets the requirements of 
the Secretary.'' 8 U.S.C. 1188(c)(3).
    The Cato Institute argued that the Department's analysis of an 
application is limited to only the labor or services in the labor 
certification application it is currently adjudicating, and not to any 
other labor or services involved in other petitions or applications by 
separate employers. It stated that the Department may not identify 
adverse effects to workers in the United States similarly employed that 
were or are caused by job offers that are not the present employer-
applicant's job offer. The Department disagrees with this 
characterization.
    The statute does not limit the Department's review to one 
application or job offer. As discussed above, the Department must 
assess the employer's need for temporary workers when reviewing an 
application, an assessment that may require the Department to review 
other applications spanning more than one job opportunity, and looking 
to the same employer's filing history (and in the case of a single 
employer, the nominally distinct entities' filing histories) is part of 
analyzing an employer's need for said employment. This temporary need 
assessment is distinct from any adverse effect determination made by 
the Department.
    It is well established that to analyze temporary need, the 
Department may look to other previously or simultaneously filed 
applications. 86 FR 71373, 71377 (Dec. 16, 2021) (``Similar

[[Page 33940]]

to USCIS' approach [which is the same for all H-2A petitions, including 
H-2A sheep and goat herder petitions] . . . the Department's 
adjudication will be conducted on a case-by-case basis and will take 
into consideration the totality of the facts presented, of which past 
periods of need will be one element that is considered in determining 
whether an employer's need is truly temporary or seasonal.''); see also 
USCIS, Policy Memorandum: Updated Guidance on Temporary or Seasonal 
Need for H-2A Petitions Seeking Workers for Range Sheep and/or Goat 
Herding or Production (Feb. 28, 2020) (``USCIS evaluates all H-2A 
petitions based on the facts presented in the petitions as well as the 
past filings of the petitioner, as appropriate.''); \14\ see, e.g., 
Donald Parrish Dairy Inc., 2019-TLC-00006, at *4-5 (BALCA Dec. 19, 
2018) (relying on previous certification to determine that employer had 
not proven that its need was seasonal). Having the ability to examine 
an employer's filing history is crucial to determining whether 
consecutive applications have been filed such that an employer truly 
has a temporary or seasonal need. 1987 H-2A IFR, 52 FR at 20498 (``DOL 
will take a careful look at repeated temporary alien agricultural labor 
certification applications for the same job''). If an employer files an 
application covering January to June, and another from June to 
December, the Department would only know about the sequential period of 
need and potential year-round employment if it may look at previous 
filing history. Furthermore, it would also be impossible to determine 
if multiple applications have been filed in the same AIE without the 
ability to look at other applications. 20 CFR 655.130(e)(2) (``[a]n 
employer may file only one Application for Temporary Employment 
Certification covering the same AIE, period of employment, and 
occupation or comparable work to be performed''). This approach is 
consistent with the above-referenced USCIS Policy Memorandum regarding 
the assessment of an employer's need.
---------------------------------------------------------------------------

    \14\ USCIS, Policy Memorandum: Updated Guidance on Temporary or 
Seasonal Need for H-2A Petitions Seeking Workers for Range Sheep 
and/or Goat Herding or Production (Feb. 28, 2020). https://www.uscis.gov/sites/default/files/document/memos/2-PMH2A-SeasonalSheepGoatHerder_PolicyMemo.pdf.
---------------------------------------------------------------------------

    The Cato Institute also argues that the purpose of the H-2A program 
is to ``secur[e] the border or stop[ ] illegal immigration'' and faults 
the Department for not mentioning this purpose in its stated 
justification for codifying the single employer test. The Department 
disagrees. The plain language of the statute does not create any such 
obligation by DOL to secure the border or stop unauthorized 
immigration. See 8 U.S.C. 1188(a). Statutory construction begins with 
the statute and ends with the statute if the statute is unambiguous. 
Rotkiske v. Klemm, 140 S. Ct. 355, 360 (2019). Congress may have many 
different purposes when enacting a statute, but the particular 
provisions of the INA that relate to DOL's role in the H-2A program do 
not mandate the Department consider how to secure the border or stem 
unauthorized immigration.
    For these reasons, the Department concludes that the above-
mentioned commenters' assertions that the Department lacks authority to 
promulgate a definition of the single employer test in the context of 
the H-2A program are unfounded, and the Department adopts the 
definition as proposed.
b. The Four Factor Test, Business Structures, and Notices of Deficiency
    As noted above, the four factors that the Department proposed to 
determine single employer status were: (1) common management; (2) 
interrelation between operations; (3) centralized control of labor 
relations; and (4) degree of common ownership/financial control. The 
Department reiterates and expands upon the discussion of the factors in 
the NPRM below.
    Regarding the ``common management'' factor, the ``relevant inquiry 
is whether there is `overall control of critical matters at the policy 
level.' '' K & S Datthyn Farms, 2019-TLC-00086, at *6 (BALCA Oct. 7, 
2019) (quoting Spurlino Materials, 805 F.3d at 1142). Shared day-to-day 
management may also indicate common management. Spurlino Materials, 805 
F.3d at 1142. For example, where the same president, treasurer, and 
chief operating officer oversee the actions of multiple entities and 
resolve disputes, this suggests a common management between entities. 
Pepperco-USA, Inc., 2015-TLC-00015, at *30-31 (BALCA Feb. 23, 2015).
    Regarding the ``interrelation between operations'' factor, the 
Department may look to whether the entities operate at arm's length. 
Id. It may examine whether companies share products or services, costs, 
worksites, worker housing, insurance, software, or if they share a 
website, supplies, or equipment. See, e.g., id.; Sugar Loaf Cattle Co., 
2016-TLC-00033, at *6-7 (Apr. 6, 2016) (finding an interrelation of 
operations in part because the work locations were ``fundamentally at 
the same place''); David J. Woestehoff, 2021-TLC-00112, at *11 (BALCA 
Apr. 2, 2021) (comparing employers' housing locations and worksites to 
analyze their relationship).
    Regarding the ``centralized control of labor relations'' factor, 
the Department may look to whether the persons who have the authority 
to set employment terms and ensure compliance with the H-2A program are 
the same. K & S Datthyn Farms, 2019-TLC-00086, at *5 (Oct. 7, 2019) 
(noting the same manager signed different H-2A applications and this 
was a ``fundamental labor practice[ ], at the core of employer-employee 
relations for any business'').
    Finally, regarding ``common ownership and financial control,'' the 
Department may look to the corporate structure and who owns the 
entities, whether it be, for example, a parent company or individuals. 
See Pepperco-USA, Inc., 2015-TLC-00015, at *30-31 (Feb. 23, 2015) (two 
nominally distinct entities were owned by one parent company). It may 
also explore whether the owners of the entities at issue are related in 
some way. See, e.g., JSF Enterprises, 2015-TLC-00009, at *12-13 (BALCA 
Jan. 22, 2015) (entities owned in varying degrees by members of the 
same family); Larry Ulmer, 2015-TLC-00003, at *3-4 (BALCA Nov. 4, 2014) 
(two companies with similar names were owned by father and son); 
Lancaster Truck Line, 2014-TLC-00004, at *2-3 (Nov. 26, 2013) (father 
and son sought to separate a business in an attempt to meet seasonal 
need requirements); see also Overlook Harvesting, 2021-TLC-00205, at 
*13 (BALCA Sept. 9, 2021) (though analyzing the relationship using 
joint employment test, looking to the marital relationship between 
owners). These examples of analysis and lines of inquiry related to 
each of the factors are not exhaustive.
    The Department received several comments on this aspect of the 
proposal. After consideration of the comments, discussed in detail 
below, the Department adopts the proposal without change.
    One anonymous commenter, as well as USAFL and Hall Global, 
commented that the factors are inappropriately vague, open-ended, and 
that they are not defined within the text of the definitions. USAFL and 
Hall Global stated that these factors are ``superficial'' and that 
something as simple as a ``shared mailbox'' would lead OFLC to draw a 
conclusion that multiple employers' needs are the same need. An 
anonymous commenter lamented that these four factors would establish an 
unjustified ``limitless standard'' that would make it

[[Page 33941]]

impossible to know if they have satisfied some or all of the factors.
    The Department understands the concerns that this test and these 
factors do not establish a bright-line rule, which can present 
difficulties in administration. Tests that involve weighing factors are 
naturally fact-dependent, and reasonable people may disagree as to the 
outcome of the test. However, as noted previously, the single employer 
test has been used by administrative tribunals and Federal courts for 
decades. As stated above, DOL itself has been using this test already 
in the H-2A context as well. To date, the Department has found this to 
be a reasonable test that the Department has been able to apply fairly 
without overburdening employers.
    USAFL and Hall Global suggested that rather than use the Four 
Factor Test, the Department should focus its inquiry on ``economic 
substance,'' or in other words, whether there is a valid business 
reason for the corporate structure. Allegedly this ``economic 
substance'' analysis would help determine whether employers have only 
divided their business for ``sham'' reasons. The Cato Institute made a 
similar suggestion that if the Department were to keep the single 
employer test, it should be limited to times where evidence shows that 
the separation of business occurred solely to obtain a labor 
certification. USAFL and Hall Global claimed that this ``economic 
substance'' standard is administrable, easy to litigate, and protects 
business interests.
    The Department disagrees with commenters that this ``economic 
substance'' type test would be easier to administer and litigate and 
declines to accept the suggestions. The Department must determine that 
an employer's need is temporary or seasonal regardless of whether there 
is a legitimate reason for dividing a business, therefore adopting this 
suggestion would be inconsistent with the INA. Furthermore, while it 
may be possible to determine in some cases whether the businesses have 
been separated to specifically meet H-2A requirements--see, e.g., 
Lancaster Truck Line, 2014-TLC-00004, at *2-3, 5 (Nov. 26, 2013), in 
which the employer was ``frank about separating the legal entities of 
his operation'' from his father to ``comply with the H-2A program's 
seasonal permitting restrictions,''--it is rarely so clearly 
established, making a test based on whether there is or is not a 
``sham'' reason for splitting a business more difficult to administer. 
What the Department is tasked with determining, and what is well-within 
its authority to administer, however, is whether or not the employer 
has a true temporary or seasonal need.
    The Department understands that, as many commenters noted, there 
are legitimate business reasons for complex corporate structures, and 
that there are many family-owned and family-run farms that may form 
various entities for insurance, tax, inheritance, or other purposes, 
including risk management. One example provided was of a fixed-site 
grower who also created a labor contracting company to provide labor 
services to other growers. U.S. Custom Harvesters, Inc. gave an example 
of intertwined businesses that have both ``seasonal custom harvesting 
needs'' and ``seasonal needs for their farm business.'' It expressed 
concern that these types of legitimate arrangements would be questioned 
as to their single employer status.
    The fact that an employer is not trying to circumvent regulatory 
requirements, does not mean that it then automatically has a valid 
temporary or seasonal need for agricultural labor. Even if an employer, 
or single employer, has legitimate reasons for dividing their 
business(es) and then separately applying for H-2A workers, it is a 
statutory requirement that the H-2A work be of a temporary or seasonal 
nature, and therefore employers submitting an application for temporary 
agricultural labor certification are required to establish that they 
have a temporary or seasonal need for agricultural labor. 8 U.S.C. 
1101(a)(15)(H)(ii)(a); 20 CFR 655.103(d), 655.161. Permitting employers 
with a permanent need to simply divide their business so that multiple 
entities can establish a temporary need, and thereby obtain a labor 
certification, would violate the statute. See, e.g., Intergrow East, 
Inc., 2019-TLC-00073, at *5 (BALCA Sept. 11, 2019) (``An employer may 
not circumvent the temporary need requirement by using a closely 
related business entity to file an overlapping application'').
    Even if employers have genuine business needs for dividing their 
business and then separately applying for H-2A workers, this approach 
to filing labor certification applications is problematic. It 
undermines the statutorily required labor market test and the 
Department's ability to protect workers in the United States as each 
application, standing alone, does not fully convey the potential job 
opportunity to any applicant--for example, the job opportunity could be 
for 12 total months rather than 6 months with one employer and 6 months 
with only a nominally separate entity. It is possible that a U.S. 
worker would be interested in a job that could last a year, or even 
permanently, rather than only 6 months--a sentiment echoed by numerous 
supporters of this proposal. These supporters agreed that U.S. workers 
may be more interested in a year-round job, as opposed to numerous 
temporary job opportunities posted separately.
    The Cato Institute argued that the Department cannot assert that 
there is harm to prospective U.S. workers who are unable to see the 
full nature of the job opportunity because the Department, in order to 
state that these workers are not aware of the full nature of the job 
opportunity, must make an assumption about the full nature of the job 
opportunity.
    The Department disagrees with the commenter's assertion because it 
is the employer's burden to establish eligibility for this program. 8 
U.S.C. 1361. If the employer cannot establish that it has truthfully 
disclosed the full nature of its job opportunity, then the employer has 
not established eligibility for the program. Id. Furthermore, even if 
the Department were to ``assume'' that a job opportunity is not as it 
seems, many commenters echoed and supported the ability of the 
Department to investigate and conclude that there may be impacts on the 
labor market test if the full nature of the job opportunity is not 
disclosed.
    The Cato Institute also asserted that employers could ``already 
hire U.S. workers without bureaucratic interference . . . [and] [t]he 
only reason that [an employer] would participate in the H-2A program is 
because they cannot find U.S. workers to do the jobs.'' The commenter 
did not provide evidence for their assertion, and it is unclear what 
conclusion the Department is supposed to draw from this statement, but 
to the extent that it is implying that an employer who applies for the 
program must automatically be eligible because it applied, the 
Department disagrees. Again, the statute requires petitioners to obtain 
a certification from the Secretary. The statute specifically notes that 
a certification may only be issued after an employer ``has complied 
with the criteria for certification (including criteria for the 
recruitment of eligible individuals as prescribed by the Secretary),'' 
thereby establishing that not only must an employer meet all the 
criteria and engage in recruitment, but also that Congress did not 
presume an employer would be automatically eligible for a certification 
simply because it applied to the H-2A program. 8 U.S.C. 
1188(c)(3)(A)(i). The Secretary has an active role to play in 
recruitment

[[Page 33942]]

and for this recruitment to be meaningful, as noted above, the employer 
must truthfully disclose the full nature of its job opportunity. See 8 
U.S.C. 1188(b); 8 U.S.C. 1188(g)(1)(A).
    Americans for Prosperity Foundation, another public policy 
organization, in response to the idea that a single employer may not 
accurately convey the full nature of a permanent job opportunity 
because it has split the job between two nominally distinct companies, 
stated that prospective workers could simply ``search through the [SWA] 
interstate employment system'' to ``have full view of all the H-2A job 
opportunities available by all employers.'' The Department points out 
that this would not solve the problem that the job opportunity the 
employer-applicant is putting forth in their application is not fully 
accurate, and furthermore, it should not be the responsibility of 
worker-applicants to piece together job postings from nominally 
distinct entities, nor may it even be possible for worker-applicants to 
tell from a job posting alone that any two employers are so intertwined 
as to be acting as a single employer.
    The Cato Institute argued that it is legal for employers to split 
their businesses to comply with the law. The commenter went so far as 
to state that the Department requires certain employers--in its example 
H-2ALCs--to manipulate its need. The commenter further stated that 
``[a] contractor that continuously services all types of farms in the 
same area throughout the year will automatically have a year-round need 
in that area'' and that if they want to ``operate in the same area but 
service different crops, the owner must create a separate legal 
entity.'' The commenter wrote that it is a ``good thing'' for employers 
to arrange their businesses so that they comply with the law.
    The Cato Institute has taken a presumably hypothetical example of 
an H-2ALC that has a full-time, permanent need and explained that it 
purposely manipulates its structure to find a loophole to a statutory 
requirement. The position that employers should be able to utilize 
existing loopholes to circumvent statutory requirements of temporary or 
seasonal need is not a convincing argument to rescind or amend the 
proposal. In fact, it is concerning to the Department. It is also 
concerning that the Cato Institute believes the Department is requiring 
employers to manipulate their corporate structures to qualify to use 
the program. The INA makes clear that employers may only use the H-2A 
program if they establish eligibility for the program, including that 
they have a temporary or seasonal, as opposed to permanent, need; they 
are not entitled to use it as a matter of course. See 8 U.S.C. 1361; 8 
U.S.C. 1188(b). Therefore, if an employer cannot qualify because their 
need is permanent, they are in no way required to manipulate their 
need; they simply do not qualify.
    USAFL and Hall Global argued that the Department has not ``take[n] 
into account reliance interests,'' presumably in relation to business 
and corporate structures. It explains that employers have tax, estate 
planning, and other legitimate reasons for dividing their businesses 
and that this creates ``reliance interests.'' However, it is unclear 
exactly what ``reliance interests'' this commenter is referring to or 
how this proposal would affect employers. As previously noted, the 
Department has been utilizing some variation of the single employer 
test for nearly a decade, so there should be no change with regard to 
these ``reliance interests.'' Also, regardless of how it structures its 
business or the reasons for doing so, as stated above, an employer must 
establish its temporary or seasonal need pursuant to the statutory 
requirements. To the extent the commenter is suggesting reliance 
interests in prior certifications, if an employer is denied 
certification for failure to establish a temporary need it does not 
matter that it was approved in the past, as a previous certification 
does not mandate approval of a subsequent application, especially when 
this past certification was in error, as each application must be 
evaluated on its own merits. See Sussex Eng'g, Ltd. V. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987) (``It is absurd to suggest that . . . 
any agency must treat acknowledged errors as binding precedent''). If 
the employer did not have a seasonal or temporary need in the past, it 
should not have been certified.
    The Department acknowledges again that there are legitimate reasons 
that agricultural employers structure their businesses the way they do, 
and also believes the vast majority of users are not attempting to 
manipulate the program, but that the Department nonetheless has a 
statutory responsibility to verify that the employers are eligible to 
participate in this program.
    Should a CO suspect that an employer-applicant has an actual need 
that stretches longer than their stated need because the employer is a 
single employer with another entity or entities based on the four 
factors above, the COs may issue a NOD or NODs to clarify the status of 
said entities. To analyze whether entities are a single employer, COs 
may request, via NOD, information necessary for this determination, 
including, but not limited to: (1) documents describing the corporate 
or management structure, or both, for the entities at issue; (2) the 
names of directors, officers, or managers and their job descriptions; 
(3) incorporation documents; or (4) documents identifying whether the 
same individual(s) have ownership interest or control. The COs may 
additionally ask for explanation as to: (1) why the businesses may 
authorize the same person or persons to act on their behalf when 
signing contracts, applications, etc.; (2) whether the businesses 
intermingle money or share resources; (3) whether workspaces are 
shared; and (4) whether the companies produce similar products or 
provide similar services. These lists of documentation or evidence are 
not exclusive, and the COs may request other information or 
documentation as necessary. An anonymous commenter and USAFL and Hall 
Global both expressed concern that these factors and related NODs would 
lead to a limitless inquiry into the business operations of employers 
and, as noted above, arguing that the Department has not provided 
justification as to why the factors are so open-ended and vague. Wafla 
stated that these factors and related NODs would lead to intrusive 
inquiries, responses for which would take ``40 to 100 hours or more to 
compile.'' NHC believed that the Department was giving itself too much 
authority to ask for information and that it would cause an undue 
burden on employers. Many commenters felt that OFLC questioning an 
employer as to their single or integrated employer status would 
generate more NODs and delays in processing of applications, or even 
delays in the arrival of H-2A workers. Many also stated that this test 
would be overly burdensome for the whole industry, just to target a 
``few bad apples.'' An anonymous commenter criticized the Department's 
use of NODs and stated that the Department should ask for information 
about temporary or seasonal need before ``rendering a decision.'' It is 
unclear what the commenter meant by this statement, as the NOD is the 
means by which the Department requests further information before 
rendering a final determination on a case.
    The Department understands the concerns regarding NODs and delays 
in processing but believes the concern is exaggerated and that the 
benefits of an additional NOD or slight delay, if one

[[Page 33943]]

occurs, nevertheless outweigh the potential inconvenience. The 
Department may issue multiple NODs if the application or job order is 
incomplete, contains errors or inaccuracies, or does not meet the 
regulatory requirements. 20 CFR 655.141 and 655.142. If an employer has 
not demonstrated their eligibility or compliance with the regulations, 
the NOD is the opportunity for the employer to remedy the deficiencies. 
A NOD is not punitive, as suggested by one anonymous commenter; 
instead, it is a means by which employer-applicants are given the 
opportunity to remedy the deficiencies without the need to wait for a 
decision denying the application and a subsequent appeal, and without 
the need to start the application process over.
    NODs may request information related to the four factors discussed 
above, but the Department does not intend to use the NOD to gather 
unnecessary business information or, as one anonymous commenter 
suggested, to engage in ``a never-ending fishing expedition.'' Instead, 
the NOD is the employer's opportunity to submit what evidence it deems 
appropriate to establish its eligibility for the program. The 
Department may require the actual submission of materials that are 
required to be maintained by the regulations, materials that are 
commonly and routinely used by businesses such as tax documentation, or 
materials that should be readily available like an organizational 
chart. Generally, though, employers have some flexibility to provide 
documentation that establishes their own eligibility for the program. 
The factors for the single employer test are purposely open-ended to 
allow employers some choice with how to support, or refute, findings 
related to the said factors. Employer relationships are increasingly 
complex, and it would be difficult for the Department to outline every 
type of documentation or information that could be used to analyze 
these factors. It would also not be to the advantage of employers, who 
may have different types of documentation, to submit only specific 
types of documents, if the submission or maintenance of this 
documentation is not otherwise required, to prove that they do or do 
not satisfy the factors, provided that the alternative documentation 
actually demonstrates their eligibility.
    Employers must establish their eligibility for the H-2A program, 
including that they have a temporary or seasonal need. Should the 
situation arise that an employer must establish that it is not a single 
employer with another entity to establish that it does in fact have a 
temporary or seasonal need, the Department does not believe this to be 
an undue burden, as this is a statutory requirement. 8 U.S.C. 
1101(a)(15)(H)(ii); 8 U.S.C. 1188(a)(1).
    Furthermore, as stated in the NPRM and discussed further below, the 
Department has already been applying this single employer test for at 
least the last decade. As the Department has already been issuing NODs 
related to single employer status, there should only be a nominal 
increase in NOD issuance, if there is an increase at all. The 
Department only intends to utilize the single employer test for the 
purposes of determining temporary or seasonal need if the employer and 
its nominally distinct counterparts are applying for certifications in 
the same AIE, for the same or comparable job opportunities, for a 
period of time that would suggest the single employer does not have a 
temporary or seasonal need. See 20 CFR 655.130(e)(2) (``[a]n employer 
may file only one Application for Temporary Employment Certification 
covering the same [AIE], period of employment, and occupation or 
comparable work to be performed''). The Department does not intend to 
determine if every employer-applicant happens to be a single employer, 
or even a related employer, without any basis to do so.
c. Single Employers, BALCA, and Joint Employers
    As noted in the NPRM, OFLC used an informal, fact-focused method of 
inquiry, involving a comparison of case information (e.g., owner and 
manager names, locations and AIEs, recruitment information, job 
descriptions, and other operational similarities across applications) 
for nearly a decade to address the issue of nominally separate entities 
using their corporate structure--either purposefully or not--to 
circumvent statutory requirements. In approximately 2015, OFLC began to 
frame its analysis using the single employer test (see above under 
Definition and Use by OFLC) to improve consistency and transparency and 
to address more complex business structures (e.g., corporate 
organizations) filing H-2A applications through nominally different 
employers. See Pepperco-USA, Inc., 2015-TLC-00015, at *2-5 (Feb. 23, 
2015). Some commenters argued that, in fact, the single employer test 
was not a ``long-standing'' approach, with an anonymous commenter 
observing that the ALJ in the Pepperco-USA case described the test as 
``novel.'' The Department notes that Pepperco-USA, Inc. was decided in 
February 2015--almost a decade ago--and it is no longer ``novel.'' The 
Western Range Association opposed the addition of the definition and 
stated that they wished for the Department to continue to use ``current 
practice.'' It is unclear what this commenter meant, as the current 
practice is and has been to utilize some form of the single employer 
test.
    Historically, BALCA has affirmed many OFLC denials that either 
explicitly used the single employer test or used a similar analysis. 
See, e.g., D & G Frey Crawfish, LLC, 2012-TLC-00099, at 2, 4-5 (BALCA 
Oct. 19, 2012) (affirming the CO's denial and stating that 
``[employer's] ability to separate her operation into two entities does 
not enable her to hire temporary H-2A workers to fulfill her permanent 
need'').\15\ However, in more recent decisions, BALCA has sometimes 
rejected the single employer test, noting that it had not been 
promulgated through notice-and-comment rulemaking. See Mid-State Farms, 
LLC, 2021-TLC-00115, at *16 (Apr. 16, 2021) (``This court can find no 
published instance where the `Single Employer Test' has been debated 
openly, subjected to public comment or accepted as official Department 
policy.''). In response to these concerns, some ALJs have applied the 
``joint employer'' test to analyze temporary

[[Page 33944]]

need because a definition of ``joint employment'' is included in the 
regulations. See, e.g., id. at *26; Overlook Harvesting, 2021-TLC-
00205, at *10 (Sept. 9, 2021) (adopting a modified ``joint employer'' 
test).
---------------------------------------------------------------------------

    \15\ Other decisions either explicitly applying the single 
employer test, or simply using a similar analysis include: David J. 
Woestehoff, 2021-TLC-00112, at *11 (Apr. 2, 2021) (ALJ looked to the 
four factors in the single employer test to determine if the 
entities were a single employer but was unable to determine if they 
were); K.S. Datthyn Farms, LLC, 2019-TLC-00086, at *4-6 (Oct. 7, 
2019) (applying four-part NLRA and Title VII integrated employer 
test to determine whether two H-2A applicants for temporary labor 
agricultural certification were one integrated employer with single 
labor need); Intergrow East, Inc., 2019-TLC-00073, at *5-6 (Sept. 
11, 2019) (same); Pepperco-USA, Inc., 2015-TLC-00015, at *26, 30-31 
(Feb. 23, 2015) (see above); JSF Enterprises, 2015-TLC-00009, at *12 
(Jan. 22, 2015) (``The four entities . . . fill the same need on a 
year round basis because of the interlocking nature of the 
businesses and regardless of the distinction in crops each 
harvests.''); Anthony Mock, 2015-TLC-00008, at *6-8 (BALCA Dec. 30, 
2014) (ALJ, while not mentioning the single employer test, looked to 
whether or not the two entities at issue were separate legal 
entities, and looked at whether there was shared ownership, 
employees, or assets); Cressler Ranch Trucking, 2013-TLC-00007, at 
*3 (BALCA Nov. 26, 2012) (``The Employer only disguises this need 
through subsequent applications from a separate entity with the same 
owner and slight alterations in the wording of the Form ETA-9142. 
Accordingly, the CO reasonably concluded that the Employer failed to 
demonstrate a temporary need for agricultural labor or services, as 
required by 20 CFR 655.103(d).''); see also Maroa Farms Inc., 2020-
TLC-00110, at *13 (BALCA Sept. 4, 2020) (affirming the CO's decision 
on other grounds but noting that ``an employer may not circumvent 
the temporary need requirement by using a closely related business 
entity to file an overlapping application'').
---------------------------------------------------------------------------

    Many commenters, in agreeing with the logic of the ALJ in Mid-State 
Farms, LLC, opposed the addition of the single employer test and argued 
that the ``joint employer'' test was more appropriate as it was already 
defined in the regulations and BALCA had endorsed it. See Mid-State 
Farms, LLC, 2021-TLC-00115, at *25-26 (Apr. 16, 2021). Many commenters 
argued that the Department may not now adopt the single employer test 
because BALCA had ``rebuffed'' attempts to use the test. The Americans 
for Prosperity Foundation also cited Mid-State Farms, LLC and noted 
that BALCA had criticized the single employer test, stating that it had 
not been subject to notice and comment. USAFL and Hall Global argued 
that the Department lacks ``clear criteria'' for identifying 
applications that may have integrated enterprises and that there is 
seemingly no discernable way to know why some employers are questioned 
as to their status and others are not.
    These commenters ignore that a lack of a regulatory definition 
pursuant to notice-and-comment rulemaking was a major reason BALCA 
``rebuffed'' the single employer test in Mid-State Farms, LLC. As noted 
above, the Department disagrees with BALCA's conclusion in Mid-State 
Farms, but in any event, the Department here is engaging in the notice-
and-comment rulemaking to enact the single employer or integrated 
employer test and to provide clear criteria to stakeholders, COs, and 
ALJs, such as the one in Crop Transport, who stated that ``[i]t would 
be helpful . . . if meaningful regulatory criteria were promulgated 
through notice-and-comment procedures as to when ETA will consider two 
nominally separate entities as a single applicant for purposes of 
temporary [agricultural] labor certifications under the Act.'' Crop 
Transport, LLC, 2018-TLC-00027, at 6 n.6 (Oct. 19, 2018). The Secretary 
is authorized to establish policy and promulgate regulations. See 
supra, the Authority section. This rulemaking will provide more 
uniformity as to the application of the single employer test.
    Many commenters argued that the Department proposed to change how 
to determine when two employers were jointly employing an employee by 
adding the single employer definition to the regulations. These 
comments mischaracterize the Department's proposal. The Department is 
not proposing to change the definition of ``joint employer'' located in 
20 CFR 655.103(b), or proposing to change how to determine if two 
employers are jointly employing an employee. As stated in the NPRM, 
``this proposal is not meant to eliminate or undermine appropriate use 
of the joint employment test.'' 88 FR at 63770. A ``joint employer'' is 
not necessarily a ``single employer,'' nor is a ``single employer'' 
necessarily a ``joint employer.''
    Joint employment under the H-2A program, generally, is ``[w]here 
two or more employers each have sufficient definitional indicia of 
being a joint employer of a worker under the common law of agency.'' 20 
CFR 655.103(b) (definition of ``joint employment'' at paragraph 
(i)).\16\ This joint employment inquiry thus focuses on the 
relationship between the putative joint employer and the employee(s), 
while the single employer test focuses on the relationship between the 
nominally distinct employers. See Knitter, 758 F.3d at 1227 (``Unlike 
the joint employer test, which focuses on the relationship between an 
employee and its two potential employers, the single employer test 
focuses on the relationship between the potential employers 
themselves.''). Joint employment assumes that the entities are separate 
while the single employer test asks whether ``two nominally separate 
entities should in fact be treated as an integrated enterprise.'' Id. 
at 1226-27 (quoting Bristol v. Bd. Of Cty. Comm'rs, 312 F.3d 1213, 1218 
(10th Cir. 2002) (en banc)). ``In the case of the single employer 
doctrine, the two entities are essentially the same entity. In the case 
of the joint employer doctrine, the two share control of the employee 
to such an extent that they both function as an employer, even though 
they are operationally distinct.'' Bonilla v. Liquilux Gas Corp., 812 
F. Supp. 286, 289 (D.P.R. 1993).
---------------------------------------------------------------------------

    \16\ Note that the regulations also define ``joint employment'' 
for specific filing contexts as well. 20 CFR 655.103(b) (definition 
of ``joint employment'' at paragraphs (ii) and (iii)).
---------------------------------------------------------------------------

    Determining whether two entities are joint employers, contrary to 
BALCA's assertion in Mid-State Farms, is unhelpful when assessing 
temporary or seasonal need where, for example, an employer splits their 
business between two seemingly separate entities in order to circumvent 
the requirement to establish a temporary or seasonal need. In those 
situations, employees are generally not employed at the same time, 
though there may be overlap between the periods of need, making the 
analysis of joint employment largely impractical. In assessing the 
temporary or seasonal need of nominally distinct entities, the focus of 
the Department's analysis is not on the relationship between the 
employer and the employees, but rather between the employers 
themselves.
    As an anonymous commenter noted, and another alluded to, Mid-State 
Farms claimed that ``the leading BALCA decisions'' applied a ``joint 
employer analysis.'' However, upon closer examination, the cases the 
ALJ referenced in Mid-State Farms were analyzed using the factors of 
the single employer test, and furthermore, several of them may not have 
met the joint employer test. Mid-State Farms, LLC, 2021-TLC-00115, at 
27. Specifically, Mid-State Farms cited the following cases that 
actually utilized some form of the single-employer test: Larry Ulmer, 
2015-TLC-00003, at 4 (Nov. 4, 2014) (``Since the business entities of 
Larry Ulmer and Ulmer Farms are so intertwined, it would be reasonable 
to infer that they function as one and are attempting to circumvent the 
temporary employment requirement.'' (citations omitted)); Lancaster 
Truck Line, 2014-TLC-00004, at 1-3 (Nov. 25, 2013) (The companies 
shared the same FEIN, business address and owners, and ``[e]mployer was 
frank about separating the legal entities of his operation in order to 
comply with the H-2A program's seasonal permitting restrictions.''); 
Katie Heger, 2014-TLC-00001, at 6 (Nov. 12, 2013) (``Considering that 
the [two entities] appear to function as a single business entity and 
have identified sequential dates of need for the same work, their 
`temporary' needs merge into a single year-round need for equipment 
operators.''); Altendorf Transport, 2013-TLC-00026, at 8 (Mar. 28, 
2013) (employer's argument ``does not overcome the interlocking nature 
of the business organizations . . . . The Employer has the burden of 
persuasion to demonstrate it and [the other entity] are truly 
independent entities.''); D & G Frey Crawfish, LLC, 2012-TLC-00099, at 
2, 4 (Oct. 19, 2012) (noting that two companies had the same owner, 
mailing address, and worksite location and offered similar job 
opportunities, and stating that ``[employer's] ability to separate her 
operation into two entities does not enable her to hire temporary H-2A 
workers to fulfill her permanent need'').
    FFVA, a trade association, and m[aacute]sLabor, an agent, expressed 
a preference for using the ``joint employer'' test, observing it would 
sufficiently prevent employers from circumventing the seasonal need 
requirements. As noted in the NPRM,

[[Page 33945]]

however, the Department is hesitant to only use the H-2A joint employer 
test in these situations because it may not capture instances, such as 
those outlined above, where employers who are not H-2A joint employers, 
but who are only nominally distinct, hire workers sequentially such 
that they are employing workers all year or permanently. Neither 
commenter, however, addressed this shortcoming of the joint employer 
test.
    M[aacute]sLabor argued that the single employer test is ``more 
restrictive'' than the joint employer test. Wafla lamented that the 
Department formally adopting the single employer test will cause some 
employers who operate in the same AIE to no longer qualify for this 
program because they will no longer be able to demonstrate a temporary 
or seasonal need. If an employer is unable to demonstrate a temporary 
or seasonal need for workers, they are ineligible for the program; they 
also would have been ineligible before the promulgation of this rule.
    As explained in the NPRM, joint employment can still be useful in 
analyzing temporary need in the H-2A program, and this proposal is not 
meant to eliminate or undermine appropriate use of the joint employment 
test. For example, there may be a situation where an employer applies 
for workers from January to April and then hires an H-2ALC or 
subcontractor for the months of May to December. It is possible that 
this relationship could be joint employment as defined in the 
regulations. If such an employer-applicant hires workers from January 
to April, and then jointly employs workers from May to December, this 
employer-applicant would have a year-round need. The use of the single 
employer test in temporary need analysis is meant to cover situations 
where employees may not be jointly employed, or not jointly employed 
for the entire alleged period of need. ``Joint employer'' is a concept 
also used in other aspects of the H-2A regulations, and again, the 
single employer test does not change or undermine the regulations 
regarding joint employers. See, e.g., 20 CFR 655.131.
    Farmworker Justice suggested that the Department specifically state 
in the regulations that the single employer test does not eliminate or 
undermine the joint employer test, and that the single employer test is 
about the relationship between the two different employers as opposed 
to a relationship between an employer and employee.
    The Department appreciates the commenter's suggestions but declines 
to include them. The two definitions in the H-2A regulations--joint 
employer and single employer test--are distinct, not exclusive; 
describe different types of corporate relationships (relationships 
between two or more employers, versus relationships between employers 
and employees); and have been sufficiently explained in the preamble, 
such that additional text in the definition in the regulations could be 
cumbersome and confusing. It is likewise redundant to note that the 
single employer test applies between employer-entities and not between 
an employer and employee. The preamble and articulated definition make 
this clear, and furthermore the Department does not believe it would be 
possible to apply the ``single employer test'' to an employer and 
employee. Finally, Farmworker Justice suggested including the words 
``nominally distinct'' somewhere in the definition, although they did 
not specify where. The Department also believes this to be unnecessary 
for the reasons specified earlier in this paragraph, as well as the 
fact that this test is used to determine whether any two or more 
entities are a single employer.
    In light of the BALCA case law criticizing the Department's lack of 
notice-and-comment rulemaking regarding the single employer test, BALCA 
case law inappropriately applying the joint employer test to single 
employer situations, and to codify its long-standing practice, the 
Department now incorporates the single employer definition as proposed 
into the regulations and notes that COs will use the definition to 
analyze the temporary or seasonal need of nominally separate entities.
d. Other Comments on Sec.  655.103(e)
i. Area of Intended Employment
    One topic of concern that many commenters raised was whether the 
Department's assessment of temporary need would involve only those job 
opportunities in the same AIE. They suggested amending the definition 
of single employer such that it would read, in part, ``[s]eparate 
entities filing for the same or similar job opportunities in the same 
[AIE] will be deemed a single employer.'' After consideration, the 
Department declines to add the requested text to the regulatory 
provision as it believes the language is redundant.
    The regulations state that ``[a]n employer may file only one 
Application for Temporary Employment Certification covering the same 
AIE, period of employment, and occupation or comparable work to be 
performed.'' 20 CFR 655.130(e)(2). It is already clear from the 
regulations that employers are limited to one application for one AIE 
and period of employment, and the same occupation or comparable work. 
Therefore, there is no benefit to adding to the single employer 
definition that temporary or seasonal need be evaluated based on only 
one AIE, as this is how it is already assessed. There is no prohibition 
on employers filing for labor certifications in multiple AIEs if they 
can establish eligibility in each application.
    Furthermore, such constraining language may hinder WHD's ability to 
apply the single employer test in the context of enforcement, as such 
additional language could be construed as requiring each nominally 
distinct entity to have filed applications for labor certifications to 
be deemed part of a single employer.
ii. Single Employer Status Is Not an Automatic Bar
    It is possible for a singular employer to have multiple needs--it 
may have a need for different job opportunities or may have needs in 
different AIEs. One anonymous commenter, who stated they opposed this 
proposal, argued that DOL's ``role here is to evaluate whether a need 
is temporary or seasonal, not to determine whether farms may be some, 
or any measure constitute a single or otherwise connected employer.'' 
As discussed extensively above, by adopting and applying the single 
employer test OFLC is assessing whether the employer's need is 
temporary or seasonal.
    Multiple commenters, including an agent, an agricultural 
association, and trade associations, stated that the Department should 
move forward with caution so that the Fifth Amendment and due process 
rights are not violated but did not elaborate on how including this 
definition would violate the Fifth Amendment or any due process rights. 
It appeared, based on language used in the comments, though not always 
explicitly stated, that many commenters believe that the Department 
would be ``accusing,'' penalizing, or punishing employers who happen to 
be single or integrated employers and automatically denying 
applications for temporary agricultural labor certification if that 
employer were deemed to be a single or integrated employer.
    The Department wants to make clear that being found to be a single 
employer is not an automatic bar to utilizing the H-2A program. One 
agricultural organization believed that the Department was going to 
deem all employers in a single industry as a single employer. Others 
suggested that

[[Page 33946]]

sharing an office space, or the fact that entities may both be 
agricultural producers, would make them ``single employer.'' This is 
not true. Just because an employer is related to, or is only nominally 
distinct from another company, does not mean that they are prohibited 
from using the H-2A program. Nor does it necessarily mean that they 
will be questioned as to their status via NODs.
    The Department is not ``accusing'' any employers of wrongdoing 
simply by virtue of operating as a single employer with a nominally 
distinct entity. The single employer test is a means by which OFLC may 
ascertain an employer's true need for workers. Should entities who are 
acting as a single employer have distinct needs for workers, and 
assuming the applications are otherwise consistent with the 
regulations, the applications will not be denied simply because the 
employer is an integrated or single employer.
    If the CO believes that an employer is unable to establish their 
temporary or seasonal need because they are a single employer, the 
employer will be given an opportunity through a NOD, if necessary, to 
explain their corporate structure and show their eligibility for the H-
2A program and will still have the ability to appeal any final 
determination. The Department wants to make clear that the burden to 
establish eligibility for the H-2A program lies solely with the 
employer, and it is the employer, who even if found to be a single 
employer, must demonstrate its eligibility for the program. See 8 
U.S.C. 1361. It is therefore unclear, with all these procedural 
protections in place, how adding this definition would violate due 
process.
iii. Clarifications
    Many organizations expressed support for this proposal, but the 
Department wishes to clarify what appear to be some misconceptions in 
some of those comments surrounding the added definition. It appeared 
that a couple of organizations believed this proposal would group a 
wider range of entities together as one single employer than was 
intended, and the Department wants to reiterate two things. One, the 
single employer test is not the joint employer test and is not meant to 
undermine or replace the joint employer test. Two, the single employer 
test is to be used to determine if two or more separate entities are 
actually so intertwined as to be one entity for the purposes of 
determining temporary need and for enforcement purposes. It is not 
intended as a means by which to group any and all employers who have 
business relationships together under one umbrella.
e. Enforcement by WHD
    As stated in the NPRM, the definition of single employer will 
explicitly provide that the Department may apply this test for purposes 
of enforcing an H-2A employer's program obligations. As noted in the 
preamble to the NPRM, and consistent with BALCA and Federal case law, 
WHD already applies the single employer test in certain circumstances 
to determine whether the H-2A employer has complied with its program 
obligations. Over the past several years, WHD has increasingly 
encountered H-2A employers that utilize multiple seemingly distinct 
corporate entities under common ownership. The employers have divided 
their H-2A and non-H-2A workforces onto separate payrolls, paying the 
non-H-2A workers less than the H-2A workers. However, the H-2A and 
other workers generally work alongside one another, performing the same 
work, under the same common group of managers, subject to the same 
personnel policies and operations. In these circumstances, to determine 
whether the H-2A employer listed on the H-2A Application employed the 
non-H-2A workers in corresponding employment, the common law test for 
joint employment may not be a useful inquiry because the interrelation 
of operations makes it difficult to determine the relationship between 
each distinct corporate entity and the workers. The single employer 
test is a more useful inquiry because it focuses on the relationship 
between the corporate entities to determine whether they are so 
intertwined as to constitute a single, integrated employer such that it 
is appropriate and ``fair'' to treat them as one for enforcement 
purposes. Absent application of the single employer test, this 
burgeoning business practice might be used--whether intentionally or 
not--to deprive corresponding workers of the protections of the H-2A 
program by superficially circumventing an employment relationship with 
the H-2A employer as described herein, contrary to the statute's 
requirements. 8 U.S.C. 1188(a)(1). And while WHD already utilizes this 
test, the Department believes that explicitly noting in the regulations 
the potential applicability of this test for purposes of enforcement, 
and the factors the Department will consider in applying this test, 
will provide clarity for internal and external stakeholders and could 
also deter employers from intentionally seeking to circumvent the H-2A 
program's requirements in this manner. However, as for purposes of 
temporary need, the Department is not replacing or superseding the 
definition of ``joint employment'' under the existing regulations. 
Rather, the single employer test would be used as an alternative to 
joint employment for purposes of enforcement, where appropriate.
    The Cato Institute, in criticizing the authority of the Department 
to adopt this definition, commented that there is no ``adverse effect'' 
when employers have divided their H-2A and non-H-2A workforces onto 
separate payrolls, via nominally distinct companies, even if this 
allows the employer to pay H-2A workers more than other workers. They 
explained that this type of corporate structure is legal, and that the 
employment of H-2A workers was not adversely affecting the other 
workers because allegedly these other workers would not receive higher 
wages from these employers if the H-2A workers were not employed. In 
other words, the non-H-2A workers are no worse off because the company 
hired H-2A workers. The Department does not agree.
    The Cato Institute's proffered hypothetical is completely 
inapposite because the hypothetical employer has in fact hired H-2A 
workers. What that employer would pay its other workers in the absence 
of H-2A workers is irrelevant to the topic at hand. Instead, the 
employer in this hypothetical is paying its non-H-2A workers less than 
it pays its H-2A workers to perform the same work, adversely affecting 
these workers. Overdevest v. Walsh, 2 F.4th 977, 984 (D.C. Cir. 2021) 
(finding the Department's corresponding employment regulations that 
require H-2A employers ``to pay non-H-2A workers the same amount that 
they pay the H-2A workers when they are doing the same work'' to be an 
``eminently reasonable'' interpretation of the adverse effect mandate). 
The Cato Institute appears to argue that this hypothetical employer 
should be allowed to circumvent this requirement by splitting the 
payroll under nominally distinct entities despite operation of one 
single, integrated enterprise. Again, the argument that a business or 
businesses should be allowed to find loopholes to a regulatory system 
meant to protect workers in the United States is not a convincing one.
    USAFL and Hall Global commented on the Department's application of 
the single employer test for enforcement purposes, stating that ``the 
use of `contractual' liability is ambiguous'' and that questions of 
contract liability are typically matters of State law. USAFL and Hall 
Global posited that the

[[Page 33947]]

regulation thus impermissibly purports to ``preempt state law rules 
governing attribution of contractual liability.''
    These concerns are unfounded. Significantly, the Department did not 
purport in the NPRM to apply the single employer test for purposes of 
attributing an entity's contractual ``liability'' under State contract 
law. See 88 FR 63770-63771. The Department has enforcement obligations 
under the H-2A program that are separate and distinct from any 
contractual liability that might arise under State law. As set forth in 
the NPRM and in this final rule, the Department has and will continue 
to apply the single employer test in the context of its ``enforcement 
of contractual obligations,'' id. Such obligations ``includ[e] 
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.'' 29 CFR 501.0; see also 8 U.S.C. 1188(g)(2) 
(authorizing the Department ``to take such actions . . . as may be 
necessary to assure employer compliance with terms and conditions of 
employment under this section''). In this final rule the Department has 
simply made explicit the potential application of the single employer 
test in the context of DOL enforcement. See 88 FR 63770-63771. Such 
enforcement is pursuant to and under the authority of the H-2A statute 
and regulations and not pursuant to State common laws of contract. Cf. 
Sun Valley Orchards, LLC v. U.S. Dep't of Labor, No. 1:21-cv-16625, 
2023 WL 4784204, *15 (D.N.J July 27, 2023), appeal filed (3d Cir. No. 
23-2608) (finding DOL's administrative adjudication of H-2A enforcement 
cases to be Constitutional because such proceedings arise from the 
employer's ``violations of DOL's regulations, deriv[e] from a federal 
regulatory scheme under the federal government's immigration related 
powers, and [are] integrally related to a particular Federal Government 
action'').
f. Conclusion
    The Department sought comments relating to the impact this proposal 
may have on specific industries or types of employers, and while 
commenters discussed how this definition would affect agricultural 
organizations, sometimes with specific examples, there were no comments 
in response to the question of whether this would impact specific 
industries more than others. The Department now adopts the single 
employer definition as it relates to temporary need and contractual 
obligations without change.
2. Section 655.104, Successors in Interest
    The Department proposed several revisions to its current 
regulations to clarify the liability of successors in interest and to 
streamline the procedures for applying debarment to a successor in 
interest to a debarred employer, agent, or attorney. As explained in 
the NPRM, since 2008 the Department's H-2A regulations have made 
explicit that successors in interest to employers, agents, and 
attorneys may be held liable for the responsibilities and obligations 
of their predecessors, including debarment, to prevent debarred 
entities from evading the effects of debarment. 73 FR 77110, 77116, 
77188 (Dec. 18, 2008) (2008 H-2A Final Rule). However, the Department's 
current regulations governing debarment, as interpreted by the 
Administrative Review Board (ARB) and BALCA, are insufficient to 
effectively prevent program violators from ``circumvent[ing] the effect 
of the debarment'' as the Department originally intended. Id. at 77116. 
See Admin. v. Fernandez Farms, ARB No. 2016-0097, 2019 WL 5089592, at 
*2-4 (ARB Sept. 16, 2019) (holding that 29 CFR 501.31 requires WHD to 
issue a new notice of debarment to a successor before subjecting the 
successor to the predecessor employer's WHD order of debarment); Gons 
Go, Inc., BALCA Nos. 2013-TLC-00051, -00055, -00063 (BALCA Sept. 25, 
2013) (holding that 20 CFR 655.182 requires OFLC to first debar a 
successor of a debarred employer, by completing the full debarment 
procedures in Sec.  655.182, before it may deny the successor's 
application for labor certification).
    Accordingly, in the NPRM the Department proposed several revisions 
to its regulations to better effectuate its intent in 2008 when 
enacting its successor in interest regulations. Most significantly, the 
Department proposed a new Sec.  655.104, Successors in interest. 
Proposed paragraph (a) clarified the liability of successors in 
interest and proposed paragraph (b) set forth the definition of a 
successor in interest. These proposed paragraphs were similar to--but 
slightly broader than--the first paragraph of the current definition of 
successor in interest at Sec.  655.103(b). Proposed Sec.  655.104(c) 
set forth streamlined procedural requirements to apply debarment to a 
successor in interest, explaining that when an employer, agent, or 
attorney is debarred, any successor in interest to the debarred 
employer, agent, or attorney would also be debarred. This proposed 
paragraph also set forth the procedures by which a putative successor 
could request review of a CO's determination of successor status. The 
Department proposed corresponding revisions to Sec. Sec.  655.103, 
655.181, and 655.182 and 29 CFR 501.20. The proposals and the changes 
adopted in this final rule are discussed more fully below.
    The Department received many comments on its proposed revisions to 
its successor in interest regulations. Various worker rights advocacy 
organizations, Members of Congress, and public policy organizations, 
among other commenters, fully supported the proposed revisions, stating 
that the changes would improve the Department's existing enforcement 
remedies by expanding the definition of a successor in interest and 
streamlining debarment proceedings. Several commenters supporting the 
proposed revisions underscored the need for stronger enforcement 
against successors in interest in general. For example, FLOC commented 
that it has become ``all too common'' for H-2A employers to ``try to 
avoid their responsibilities for violations of the law by transferring 
their operations to a new person or entity, while all the time 
retaining control.'' FLOC also recommended additional revisions that 
would further strengthen debarment, such as applying a ``presumption'' 
of successor status to any H-2ALC hired by a farm to replace a debarred 
H-2ALC. Other commenters provided specific examples of entities that 
have evaded debarment under the current regulations through 
reconstituting under a different corporate entity with reshuffled 
ownership.
    Along these lines, Farmworker Justice ``urge[d] the Department to 
focus on overlap of the work actually being done, the workforce, and 
the product that comes from the work'' when applying any revised 
regulations. Farmworker Justice and the Agricultural Worker Project of 
Southern Minnesota Regional Legal Services argued that ``the Department 
must scrutinize whether the principals or managers of [new] entities 
are family members of recently debarred entities . . . [and] scrutinize 
addresses contained in applications for labor certification.'' These 
commenters underscored the need for robust training and support for 
Department officials responsible for determining successor status to 
capture these nuances, so that debarred entities are not able to evade 
enforcement through rebranding or nominal changes in ownership. 
Similarly, a couple of SWAs requested guidance on the role of SWAs in 
determining successor status.

[[Page 33948]]

    On the other hand, several commenters, including employers, 
employer associations, and agents, objected to the proposed revisions, 
though the majority of these commenters took issue with only the 
proposed definition of a successor in interest, as discussed further 
below. However, FFVA, a trade association, opined that the debarment of 
successors as a general matter is unnecessary to meet the Department's 
goals of ensuring that debarred entities do not continue to operate in 
the H-2A program because the Department can apply joint employment 
principles to achieve these goals.
    After consideration of the comments received, the Department adopts 
the proposed changes to its successor in interest regulations in this 
final rule, with modifications to the discussion of the liabilities of 
a successor at Sec.  655.104(a) and to the definition of a successor at 
Sec.  655.104(b). With respect to FFVA's comment on the necessity of 
debarring successors in interest to debarred employers, agents, and 
attorneys, the Department notes that application of debarment to a 
successor in interest is not a new concept in this final rule. As 
explained in the NPRM, since 2008 the Department's H-2A regulations 
have explicitly provided for debarment of successors in interest to 
debarred employers, agents, or attorneys. As explained in the 2008 
rulemaking and in the NPRM, application of debarment to successors in 
interest is necessary to ensure that debarment is an effective remedy, 
and that debarred entities are not able to circumvent the effects of 
debarment and continue operating in the H-2A program, despite having 
been found to have committed substantial violations of the program's 
requirements. See 73 FR at 77116, 77188. It is also unclear how a joint 
employment analysis could achieve this same goal, as FFVA suggested 
without further explanation. The Department therefore disagrees with 
FFVA that debarment of successors is unnecessary to ensure that 
debarred entities do not evade the effects of debarment. As multiple 
commenters agreed, however, the Department concludes that changes to 
its existing successor regulations are needed to better effectuate the 
intent of the regulations.\17\ The Department discusses and responds to 
the specific comments received on each aspect of the proposal below.
---------------------------------------------------------------------------

    \17\ See also U.S. Gov't Accountability Office (GAO), GAO-15-
154, H-2A and H-2B Visa Programs: Increased Protections Needed for 
Foreign Workers (2015; Rev. 2017), p. 41, https://www.gao.gov/assets/gao-15-154.pdf. (GAO 2015 Report) (describing challenges of 
imposing debarment where debarred entities ``reinvent'' themselves 
under current procedures).
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a. Liability of Successors in Interest
    Proposed Sec.  655.104(a) set forth the liability of successors in 
interest, explaining that a successor in interest to an employer, 
agent, or attorney that has violated the H-2A program requirements may 
be held liable for the duties and obligations of the violating 
employer, agent, or attorney in certain circumstances. As discussed in 
the NPRM, the language in proposed Sec.  655.104(a) is similar to the 
language in current Sec.  655.103(b) defining a successor in interest, 
but the proposed language does not purport to limit application of the 
successorship doctrine to instances where the predecessor ``has ceased 
doing business or cannot be located for purposes of enforcement,'' as 
under the current regulations. Id. at 63772.
    The Department received only one comment on this specific proposed 
revision. Farmworker Justice applauded the change, explaining that this 
revision combined with other proposed revisions would better reflect 
that ``[c]orporate succession, even when it is not based in fraud and 
deceit, is often far more complicated than, for example, Corporation A 
becomes Corporation B'' and that ``[f]irms often continue in existence 
while transferring some operations to a successor--liability attaches 
to that successor despite the original firm's continued existence.'' 
Farmworker Justice stated that the proposed revisions would close this 
``loophole.'' The Department agrees. As reflected in the case law 
applying the successorship doctrine in the labor and employment law 
context, a successor may be deemed liable in a variety of factual 
circumstances, including but not limited to mergers, acquisitions, 
transfers of assets, and transfers of operations. See, e.g., Golden 
State Bottling Co. v. NLRB, 414 U.S. 168, 182 n. 5 (1973). Application 
of the successorship doctrine in the labor and employment law context 
is not limited to instances where the predecessor cannot be located or 
has ceased operating altogether. Id. The Department thus concludes that 
the revised language better reflects the weight of authority applying 
the successorship doctrine in the labor and employment context, and 
better achieves the Department's intent in enacting the successorship 
regulations in the first place. Therefore, the Department adopts 
proposed Sec.  655.104(a), with one addition. For the reasons discussed 
below, the Department adds language from proposed paragraph (b) to the 
end of paragraph (a) in this final rule, clarifying that a successor in 
interest is liable for the H-2A program liabilities and obligations of 
the predecessor regardless of whether the successor has succeeded to 
such liabilities or obligations.
b. Definition of Successors in Interest
    Proposed Sec.  655.104(b) set forth a definition of a successor in 
interest similar to, but modified from, the current definition of a 
successor in interest at Sec.  655.103(b). However, this proposed 
paragraph included a new sentence, not found in the current regulation, 
providing that a successor in interest ``includes an entity that is 
controlling and carrying on the business of a previous employer, agent, 
or farm labor contractor, regardless of whether such successor in 
interest has succeeded to all the rights and liabilities of the 
predecessor entity.'' 88 FR 63822. The Department explained that this 
new sentence, along with the proposed revisions in paragraph (a), was 
intended to capture successorship scenarios more accurately in the 
context of the H-2A Program. Id. at 63772. As discussed more fully 
below, the Department also proposed revisions to the list of 
nonexhaustive factors it would consider when determining a given 
individual's or entity's successor status.
    The Department received various comments in support of the proposed 
revisions to the definition of a successor in interest. For example, 
the California LWDA stated that the proposed revisions more closely 
align with the successorship doctrine as well as with California's own 
efforts to increase enforcement against successor in interest. The 
Agricultural Worker Project of Southern Minnesota Regional Legal 
Services commented that these revisions are ``necessary.''
    However, several commenters objected to the proposed definition, 
particularly inclusion of the new sentence that would describe a 
successor as ``an entity that is controlling and carrying on the 
business of a previous employer, agent, or farm labor contractor, 
regardless of whether such successor in interest has succeeded to all 
the rights and liabilities of the predecessor entity.'' Commenters 
asserted that this language is overbroad and conflicts with the notion 
that the definition of a successor is a factor-driven inquiry. For 
example, m[aacute]sLabor commented that this language would seemingly 
upset the fact-dependent ``balancing test'' under the current 
definition of successor in interest because ``[b]y stating that an 
acquiring

[[Page 33949]]

entity may be construed as a successor in interest regardless of 
whether it has succeeded to the rights and liabilities of the 
predecessor, the Department opens the door for asset purchases alone to 
trigger successor in interest obligations and liability if the asset 
purchase involves any degree of continuity with the seller's original 
operation.'' M[aacute]sLabor recommended that the Department retain the 
current definition of a successor in interest at Sec.  655.103(b), 
opining that it is ``sufficient to address the Department's stated 
objectives and has a balancing test that is clear and well-understood 
by the regulated community.'' Wafla, an employer association, commented 
that this language amounts to an ``automatic assumption of guilt'' that 
``binds a new employer to the decisions of the previous employer even 
if the new employer wants to comply with the law in ways the previous 
employer did not.''
    Similarly, NHC opined that debarment will likely leave an H-2A 
employer with few economic options but to sell or lease their farm, and 
in such instances, the purchaser or lessee (often a neighboring farm) 
typically will use the same land, equipment, and even staff, at least 
initially, to avoid disruption in operations. NHC expressed concern 
that under the proposed revised definition, even if the purchaser or 
lessee has no connection to the debarred employer, they could be 
considered a successor. NHC requested that the Department ``revise this 
definition to clarify that purchasing or leasing entities with no 
connection with the debarred entity should not be considered 
successors-in-interest.'' Several other employers and employer 
associations made similar comments.
    The Department appreciates these concerns. Insofar as these 
commenters argue that State laws of corporate succession or contractual 
limitations on liability should govern the successorship inquiry under 
the H-2A program, the Department disagrees. The successorship doctrine, 
as applied in the employment and labor law context, is an equitable 
inquiry, focused on continuity of the business identity. See, e.g., 
Golden State Bottling Co., 414 U.S. at 182 n. 5. Whether a given entity 
is a successor is not dependent on the contractual arrangements between 
the entities, nor subject to State corporate laws of succession. Id. 
(``The refusal to [adhere to the strict corporate-law definition] is 
attributable to the fact that, so long as there is a continuity in the 
`employing industry,' the public policies underlying the doctrine will 
be served by its broad application.''); see also Teed v. Thomas & Betts 
Power Solutions, LLC, 711 F.3d 763, 764-65 (7th Cir. 2013) (summarizing 
case law distinguishing application of successor doctrine in contexts 
of labor and employment law versus corporate-law, and demonstrating 
that disclaimer of successor lability is not a defense in the labor and 
employment law context). Thus, a determination of successor status in 
the labor and employment law context, including the H-2A program, is 
not dependent on whether the successor agreed to accept some or all of 
the predecessor's liabilities. Rather, the inquiry is circumstance 
specific. Howard Johnson Co., Inc. v. AFL-CIO, 417 U.S. 249, 264 n.9 
(1974).
    The Department intended its proposed revisions to the definition of 
a successor in interest to better reflect application of the 
successorship doctrine in the labor and employment law context, 
particularly the notion that successors may not disclaim successor 
liability through contractual agreement with the predecessor. However, 
the Department agrees with commenters that the proposed language in 
Sec.  655.104(b) providing that a successor in interest includes ``an 
entity that is controlling and carrying on the business of a previous 
employer, agent, or farm labor contractor'' is itself seemingly at odds 
with the remainder of the proposed definition of a successor, and with 
application of the successor doctrine in the context of labor and 
employment law generally. The Department is concerned that this 
proposed sentence could have the unintended effect of placing an 
outsized focus by decision-makers on the degree of control exercised by 
the successor over the predecessor's operations. Instead, as the 
Supreme Court has explained, ``[t]here is, and can be, no single 
definition of `successor' which is applicable in every legal context.'' 
Howard Johnson, 417 U.S. at 262 n.9. Rather, in the labor and 
employment law context, ``the real question in each of these 
`successorship' cases is, on the particular facts, what are the legal 
obligations of the new employer to the employees of the former owner or 
their representative?'' Id. The Court further detailed that ``[t]he 
answer to this inquiry requires analysis of the interests of the new 
employer and the employees and of the policies of the labor laws in 
light of the facts of each case and the particular legal obligation 
which is at issue.'' Id. The Department therefore concludes that the 
proposed language is unnecessary and potentially conflicts with its 
intent that the determination of a successor in any instance be a fact 
specific inquiry, guided by multiple factors.
    However, as explained above and reflected in the comments received 
on the proposal, in the labor and employment law context, a successor 
in interest's liability is not dependent on whether the successor has 
agreed to accept all of the liabilities and obligations of the 
predecessor. The Department continues to believe it is appropriate and 
useful to clarify this point in the regulatory text, but believes this 
clarification is better placed in Sec.  655.104(a), which sets out the 
liability of successors in the H-2A program, rather than in paragraph 
(b) setting out the definition of a successor. As a result, Sec.  
655.104(a) of this final rule includes the language from proposed Sec.  
655.104(b), explaining that a successor is liable for the obligations 
and liabilities of the predecessor, ``regardless of whether such 
successor in interest has succeeded to all the rights and liabilities 
of the predecessor.'' Section 655.104(b) in this final rule, providing 
the definition of a successor in interest, does not include the 
proposed first sentence, and instead defines successors in interest 
pursuant to a circumstance-specific inquiry (as under the current 
definition at Sec.  655.103(b)), applying a nonexhaustive list of 
factors set out in the regulation.
    With respect to those factors, proposed Sec.  655.104(b) set out a 
revised list that the Department would consider when determining 
successor status of any given entity or individual. The proposed list 
of factors largely mirrored those used in the Department's current 
definition of successor in interest found at Sec.  655.103(b), which 
incorporates the factors applied under Title VII of the Civil Rights 
Act and the Vietnam Era Veterans' Readjustment Assistance Act. Under 
the current definition of a successor in interest at Sec.  655.103(b), 
however, the Department provides that, ``[f]or 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.'' Sec.  655.103(b) (2024). The 
Department proposed in the NPRM to remove the ``primary consideration'' 
requirement, such that for purposes of debarment, personal involvement 
in the underlying violation would remain a consideration, but not the 
primary consideration. As the Department explained in the NPRM, it 
proposed this change because the current emphasis on this factor is 
unduly limiting and in tension with the general principle that no one 
factor

[[Page 33950]]

should be dispositive in determining successor status.
    The Department received some comments objecting to the proposed 
revised list of factors. M[aacute]sLabor commented that the successor 
in interest framework in general is ``murkier'' when applied in the 
context of debarred agents and attorneys, given the nature of their 
role in the labor certification process, but that these concerns are 
somewhat alleviated under the current definition of successor in 
interest at Sec.  655.103(b) with its focus on the personal involvement 
of those responsible for the underlying violation. Accordingly, 
m[aacute]sLabor ``encourage[d] the Department to retain . . . the 
qualification that, in the context of an agent or attorney, the primary 
consideration for purposes of debarment is the personal involvement in 
the violation(s) at issue.''
    The Department appreciates these concerns but notes that whether 
any given entity or individual is deemed a successor in interest is a 
highly fact-dependent inquiry that requires consideration of all 
circumstances; in some instances, certain factors will be more relevant 
or useful to the inquiry than in other instances. See, e.g., Fall River 
Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 43 (1987) (the successor 
inquiry ``is primarily factual in nature and is based upon the totality 
of the circumstances of a given situation''); Cobb v. Contract 
Transport, Inc., 452 F.3d 543, 553-54 (6th Cir. 2006) (``[A]ll nine 
factors will not be applicable to each case. Whether a particular 
factor is relevant depends on the legal obligation at issue in the 
case. The ultimate inquiry always remains whether the imposition of the 
particular legal obligation at issue would be equitable and in keeping 
with federal policy.''). The same is true in the H-2A context. For 
example, whether a new agent is a successor to a debarred agent will 
involve significantly different facts and considerations than whether 
the purchaser or lessee of farm equipment from a debarred farmer is a 
successor to the debarred farmer.
    Similarly, courts have recognized that definitions of a successor 
in interest similar to the Department's proposed definition properly 
balance the interests of employers, workers, and the Federal policy at 
issue, with equity and fairness at the heart of the inquiry. See, e.g., 
Cobb, 452 F.3d at 553-54; Leib v. Georgia-Pac. Corp., 925 F.2d 240, 
241-47 (8th Cir. 1991); see also Criswell v. Delta Air Lines, Inc., 868 
F.2d 1093, 1094 (9th Cir. 1989) (``Because the origins of successor 
liability are equitable, fairness is a prime consideration in its 
application.''). The revised list of factors is intended to better 
promote the balancing of such interests, rather than reduce it, by 
ensuring that the inquiry is always reasonable and fact dependent. The 
Department concludes that the proposed revised list of factors at new 
Sec.  655.104(b), which remove dependence on any one given factor in 
any certain circumstance, better reflects the weight of authority 
applying the successorship doctrine in the labor and employment law 
context. Therefore, the Department adopts the list of nonexhaustive 
factors at Sec.  655.104(b) as proposed.
    Relatedly, the Department agrees with those commenters that 
observed the need for sufficient training to Department officials 
responsible for identifying potential successors in interest and 
determining successor status, such that relevant facts and factors are 
considered on a case-by-case basis. The Department provides training 
that is needed to effectively perform various job duties and will train 
staff about the provisions of this rule, including how to appropriately 
use the enhanced data collection elements in Sec.  655.130 to determine 
successorship status. With respect to the comment requesting 
clarification on the role of the SWA in identifying and determining 
successor status, the Department notes that the SWA will have a primary 
role in making this determination for purposes of discontinuation of ES 
services under 20 CFR part 658, discussed further in Sections V.B and 
V.C. However, determinations of successor status for purposes of 
enforcement and debarment under 20 CFR part 655, subpart B, and 29 CFR 
part 501 would be the responsibility of the Department.
c. Streamlined Procedures To Apply Debarment to Successors
    The Department proposed various revisions to its current 
regulations to streamline the procedures for applying debarment to 
successors in interest, set forth in proposed Sec. Sec.  655.104(c), 
655.181, 655.182, and 29 CFR 501.20. Under proposed Sec.  655.104(c), 
applications filed by or on behalf of a putative successor in interest 
to a debarred employer, agent, or attorney would be treated like 
applications filed by the debarred employer, attorney, or agent. If the 
CO determines that such an application was filed during the debarment 
period, the CO would issue a NOD under Sec.  655.142 or deny the 
application under Sec.  655.164, depending upon the procedural status 
of the application. The NOD or denial would be based solely on the 
applying entity's successor status and would not address (nor would it 
waive) any other potential deficiencies in the application. If the CO 
determines that the entity was not a successor, the CO would resume 
with processing of the application under Sec.  655.140. However, if the 
CO determines that the entity is a successor, the CO would deny the 
application without further review, pursuant to Sec.  655.164. As with 
any other application denial, the putative successor could appeal the 
CO's determination under the appeal procedures at Sec.  655.171, 
although review would be limited to whether the entity was, in fact, a 
successor in interest to a debarred employer, agent, or attorney. 
Accordingly, should a reviewing ALJ conclude that the entity was not a 
successor, the application would require further consideration and thus 
the ALJ would remand the application to OFLC for further processing.
    Similarly, proposed Sec.  655.104(c) also provided that the OFLC 
Administrator could revoke a certification that was issued, in error, 
to a successor in interest to a debarred employer, pursuant to Sec.  
655.181(a), and the entity could appeal its successor status pursuant 
to Sec.  655.171. The Department explained in the NPRM that it 
currently may revoke a certification issued in error to a debarred 
employer or to a successor of a debarred employer under its current 
revocation authorities, but the Department proposed revisions to the 
grounds for revocation at Sec.  655.181(a)(1) to clarify that fraud or 
misrepresentation in the application includes an application filed by a 
debarred employer (and, by extension, an application filed by a 
successor to a debarred employer). The proposed changes would simply 
clarify this existing authority. However, given the impact of 
revocation on both employers and workers, proposed Sec. Sec.  
655.104(c) and655.181(a)(1) did not explicitly contemplate revocation 
of a certification issued in error, based on an application filed by a 
debarred agent or attorney or by successors to a debarred agent or 
attorney, as distinct from a debarred employer or successor in interest 
to a debarred employer. The Department invited comment on whether 
revocation may be warranted in such circumstances.
    The Department also proposed revisions to Sec.  655.182 governing 
debarment, corresponding to proposed Sec.  655.104(c), to state clearly 
that debarment of an employer, agent, or attorney would apply to any 
successor in interest to that debarred employer, agent, or attorney. 
The Department also proposed corresponding revisions to the

[[Page 33951]]

procedures governing WHD debarments under 29 CFR 501.20, including a 
new proposed paragraph (j) that explicitly addressed successors in 
interest. Under the successorship doctrine, as discussed above, and 
under the proposed rule, WHD would not be required to issue a notice of 
debarment to a successor in interest to a debarred employer, agent, or 
attorney; rather, debarment of the predecessor would apply equally to 
any successor in interest. However, as provided in proposed paragraph 
(j), as a matter of expediency WHD could, but would not be required to, 
name any known successors to an employer, agent, or attorney in a 
notice of debarment issued under Sec.  501.20(a).
    The Department received only a few comments in opposition to or 
commenting specifically on these revised procedures. Wafla commented 
that the revised procedures, coupled with the revised definition of a 
successor, ``would force a legitimate employer to prove its innocence 
in order to receive equal treatment under the law'' and opined that the 
Department should only impose debarment on a successor if the successor 
also violates the H-2A program requirements. NCAE, AILA, and others 
urged the Department to exercise caution in its application of the 
proposed regulations, if finalized, to protect the due process rights 
of employers, agents, and attorneys.
    The Department also received comments in support of these proposed 
revisions, observing that the revised procedures would better 
effectuate the Department's debarment authority. For example, the 
California LWDA stated that the ``streamlined debarment process 
safeguards workers and compliant employers from those who violate H-2A 
requirements and hide behind shell companies and paper farms.'' 
Farmworker Justice opined that the proposed revisions are ``logically 
sound and in line with successorship doctrine'' and provide sufficient 
due process. Similarly, Farmworker Justice supported the proposed 
revision to Sec.  655.181(a)(1) clarifying that OFLC may revoke a 
certification issued in error to a successor in interest to a debarred 
employer and explaining that ``[s]ituations where successors to 
debarred predecessor employers attempt to apply for workers during a 
debarment should be treated as cases of fraud and/or misrepresentation 
and warrant revocation under 20 CFR 655.181(a).''
    The Department did not receive any comments in response to its 
request for input on whether revocation may be warranted under 
circumstances where a labor certification has been issued, in error, to 
an employer represented by debarred agent or attorney or a successor in 
interest to a debarred agent or attorney, although the Colorado SWA 
requested clarification on the effect of revocation of a labor 
certification on the visa process. The Colorado SWA also requested 
clarification as to when and whether WHD would name a known successor 
in interest in a debarment proceeding of a predecessor employer, agent, 
or attorney under 29 CFR 501.20(j).
    After consideration of these comments, and for the reasons stated 
in the NPRM, the Department adopts these revised procedures as 
proposed. The Department concludes that the streamlined procedures are 
more consistent with the successorship doctrine than the Department's 
current procedures for imposition of debarment on successors while 
affording putative successors sufficient due process. These revised 
procedures also are more consistent with, and better effectuate, the 
Department's original intent in enacting its successor in interest 
regulations in 2008, namely ``to ensure that violators are not able to 
re-incorporate to circumvent the effect of the debarment provisions,'' 
and ``to prevent persons or firms who were complicit in the cause of 
debarment from reconstituting themselves as a new entity to take over 
the debarred employer's business.'' 73 FR 77116, 77188 (Dec. 18, 2008).
    With respect to concerns for due process, rather than imposing a 
``presumption of guilt,'' the revised debarment procedures coupled with 
the revised definition of a successor in interest will better reflect 
application of the successorship doctrine in the context of labor and 
employment law, which is an equitable, fact-driven inquiry. Howard 
Johnson, 417 U.S. at 264. For similar reasons, the Department declines 
to adopt the suggestion received in a comment that the Department 
impose a presumption of successor status on any given entity. Rather, 
the Department will determine on a case-by-case basis whether a given 
individual or entity is a successor in interest to a debarred employer, 
agent, or attorney, with notice and opportunity for hearing on 
successor status given to the putative successor. However, where an 
entity is deemed to be a successor to a debarred employer, agent, or 
attorney, the Department need not obtain a new order of debarment 
against the successor to impose the predecessor's debarment on the 
successor, as that is the ``whole point'' of the successorship 
doctrine, namely that the liabilities of the predecessor attach to the 
successor. Criswell, 868 F.2d at 1095.
    In response to the Colorado SWA's request for clarification under 
29 CFR 501.20(j) as to when and whether WHD would name a known 
successor in interest in a notice of debarment, such a decision will be 
a matter of enforcement discretion. For example, where WHD issues a 
notice of debarment to a violating employer and, at that time, a 
successor entity already is known to WHD, WHD may decide to name the 
successor in the predecessor's notice of debarment. If so, the putative 
successor could request a hearing on its successor status through the 
administrative procedures under 29 CFR part 501, subpart C. The intent 
of this new paragraph (j), however, is to reflect that WHD is not 
required to name successors in a notice of debarment issued to a 
predecessor, even if known at the time of issuance, for OFLC to apply 
the revised procedures to that successor under 20 CFR 655.104(c), 
655.181, and 655.182. For example, where WHD obtains a final order of 
debarment against an employer under 29 CFR 501.20, it would not be a 
defense to OFLC's denial of an application filed by a successor in 
interest to that debarred employer, under new 20 CFR 655.104(c), that 
WHD was aware of the existence of the successor entity at the time WHD 
issued the underlying debarment notice to the debarred employer.
    Finally, with respect to revocations under 20 CFR 655.181(a)(1), 
the Department adopts that revised paragraph as proposed, for the 
reasons as stated in the NPRM and as reflected in Farmworker Justice's 
comment. However, as in the NPRM, the revised regulations do not 
explicitly contemplate revocation where a labor certification has been 
issued in error to an employer represented by a debarred agent or 
attorney or a successor in interest to a debarred agent or attorney, 
given the severity of debarment as a remedy and the impact of a 
revocation on the workers. However, as under current Sec.  
655.181(a)(1), the Department retains authority and discretion to 
revoke a labor certification due to fraud or misrepresentation in the 
application process. Whether the above circumstances would warrant 
revocation would be determined on a case-by-case basis. In response to 
the Colorado SWA's request for clarification of the effect of 
revocation of a labor certification on the petition and visa 
application processes, the regulations at Sec.  655.181(c) impose 
certain obligations on the employer in the event of revocation, 
including inbound and

[[Page 33952]]

outbound transportation requirements and satisfaction of the three-
fourths guarantee. In addition, pursuant to Sec.  655.181(b)(5), the 
Department notifies DHS and the Department of State of each revocation; 
further consequences are subject to and pursuant to the authorities of 
those agencies.
3. Section 655.190, Severability
    The NPRM proposed to add new and identical regulatory text at Sec.  
655.190 and Sec.  501.10 stating that if any provision of the 
Department's H-2A regulations is held to be invalid or unenforceable by 
its terms, or as applied to any person or circumstance, or stayed 
pending further agency action, the provision will be construed so as to 
continue to give the maximum effect to the provision permitted by law. 
The proposed regulatory text further stated that where such holding is 
one of total invalidity or unenforceability, the provision will be 
severable from the corresponding part and will not affect the remainder 
thereof.
    As the NPRM explained, the Department believes that a severability 
provision is appropriate because each provision within the H-2A 
regulations is capable of operating independently from the others, 
including where the Department proposed multiple methods to strengthen 
worker protections and to enhance the Department's capabilities to 
conduct enforcement and monitor compliance. The NPRM also emphasized 
that it is important to the Department and the regulated community that 
the H-2A program continue to operate consistent with the expectations 
of employers and workers, even if a portion of the H-2A regulations is 
held to be invalid or unenforceable.
    Several commenters offered views on the proposed severability 
provision. Farmworker Justice suggested two revisions related to 
severability: (1) require that clearance orders include a severability 
clause specifying that if any part of a clearance order is found 
unenforceable, the rest remains in effect; (2) revise the proposed 
access-to-housing provision, at proposed Sec.  655.135(n), to ``clearly 
separate the access provisions for labor organizations from key service 
providers.'' As a rationale for the second suggestion, Farmworker 
Justice stated their view that access to housing for labor 
organizations and for key service providers have separate legal bases, 
citing Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021).
    A few commenters objected to the proposed severability provision. 
One trade association, wafla, opposed the severability provision 
because, in its view, the topics covered by the proposed rule are 
linked together and build on each other to achieve the same goal of 
improving protections for workers in temporary agricultural employment 
in the United States. Another trade association, NCAE, argued that the 
Department should withdraw the severability provision because, in its 
view, Congress did not intend for the Department to enforce parts of 
the H-2A regulations without other parts. The trade association added 
that, in its view, the executive branch--including the Presidents who 
have signed H-2A legislation and the administrations that have 
administered the H-2A program--have similarly intended that the 
regulations be enforced as a comprehensive set.
    Finally, an agent, m[aacute]sLabor, expressed the view that a 
severability provision would undermine the H-2A program's 
``balanc[ing]'' of ``interests'' of ``multiple stakeholders.'' This 
commenter identified several provisions that, it said, provided 
``examples of such interoperable and interdependent regulatory 
provisions.'' In particular, the agent asserted that Sec.  655.122(i), 
which outlines the employer's obligations under the three-fourths 
guarantee, is inextricably intertwined with Sec.  655.122(n) (relieving 
employers from the three-fourths guarantee where workers ``abandon'' 
employment or are ``terminated for cause''); Sec.  655.122(o) (modified 
three-fourths guarantee in the event of contract impossibility); and 
Sec.  655.122(j) (requiring employers to track earnings records). The 
commenter added that Sec.  655.122(l) (which requires employers to pay 
certain pay rates) would be rendered ``ambiguous'' if proposed Sec.  
655.120 (which would require monitoring and tracking of piece rate 
production) were invalidated. M[aacute]sLabor further asserted that 
proposed Sec.  655.135(p) (respecting foreign labor recruitment) and 
Sec.  655.137 (requiring disclosure of foreign labor recruitment) would 
``make little sense'' absent Sec.  655.135(j) and (k) (concerning 
foreign recruitment). The commenter further explained its position that 
the various recruitment provisions are ``interdependent'' such that 
``[t]he invalidation of one provision would undermine the integrity of 
the scheme as a whole,'' citing Sec.  655.135(c) (cooperation with the 
SWA on accepting and processing applicants and referrals); Sec.  
655.135(d) (pertaining to duration of recruitment activities); 
Sec. Sec.  655.150-655.158 (specifying obligations concerning positive 
recruitment activities); and Sec.  655.167 (pertaining to document 
retention).
    The Department adopts the severability provision as proposed in the 
NPRM, with a few minor, non-substantive changes to the language of the 
provision. This final rule substitutes ``will'' for ``shall'' for 
internal consistency and to incorporate plain language. This final rule 
also omits references to ``subparts'' and ``subparagraphs'' for 
internal consistency.
    As an initial matter, with respect to this final rule, it is the 
Department's intent that all provisions and sections be considered 
separate and severable and operate independently from one another. In 
this regard, the Department intends that: (1) in the event that any 
provision within a section of this rule is stayed, enjoined, or 
invalidated, all remaining provisions within that section will remain 
effective and operative; (2) in the event that any whole section of 
this rule is stayed, enjoined, or invalidated, all remaining sections 
will remain effective and operative; and (3) in the event that any 
application of a provision is stayed, enjoined, or invalidated, the 
provision will be construed so as to continue to give the maximum 
effect to the provision permitted by law. It is the Department's 
position, based on its experience enforcing and administering the H-2A 
provisions of the INA, that the provisions and sections of this rule 
can function sensibly in the event that any specific provisions, 
sections, or applications are invalidated, enjoined, or stayed. 
Furthermore, the Department believes that it has balanced the interests 
of stakeholders in modifying this final rule in response to public 
comments, and that this rule covers a number of different topics, each 
of which furthers the Department's general goals of improving 
protections in the H-2A program but which can stand independently as a 
legal and practical matter. For example, the worker voice and 
empowerment provisions adopted in this rule, along with other 
provisions, provide layers of protection to prevent adverse effect, and 
these layers of protection would remain workable and effective at 
preventing adverse effect even if any individual provision is 
invalidated.
    Farmworker Justice urged the Department to require that clearance 
orders include a severability clause specifying that if any part of a 
clearance order is found unenforceable, the rest remains in effect. The 
Department declines to adopt this proposal. The severability provision 
in this final rule and a severability provision in a

[[Page 33953]]

clearance order would serve different goals and would implicate 
different legal considerations. For example, while the severability 
provision in this final rule would ensure continuity in the H-2A 
program should a particular provision be invalidated, a severability 
provision in a clearance order would be relevant only to the 
interactions between a single employer and its workers.
    Farmworker Justice also proposed separating, at proposed Sec.  
655.135(n), housing-access provisions for labor organizations from 
housing-access provisions for key service providers. As explained below 
in the discussion of Sec.  655.135(n), the Department has decided to 
modify the access-to-housing provision in response to comments, and, 
given these modifications, this comment is no longer applicable.
    Some commenters suggested the Department abandon the proposed 
severability provision; the Department declines to do so. Whether a 
regulatory provision is severable turns on: (1) the agency's intent; 
and (2) whether other provisions ``could function sensibly'' even if an 
individual provision is invalidated. Belmont Mun. Light Dep't v. FERC, 
38 F.4th 173, 188 (D.C. Cir. 2022). As explained above and below, the 
Department intends that the provisions of this rule be severable and, 
based on the Department's experience implementing the program, believes 
its remaining provisions could function sensibly even if one is 
invalidated.
    One commenter, wafla, objected to the proposed severability clause 
because every provision in the NPRM is intended to serve the same goal 
of improving protections for workers in temporary agricultural 
employment in the United States. However, whether regulatory provisions 
serve the same goal is not dispositive of whether the provisions may 
``function sensibly'' if a single provision is invalidated. Moreover, 
this objection would render difficult the incorporation of a 
severability provision in any regulation, as agencies routinely issue 
regulations to serve a particular unified goal. Additionally, this rule 
covers a wide range of diverse topics, each of which furthers the goals 
of improving protections in the H-2A program but which can stand 
independently as a legal and practical matter.
    Another commenter, NCAE, focused on intent, asserting that Congress 
and the executive branch have historically intended that the 
regulations be enforced as a comprehensive set, but did not point to 
any authority demonstrating such intent. The Department believes that 
the goal of enforcing the regulations comprehensively is not 
incompatible with the Department's stated intent that invalidated 
provisions be deemed severable. On the contrary, severing invalid 
provisions serves the aim of preserving the regulatory scheme and 
allowing the program to proceed even if one provision is deemed 
invalid.
    Finally, although m[aacute]sLabor cited concerns about balancing 
competing interests in asserting that a severability provision would 
``impair the proper functioning of the program [and] introduce 
conflicts and ambiguities,'' the Department believes that including a 
severability provision is the best way to balance those interests and 
promote certainty. Again, severing invalidated provisions permits the 
program to continue absent those provisions, and program continuity is 
in the interests of employers, workers, and the Department alike.
    M[aacute]sLabor also responded to the NPRM's request for comments 
on whether specific parts of the rule could operate independently. The 
Department believes that the provisions in this rule, including the 
provisions m[aacute]sLabor cited, can operate independently of each 
other.
    The Department addresses in more detail m[aacute]sLabor's 
characterization of Sec.  655.122(i) (establishing the three-fourths 
guarantee) as inextricably intertwined with several other provisions. 
The Department disagrees with this characterization. M[aacute]sLabor 
asserted that without Sec.  655.122(n), which relieves employers from 
the three-fourths guarantee where workers ``abandon'' employment or are 
``terminated for cause,'' workers will have an incentive to abandon 
work to secure payment promised under the three-fourths guarantee. To 
be sure, the NPRM proposed clarifications to the construction of 
``termination for cause'' under Sec.  655.122(n) (although the NPRM did 
not make any changes respecting abandonment), but even absent that 
clarification, the regulatory term ``termination for cause'' would 
still be subject to interpretation by an adjudicator, and would 
therefore still serve as a limitation on the three-fourths guarantee. 
M[aacute]sLabor further asserted that if Sec.  655.122(o) (modifying 
the three-fourths guarantee in the event of contract impossibility) 
were invalidated, employers facing contract impossibility would sustain 
significant economic ramifications and argued that enforcement of the 
three-fourths guarantee would be ``all but impossible'' without the 
earnings record provision under Sec.  655.122(j). This final rule does 
not propose any modifications to Sec.  655.122(o) or Sec.  655.122(j); 
therefore, should any provision of this final rule be invalidated that 
will not affect the validity of Sec.  655.122(o) or Sec.  655.122(j).
    Similarly, the Department believes that the various protections for 
workers through the ES System can operate independently from the 
protections in Part 655. Additionally, the updates to the successor in 
interest provision at Sec.  655.104 and the definition of single 
employer at Sec.  655.103(b) operate independently from each other and 
from the new protections proposed at Sec.  655.135(h), (m), and (n). 
The protected activities at Sec.  655.135(h)(1)(v) and (vi) are, as the 
Department set forth in the NPRM, already protected by the existing 
regulations, and do not rely upon the existence of the other protected 
activities being added at Sec.  655.135(h)(2). Furthermore, the 
addition of the explicit protection against passport withholding at 
Sec.  655.135(o) does not rely upon the existence of the other worker 
protections being added to Sec.  655.135. The provisions at Sec.  
655.135(j) and Sec.  655.135(k), which the Department did not propose 
to change in this rulemaking, also do not rely upon the existence of 
new Sec.  655.135(p) or Sec.  655.137. Relatedly, new Sec.  655.135(p) 
and Sec.  655.137 do not mention Sec.  655.135(j) and can operate even 
if the changes made to Sec.  655.135(k) under the 2022 H-2A Final Rule 
were invalidated, as the version of Sec.  655.135(k) under the 2010 H-
2A Final Rule still requires contracts with third parties to prohibit 
the charging of fees from prospective employees. And, as discussed 
above, whether regulatory provisions serve the same objective is not 
dispositive of whether the provisions may ``function sensibly'' if a 
single provision is invalidated. The Department notes that although 
this preamble does not address every possible interrelationship between 
the various provisions included in this final rule, that does not imply 
that the Department believes that provisions not discussed are 
interdependent. Again, as explained, it is the Department's intent that 
each provision of this final rule be deemed independent and severable 
from other provisions.
    Therefore, this final rule again states the Department's general 
intent that invalidated provisions should be severed.

B. Prefiling Procedures

1. Section 655.120(b), Offered Wage Rate
    The Department proposed to clarify in the H-2A regulations the date 
on which an AEWR, for non-range occupations and wage sources, published 
in the

[[Page 33954]]

Federal Register will become effective. As noted in the NPRM, under the 
current regulations, the Department protects against adverse effect on 
the wages of workers in the United States similarly employed, in part, 
by requiring that an employer 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. If an updated AEWR for the occupational 
classification and geographic area is published during the work 
contract and becomes the highest applicable wage rate, the employer 
must pay at least that updated AEWR upon its effective date, as 
published in the Federal Register. 20 CFR 655.120(b)(3). In accordance 
with Sec.  655.120(b)(2) and (3), the Department publishes the updated 
AEWR at least once annually in the Federal Register. One Federal 
Register notice (FRN) provides annual adjustments to the AEWR for the 
field and livestock workers (combined) occupational grouping based on 
the U.S. Department of Agriculture's (USDA) publication of the Farm 
Labor Reports (better known as the Farm Labor Survey, or FLS), 
effective on or about January 1st, and a second FRN will provide annual 
adjustments to the AEWR for all other non-range occupations based on 
the Department's Bureau of Labor Statistics' (BLS) publication of the 
Occupational Employment and Wage Statistics (OEWS) survey, effective on 
or about July 1st.\18\ Each notice specifies the effective date of the 
new AEWR, which, in recent notices, has been not more than 14 calendar 
days after publication. The current regulatory text does not address 
when an AEWR published in a Federal Register would become effective.
---------------------------------------------------------------------------

    \18\ 2022 H-2A Final Rule; Final Rule, Adverse Effect Wage Rate 
Methodology for the Temporary Employment of H-2A Nonimmigrants in 
Non-Range Occupations in the United States, 88 FR 12760 (Feb. 28, 
2023) (2023 AEWR Final Rule).
---------------------------------------------------------------------------

    The Department proposed to revise Sec.  655.120(b)(2) to designate 
the effective date of updated AEWRs as the date of publication in the 
Federal Register. For further clarity, the Department also proposed to 
revise Sec.  655.120(b)(3) to state that the employer is obligated to 
pay the updated AEWR immediately upon the date of publication of the 
new AEWR in the Federal Register. The Department sought comments on all 
aspects of this proposal. After careful consideration of the comments, 
the Department is finalizing the proposal without change, as explained 
below.
    The Department received many comments both in support of and in 
opposition to the proposed changes. Several trade associations, 
including NCAE, NCFC, Western Growers, and FFVA, as well as an agent, 
m[aacute]sLabor, opposed the proposal, asserting it abandoned the 
``longstanding'' practice to delay the effective date of the AEWR, with 
some commenters noting delayed implementation has been in place ``as 
recently as June 16, 2023,'' and a couple of commenters adding that the 
delayed implementation simplified program requirements by eliminating 
the need for payroll changes in the middle of a pay period. Several 
trade associations (USApple, TIPA, IFPA, U.S. Custom Harvesters, Inc., 
NHC, and SRFA) and one employer (Titan Farms, LLC) commented that the 
adjustment period was needed because monitoring the BLS and FLS 
websites is burdensome, especially for small employers that may lack 
the resources to regularly check those websites for updates. In 
addition, the National Association of State Departments of Agriculture 
asserted that many farms lack access to the internet and cannot view 
the announcement on the OFLC website or the notice in the Federal 
Register. An agent, m[aacute]sLabor, acknowledged a delay to the 
effective date may deprive workers of earnings during the notice 
period, but noted workers are not ``harmed by a modest delay in the 
implementation of new rates'' because ``workers willingly accepted the 
job at the advertised pay rate, which would have been the existing 
AEWR.''
    The Cato Institute, a public policy organization, wrote that the 
obligation to update AEWRs mid-contract constitutes a mandate imposed 
only on H-2A farmers, stating ``U.S. workers and [unauthorized] workers 
do not get pay bumps in the middle of contracts--let alone the middle 
of a pay period.'' This commenter also asserted, without elaborating as 
to how or providing any form of support for its contention, that the 
proposal ``makes planning for H-2A costs that much more difficult and 
incentivizes illegal employment.'' Several of the trade association 
commenters, the New York State Farm Bureau, American Farm Bureau 
Federation, Titan Farms, LLC, and AILA observed that advance notice of 
AEWR changes, a 14-day grace period prior to the effective date, or 
some other flexibility with respect to AEWR updates was necessary for 
various reasons. Some trade associations and an employer generally 
asserted payroll systems are not always simple adjustments, cannot 
always be accomplished by ``just chang[ing] a few items in [the 
employer's] payroll system,'' and may take weeks to adjust, while 
another commenter noted that agricultural employers, especially small 
employers, may need time to secure funds or sell assets because many of 
these employers do not have ``immediate cash flow'' to pay an updated 
AEWR due to ``incredibly tight'' operating margins. Several of the 
trade association commenters and an employer, Titan Farms, LLC, 
asserted it is not possible for employers to simply ``include into 
their contingency planning certain flexibility'' to account for AEWR 
adjustments because ``variability in wage rates can cost a single 
employer thousands, if not millions, of dollars and it is impossible to 
`contingency' plan accurately.'' The U.S. Chamber of Commerce expressed 
general concern that immediate effective dates for AEWR would impose an 
``administrative burden'' by ``forc[ing] employers to update the wages 
they need to pay'' on the ``date of publication in the Federal 
Register.''
    Several commenters urged the Department to alternatively retain the 
14-day grace period or a longer grace period, commit to publish updated 
AEWRs on dates certain in December and July, permit employers to 
provide back pay at a later date, provide employers notice of upcoming 
FRN publications via email, or some combination of those suggestions. A 
couple of U.S. House Members stated that this proposed change is 
unnecessary and would be challenging or impossible for employers to 
meet. Another U.S. House Member called the change unnecessary. An 
employer stated that the proposed change would lead to involuntary 
noncompliance by employers because they cannot update wages quickly 
enough. SRFA and NHC asserted that the Department did not provide 
reasoning for why the Federal Register publication date is more 
appropriate than other dates, such as when the wage data are published. 
The Western Range Association asserted that it is unreasonable to 
expect immediate wage adjustments when the Department takes 45 days to 
calculate the AEWR. AILA suggested the Department should provide ``a 
notification to employers via email'' when the Department is preparing 
to publish in the Federal Register and ``when the AEWR is updated.'' 
This commenter and NHC, NCFC, FFVA, Western Growers, and SRFA urged the 
Department to set annual dates certain for the effective date for each 
AEWR wage, which Western Growers asserted would allow ``for 
expectations to be met, and a reasonable period of time to adjust

[[Page 33955]]

payroll rates.'' IFPA, U.S. Custom Harvesters, Inc., TIPA, GFVGA, and 
Demaray Harvesting and Trucking, LLC said the Department should 
consider requiring that employees ``be back paid for the [AEWR] 
increase . . . while still giving an employer the flexibility to see 
the [FRN] and update systems accordingly.'' NCFC and the U.S. Chamber 
of Commerce suggested the Department should permit employers to provide 
retroactive payment to workers within 14 days of publication of notice 
in the Federal Register. New York State Farm Bureau urged the 
Department to ``exempt through an enforcement waiver, for a two-week 
period'' after publication of notice in the Federal Register, ``those 
farms who may need to move and adjust their payroll to pay the full 
back pay of affected employees.'' Finally, wafla urged the Department 
to make new AEWRs effective on the ``first day of the employer's next 
pay period.''
    The Department also received many comments in support of the 
proposal to make AEWRs effective on the date they are published in the 
Federal Register. Federal elected officials and advocacy organizations 
supported the proposal as a way to provide clarity and ``make wages 
more predictable in the H-2A program.'' California LWDA, a SWA, 
supported the proposal because it would ``provide clarity regarding the 
effective dates of [AEWRs]'' and noted that it will help the SWA 
``better determine when to issue notice of deficiencies when an 
employer is not paying the highest wage or the AEWR is incorrect'' 
because the SWA ``uses the Federal Register to determine the current 
and appropriate AEWR.'' Several advocacy organizations, Proteus, Inc., 
UMOS, Green America, and CAUSE, expressed support for the proposed rule 
noting specifically, among other items, the Department's proposal 
regarding the immediate implementation of the AEWR. The Economic Policy 
Institute (EPI), a public policy organization, supported the proposal 
as necessary to ``ensure that farmworkers are paid appropriately,'' 
asserting that farmworkers ``are likely being underpaid'' because the 
FLS-based AEWR ``are always one year behind,'' given the FLS data 
``reflects average wages surveyed for the previous year.'' EPI also 
urged the Department to reject any suggestions to retain a delayed AEWR 
effective date, asserting that delayed implementation is not necessary 
because ``there are adequate public sources of information'' to provide 
employers early notice of forthcoming AEWR updates and the Department 
``will publish a notice directing employers to those sources.''
    The Department additionally received comments from a Federal 
elected official, a workers' rights organization (Agricultural Justice 
Project), a few trade associations (NCAE, SRFA, and Michigan Asparagus 
Advisory Board), a couple of agents (m[aacute]sLabor and Labor Services 
International), a public policy organization (EPI), and an anonymous 
commenter expressing general concerns related to the AEWR amounts or 
the methodology for calculating the AEWR. These comments are beyond the 
scope of this rulemaking and the Department's proposal regarding when 
updated AEWRs should become effective.
    The Department appreciates the comments. After due consideration, 
the Department is adopting the proposed changes in this final rule. The 
proposed changes were intended to restore the longstanding practice in 
the H-2A program that workers be paid at least the updated AEWR, for 
all hours worked after the updated AEWR is published. The Department 
believes adoption of the proposed changes in this final rule is the 
best way to achieve that objective. As stated in the NPRM, the duty to 
pay an updated AEWR where it is higher than the other wage sources is 
not a new requirement, nor is the requirement to pay an increased AEWR 
immediately upon publication in the Federal Register. Between 1987 and 
January 2018, the Department required employers participating in the H-
2A program to offer and pay the highest of the AEWR, the prevailing 
wage, any agreed-upon collective bargaining wage, or the Federal or 
State minimum wage at the time the work had been performed, effective 
upon the date of publication of new AEWRs in the Federal Register.\19\ 
As noted in the NPRM, setting the effective date of updated AEWRs as 
the date of publication in the Federal Register is a return to 
longstanding prior practice. This change will ensure that agricultural 
workers are paid at least the most current AEWR when work is performed, 
thereby preventing the harm caused through even a modest delay. 
Moreover, the workers employed under the H-2A Application accepted 
terms and conditions of employment that include the employer's 
agreement to comply with the obligation to pay an updated AEWR if a 
higher AEWR is published during the work contract period. Immediate 
implementation also better aligns with the Department's mandate to 
prevent adverse effect on the wages of workers in the United States 
similarly employed by keeping wages paid to H-2A workers and workers in 
corresponding employment consistent with wages paid to similarly 
employed workers. The Department therefore disagrees that a delay in 
payment of an updated AEWR would not harm workers or that workers do 
not or should not expect the employer to fulfill this obligation.
---------------------------------------------------------------------------

    \19\ See, e.g., 1987 H-2A IFR, 52 FR 20496, 20521; Labor 
Certification Process for the Temporary Employment of Aliens in 
Agriculture in the United States; H-2A Program Handbook, 53 FR 
22076, 22095 (June 13, 1988) (``Certified H-2A employers must agree, 
as a condition for receiving certification, to pay a higher AEWR 
than the one in effect at the time an application is submitted in 
the event publication of the [higher] AEWR coincides with the period 
of employment.'').
---------------------------------------------------------------------------

    The Department acknowledges that this rule is a departure from more 
recent practice and the proposal in the 2019 H-2A NPRM, which allowed a 
minor period for wage adjustment after publication of the FRN. However, 
as noted in the 2022 H-2A Final Rule in which the Department declined 
to adopt the proposal to allow an adjustment period of up to 14 
calendar days, ``employers participating in the H-2A program 
historically have been required to offer and pay the highest of the 
AEWR, the prevailing wage, or the Federal or State minimum wage at the 
time the work is performed'' and ``employers have been required to make 
these adjustments for many years and neither program experience nor 
comments on the NPRM demonstrated that a longer adjustment period would 
be necessary to avoid significant operational burdens on employers or 
the layoffs and crop deterioration cited by some commenters.'' \20\ 
Several commenters asserted, generally, that payroll adjustment may be 
difficult and require time to complete, but no commenter cited specific 
difficulties encountered when adjusting payroll systems to a new AEWR, 
and while one commenter did note it could take weeks to update payroll, 
this commenter provided no further explanation as to why that number of 
days, which is longer than even the 14-day period other comments 
suggested, would be necessary to make adjustments to payroll systems.
---------------------------------------------------------------------------

    \20\ 87 FR at 61688.
---------------------------------------------------------------------------

    However, the Department is sensitive to commenter concerns that 
payroll systems may not allow adjustments to be made instantaneously 
and that some flexibility should be provided to permit difficult 
payroll adjustments and provide prompt retroactive payment. Under this 
final rule, where an employer's payroll systems permit pay to be 
adjusted in the middle of a pay period, it must immediately adjust them

[[Page 33956]]

to reflect the updated AEWR (where the updated AEWR is or remains the 
highest of all potential wage sources). However, where the employer is 
able to demonstrate to the Department that it is not possible for it to 
update payroll systems by the pay date, the employer may provide 
payment on the pay date for the following pay period. For example, 
consider a scenario where the Department publishes an AEWR update 
notice in the Federal Register on January 1st, which is the middle of a 
pay period for an employer whose workers are paid biweekly. The next 
pay date is January 5th. The AEWR remains the highest of the applicable 
wages. It is not, however, possible for the employer to update payroll 
in time for the January 5th pay date. In this example, the worker would 
be momentarily underpaid for the remainder of that pay period when they 
receive their paycheck for that pay period. This final rule requires 
that the employer cure that underpayment by providing the entirety of 
all back wages due, calculated beginning on January 1st, no later than 
the following pay date, along with the following pay period's wages 
calculated entirely at the new AEWR for the entire pay period.
    The Department declines to adopt suggestions to provide a delayed 
implementation period for the reasons described above, permit payment 
of back wages beyond the manner discussed in the preceding paragraph, 
or publish AEWRs on a specific date each year or around the time the 
FLS or OEWS data publishes. Revising the effective date to coincide 
with BLS or USDA publications or on certain dates is not possible and 
would represent a substantial deviation from longstanding pre-2018 
practice. If the Department were to tie the effective date to the FLS 
or BLS publication dates, doing so would deprive the stakeholder 
community of any advance notice prior to effectiveness as, in neither 
instance, is the wage data made public prior to publication. The 
Department does not control the publication of the FLS data. 
Separately, it is administratively impractical for the Department to 
publish AEWRs on the same date that BLS and USDA publishes the 
underlying data, given that the Department lacks early access to that 
data and given the resources required to draft an FRN. While the 
Department does not control the publication dates of BLS and USDA data, 
it does prepare the OFLC FRN expeditiously upon publication of the 
corresponding BLS or USDA data.
    Moreover, as noted in the NPRM and by a public policy organization 
commenter, EPI, employers have ample prior notice of upcoming changes 
to wage requirements in the H-2A program.\21\ In particular, the vast 
majority of employers will be subject to the FLS wage and will continue 
to have the opportunity to view and assess the impact of the new AEWR 
rates prior to their publication by the OFLC Administrator in the 
Federal Register on or around January 1st.\22\ Prior to that 
publication, USDA publishes its FLS in late November showing the wage 
data findings that become the new AEWR for the field and livestock 
workers (combined) occupational grouping.\23\ The Department has no 
role in the development or finalization of the FLS wage rate findings 
and adopts them for each State or area without change as the AEWR. 
Employers can therefore review the FLS and know with certainty what the 
following year's AEWR wages will be several weeks before they become 
official.
---------------------------------------------------------------------------

    \21\ 88 FR 63750, 63773-63774.
    \22\ See, e.g., 2023 AEWR Final Rule, 88 FR 12760, 12766 (the 
Department's program estimates indicate that 98 percent of H-2A job 
opportunities are classified within the six Standard Occupational 
Classification (SOC) titles and codes of the field and livestock 
workers (combined) occupational grouping).
    \23\ USDA's National Agricultural Statistics Service publishes 
the Farm Labor report on its website at https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/. OEWS wages for each SOC 
code and geographic area are available using the Department's search 
tool or searchable spreadsheet, available at https://flag.dol.gov. 
BLS publishes OEWS data on its website, available at https://www.bls.gov/oes/data-overview.htm. An overview of the OEWS survey 
methodology is available at https://www.bls.gov/oes/current/oes_tec.htm. An explanation of the survey standards and estimation 
procedures is available at https://www.bls.gov/opub/hom/oews/pdf/oews.pdf.
---------------------------------------------------------------------------

    Similarly, employers of workers subject to the OEWS will be able to 
view updated wages when BLS publishes its OEWS data each spring, which 
contains the wage data that become the new AEWR on or around July 1st 
for the small percentage of job opportunities that cannot be 
encompassed within the six SOC codes and titles in the FLS field and 
livestock workers (combined) reporting category. Moreover, the 
Department will provide employers advance notice of these AEWR changes 
through an announcement on the OFLC website. Specifically, and as 
mentioned in the NPRM, the Department will post a notice on the OFLC 
website when USDA publishes the FLS and when BLS publishes the OEWS 
data that will direct employers to the publicly available 
information.\24\ Because the Department does not control the 
publication schedule for the underlying data on which AEWR are based, 
it cannot commit to publishing AEWR FRNs on the same date each year. 
Once OFLC publishes the FRN updating the AEWR, however, OFLC also will 
post an announcement on its website to notify employers that the FRN 
containing updated AEWRs has been published, consistent with current 
practice. Finally, the Department also emails notice to stakeholders 
that have registered for OFLC's email updates when the AEWR changes. 
Taken together, these measures help ensure stakeholders have advance 
notice of new AEWRs to the extent possible and do not need to monitor 
the BLS and FLS websites themselves. The Department believes that the 
revisions contained in this final rule will clarify employer wage 
obligations, provide sufficient notice of AEWR updates, and ensure that 
agricultural workers are paid at least the AEWR in effect at the time 
the work is performed, without new or additional impact to employers' 
ability to budget and plan.
---------------------------------------------------------------------------

    \24\ As noted in the NPRM, employers of a small number of field 
and livestock workers (combined) job opportunities in States or 
regions, or equivalent districts or territories, for which the FLS 
does not report a wage (e.g., Alaska and Puerto Rico) will not have 
similar direct access to the AEWR information prior to publication 
of the OFLC FRN. 88 FR 63750, 63773-63774.
---------------------------------------------------------------------------

2. Sections 655.120(a) and 655.122(l), Requirement To Offer, Advertise, 
and Pay the Highest Applicable Wage Rate
    In the NPRM, the Department proposed revisions to 20 CFR 655.120(a) 
and 655.122(l) to clarify that where there is an applicable prevailing 
piece rate, or where an employer intends to pay a piece rate or other 
non-hourly wage rate, the employer must include the non-hourly wage 
rate on the job order along with the highest hourly rate. Under this 
proposal, all potential wage rates must be listed on the job order 
notwithstanding the fact that it may not be possible to determine in 
advance which of these rates is the highest. Once work has been 
performed, the employer must then calculate and pay workers' wages 
using the wage rate that will result in the highest wages for each 
worker in each pay period.
    As the Department explained in the NPRM, the current regulations at 
Sec. Sec.  655.120(a) and 655.122(l) require an employer to ``offer, 
advertise in its recruitment, and pay'' the highest of the AEWR, 
prevailing wage rate, collective bargaining agreement (CBA) rate, or 
Federal or State minimum wage. While seemingly straightforward, this 
requirement has been difficult to apply in practice because, for 
instance, where there is an applicable prevailing piece

[[Page 33957]]

rate, it is usually not possible to determine until the time work is 
performed whether the prevailing piece rate will be higher than the 
highest of the applicable hourly wage rates as this will depend on 
worker productivity. In such cases, OFLC currently only requires H-2A 
employers to list a wage offer that is at least equal to the highest 
applicable hourly wage--usually the AEWR--on job orders, consistent 
with BALCA decisions dating from 2009 to 2011 that concluded that under 
the regulations OFLC cannot require employers to include an applicable 
prevailing piece rate on the job order where OFLC does not know at the 
certification stage whether the prevailing piece rate will be higher 
than the hourly wage. See, e.g., Golden Harvest Farm, 2011-TLC-00442, 
at *3 (BALCA Aug. 17, 2011); Dellamano & Assocs., 2010-TLC-00028, at 
*5-7 (BALCA May 21, 2010); and Twin Star Farm, 2009-TLC-00051, at *4-5 
(BALCA May 28, 2009). The Department expressed concern with the 
uncertainty this practice can generate as to which rate or rates an 
employer must include as the required wage in a job order and pay to H-
2A workers and workers in corresponding employment. Moreover, because 
the prevailing piece rate is not included on the job order, in most 
such instances, WHD is not able to enforce the prevailing piece rate. 
In other instances, such as when there is not a prevailing wage, 
employers sometimes voluntarily elect to pay a piece rate or other non-
hourly wage rate but fail to include such rates on the job order, 
potentially mispresenting the offered wage rate and failing to meet 
their recruitment obligations.
    The Department proposed several changes to the existing regulations 
to address these issues. First, the Department proposed to retain the 
current list of wage rates in Sec.  655.120(a), redesignated as Sec.  
655.120(a)(1)(i) through (v), and to add to this list, at paragraph 
(a)(1)(vi), ``[a]ny other wage rate the employer intends to pay.'' This 
proposed addition was intended to clarify an employer's obligation to 
include on the job order any wage rate it intends to pay that could end 
up being the highest applicable wage rate for any worker, in any pay 
period. The Department also proposed to add at Sec.  655.120(a)(2) an 
explicit requirement that, where the wage rates in paragraph (a)(1) are 
expressed in different units of pay, the employer must list the highest 
applicable wage rate for each unit of pay in its job order and must 
advertise all of these wage rates in its recruitment. Under this 
proposal, where one of the wage rates in paragraph (a)(1) is expressed 
as a piece rate and the others are expressed as hourly wage rates, the 
employer must list both the piece rate and the highest hourly wage rate 
on the job order. Where more than one of the wage rates in paragraph 
(a)(1) are expressed as non-hourly wage rates, the employer would be 
required to list the highest applicable wage rate for each potential 
unit of pay on the job order.
    Next, the Department proposed corresponding changes at Sec.  
655.122(l), including replacing the list of wage rates with a cross-
reference to Sec.  655.120(a)(1), removing the current language in 
Sec.  655.122(l)(1) that would be made redundant by the changes to 
Sec.  655.120(a), and making other technical edits. In addition, the 
Department proposed to remove the current language at Sec.  
655.122(l)(2)(i) and (ii) that requires an employer to supplement 
workers' pay where a worker is paid by the piece and does not earn 
enough to meet the required hourly wage rate for each hour worked, but 
does not include an analogous requirement that an employer supplement 
workers' pay when a worker who is paid by the hour does not earn enough 
to meet the applicable prevailing piece rate. The Department proposed 
to replace this language with a new provision at paragraph (l)(1) 
explaining that the employer must always calculate and pay workers' 
wages using the wage rate that will result in the highest wages for 
each worker, in each pay period. Because employers would be required to 
pay whichever wage rate will result in the highest wages in a 
particular pay period, supplementing workers' pay to ensure that the 
required hourly wage is met would no longer be necessary. Proposed new 
paragraph (l)(2) explains that, where the wage rates set forth in Sec.  
655.120(a)(1) include both hourly and non-hourly wage rates, the 
employer must calculate each worker's wages in each pay period using 
the highest wage rate for each unit of pay and must pay the worker the 
highest of these wages for that pay period. Under this proposal, the 
employer would be responsible for evaluating the different wage rates 
applicable in each pay period of the growing season, including any mid-
season increases in wage rate(s) that might not be reflected in the job 
order. Proposed paragraphs (l)(1) and (2) clarify that the wages 
actually paid cannot be lower than the wages that would result from the 
wage rate(s) guaranteed in the job order, so that, if there is a mid-
season decrease in wage rate(s), the workers are still entitled to the 
higher wage rate(s) listed on the job order. Further, where an employer 
includes in a single job order multiple activities or tasks, each of 
which have different applicable wage rates, the employer would be 
required to engage in the analysis set forth above with respect to each 
activity or task.
    The Department explained that these proposed changes were intended 
to help ensure that employers' recruitment efforts reflect the correct 
applicable wage rates so as to more accurately determine whether there 
are U.S. workers who would be available and willing to accept the 
employment. Further, they were intended to help ensure that H-2A 
workers and workers in corresponding employment are paid the wages to 
which they are entitled (i.e., the highest of the AEWR, prevailing 
hourly wage or piece rate, CBA rate, Federal minimum wage, State 
minimum wage, or any other wage rate the employer intends to pay). The 
Department noted that, because H-2A employers are already required to 
accurately track and record both hours worked and field tallies 
pursuant to Sec.  655.122(j), employers should already have processes 
in place to accurately record information needed for compliance with 
the proposed changes to Sec. Sec.  655.120(a) and 655.122(l), 
minimizing any additional administrative burden these proposed changes 
would place on employers.
    The Department sought comments on this proposal, particularly with 
respect to how the proposal would work in practice; whether there are 
circumstances, such as when an employer includes multiple activities or 
tasks in a single job order, where further clarification would be 
needed on which wage rates must be listed in the job order and how to 
calculate the worker's wages; whether corresponding changes to the 
recordkeeping requirements at Sec.  655.122(j) and (k) or to the 
requirements for SWAs' review of job orders at part 653, subpart F, 
would be needed; and whether the requirement to list the highest 
applicable wage rate for each unit of pay on job orders placed in 
connection with an H-2A application would render unnecessary the 
requirement at 20 CFR 653.501(c)(2)(i) that an employer that pays by 
the piece or other non-hourly unit calculate and submit an estimated 
hourly wage rate with the job order. The Department explained that it 
was considering making similar revisions to the regulations at 
Sec. Sec.  655.210(g) and 655.211 to require employers to disclose all 
potentially applicable rates of pay in the job orders for herding and 
range livestock production occupations, as well as to the regulations 
at 20 CFR

[[Page 33958]]

653.501(c) to require employers to disclose all potentially applicable 
rates of pay in non-H-2A (or non-criteria) clearance orders, and sought 
comments on whether it should include these proposed revisions in any 
final rule.
    Worker advocates were largely supportive of the proposal and 
commented that the proposed changes are necessary to ensure that 
workers are receiving the wages to which they are entitled. Farmworker 
Justice explained that the proposal, which clarifies that employers 
must offer and pay the prevailing piece rate when it would result in 
higher wages for a worker than the AEWR or other hourly wage offered, 
is needed ``despite the clear language in the current regulation'' 
because the approval of clearance orders that fail to offer to pay 
prevailing piece rates limits the Department's ability to enforce and 
collect legally required piece rate earnings. A joint comment from 43 
U.S. House Members stated that the proposal would help ``create 
stronger protections against exploitative practices commonly used by 
employers'' and a joint comment from 15 U.S. Senators commended the 
Department for ``taking this step toward ensuring fair and transparent 
wages for agricultural workers.'' Multiple worker advocacy 
organizations stated that the proposed changes around disclosure and 
consistency of wages are needed to address wage theft, and the UFW 
Foundation provided stories of workers' experiences with wage theft, 
such as employers orally promising to pay piece rates and then later 
paying an hourly wage rate that results in lower earnings.
    These commenters also explained that the proposed changes are 
necessary to prevent an adverse effect on the wages of similarly 
employed workers in the United States. Using Washington State as an 
example of how permitting employers to offer only the hourly AEWR has 
had an adverse effect on the agricultural labor market, Farmworker 
Justice explained that experienced local workers will choose job 
opportunities that offer a market piece rate and thus, historically, 
employers have needed to offer these piece rates to attract experienced 
local workers. They further stated, ``[a]llowing these employers to 
bring temporary foreign workers to do this work without requiring them 
to pay these piece rates has exactly the adverse effect on local 
working conditions that Congress directed the Department to prevent in 
the H-2A statute.'' Similarly, a joint comment from 15 U.S. Senators 
asserted that low wages discourage American workers from taking these 
``critical jobs'' and that the H-2A program was not intended to 
``replace American workers with cheap, exploited labor'' to the 
detriment of workers and the economy as a whole.
    Farmworker Justice explained that the proposal does not impose 
additional recordkeeping burdens on employers as employers already must 
track the number of hours worked and calculate workers' potential 
hourly earnings to ensure compliance with the AEWR and applicable 
minimum wage and employers already track production for business 
purposes.
    The Department received comments from employers, trade association, 
and agents opposing the proposal. Several commenters, including FFVA 
and NCAE, asserted that the proposal is unnecessary because employers 
are already required to include any required wage rate in the job 
order. FFVA explained that the employers are already required to 
include piece rates in the job order both because of the requirement at 
Sec.  655.120(a) and because of the prohibition against preferential 
treatment of H-2A workers at Sec.  655.122(a). FFVA also asserted, 
without citation, that the current regulations provide employers 
sufficient flexibility by allowing employers to ``temporarily suspend 
piece-rate pay when worker safety or crop conditions require it.'' In 
contrast, NCAE stated that, while applicable wage rates must already be 
disclosed, the Department ``failed to recognize that whereas 
productivity incentive pay may be available with some employers, there 
is no `prevailing piece rate''' and thus the proposal would require 
employers ``to disclose that which does not exist.'' Western Growers 
indicated that the current regulation is ``straightforward and 
sufficient to test the labor market and apprise workers of the wages 
they should expect to receive.'' A couple of commenters, SRFA and USAFL 
and Hall Global, stated that the proposal exceeds the Department's 
authority because it has not adequately connected the requirement to 
offer and pay an applicable prevailing piece rate to the need to 
prevent an adverse effect on the wages or working conditions of 
similarly employed workers in the United States. SRFA further stated 
that ``[c]reating a system whereby U.S. employers are required to offer 
a more attractive and lucrative pay structure than the employer might 
otherwise pay goes far beyond the Secretary's statutory authority.''
    Many of the commenters opposed the proposal on the ground that it 
requires employers to offer and pay an applicable prevailing piece rate 
even when the employer does not wish to do so. For instance, the Cato 
Institute stated that under the proposal H-2A employers ``will no 
longer get to pick whether they pay a piece rate or not.'' SRFA 
asserted that the proposed change would be a ``de facto mandate'' that 
would require employers to pay by piece rate. Several commenters, 
including wafla, m[aacute]sLabor, NHC, and the U.S. Chamber of 
Commerce, opined that the proposal would eliminate an employer's 
ability to change wage rates based on market and crop conditions, or 
whether they wish to incentivize (or disincentivize) workers to work 
quickly. M[aacute]sLabor asserted that prevailing piece rates are 
established based on survey results of employers already paying a piece 
rate and, therefore, do not accurately reflect wages in the 
marketplace. It suggested that employers should only be required to pay 
prevailing piece rates if they choose to use a piece rate compensation 
plan.
    Commenters also asserted that complying with the proposal would be 
unduly burdensome, or even impossible. Employers and trade 
associations, including the U.S. Chamber of Commerce, USApple, and NHC, 
explained that the proposal would be confusing and difficult to 
implement because many employers use piece rates that vary based on the 
commodity, variety within that commodity, quality of the crop, and 
units of measurement of commodities. The U.S. Chamber of Commerce 
expressed concern that employers, especially smaller farms, would not 
be able to comply with these proposed changes because they do not have 
processes in place to accurately record the information required. 
Similarly, US Apple and NHC stated that employers are unlikely to have 
the existing staffing or software needed to implement the required 
changes. Wafla stated that only hourly rates should be required to be 
posted in the job order because piece rates cannot be determined before 
work starts.
    Several commenters emphasized what they believed to be unintended 
consequences of the proposal. NCFC and AmericanHort stated that the 
proposal, if adopted, would ``further incentivize employers to not pay 
piece rates where they do not have to'' and ``in areas where there is a 
prevailing piece rate that has been certified by the Department, it 
will drive employers away from planting crops that have a prevailing 
piece rate.'' FFVA concurred and stated that this ``would likely reduce 
workers' wages, rather than ensuring they are higher, while reducing 
overall production for the employer.''
    In response to the Department's specific request, several 
commenters identified language in the proposal for

[[Page 33959]]

which further clarification would be helpful. The U.S. Chamber of 
Commerce, Western Growers, and AmericanHort explained that the 
Department's proposed language at Sec.  655.122(l)(2)--i.e., ``the 
employer must calculate each worker's wages . . . using the highest 
wage rate for each unit of pay, and pay the worker the highest of these 
wages for that pay period. The wage actually paid cannot be lower than 
the wages that would result from the wage rate(s) guaranteed in the job 
offer''--is unclear and asked how this language would apply to 
employers that offer both hourly wages and piece rate wages in their 
job orders. Specifically, the U.S. Chamber of Commerce asked whether 
such employers would be required to pay a piece rate, where higher, 
``even if the worker did not work on a piece-rate basis'' during the 
relevant time period. Farmworker Justice recommended several changes to 
the language of the proposal. Given the ``history of 
misinterpretation'' of the wage obligations of Sec.  655.120(a), they 
recommended incorporating explicit references to piece rates in the 
language of the regulation by adding to paragraph (a)(1)(ii) the phrase 
``whether expressed as a piece rate or other unit of pay,'' and to 
paragraph (a)(2) the parenthetical ``(including piece rates or other 
pay structures).''
    The Department specifically sought comments on whether the 
requirement to list the highest applicable wage rate for each unit of 
pay on job orders placed in connection with an H-2A application would 
render unnecessary the requirement at 20 CFR 653.501(c)(2)(i) that an 
employer that pays by the piece or other non-hourly unit calculate and 
submit an estimated hourly wage rate with the job order. A private 
employer asserted that the requirement to submit an estimated hourly 
wage rate is burdensome, inaccurate, and unnecessary. M[aacute]sLabor 
asserted that removing the requirement to include estimated hourly wage 
would improve disclosures for workers and avoid misleading them as to 
their earning potential because it is difficult to estimate the 
expected hourly wage for an average worker.
    In the NPRM, the Department explained that it was considering 
making similar revisions to the regulations at Sec. Sec.  655.210(g) 
and 655.211 to require employers to disclose all potentially applicable 
rates of pay in the job orders for herding and range livestock 
production occupations, as well as to 20 CFR 653.501(c) to require 
employers to disclose all potentially applicable rates of pay in non-H-
2A (or non-criteria) clearance orders, and sought comments on whether 
these similar revisions should be made. Farmworker Justice expressed 
support for making similar revisions with respect to herders, reasoning 
that they should have the same job order transparency as farm labor 
workers. The Department received no other comments on these proposed 
revisions.
    The Department received no comments on whether corresponding 
changes to the recordkeeping requirements at Sec.  655.122(j) and (k) 
or to the requirements for SWAs' review of job orders at part 653, 
subpart F, would be needed.
    While generally supportive, several worker advocacy organizations 
suggested that the proposal did not go far enough. Farmworker Justice 
recommended addressing the wages owed to misclassified H-2A workers who 
are assigned non-agricultural work for which higher prevailing wage 
rates should be paid (e.g., landscaping or work at retail nurseries 
that falls under the ambit of the H-2B program and which would have 
potentially entitled a worker to a higher prevailing wage as set by the 
National Prevailing Wage Center (NPWC) if the work had been properly 
classified). Specifically, they suggested adding language explaining 
that the Federal minimum wage listed in paragraph (a)(1)(iv) ``includes 
the appropriate NPWC prevailing wage in the case of misclassified 
workers,'' and stated that ``[t]o do otherwise is inviting fraud'' 
because, in such cases, employers who are caught are only required to 
reimburse back wages at the lower AEWR rate instead of the appropriate 
and typically higher NPWC prevailing wage rate. They noted that such 
misclassification adversely affects local workers and working 
conditions. American Industrial Hygiene Association (AIHA) stated that 
``regardless of whether or not the contract is for payment on a piece-
work basis, there should be a limit on the number of working hours per 
day.''
    After considering the comments discussed above, the Department 
adopts with certain modifications the proposed revisions to Sec. Sec.  
655.120(a) and 655.122(l) to clarify that where there is an applicable 
prevailing piece rate, or where an employer intends to pay a piece rate 
or other non-hourly wage rate, the employer must include the non-hourly 
wage rate on the job order along with the highest hourly rate, and must 
pay workers' wages using the wage rate that will result in the highest 
wages for each worker in each pay period.
    The Department believes that these clarifying changes are necessary 
to ensure that employers' recruitment efforts reflect the correct 
applicable wage rates so as to more accurately determine whether there 
are U.S. workers who would be available and willing to accept the 
employment; that H-2A workers and workers in corresponding employment 
are paid the wages to which they are entitled under Sec.  655.120(a), 
including any prevailing piece rate when it would result in higher 
earnings; and that the employment of H-2A workers does not adversely 
affect the wages or working conditions of similarly employed workers in 
the United States.
    As set forth in the NPRM and above, and as evidenced by the 
numerous comments from employers, trade associations, and agents, the 
trio of BALCA decisions--i.e., Golden Harvest Farm, 2011-TLC-00442, at 
*3 (Aug. 17, 2011); Dellamano & Assocs., 2010-TLC-00028, at *5-7 (May 
21, 2010); and Twin Star Farm, 2009-TLC-00051, at *4-5 (May 28, 2009)--
created significant confusion among the regulated community as to their 
obligations under Sec. Sec.  655.120(a) and 655.122(l). See, e.g., FFVA 
comment (opining that current regulations allow employers to 
``temporarily suspend piece-rate pay''), and NCAE comment (arguing that 
prevailing piece rates do not exist). Specifically, while these 
decisions restricted OFLC from requiring employers to include an 
applicable prevailing piece rate on the job order on the ground that 
OFLC does not (and cannot) know at the certification stage whether a 
prevailing piece rate will be higher than the hourly wage and, as a 
result, also limited WHD's enforcement abilities, these decisions did 
not negate the clear regulatory requirement that an employer ``offer, 
advertise in its recruitment, and pay'' the highest of the wage rates 
enumerated in Sec.  655.120(a), including any applicable prevailing 
piece rate. Yet, because employers are able to avoid this obligation, 
it is not possible for the Department to determine whether there are 
local workers who would choose the job opportunity if an applicable 
prevailing wage rate were offered, or to ensure that the employment of 
H-2A workers at the offered wage rate, instead of a potentially higher 
prevailing piece rate, will not depress local wages or working 
conditions. Permitting employers unfettered flexibility to pay wages 
rates not listed in the job order similarly undermines the Department's 
labor market test and its ability to prevent an adverse effect on the 
wages or working conditions of similarly employed workers in the United 
States.
    Accordingly, the Department adopts the clarifying language proposed 
in the

[[Page 33960]]

NPRM with minor edits. Specifically, the Department agrees with 
Farmworker Justice that their suggested additions to the regulatory 
text to explicitly reference piece rates are warranted given the 
history of misinterpretation and confusion among the regulated public.
    The Department disagrees with commenters who asserted that the 
Department failed to adequately connect the requirement to offer and 
pay an applicable prevailing piece rate to the need to prevent an 
adverse effect on the wages or working conditions of similarly employed 
workers in the United States. In addition to the explanation provided 
in the NPRM and above, the comment from Farmworker Justice explained 
the mechanisms by which such an adverse effect can occur. The 
Department similarly disagrees with commenters who stated that piece 
rates should not be required in the job order because prevailing piece 
rates are determined based on the survey results of employers who 
already choose to offer piece rates (m[aacute]sLabor), or because it is 
impossible to determine piece rates before the work is completed 
(wafla). Prevailing wage rates (whether hourly or by the piece) are 
determined by surveying a variety of agricultural employers; these 
surveys are not limited to employers that pay by the piece or by the 
hour. If a prevailing piece rate is issued, that unit of pay was used 
to compensate the largest number of U.S. workers whose wages were 
reported in the survey. See 20 CFR 655.120(c)(1)(v). Moreover, while it 
is not possible to determine at the certification stage whether an 
hourly wage rate or a piece rate will result in higher earnings, as 
this will vary based on a worker's productivity in the pay period, this 
does not mean that the piece rate itself cannot be identified and 
listed in the job order.
    Nonetheless, the Department acknowledges the practical impact these 
clarifying changes will have on the regulated community, including, in 
some instances, the need to change their longstanding compensation 
practices and to ensure that they collect and maintain sufficient 
information to implement these changes (though the Department continues 
to believe that most employers do maintain the requisite information 
either for compliance with Sec.  655.122(j) or for business reasons).
    To assist the regulated community, the Department will consider 
issuing further guidance explaining an employer's obligations under 
Sec. Sec.  655.120(a) and 655.122(l), particularly in instances where 
the relevant job order covers multiple crop activities or tasks for 
which there are different applicable piece rates.
    In addition, the Department has determined that it is appropriate 
to make clarifying revisions to the regulations at Sec. Sec.  
655.210(g) and 655.211 to require employers to disclose all potentially 
applicable rates of pay in the job orders for herding and range 
livestock production occupations. Sections 655.210(g) and 655.211 
include language analogous to that in Sec.  655.120(a) and Sec.  
655.122(l). Specifically, the introductory text in Sec.  655.210(g) has 
been redesignated to paragraph (g)(1) and revised to reflect that the 
employer must disclose any other wage rate it intends to pay if higher 
than the other potential wage sources listed in current Sec.  
655.210(g). Current Sec.  655.210(g)(1) has been redesignated as Sec.  
655.210(g)(2), and revised to include reference to any other wage rate 
the employer intends to pay. Current Sec.  655.210(g)(2) has been 
redesignated as Sec.  655.210(g)(3). While the monthly AEWR will 
generally be the highest of these enumerated wage rates, in some cases 
an applicable State minimum wage, which may be expressed as an hourly 
wage rate, or another applicable wage rate (such as a higher monthly 
rate the employer intends to pay) may be higher. In addition, Sec.  
655.211(a)(1) has been revised to include reference to any other 
offered wage rate and the following language: ``The employer must list 
all potentially applicable wage rates in the job order and must offer 
and advertise all of these wage rates in its recruitment.''
    Likewise, the Department has determined that it is appropriate to 
make such clarifying revisions to 20 CFR 653.501(c) to require 
employers to disclose all potentially applicable rates of pay in non-H-
2A (or non-criteria) clearance orders. Because the SWAs are responsible 
for the review of both H-2A (criteria) clearance orders and non-H-2A 
(non-criteria) clearance orders, having analogous processes and 
requirements, where possible, is preferable, and the Department has 
revised 20 CFR 653.501(c)(1)(iv)(E) to require that intrastate and 
interstate clearance orders state both the hourly wage rate, if 
applicable, as well as any applicable piece rate or other non-hourly 
wage rate.
    The Department has decided not to eliminate the requirement at 20 
CFR 653.501(c)(2)(i) that an employer that pays by the piece, or other 
non-hourly unit, calculate and submit an estimated hourly wage rate 
with the job order. While some employers consider the inclusion of 
these estimated hourly wage rates in the job order to be burdensome or 
potentially confusing, these estimates provide additional information a 
potential job candidate may find relevant in evaluating whether to 
apply for a specific job opportunity.
    Because the Department received no comments on whether 
corresponding changes to the recordkeeping requirements at Sec.  
655.122(j) and (k) or to the requirements for SWAs' review of job 
orders at part 653, subpart F, are needed, the Department declines to 
change these provisions at this time.
    Finally, while the Department appreciates the suggestions from 
worker advocacy organizations that it address the wages owed to 
misclassified H-2A workers assigned to non-agricultural work for which 
higher prevailing wage rates should be paid, and limit the permissible 
number of working hours per day under the H-2A program, it declines to 
adopt either proposed change in this final rule as neither is within 
the scope of the current rulemaking.
3. Section 655.122, Contents of Job Offers
a. Paragraph (h)(4) Employer-provided Transportation
    The NPRM proposed to revise Sec.  655.122(h)(4) to require the 
provision, maintenance, and wearing of seat belts in most employer-
provided transportation. Specifically, the NPRM proposed to prohibit an 
employer from operating any employer-provided transportation that is 
required by the U.S. DOT's FMVSS, including 49 CFR 571.208, to be 
manufactured with seat belts unless all passengers and the driver are 
properly restrained by seat belts meeting standards established by 49 
CFR 571.209 and 571.210. In other words, the Department proposed that, 
if the vehicle was required by the U.S. DOT's FMVSS to be manufactured 
with seat belts, the employer would be required to retain and maintain 
those seat belts in good working order. The NPRM also proposed 
requiring that employers ensure that vehicles are not operated unless 
employees are wearing seat belts.
    Additionally, the Department specifically sought comments in four 
areas: (1) whether there are any other factors or types of vehicles 
that it should consider when promulgating the regulations; (2) how this 
provision should interact with the limited exemption from the 
requirement under MSPA that vehicles have a seat securely fastened to 
the vehicle for each occupant found at 29 CFR 500.104(l),

[[Page 33961]]

which is also applicable to some H-2A employer-provided transportation; 
(3) whether employers ever retrofit vehicles with additional seats in 
such a way that complies with existing vehicle safety standards and how 
these vehicles should comply with proposed seat belt standards; and (4) 
whether it should require employers to enforce the wearing of seat 
belts.
    The Department received numerous comments in support and in 
opposition to the proposal, and many commenters supported in part and 
opposed in part. Most opposition centered on the proposal that an 
employer should not operate the vehicle unless all passengers and the 
driver are properly restrained by a seat belt; this provision is 
discussed separately below. After consideration, the Department is 
adopting the proposal with minor modifications. Specifically, the 
Department has clarified that an employer must not allow any other 
person to operate employer-provided transportation unless seat belts 
are provided, maintained, and worn, and has replaced the word ``shall'' 
with ``must.'' Additionally, the Department has replaced the term ``DOT 
regulation'' with ``U.S. DOT's Federal Motor Vehicle Safety 
Standards,'' abbreviated as ``FMVSS,'' to use the same terminology as 
U.S. DOT does when referencing their regulations.
    Some commenters submitted comments relating to transportation 
safety that are outside the scope of this rulemaking. Specifically, 
Farmworker Justice suggested that the Department not accept workers' 
compensation insurance as acceptable for an H-2A employer to meet their 
obligations under 20 CFR 655.122(h). M[aacute]sLabor requested that the 
Department eliminate the requirement that the job offer include ``a 
description of the modes of transportation (e.g., type of vehicle)'' 
from Sec.  655.122(h)(4)(iii). Because the Department did not propose 
changes to these provisions in the NPRM, there are no such changes in 
this final rule.
Provision of Seat Belts in Vehicles Required by U.S. DOT's FMVSS to be 
Manufactured With Seat Belts
    Worker rights advocacy organizations, unions, a couple of State 
government agencies, some Members of Congress, and some individual 
commenters expressed support for the proposal. Farmworker Justice and 
the Agricultural Justice Project stated that the requirement to provide 
seat belts was long overdue. Governmental commenters emphasized that 
the proposal was necessary due to the increased risks that agricultural 
workers face in transit. Specifically, a comment from Members of 
Congress cited reports from BLS that 271 of 589 fatal workplace 
injuries suffered by agricultural workers in 2022 were caused by 
transportation-related incidents, and the California LWDA stated that 
Cal/OSHA regularly cites employers for agricultural transportation-
related violations.
    Many employers, associations, and some individuals stated that they 
did not oppose the proposal that employers be expected to provide seat 
belts in vehicles required by U.S. DOT's FMVSS to be manufactured with 
seat belts. However, many of these commenters requested exemptions, as 
discussed further below. Mountain Plains Agricultural Service stated 
that seat belt ``use is important and should be available in the 
majority of vehicles and equipment during on-farm transportation. DOL's 
proposed change regarding this is redundant with OSHA regulations.'' 
Other employers and associations were silent on the proposal that 
employers provide and maintain seat belts in vehicles required to be 
manufactured with seat belts, expressing their opposition only to the 
proposed requirement that employers ensure that workers wear seat 
belts, which is discussed in more detail below.
    The Wyoming Department of Agriculture and some agents and 
associations opposed the proposal to require the provision of seat 
belts. The Wyoming Department of Agriculture, Fuerza Consulting 
Solutions, and m[aacute]sLabor observed that employers commonly use 
older vehicles that do not have seat belts for on-the-farm 
transportation, and stated that compliance for these entities would be 
difficult. M[aacute]sLabor and SRFA pointed out that the Department had 
previously opined that universal seat belt requirements would place an 
unreasonable economic burden on employers, and further said that the 
proposal may result in some employers completely forgoing the use of 
motor vehicles and turning to less regulated options such as all-
terrain vehicles (ATVs), off-highway vehicles (OHVs), or motorcycles. 
M[aacute]sLabor further urged the Department to defer to the judgment 
of State and local authorities to interpret existing laws, and to allow 
H-2A employers to use the same exemptions from seat belt usage as those 
that apply to non-H-2A employers under State law. The Wyoming 
Department of Agriculture also opposed the Department's reasoning for 
making the change. M[aacute]sLabor and USA Farmers said that the 
proposal would result in enhanced safety standards for H-2A workers, 
but not for other agricultural workers. USA Farmers further stated that 
the more reasonable course of action would be to propose regulations 
applicable to all farmworkers, not simply to H-2A workers who represent 
a fraction of farmworkers in the United States.
    Many commenters agreed with the proposal but requested that 
exemptions be included in the final rule. Many associations and 
employers requested the inclusion of an exemption for on-the-farm 
transportation, arguing that rural transportation is not inherently 
dangerous or, even if it is, on-the-farm transportation does not pose 
the same risks as off-farm transportation. Most of these commenters 
suggested that vehicles primarily operated on private farm roads when 
the distance traveled does not exceed 10 miles be exempt from seat belt 
requirements. SRFA suggested that small employers (i.e., those 
employing 10 or fewer workers) be exempt, and an individual commenter 
and FFVA similarly suggested that vehicles already in use be exempt 
from the seat belt requirements, as such exemption, in the commenters' 
view, would cushion growers from the economic impacts of the proposal.
    Some commenters misunderstood the proposal as requiring the 
retrofitting of vehicles not originally manufactured with seat belts. 
For example, Burley and Dark Tobacco Producer Association stated that 
many of the surplus buses acquired by employers to transport workers to 
and from job sites do not have seat belts, and that retrofitting these 
vehicles with seat belts would be expensive. One anonymous employer 
asked why seat belts would be required on buses when school systems do 
not require them, and stated that it would cost $750 per small bus and 
$1,050 per large bus to install seat belts, for a total cost to this 
employer of $14,100. Many commenters requested a grace period (many 
recommended 6-12 months) to retrofit vehicles with seat belts.
    One commenter suggested that the proposal be expanded. Farmworker 
Justice suggested that employers be required to equip all vehicles with 
seat belts, not just those that are required by U.S. DOT's FMVSS to be 
manufactured with seat belts. They reasoned that employers frequently 
use old school buses to transport workers and excluding this larger 
vehicle category creates a meaningful gap in vehicle safety. Farmworker 
Justice also suggested that the Department clarify that the seat belt 
standard applies to all transportation of H-2A workers, including 
between worksites, inbound/outbound transportation, interstate and

[[Page 33962]]

intrastate transportation between job sites, and that provided by farm 
labor contractors or third-party transportation agents.
    The Department received very few comments on how the proposal to 
require the provision of seat belts should interact with the limited 
exemption from MSPA's general requirement that vehicles have a seat for 
each occupant, as well as whether employers ever retrofit vehicles with 
seats. Farmworker Justice stated that the MSPA limited exemption from 
seats found at 29 CFR 500.104(l) \25\ should be inapplicable to H-2A 
employers. SRFA stated that it appreciated the consideration of a 10-
mile exemption for certain seatless vehicles under 29 CFR 500.104(l), 
but most farm vehicles have seats and producers in the Western States 
have worksites spanning a mile radius far exceeding 10 miles. 
Farmworker Justice also stated that the rule should expressly prohibit 
the retrofitting of any vehicles with additional seats but did not 
identify whether they had ever seen such a situation.
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    \25\ Transportation subject to this exemption is limited to 
those vehicles that are subject to the vehicle safety standards in 
29 CFR 500.104 when those vehicles are primarily operated on private 
farm roads when the total distance traveled does not exceed 10 
miles, so long as the trip begins and ends on a farm owned or 
operated by the same employer. See 29 CFR 500.102; 29 CFR 
500.104(l). See also DOL, WHD Fact Sheet #50: Transportation Under 
the Migrant and Seasonal Agricultural Worker Protection Act (June 
2016), https://www.dol.gov/agencies/whd/fact-sheets/50-mspa-transportation.
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    Upon consideration, the Department adopts the language as proposed 
in this final rule with minor modifications and does not modify the 
requirement that employers provide seat belts in vehicles required by 
U.S. DOT's FMVSS to be manufactured with seat belts.
    The Department appreciates the suggestion that all vehicles be 
equipped with seat belts, not just those required by U.S. DOT's FMVSS 
to be manufactured with seat belts, and recognizes the commenter's 
concern that some workers will continue to be transported without seat 
belts, most commonly in school buses with a Gross Vehicle Weight Rating 
(GVWR) exceeding 10,000 pounds. However, as stated in the NPRM, the 
Department believes that it is appropriate to rely on U.S. DOT's 
considerable research and expertise and, at this point, U.S. DOT's 
FMVSS do not require school buses with a GVWR exceeding 10,000 pounds 
to be manufactured with seat belts because of the vehicles' safety 
features, among other factors. Specifically, school buses use 
``compartmentalization'' to ensure that passengers are cushioned and 
contained by seats or padded restraining barriers in the event of a 
crash.\26\ Additionally, U.S. DOT has stated that large school buses' 
greater weight and higher seating height than most other vehicles, high 
visibility to motorists, joint integrity of the bus body panels, and 
stringent fuel system integrity requirements contribute to the 
vehicles' safety record.\27\ Furthermore, requiring seat belts in all 
employer-provided transportation, regardless of whether U.S. DOT's 
FMVSS required the vehicle to be manufactured with seat belts, would 
represent a substantial change from the proposal in the NPRM that would 
have significant economic impacts on some employers.\28\ Therefore, the 
Department declines to adopt this proposal from Farmworker Justice's 
comment without providing the regulated community with a meaningful 
opportunity for notice and comment. The Department will continue to 
monitor vehicle safety conditions in the field and consult with U.S. 
DOT to consider whether the H-2A program should require seat belts in 
vehicles not manufactured with seat belts, including whether the 
conditions under which farmworkers are transported in large school 
buses are safe without seat belts. Also, as stated in the NPRM, if, at 
a later date, U.S. DOT were to amend the FMVSS to require school buses 
with a GVWR exceeding 10,000 pounds, or any other vehicle, to be 
manufactured with seat belts, Sec.  655.122(h)(4) would automatically, 
and without further revision, similarly require the employer to provide 
and maintain seat belts in those vehicles. See 88 FR 63777-63778.
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    \26\ See 73 FR 62744, 62745-62746 (Oct. 21, 2008), and 76 FR 
53102 (Aug. 25, 2011).
    \27\ See National Highway Traffic Safety Administration (NHTSA), 
School Bus Safety: Crashworthiness Research (Apr. 2002) (discussing 
school bus occupant safety), https://www.nhtsa.gov/sites/nhtsa.gov/files/sbreportfinal.pdf.
    \28\ As stated in the NPRM, NHTSA has provided guidance for 
retrofitting school buses with seat belts. See Guideline for the 
Safe Transportation of Pre-school Age Children in School Buses, 
NHTSA (Feb. 1999). Cost estimates for retrofitting a school bus with 
seat belts vary, but are generally around $15,000 per bus, with one 
estimate as high as $36,000 per bus. See Stephen Satterly, School 
Bus Seat Belts: Opening a Dialogue, Safe Havens Int'l (Dec. 5, 
2016), https://safehavensinternational.org/school-bus-seat-belts-opening-dialogue, Matthew Simon, Report: Adding Seatbelts Could Cost 
$15k per school bus, WSAW-TV (Sept. 1, 2016), https://www.wsaw.com/content/news/NewsChannel-7-Investigates-Report-Adding-seat-belts-could-cost-15K-per-school-bus-392104851.html; Mike Chouinard, Island 
District Holds Off School Bus Seatbelt Retrofits, N. Island Gazette 
(Oct. 7, 2020), https://www.northislandgazette.com/news/island-district-holds-off-school-bus-seatbelt-retrofits-1407935.
---------------------------------------------------------------------------

    The Department also reminds employers that any bus exceeding 26,000 
pounds GVWR that was not manufactured as a school bus or other category 
of bus explicitly excluded from seat belt requirements (transit bus, 
perimeter-seating bus, or prison bus) has been manufactured with seat 
belts pursuant to U.S. DOT's FMVSS if manufactured on or after November 
28, 2016. See 78 FR 70416 (Nov. 25, 2013). Therefore, in these 
vehicles, the employer must provide and maintain seat belts.
    Similarly, the Department declines to create exemptions from the 
seat belt standard for vehicles that U.S. DOT requires to be 
manufactured with seat belts. While many commenters sought the 
inclusion of an exemption from the seat belt requirement for on-the-
farm transportation, sometimes suggesting using the same or similar 
parameters as found in the limited MSPA exemption from seats found in 
29 CFR 500.104(l), the Department believes that it is inappropriate to 
universally exempt on-the-farm transportation from seat belt 
requirements. While the Department's enforcement experience 
demonstrates that many vehicle crashes occur on public roads, some 
crashes occur on property owned or leased by the grower. Additionally, 
it may be difficult for the Department to identify in an investigation 
which vehicles are solely used on the farm as opposed to being driven 
on public roads. The Department believes that it is similarly 
inappropriate to exempt small employers or vehicles currently in use 
from compliance with the seat belt requirements because the size of an 
employer or the current use of the vehicle has no bearing on the safety 
of the transportation provided.
    M[aacute]sLabor and SRFA correctly noted that the Department had 
previously opined that requiring employers to provide seat belts would 
place an unreasonable economic burden on employers. However, as 
previously explained in the NPRM, the Department made this statement 
while promulgating MSPA regulations in 1983.\29\ In the last 40 years, 
every State except New Hampshire has passed seat belt laws \30\ and 
national seat belt usage increased from 14% in 1983 to 91.6% in 
2022.\31\

[[Page 33963]]

Research has solidified the importance of the seat belt as an essential 
life-saving technology; NHTSA estimates that using a seat belt in the 
front seat of a passenger car can reduce fatal injury by 45 percent and 
reduce moderate to critical injury by 50 percent. The safety effect 
increases in a light truck, where seat belts reduce fatal injury by 60 
percent and reduce moderate to critical injury by 65 percent.\32\ 
Further, NHTSA estimates that 50 percent of those passenger vehicle 
occupants killed in crashes in 2021 were unrestrained.\33\ Given the 
dramatic increase in use, expansions of State seat belt laws, and 
developments in safety research since 1983, the Department no longer 
believes that requiring employers to provide seat belts in 2024 places 
an unreasonable economic burden on employers. Even more, the 
Department's regulation requires seat belts only in vehicles that have 
been manufactured with seat belts and thus an employer's only expenses 
would be to fix any seat belts that have broken. In response to 
commenters who warned the Department that a seat belt requirement may 
motivate employers to provide transportation via less regulated modes 
of transport, such as ATVs, OHVs, and motorcycles, the Department 
believes that it is unlikely to be more cost effective for employers 
employing more than a few workers to purchase motorcycles or ATVs for 
workers in lieu of repairing seat belts in a 15-passenger van, for 
example. Additionally, the Department reminds employers that all 
employer-provided transportation must comply with all Federal, State, 
and local laws and regulations. See 20 CFR 655.122(h)(4).
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    \29\ See 48 FR 36736, 36738 (Aug. 12, 1983); 88 FR 63750, 63777.
    \30\ See Governors' Highway Safety Ass'n., Seat Belts, https://www.ghsa.org/issues/seat-belts (last accessed Feb. 8, 2024).
    \31\ Compare NHTSA, Seat Belts, https://www.nhtsa.gov/risky-driving/seat-belts#resources (last accessed Feb. 8, 2024) (``Seat 
Belts'') (estimating that seat belt use by adult front-seat 
passengers was about 91.6 percent in 2022), with Transp. Research 
Bd. of the Nat'l. Acads., Buckling Up: Technologies to Increase Seat 
Belt Use (Oct. 2003), p. 5 (estimating that seat belt use was about 
14 percent in 1984).
    \32\ See Kahane, C.J., NHTSA, Lives Saved By Vehicle Safety 
Technologies and Associated Federal Motor Vehicle Safety Standards, 
1960 to 2012--Passenger Cars and LTVs--With Reviews of 26 FMVSS and 
the Effectiveness of Their Associated Safety Technologies in 
Reducing Fatalities, Injuries, and Crashes (2015), DOT HS-812-069, 
pp. 107-11, https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812069.pdf (2015 NHTSA Report). See also Seat Belts.
    \33\ See Seat Belts.
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    Many commenters used the term ``retrofit'' when discussing seat 
belt installation, emphasizing the costs that would be passed onto 
growers, as well as the need for a grace period to permit sufficient 
time for such retrofitting. The Department clarifies that this final 
rule does not require employers to add seat belts to vehicles that were 
manufactured without them. The language adopted by the Department in 
this final rule references U.S. DOT's FMVSS, including those found at 
49 CFR 571.208, which vary based on the type of vehicle and the year of 
manufacture. If an employer transports workers in an old vehicle that 
was not required, at the time of manufacture, to have seat belts, the 
Department will not require an employer to install seat belts in that 
vehicle. However, it should be noted that, because U.S. DOT has 
required passenger cars and light trucks and vans to be manufactured 
with seat belts since the 1970s,\34\ buses (excluding school buses) 
with a GVWR under 10,000 pounds to be manufactured with seat belts 
since 1991,\35\ and school buses with a GVWR under 10,000 pounds to be 
manufactured with seat belts since 1976,\36\ the Department anticipates 
that relatively few vehicles originally manufactured without seat belts 
remain in use. Employers' costs to come into compliance will consist of 
repairing or replacing any broken or damaged seat belts, which the 
Department anticipates will be less expensive and take less time than 
retrofitting vehicles that were never engineered for seat belt 
installation. The Department also declines to institute a grace period 
for employers to retrofit their vehicles, as no retrofitting will be 
required. The Department similarly believes that many vehicles will 
already have functional seat belts to comply with existing State laws, 
and that those vehicles with broken seat belts may be fixed relatively 
quickly, and therefore declines to institute a grace period for 
employers to repair broken seat belts.
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    \34\ 2015 NHTSA Report, p. 89, https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812069.pdf; 49 CFR 571.210 S4.1; and 49 
CFR 571.210 S4.2.
    \35\ 54 FR 46257 (Nov. 2, 1989).
    \36\ 41 FR 4018 (Jan. 28, 1976).
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    Some commenters identified that the proposal would implement more 
stringent safety requirements for H-2A workers and workers engaged in 
corresponding employment than for other farmworkers in the United 
States. The Department continues to believe that it is appropriate to 
amend the H-2A regulations given the significant growth of the program 
and its increasing importance in agriculture in the United States.\37\ 
The Department is tasked with, among other things, ensuring that the 
employment of H-2A workers does not adversely affect the wages and 
working conditions of similarly employed workers in the United States. 
As discussed in greater detail below in Section VI.C.2.b, H-2A workers 
may have more limited recourse when placed in an inherently dangerous 
situation, such as being transported in a vehicle without seat belts, 
than workers in the United States similarly employed. As AIHA noted, H-
2A workers are incentivized to continue employment even when presented 
with working conditions that are hazardous to their health and safety. 
Additionally, unbelted passengers in a vehicle pose significant risks 
to other passengers and the driver; studies have found that 
unrestrained occupants can become projectiles in a crash and increase 
the risk of death for other occupants.\38\ An employer that only offers 
dangerous transportation (in this case, transportation without seat 
belts in a vehicle required by U.S. DOT's FMVSS to be manufactured with 
seat belts) has offered terms and working conditions below the minimum 
level at which a worker in the United States could be expected to 
accept. Given the accepted and established safety record of seat belts, 
the Department believes that it is appropriate to require seat belts in 
these vehicles as a baseline safety standard in the H-2A program to 
prevent adverse effect on similarly employed workers in the United 
States and to ensure that H-2A workers are employed only when there are 
not sufficient able, willing, and qualified workers available to 
perform the work.
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    \37\ The number of H-2A jobs certified in FY 2022 was more than 
seven times the number of those certified in 2005, and double the 
amount of those certified in 2016. See Castillo, M., USDA Economic 
Research Service, H-2A Temporary Agricultural Job Certifications 
Continued to Soar in 2022 (Mar. 13, 2023), https://www.ers.usda.gov/amber-waves/2023/march/h-2a-temporary-agricultural-job-certifications-continued-to-soar-in-2022/.
    \38\ See Mayrose J., et al., Influence of the unbelted rear-seat 
passenger on driver mortality: ``the backseat bullet'' (Feb. 2005), 
Acad. Emerg. Med. 12(2), pp. 130-34, https://pubmed.ncbi.nlm.nih.gov/15692133/ (finding that the risk of death 
for a belted driver in a head-on collision increased by 2.27 times 
if seated in front of an unbelted passenger instead of a belted 
passenger); Cummings P., Rivara F.P., Car occupant death according 
to the restraint use of other occupants: a matched cohort study 
(Jan. 21, 2004), J. Am. Med. Ass'n, 291(3), pp. 343-49, https://pubmed.ncbi.nlm.nih.gov/14734597/ (finding that the risk ratio for 
death among belted occupants varied between 1.22 and 1.15 when 
exposed to an unbelted passenger in a vehicle crash, depending on 
the location of the belted and unbelted occupants; in other words, 
the restrained passenger was more likely to die when exposed to an 
unrestrained passenger in a vehicle crash).
---------------------------------------------------------------------------

    In response to comments submitted by Farmworker Justice, the 
Department clarifies that vehicle safety standards found in Sec.  
655.122(h)(4), including the requirement that vehicles manufactured 
with seat belts have seat belts, apply to all employer-provided 
transportation of H-2A workers, including between worksites, inbound/
outbound transportation, and interstate and intrastate transportation 
between job sites. If an employer contracts with

[[Page 33964]]

another entity, such as a farm labor contractor, to provide 
transportation that is the employer's responsibility, such as 
transportation between the living quarters and worksite or inbound/
outbound transportation, that transportation continues to be employer-
provided and is subject to all the vehicle safety standards found in 20 
CFR 655.122(h)(4), including the seat belt standards. To clarify that 
the employer cannot avoid responsibility for seat belt requirements by 
using a subcontractor to provide required transportation to workers, 
the Department has edited Sec.  655.122(h)(4)(ii) in this final rule to 
prohibit an employer from allowing any other person to operate any 
employer-provided transportation required by U.S. DOT's FMVSS to be 
manufactured with seat belts unless workers are properly restrained by 
seat belts.
    Upon consideration of the comments, the Department declines to 
modify the proposal to accommodate the limited MSPA exemption from 
seats found at 29 CFR 500.104(l). No commenter identified that they 
used the exemption, and SRFA confirmed that most vehicles have seats. 
Commenters who mentioned the exemption appeared to contemplate a 
blanket exemption from the seat belt requirement for on-the-farm 
transportation, which the Department declines to adopt and is discussed 
above. Based on the comments received, the Department concludes that 
employer usage of the limited exemption from seats found in 29 CFR 
500.104(l) (for vehicles that are operated primarily on farm roads in 
trips not exceeding 10 miles, so long as the trip begins and ends on a 
farm owned or operated by the employer) is rare and therefore needs no 
accommodation in these regulations.
    No commenters identified that they retrofitted vehicles with seats 
or saw such retrofitted vehicles. As such, the Department will not 
contemplate hypothetical compliance in that situation at this time.
Wearing of Seat Belts
    The Department proposed to prohibit employers from operating 
vehicles manufactured with seat belts unless all passengers and the 
driver are properly restrained by seat belts. Associations, agents, and 
employers were unanimous in their opposition to the proposal that 
employers require the wearing of seat belts. These commenters stated 
that this requirement would be unreasonable, place an undue burden on 
employers, and infantilize workers. Commenters also stated that even if 
they checked for seat belt use before departure, they would have no way 
to ensure that workers not remove the seat belt in transit. An 
individual and wafla stated that often the drivers are H-2A workers 
with no supervisory authority and would be unable to require the 
wearing of seat belts. SRFA, wafla, AILA, and an individual employer 
emphasized that employers would need to invest heavily in surveillance 
technology, such as cameras, to ensure that workers wear seat belts at 
all times. AILA suggested that the Department accept an employer as 
being in compliance if it has a sign posted advising the workers to 
wear seat belts. NHC similarly suggested that this provision be 
replaced with a requirement that employers provide training on proper 
use of seat belts. The Wyoming Department of Agriculture stated that 
this provision would expose employers to labor organization audits of 
seat belt use.
    Worker rights advocacy organizations, unions, a couple of State 
government agencies, some Members of Congress, and individual 
commenters supported the proposal in its entirety, including that the 
employer not operate vehicles manufactured with seat belts unless all 
passengers and the driver wear seat belts. A couple of advocacy 
organizations submitted specific feedback supporting the proposal that 
employers require the wearing of seat belts. AIHA noted that making 
seat belts available without a requirement to wear the seat belts leads 
to low adoption of the practice of wearing them and that ``if the goal 
of the [Department] is to decrease incidents of injury associated with 
transportation of [H-2A] workers, then required enforcement is one of 
the best ways to increase the use of seat belts.'' Farmworker Justice 
stated that oftentimes workers come from rural communities in Mexico 
where seat belt use may not be customary, and therefore employers 
should be required to verify that all passengers are wearing seat 
belts. The California LWDA noted that the proposed regulation aligned 
with the California regulation and that there are numerous OSHA 
decisions interpreting the regulations requiring the provision of 
personal protective equipment to also require use thereof.
    The Department adopts the proposal without modification. The 
history of seat belt adoption shows that the provision of seat belts 
does not automatically result in their use; rather, enforcement and 
education is necessary for adoption. As previously explained in the 
NPRM, seat belt usage in the United States was very low before States 
required and national campaigns encouraged their use (compare 14% usage 
in 1983 to 86% usage in 2012,\39\ and up to 90% in 2020 ).\40\ Seat 
belts do not serve their designed purpose when not worn, and, as noted 
above, an unbelted passenger poses a significant safety risk to other 
passengers in the vehicle in the case of a crash. As the objective of 
this regulatory change is to avoid degrading worker safety conditions 
to prevent adverse effect on similarly employed workers in the United 
States and to ensure that H-2A workers are employed only when there are 
not sufficient able, willing, and qualified workers available to 
perform the work, the Department believes that employers requiring 
their workers to wear seat belts is necessary to achieve this 
objective.
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    \39\ 2015 NHTSA Report, at 103.
    \40\ NHTSA, Seat Belt Use in 2020--Overall Results (Feb. 2021), 
https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813072.
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    With respect to employer concerns that it is not possible for 
employers to ensure their workers wear seat belts, the Department notes 
that numerous other workplace safety and health laws and regulations 
require employers to shape and influence the behavior of their workers 
so that the employer may be in compliance. Consider, for example, 
regulations promulgated by OSHA, many of which mandate specific 
behaviors or the use of safety equipment by their workers. For example, 
29 CFR 1928.51(b)(2)(i) requires an employer to ensure that a worker 
required to use a Roll-Over Protective Structure (ROPS) on a tractor 
not only use a seat belt, but that the employee tighten the seat belt 
sufficiently to confine the worker to the protected area provided by 
the ROPS. The employer is expected to comply with the OSHA standard; 
however, the Department anticipates that the employer is not fastening 
the seat belt themselves nor are they watching the worker each moment 
to ensure that the seat belt is fastened. Rather, the employer creates 
and communicates operating procedures to shape worker behavior to 
comply with the standard, including by issuing work rules to prevent 
the violation, communicating those rules to workers, taking measures to 
discover violations, and taking action when violations are discovered. 
See, e.g., Burford's Tree, Inc., 22 BNA OSHC 1948 (No. 07-1899, 2010), 
aff'd without opinion, 431 F. App'x. 222 (11th Cir. 2011).
    Similarly, regulations promulgated by the Food and Drug 
Administration (FDA) at 21 CFR 117.10 require an employer to take 
reasonable measures and precautions to ensure that, for example, all 
persons working in direct

[[Page 33965]]

contact with food conform to hygienic practices while on duty, 
including: (1) maintaining adequate personal cleanliness; (2) washing 
hands thoroughly before starting work and after each absence from the 
work station; and (3) not eating food, chewing gum, drinking beverages, 
or using tobacco in areas where food may be exposed or where equipment 
or utensils are washed. As with OSHA regulations, compliance with these 
FDA regulations require employers to develop reasonable compliance 
plans to influence employee behavior.
    Certainly, the Department does not expect employers to install 
expensive surveillance technology in vehicles to monitor compliance. 
However, it does expect employers to implement common-sense measures to 
ensure that workers are wearing seat belts while a vehicle is being 
operated. The Department expects that employers already have similar 
common-sense measures in place to comply with other regulatory safety 
requirements, such as those enforced by OSHA and the FDA.
    With respect to the Wyoming Department of Agriculture's concern 
that this provision would expose employers to labor organization audits 
of seat belt use, this final rule does not grant the right to conduct 
audits to such organizations, but some organizations may conduct or 
attempt to conduct independent evaluations of employer compliance and 
make referrals when they encounter violations. However, the Department 
believes that this provision is no more likely than others in the H-2A 
regulations to result in organizations attempting to evaluate employer 
compliance. In all, the Department believes that the importance of 
mitigating unsafe working conditions far outweighs the inconvenience to 
an employer resulting from an outside organization surveying (or 
attempting to survey) an employer about compliance.
b. Paragraphs (i)(1)(i) and (ii) Shortened Work Contract Period
    The Department proposed to remove the language at Sec.  
655.122(i)(1)(i) and (ii) that permitted the work contract period to be 
shortened by agreement of the parties with the approval of the CO, 
consistent with changes to the delayed start date procedure at Sec.  
655.175. The Department received one comment from a trade association 
that expressed general support for this minor change. The Department is 
adopting the proposal without revision in this final rule. These minor 
conforming changes will ensure these paragraphs are consistent with 
changes to delayed start of work requirements at new Sec.  655.175(b), 
which permits only minor delays to the start of work and requires 
notice to workers and the SWA, but not CO approval, as discussed in the 
preamble explaining changes in that section.
    The Department also received comments on this section that it has 
determined were beyond the scope of this rulemaking. A workers' rights 
advocacy organization expressed concern that providing workers the 
three-fourths guarantee at the end of the contract period results in 
financial hardship for workers and may incentivize employers to find 
pre-textual reasons to avoid fulfilling the obligation. The commenter 
urged the Department to revise the three-fourths guarantee at Sec.  
655.122(i) to require employers to guarantee and compensate workers for 
three-fourths of the work hours in each weekly or biweekly period. 
Alternatively, the commenter urged the Department to require employers 
provide a ``basic `per diem' to cover food costs during work stoppages 
exceeding 3 days at any time'' during the employment period.
    These suggestions would require amendments to Sec.  655.122(i) or 
Sec.  655.122(g) that would constitute major changes to the regulations 
that commenters and stakeholders could not have anticipated as an 
outcome of the proposed minor change to Sec.  655.122(i)(1) or proposed 
changes to the delayed start date procedure at Sec.  655.175(b), thus 
warranting additional public notice and opportunity for comment. As 
such, the Department declines to adopt the suggested changes. However, 
as the Department noted in the 2022 H-2A Final Rule, the three-fourths 
guarantee ``is intended to address the normal variability of weather, 
crop readiness, and other circumstances in agricultural work'' and ``is 
not intended to allow an employer to include periods without work'' for 
other reasons. 87 FR at 61774. The employer's job order must accurately 
reflect the actual hours that the employer intends to offer 
workers.\41\
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    \41\ DOL, WHD Fact Sheet #26E: Job Hours and the Three-Fourths 
Guarantee under the H-2A Program (Nov. 2022), https://www.dol.gov/agencies/whd/fact-sheets/26e-job-hours-three-fourths-guarantee-H-2A.
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c. Paragraph (l)(3) Productivity Standards as a Condition of Job 
Retention
    The NPRM proposed that if the employer requires one or more 
productivity standards 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. Additionally, the NPRM proposed that if the employer 
first applied for temporary agricultural labor certification after 
1977, such productivity 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 AIE. Under 
the current regulations at Sec.  655.122(l)(2)(iii), these conditions 
apply only to those employers paying a piece rate and requiring one or 
more productivity standards as a condition of job retention. The NPRM 
proposed to expand these conditions to all employers requiring one or 
more productivity standards as a condition of job retention, regardless 
of whether the workers are paid on a piece rate or hourly basis. The 
NPRM explained that this change was necessary so that all workers would 
be informed of the conditions that may serve as a basis for termination 
for cause, consistent with proposed changes to Sec.  655.122(n), and to 
ensure that employers do not terminate workers for excessively high 
productivity standards.
    Many individuals, public policy or other advocacy organizations, 
workers' rights advocacy organizations, unions, and State agencies, as 
well as some Members of Congress, unconditionally supported the 
proposal. These commenters agreed that the disclosure of this 
productivity-standard information would ensure that workers are 
informed of the material terms and working conditions of the job offer 
before accepting the job and noted the harm that increased productivity 
standards have on workers, regardless of whether workers are paid on an 
hourly or piece-rate basis. Specifically, Farmworker Justice noted that 
they have encountered workers who were required to work at such a rapid 
pace that the workers reasonably feared an increased incidence of 
accidents. Many commenters, including the North Carolina Justice 
Center, PCUN, and UMOS, also said that uncapped productivity standards 
would have the effect of dissuading U.S. workers from finding or 
keeping these jobs. A number of agricultural associations and 
employers, such as the Michigan Asparagus Advisory Board, TIPA, and 
NHC, agreed with the proposal on the condition that employers have the 
ability to adjust productivity standards if the crop or market 
conditions are different than anticipated at the time of the job offer.
    Other employers and associations opposed the proposal. Some 
employers

[[Page 33966]]

opposed the proposal based on a mistaken perception that qualitative 
reasons for evaluation would not be acceptable. One anonymous employer 
misunderstood the proposal, believing that it would require employers 
to create productivity standards, and stated that creating a 
productivity standard would be impossible because of the needs of 
different crops and conditions (e.g., fresh market versus juicing 
apples). AILA did not support or oppose the proposal but requested that 
the Department add a section for this information on the applicable 
forms. As explained more fully in the discussion below, this final rule 
will permit employers to consider qualitative reasons for discipline 
and termination and will not require employers to establish 
productivity standards if they choose not to do so.
    Some commenters expressed concerns as to how the Department would 
determine whether a productivity standard is normal and accepted for 
the activity in the AIE. Wafla opposed the proposal, stating that the 
proposed guidelines for establishing productivity standards were 
unclear. Other commenters, including Titan Farms, LLC and NHC, 
characterized as problematic the requirement that productivity 
standards be frozen at the time an employer first used the program, 
stating that technological advancements have increased worker 
efficiency levels. While Farmworker Justice supported the proposal, 
they suggested that SWAs request documentation to substantiate the 
appropriateness of qualifications to ensure they do not approve 
arbitrary and inappropriate productivity standards.
    This final rule adopts the language as proposed. After evaluating 
all comments, the Department continues to believe that the productivity 
standards that will be used as a basis for job retention are a core 
term and working condition that must be disclosed to workers in the job 
offer, regardless of whether those workers are paid on a piece-rate or 
hourly basis. Workers must know, before accepting a job, the criteria 
for which they may be later terminated, including any applicable 
productivity standards. As discussed further below and in the preamble 
corresponding with Sec.  655.122(n), the employer may consider other 
applicable criteria for job retention, including an evaluation of work 
quality, but these criteria are not considered productivity standards. 
The Department also continues to believe that it is appropriate to 
require that productivity standards in the H-2A program not exceed the 
standards normally required by other employers for the activity in the 
AIE when the employer first used the program (unless otherwise 
permitted by the OFLC Administrator, or if the standards reflect the 
standards the employer used in 1977, for employers that first used the 
program before 1977). This requirement will prevent productivity 
standards from constantly increasing arbitrarily, thus preventing 
potential unsafe working conditions and exclusion of U.S. workers from 
the agricultural workforce, while at the same time permitting 
reasonable adjustments by the OFLC Administrator when appropriate.
    As described above, some opposition to this proposal resulted from 
a misunderstanding that employers would not be permitted to evaluate 
work quality for purposes of job retention and would be required to use 
productivity standards alone to address any performance issues. In 
Sec.  655.122(n)(2) of this final rule, the Department clarifies 
language to state that a worker may be terminated for cause for a 
failure to satisfactorily perform job duties in accordance with the 
employer's reasonable expectations based on criteria described in the 
job offer. These criteria for evaluation may include a productivity 
standard, qualitative criteria, or both. Therefore, the Department 
clarifies that it will not require employers to use productivity 
standards to evaluate their workers if they do not choose to do so. 
However, any employer that uses a productivity standard to evaluate job 
performance must disclose that productivity standard in the job offer, 
pursuant to Sec.  655.122(l)(3).
    The Department stated in the preamble to the NPRM that, consistent 
with current guidance, productivity standards must be static, 
objective, and specifically quantify the expected output per worker. 
The NPRM further stated that vague standards, such as requiring workers 
to ``perform work in a timely and proficient manner,'' ``perform work 
at a sustained, vigorous pace,'' or ``keep up with the crew'' would not 
be acceptable productivity standards as they lack objectivity, 
quantification, and clarity, and would not be accepted as valid reasons 
for termination for cause.\42\ In light of the changes to Sec.  
655.122(n)(2) in this final rule, specifically the allowance for 
consideration of qualitative criteria as a reason for termination for 
cause, the Department believes that this statement requires further 
clarification. In this final rule, the Department maintains that 
productivity standards must be static, quantifiable, and specifically 
quantify the expected output per worker. Productivity standards must 
comply with Sec.  655.122(l)(3) in this final rule, meaning they must 
be disclosed to the worker 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, 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 AIE. As described above, qualitative criteria for evaluation are 
not productivity standards, as they are not quantifiable, and therefore 
will not fall within the scope of Sec.  655.122(l)(3) in this final 
rule.
---------------------------------------------------------------------------

    \42\ See 88 FR 63779; and OFLC, Frequently Asked Questions, H-2A 
Temporary Agricultural Foreign Labor Certification Program, 2010 
Final Rule, Round 9 (Oct. 30, 2015), https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H-2A_FAQ_Round9.pdf.
---------------------------------------------------------------------------

    However, the Department will not permit the use of allegedly 
qualitative criteria for evaluation as a reason for termination for 
cause where they are exclusively a proxy for measures of quantitative 
output (i.e., productivity standards) and, therefore, attempt to 
circumvent Sec.  655.122(l)(3). For example, the standard ``failure to 
keep up with the crew'' exclusively measures quantitative output and 
thus would be an impermissible productivity standard because it is not 
static and does not quantify the expected output per worker. An 
employer using such a standard for evaluation would essentially be able 
to create different productivity standards at its discretion and 
without the knowledge of the worker, thus circumventing the purpose of 
Sec.  655.122(l)(3). An employer wishing to evaluate the speed or 
quantity of work should disclose a productivity standard (or multiple 
productivity standards, if different standards apply to different crops 
or situations).
    On the other hand, a genuinely qualitative or behavioral standard 
that incidentally affects productivity, such as a requirement that a 
worker know how to correctly use a tool or a prohibition on watching 
streaming video during work hours, would be permissible. While these 
standards may affect the speed and quantity of work performed (e.g., a 
worker spending excessive time watching streaming video during work 
hours may harvest fewer apples than other workers), the underlying 
standard is not quantitative in nature and, therefore, would be 
acceptable. One anonymous employer identified that they often know 
``when a worker is working slower than the

[[Page 33967]]

other workers[,] or when he is on his cell phone while others working 
beside him are working hard[,] or when he is deliberately obstructing 
the work of others.'' The first standard (``working slower than other 
workers'') would be an impermissible productivity standard, whereas 
rules or policies governing the other two standards (excessive use of a 
phone during work hours and obstructing the work of others) would be 
acceptable bases for discipline, including termination when 
appropriate, if all procedures in Sec.  655.122(n) are followed.
    The Department declines to allow employers to change productivity 
standards during the work contract period, as doing so would undermine 
the purpose of this provision. If an employer were to be permitted to 
modify the productivity standards at its discretion, workers would not 
have adequate notice of the productivity standards that they must meet. 
If an employer wishes to use productivity standards and believes that 
different productivity standards will be applicable in different 
situations (e.g., fruit for fresh market versus fruit for juicing), the 
employer should disclose the applicable productivity standards in each 
of those situations.
    The Department will continue to use its established procedures to 
determine whether productivity standards were normally required (at the 
time of the first Application for Temporary Employment Certification) 
by other employers for the activity in the AIE. The Department has 
previously defined ``normal'' as ``not unusual,'' and has clarified 
that ``normal'' in this context differs from prevailing. In other 
words, the Department does not require that a majority of employers in 
the AIE use the same productivity standard, only that the use of that 
productivity standard not be unusual. See 73 FR 77110, 77153-77154 
(Dec. 18, 2008).
    The Department significantly relies on SWAs' expertise in 
determining whether productivity standards are 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 
AIE. SWAs are familiar with the specific agricultural and labor 
conditions in their respective geographic areas and serve an essential 
role in reviewing job orders for sufficiency. See 87 FR at 61706-61707.
    Consistent with Sec.  655.122(b), SWAs or the Department may, at 
their discretion, request documentation from the employer to 
substantiate the appropriateness of any job qualification (including 
productivity standards). The Department has previously stated that this 
documentation may include the names of other employers that can verify 
the adequacy of the employer's requirement, information from the 
Cooperative Extension System, university personnel with expertise in 
agricultural sciences, or a prevailing practice survey. See 53 FR 
22076, 22096-22097 (June 13, 1988). Although a prevailing practice 
survey may be used to demonstrate the appropriateness of a productivity 
standard, it is not required because productivity standards need only 
be normal, not prevailing. See 53 FR 22076, 22096.
    Additionally, regardless of the year that the employer first 
applied for temporary agricultural labor certification (whether before 
or after 1977), the Department will consider requests for a higher 
minimum productivity standard upon receiving substantive written 
documentation showing that an increase is justified by technological, 
horticultural, or other labor-saving means. For example, the Department 
stated in the 2010 final rule that apple growers had been allowed to 
raise productivity standards to reflect the introduction of dwarf 
trees. See 53 FR 22076, 22083 (June 13, 1988) and 2010 H-2A Final Rule, 
75 FR 6884, 6914.
d. Paragraph (l)(4); Sec.  655.210(g)(4) Disclosure of Available 
Overtime Pay
    The Department proposed to add a new paragraph at Sec.  
655.122(l)(4) to explicitly clarify that the employer must specify in 
the job offer any applicable overtime premium wage rate(s) for overtime 
hours worked and the circumstances under which the wage rate(s) for 
such overtime hours would be paid. Under the Department's longstanding 
regulations, an H-2A employer must assure that it will comply with all 
applicable Federal, State, and local laws, including any applicable 
overtime laws, during the work contract period. See Sec.  655.135(e). 
In addition, an H-2A employer must accurately disclose the actual, 
material terms and conditions of employment, including those related to 
wages, in the job order. Id. Sections 655.103(b), 655.121(a)(3), and 
655.122(l).
    Therefore, the Department proposed to revise the current wage 
disclosure requirements found at Sec.  655.122(l) to expressly clarify 
in a new paragraph (4) that an employer must disclose in the job order 
any applicable overtime pay. Specifically, under proposed Sec.  
655.122(l)(4), whenever overtime pay is required by law or otherwise 
voluntarily offered by an employer, an employer would be required to 
disclose in the job order the availability of overtime hours, the wage 
rate to be paid for any overtime hours, and the circumstances under 
which overtime will be paid.\43\ The proposed paragraph at Sec.  
655.122(l)(4)(iii) provided illustrative examples of circumstances that 
might apply, such as after how many hours in a day, week, or pay period 
the overtime premium wage rate will be paid, or if overtime premium 
wage rates will vary between worksites. However, an employer must 
accurately disclose the actual circumstances under which overtime would 
be paid. Similarly, the Department proposed to amend the pay disclosure 
requirements at Sec.  655.210(g), governing the contents of job orders 
for herding and range livestock production occupations, to include a 
new paragraph (g)(3) that would require employers to disclose any 
available overtime pay, whether voluntarily offered by the employer or 
required by State or Federal law, and the details regarding such pay.
---------------------------------------------------------------------------

    \43\ See, e.g., Cal. Indus. Welfare Comm'n Order No. 14-2001 (as 
amended), Cal. Code Regs., tit. 8, Sec.  11140.
---------------------------------------------------------------------------

    The Department largely received supportive comments regarding this 
proposal. Many of the comments, including those representing employers, 
employer associations, SWAs, State Attorneys General, U.S. Senators, 
U.S. House Members, and worker advocates, voiced support for the 
addition of this language to explicitly disclose to prospective workers 
the opportunity for overtime pay. One of these commenters, Marylanders 
for Food and Farmworker Protection, explained that ``[p]roviding 
workers with clear expectations promotes fairness and prevents 
exploitation.'' Another commenter, m[aacute]sLabor, who voiced general 
support for this provision, acknowledged that workers need to know when 
overtime payment is applicable, and how much they may expect to be 
paid.
    The Department also received some comments in opposition to this 
specific proposal, stating that overtime payment is already a required 
data element of the job orders and the new provision is generally 
unnecessary. The two prevailing sentiments in opposition were: (1) 
payment of piece rates complicate the employers' ability to properly 
disclose what overtime rate will be applicable; and (2) the lawful 
reason for applicable overtime payment is irrelevant to workers. 
Related to the former, wafla suggested that the proposal is 
administratively overburdensome and that, ``[t]he proposed language is 
problematic for employers because requiring some

[[Page 33968]]

actual calculation of the wage is impossible and not accurate 
particularly when considering piece rate.'' Wafla provided an 
alternative, more simplified example of required language: ``Overtime 
will be paid at 1.5 times the weekly regular rate of pay for any hours 
exceeding 40 hours.''
    The New York State Farm Bureau explained, ``these piece rates vary 
due to factors often outside of farmers' control such as the weather, 
equipment, and type of commodity. This creates additional paperwork for 
farmers that are often hard to predict in order to include in a job 
order.'' Another complexity cited by the New York State Farm Bureau is 
due to a newly effectuated New York State law in which overtime for 
agricultural workers will be phased in over a period of 8 years, with a 
lowering threshold every other year.
    Another commenter, m[aacute]sLabor, did not object to the 
disclosure of overtime pay, if applicable, but opposed ``requir[ing] 
the employer to specify whether overtime is paid voluntarily by the 
employer or is required by law, and to cite the specific Federal, 
State, or local law requiring the payment of overtime pay.'' 
M[aacute]sLabor said ``[i]t is unclear why such disclosures are 
necessary, as the reason for overtime pay is completely irrelevant to 
prospective workers.'' M[aacute]sLabor also posited that explaining the 
legal requirements for applicable overtime pay would only serve to 
lengthen the job orders, confuse workers, and likely result in 
increased NOD findings from OFLC.
    NCAE asserted that data compiled by the National Agricultural 
Worker Survey indicate that in jurisdictions where overtime pay is 
applicable, workers' net earnings have declined due to those overtime 
payment requirements.
    With regard to the same proposal for the herding and range 
livestock production occupations, Colorado Legal Services submitted the 
only comment, which was a copy of the letter it and other organizations 
previously submitted in response to the 2015 herder rulemaking NPRM and 
generally supported increased worker protections.
    After consideration of all the comments received, the Department 
adopts the proposal and finalizes the new provisions at Sec. Sec.  
655.122(l)(4) and 655.210(g)(4) of this final rule. As discussed in the 
NPRM, the H-2A program does not mandate the payment of an overtime 
premium wage rate for hours worked exceeding a certain number in the 
day, week, or pay period. However, the FLSA's overtime requirements, as 
well as various State and local laws that require overtime pay, apply 
independently of the H-2A program's wage requirements. Some H-2A 
workers and workers in corresponding employment may be entitled to 
overtime pay under one or more of these laws. Pursuant to these 
authorities, an H-2A employer already must disclose in the job order 
any available overtime pay, whether required under Federal, State, or 
local law, or otherwise voluntarily offered by the employer. As noted 
in the NPRM, despite these existing authorities, OFLC and WHD 
frequently encounter H-2A job orders that either omit disclosure of, or 
fail to accurately describe, applicable overtime pay. Accordingly, the 
Department believes these new provisions are necessary and will provide 
needed transparency to workers regarding the terms and conditions of 
the employer's job opportunity. Failure to clearly and fully disclose 
any available overtime pay in the job order harms prospective workers 
who may be more interested in the job opportunity if they are aware of 
the availability of overtime pay. Incomplete or nonexistent disclosures 
also hamper the Department's ability to effectively administer and 
enforce the H-2A program requirements.
    The Department does not view this requirement as overly burdensome 
because the intent is to accurately disclose to the workers the 
availability of overtime pay, already a requirement under the existing 
regulations. However, the Department appreciates the opportunity to 
clarify that disclosure of the ``wage rate(s) to be paid'' under 
Sec. Sec.  655.122(l)(ii) and 655.210(g)(4)(ii) may be in the form of a 
formula such as ``1.5 times the regular rate of pay'' and is not 
required to be a specific dollar amount. Of course, where the specific 
dollar amount of the premium rate is known, the employer is free to 
disclose this. For example, the Department agrees with wafla's comment 
suggesting that language such as ``[o]vertime will be paid at 1.5 times 
the weekly regular rate of pay for any hours exceeding 40 hours'' 
should be sufficient to satisfy the requirements of the Sec. Sec.  
655.122(l)(4)(i) through (iii) and 655.210(g)(4)(i) through (iii), as 
long as the language accurately describes the employer policy or the 
local, State, or Federal standard applicable.
    Where the offer of overtime is pursuant to a Federal, State, or 
local law, the employer must explicitly disclose that as well, under 
Sec. Sec.  655.122(l)(4)(iv) and 655.210(g)(4)(iv), for example by 
adding ``according to the Fair Labor Standards Act'' or ``as required 
under California Industrial Welfare Commission Order 14-2001.'' Lastly, 
as it is the employer's responsibility to be aware of all laws to which 
it is subject, the employer should not incur an undue burden by 
disclosing what the law requires of it, or that it plans to voluntarily 
make overtime pay available to the worker.
    Further, the comment suggesting that the net earnings of the worker 
are decreased by the requirement to pay overtime when required by law 
is not relevant to the Department's proposal adopted here. This final 
rule does not newly mandate the payment of overtime pay, but rather 
furthers the Department's intent to increase transparency by requiring 
the disclosure of available overtime pay when otherwise required by law 
or voluntarily offered by the employer.
    As noted in the NPRM, this provision will align the Department's 
administration of the H-2A and H-2B programs more closely. The 
disclosures required under Sec. Sec.  655.122(l)(4) and 655.210(g)(4) 
in this final rule are similar to the overtime disclosure requirement 
under the H-2B program regulations at 20 CFR 655.18(b)(6).\44\
---------------------------------------------------------------------------

    \44\ See WHD Field Assistance Bulletin 2021-3, Overtime 
Obligations Pursuant to the H-2B Visa Program (Dec. 7, 2021), 
https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab_2021_3.pdf; Form ETA-9142B, H-2B Application for Temporary 
Employment Certification, Sec. F(b), https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/Form-ETA-9142B-1205-0509.pdf.
---------------------------------------------------------------------------

    Finally, the NPRM also proposed corresponding amendments to Form 
ETA-790A and Form ETA-9142A to include dedicated spaces for disclosure 
of any applicable overtime pay. The Department believes these revisions 
will improve the consistency and accuracy of disclosures of available 
overtime pay, thereby providing greater notice to prospective workers 
of the actual terms and conditions of the job opportunity and improving 
the Department's enforcement of any applicable overtime pay 
requirements.
e. Paragraph (n) Termination for Cause or Abandonment of Employment
    The NPRM proposed to revise Sec.  655.122(n) to define termination 
for cause. The Department stated that this revision was necessary 
because a worker who is terminated for cause no longer is entitled to 
the three-fourths guarantee (including meals and housing until the 
worker departs for other H-2A employment or to the place outside the 
United States from which the worker came (Sec.  655.122(i)); outbound 
transportation (Sec.  655.122(h)(2)); and, if a U.S. worker, to be 
contacted for work in

[[Page 33969]]

the next year (Sec.  655.153), each of which is an important protection 
that safeguards workers in the United States against adverse effect 
from the hiring of H-2A workers and ensures that H-2A workers are 
employed only when there are not sufficient able, willing, and 
qualified workers in the United States available to perform the work. 
Specifically, the NPRM proposed the creation of a new paragraph (n)(2) 
stating that a worker would be terminated for cause when the employer 
terminates the worker for failure to meet productivity standards or 
failure to comply with employer policies or rules. Further, the NPRM 
proposed that a worker would be terminated for cause only if six 
straightforward conditions--listed in in proposed paragraphs 
(n)(2)(i)(A) through (F)--were satisfied: the employee had been 
informed (in a language understood by the worker) of the policy, rule, 
or productivity standard, or reasonably should have known of the 
policy, rule, or productivity standard; if the termination is for 
failure to meet a productivity standard, such standard was disclosed on 
the job offer; compliance with the policy, rule, or productivity 
standard was within the worker's control; the policy, rule, or 
productivity standard was reasonable and applied consistently; the 
employer undertook a fair and objective investigation into the job 
performance or misconduct; and the employer engaged in progressive 
discipline to correct the worker's performance or behavior.
    In 20 CFR 655.122(n)(2)(ii), the NPRM proposed to define 
progressive discipline as a system of graduated and reasonable 
responses to an employee's failure to meet productivity standards or 
failure to comply with employer policies or rules. The NPRM also 
clarified that disciplinary measures should be proportional to the 
failure but may increase in severity if the failure is repeated, and 
may include immediate termination for egregious misconduct. This 
paragraph further stated that, following each disciplinary measure, 
except where the appropriate disciplinary measure is termination, the 
employer must provide relevant and adequate instruction to the worker; 
must afford the worker reasonable time to correct the behavior or to 
meet the productivity standard following such instruction; and must 
clearly communicate to the worker that a disciplinary measure has been 
imposed.
    In 20 CFR 655.122(n)(2)(iii), the NPRM proposed that termination 
for cause would not exist where the termination is contrary to a 
Federal, State, or local law; is for an employee's refusal to work 
under conditions that the employee reasonably believes will expose them 
or other employees to an unreasonable health or safety risk; is because 
of discrimination on the basis of race, color, national origin, age, 
sex (including sexual orientation or gender identity), religion, 
disability, or citizenship; or, where applicable, where the employer 
failed to comply with its obligations under Sec.  655.135(m)(4) to 
permit workers to designate a representative to attend a meeting that 
contributed to the termination.
    In 20 CFR 655.122(n)(2)(iv), the NPRM proposed that an employer 
would bear the burden of demonstrating that any termination for cause 
meets the requirements of paragraph (n)(2). The NPRM proposed to 
redesignate language in current Sec.  655.122(n) as a new paragraph 
(n)(3). Proposed paragraph (n)(4) listed the recordkeeping obligations 
associated with any termination for cause, including recordkeeping 
obligations in current Sec.  655.122(n) related to notification to the 
NPC and DHS, and new recordkeeping obligations if a worker were to be 
terminated for cause.
    The Department received a significant number of comments both in 
support and in opposition to the proposal. After reviewing comments, 
this final rule adopts the proposal with modifications, discussed 
below. This section will first discuss general comments and responses, 
and then will go into greater detail about comments relating to 
specific language in the proposed regulations.
General Comments and Responses
    Worker rights advocacy organizations, unions, commenters affiliated 
with academic institutions, workers, State labor and employment 
agencies, State Attorneys General representing 11 States, and some 
Members of Congress and individuals supported the proposal. An 
individual commented that this proposal would provide workers with an 
important safeguard against arbitrariness and injustice in the 
workplace, and another stated that the proposal would protect workers 
from being fired on a whim and would protect the livelihood of 
agricultural workers. Farmworker Justice stated that the proposal would 
make clear that arbitrary terminations, and terminations with no 
reasons given, are not for cause. Many of these commenters, including 
Farmworker Justice, the UFW Foundation, and a worker, echoed the 
Department's reasoning that clarification was necessary because of the 
serious consequences associated with a termination for cause, including 
that a worker terminated for cause is no longer entitled to payment for 
outbound transportation (including meals and housing until the worker 
departs for other H-2A employment or to the place outside the United 
States from which the worker came) under Sec.  655.122(h)(2); the 
three-fourths guarantee under Sec.  655.122(i); and, if the worker is a 
U.S. worker, the right to be contacted for employment in the subsequent 
year as required by Sec.  655.153. Commenters also identified that 
there were additional consequences associated with unjust termination. 
Farmworker Justice said that workers accepting an H-2A job often invest 
substantial resources in that job, including travel expenses and 
illegal recruitment fees, which are lost investments if the worker is 
terminated, and workers may lose access to other job opportunities. 
Farmworker Justice also stated that unjustly terminated U.S. workers 
may struggle to obtain unemployment benefits and find a subsequent job. 
The California LWDA also said that terminated workers may lose access 
to employer-provided housing. Many commenters, including 15 U.S. 
Senators and 11 State Attorneys General, also stated that a clear 
definition of termination for cause may encourage workers to exercise 
their rights because pretextual terminations would become more 
apparent.
    Conversely, employers, farm bureaus, agricultural associations, the 
Wyoming Department of Agriculture, employer representatives, State 
Attorneys General representing 22 States, one Senator, and some U.S. 
House Members and individuals opposed the proposed regulation. Many of 
these commenters, including AILA and Georgia Farm Bureau, questioned 
the Department's reasoning, stating that the Department only cited a 
few real-life examples of this issue that were insufficient to 
demonstrate that the problem warranted a regulatory change. Other 
commenters, including the New York and California Farm Bureaus, 
emphasized that workers are a valuable part of an employer's operations 
and that most employers terminate workers rarely, and only after 
careful consideration. Titan Farms, LLC stated that they have a 95-
percent return rate of workers each year and Northern Family Farms, LLP 
stated they have a 98-percent return rate of workers each year and a 
waitlist of potential workers seeking work on their farm. Some 
commenters stated that, in their view, the proposal implied that most 
users of the H-2A program were seeking to evade regulatory obligations.
    The Department recognizes that most employers using the H-2A 
program seek to comply with regulatory requirements

[[Page 33970]]

and treat their workers with dignity and respect. Employers invest 
significant resources in workers and most do not make termination 
decisions lightly. Further, the Department believes that many 
employers, prior to the publication of the NPRM, already operate under 
procedures that largely meet the standards finalized in this rule. Most 
of the criteria described in proposed Sec.  655.122(n)(2) are common-
sense criteria (e.g., the worker knows the rule, the rule is 
reasonable, and compliance is within the worker's control) that many 
workplaces have already implemented to protect against liability under 
other laws (e.g., anti-discrimination laws, anti-retaliation laws, and 
unemployment insurance laws), or simply to be fair and equitable in the 
workplace. Other criteria, such as the requirement that the employer 
engage in progressive discipline before terminating workers, ensure 
that workers are not terminated for minor, isolated infractions. 
Employers who terminate or discipline only after thoughtful 
consideration to ensure a fair and equitable process will be minimally 
affected by the final rule.
    Furthermore, the Department did not intend to suggest that most 
employers are seeking to evade program obligations. However, through 
its enforcement efforts, WHD regularly finds such conduct from 
employers. Sometimes WHD finds terminations that are predicated on 
unreasonable grounds. In a recent example, an H-2A worker was 
terminated for seeing a doctor after being instructed to do so by a 
crew leader. Other times, WHD finds that rules are created for the 
purpose of terminating a worker. For example, WHD found that an 
employer terminated a corresponding worker for allegedly stealing a can 
of soda from the employer's truck after the worker had been informed 
that the soda was theirs to take. Sometimes the reason for termination 
is simply pretext. In this same example, the termination of the 
corresponding worker occurred on the same day that an H-2A worker 
arrived, and the investigation determined that the employer was 
searching for an excuse to terminate the corresponding worker and 
replace them with the H-2A worker.
    Other times, WHD finds that employers inconsistently enforce rules 
and neglect to notify workers of minor transgressions that will 
ultimately result in termination. For example, an employer terminated 
six corresponding workers and provided most with no reason for their 
termination, but then presented WHD with evolving reasons, including an 
entire crew allegedly not performing well after weeks of training and 
workers taking unauthorized breaks. After settling on tardiness as the 
reason for termination, the employer could not provide any evidence of 
the tardiness, and the workers themselves did not recall that the 
employer counseled them for tardiness or informed them that tardiness 
was the reason for their termination. Although the employer eventually 
provided timecards documenting some tardiness, other workers similarly 
were tardy and were not terminated, suggesting that the reason for 
termination was pretextual.
    Sometimes WHD finds that employers simply tell workers they are no 
longer needed for the season, or stop providing work so that the 
workers grow desperate and leave allegedly of their own volition (even 
though such a circumstance constitutes constructive discharge). Other 
times, employers may try to disguise the termination as job 
abandonment. On more than one occasion, WHD has found that employers 
have required workers to sign ``voluntary'' resignation forms when, in 
fact, the workers were terminated.
    One commenter, the UFW Foundation, also provided examples of unjust 
terminations and discipline. For example, a Washington farmworker 
described that she and her husband were both terminated for 
``abandoning [their] work'' after the supervisor told them to go home 
for a few hours, and a Georgia farmworker stated that her employer 
arbitrarily and selectively used productivity standards against new H-
2A workers, inspecting the work of new H-2A workers and finding ``bad 
grapes'' to justify nonpayment of wages. The UFW Foundation also 
provided numerous examples of workers who were terminated because they 
asserted their rights. These types of schemes to evade program 
responsibilities are sufficiently common that the Department continues 
to believe that adoption of the proposal, with the modifications 
explained below, is warranted.
    Many commenters, including the U.S. Chamber of Commerce, NCFC, and 
Willoway Nurseries, stated that the proposal would be too complex and 
burdensome to implement, particularly for small farms. Many of these 
commenters stated that the proposed regulations would require employers 
to maintain a large human resources (HR) team and contract with 
employment law attorneys to ensure compliance, thus increasing costs 
for growers. Wafla estimated that a small employer would need at least 
80 hours to develop, train staff, and implement policies to comply with 
the proposal.
    Commenters opposed the proposal for a variety of other reasons. 
NCFC, AmericanHort, Willoway Nurseries, Michigan Farm Bureau, and FSGA 
stated that the proposal was unworkable even for larger growers because 
corrections and instructions occur on the fly in the orchard or field. 
They asked if instructing someone on how to do their job was a 
disciplinary action or training.
    U.S. Custom Harvesters, Inc. stated that the proposal was 
particularly difficult for custom harvesting operators because workers 
in that industry are often working without supervision in various 
locations. Some commenters, including USA Farmers, FFVA, and Seso, 
Inc., said that the parameters for termination were vague and 
subjective and would leave employers unsure as to whether they had 
complied with the proposed rule. M[aacute]sLabor, USA Farmers, McCorkle 
Nurseries, Inc., and an individual questioned whether the Department 
had exceeded its statutory authority. Wafla stated that employers need 
the right to terminate workers if they are not a good fit with the work 
culture and environment. NCFC, FFVA, AmericanHort, Willoway Nurseries, 
Michigan Farm Bureau, and FSGA stated that the regulation would chill 
an employer's ability to terminate so-called ``toxic employees'' and 
thus could expose employers to allegations of a hostile work 
environment. M[aacute]sLabor and an individual stated that the proposal 
stripped an employer of discretion on matters of worker misconduct. 
These commenters further provided the example of a worker who was 
openly insubordinate and obscene in the workplace, and they suggested 
that the employer would be required to coach the worker on how not to 
be insubordinate and obscene and only take further action if the 
behavior continued. M[aacute]sLabor characterized the proposal as a 
``get out of jail free'' card. USA Farmers stated that the proposal 
would override American common law traditions of at-will employment, 
and the Cato Institute similarly stated that the proposal would 
terminate at-will employment on H-2A farms.
    First, the Department seeks to clarify a possible misunderstanding 
about employers' current obligations to H-2A and corresponding workers. 
The Department has long maintained that regulating the employment 
decisions made by an employer using the H-2A program is necessary to 
achieve statutory objectives--specifically, to ensure that H-2A workers 
are employed only when there are insufficient qualified, able, and 
available U.S. workers to complete the work, and to

[[Page 33971]]

ensure that the employment of H-2A workers does not adversely affect 
the wages and working conditions of workers in the United States 
similarly employed, see 8 U.S.C. 1188(a)(1)--and has a long history of 
regulating in this space. For example, the job opportunity must remain 
open to U.S. workers until 50 percent of the work contract has elapsed 
(20 CFR 655.135(d)); U.S. applicants can be rejected only for lawful, 
job-related reasons (20 CFR 655.135(c)(3)); and the employer may not 
lay off a similarly employed U.S. worker unless all H-2A workers are 
laid off first (and even then only for lawful, job-related reasons) (20 
CFR 655.135(g)). Under both the regulations currently in effect and 
those adopted in this final rule, an H-2A worker or corresponding 
worker terminated without cause is entitled to the three-fourths 
guarantee (and other rights as well). These long-established 
obligations mean DOL has always required employers to comply with 
certain requirements relating to hiring and terminating workers while 
using the H-2A program. The regulations adopted in this final rule 
continue in this same vein.
    Second, many aspects of this proposal are not new and many 
employers likely already have developed policies for compliance. Since 
the inception of the H-2A program, and in the H-2 program before that, 
the Department has been required to make determinations as to what 
constitutes a for-cause termination.\45\ While there have not 
previously been regulatory factors outlining the requirements for a 
for-cause termination, the Department previously stated in Field 
Assistance Bulletin 2012-1 that ``it is important to inquire into the 
circumstances surrounding the termination of the worker's employment . 
. . because of the potential for the employer to mischaracterize 
termination for cause, the underlying facts of any such assertion 
should be explored through interviews and any other relevant 
documentation that can be obtained.'' \46\
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    \45\ See, e.g., Final Rule, Temporary Employment of Alien 
Agricultural And Logging Workers in the United States, 43 FR 10306, 
10315 (Mar. 10, 1978) (1978 Final Rule) (employer need not pay 
outbound transportation for workers terminated for cause); 1987 H-2A 
IFR, 52 FR 20496, 20501, 20515 (where a worker is terminated for 
cause, the worker is not entitled to the three-fourths guarantee and 
the employer need not pay outbound transportation).
    \46\ WHD, 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/sites/dolgov/files/WHD/legacy/files/fab2012_1.pdf.
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    Historically, when determining whether a worker has been terminated 
for cause, the Department has reviewed all relevant factors, including, 
for example, the reasonableness of the rule, consistent application of 
a rule among employees, and whether the employer fairly reviewed the 
misconduct or job performance. The Department similarly reviews all 
facts of the case when investigating allegations of retaliatory 
termination or improper discharge of U.S. workers in the H-2A program, 
as well as alleged violations of other laws that the Department 
enforces (e.g., if a worker is terminated for taking leave to which 
they are entitled under the Family and Medical Leave Act).
    In the examples listed earlier in this section, WHD cited 
violations, computed back wages, and assessed civil money penalties 
because workers were terminated not-for-cause and the employer failed 
to provide the required remedies. Factors that alerted WHD that the 
terminations were not-for-cause included items such as the 
reasonableness of the termination (e.g., an employer tells a worker to 
see a doctor and then terminates them for doing so, or a worker was 
specifically informed that he could take a soda and then terminated for 
doing so), and consistent application among employees (e.g., all 
workers are late, but only some were terminated for lateness). In these 
enforcement efforts, WHD applied the Department's understanding of what 
criteria signify termination-not-for-cause, and in the final rule, the 
Department codifies many of these criteria in regulation. Codifying 
these criteria will aid WHD's enforcement efforts and will allow 
employers to more fully understand the scope of their obligations and 
to better manage their workplaces.
    These criteria are not unique to laws that WHD enforces. Similar, 
albeit not identical, criteria exist in other laws as well. State 
unemployment compensation laws, which should be familiar to most 
employers, generally define eligible recipients as having separated 
from work through no fault of their own (among other criteria).\47\ 
Therefore, an employer challenging an unemployment claim is accustomed 
to showing that, for example, a worker was terminated because of 
willful misconduct, as opposed to a termination that was no fault of 
the worker. Many State laws deny unemployment benefits to workers 
discharged because they were in ``knowing violation of a reasonable and 
uniformly enforced rule,'' \48\ and, in interpreting their own laws, 
State courts may review factors such as whether a rule or policy was 
consistently enforced, whether the worker knew or should have known 
about the policy or rule, and whether the rule was reasonable. See, 
e.g., Coahoma Cty. v. Miss. Emp. Sec. Comm'n, 761 So. 2d 846, 849-50 
(Miss. 2000) (finding that a worker was not engaged in misconduct 
because the rule was not fair and consistently enforced); Rios Moreno 
v. Ariz. Dep't of Econ. Sec., 873 P.2d 703, 705 (Ariz. Ct. App. 1994) 
(finding that the worker was not engaged in misconduct because there 
was no evidence that he should have known of the rule he was claimed to 
have violated); Caterpillar, Inc. v. Unemployment Comp. Bd. of Rev., 
703 A.2d 452, 456-57 (Pa. 1997) (finding that a violation of a rule 
cannot be considered willful misconduct if the rule was applied in an 
unreasonable manner). There are significant parallels between 
unemployment insurance laws and the H-2A termination for cause 
provision. Under both, the employer may terminate workers for any 
lawful reason, but may have financial or other obligations to workers 
who are terminated for reasons outside of the worker's control, whether 
not-for-cause (under H-2A), or through no fault of the worker (under 
unemployment insurance laws). Additionally, in the context of Federal 
and State anti-retaliation and anti-discrimination protections, courts 
routinely cite inconsistent or disparate discipline as evidence of 
pretext for an unlawful termination. See, e.g., Chattman v. Toho Tenax 
Am., Inc., 686 F.3d 339, 348-49 (6th Cir. 2012); Gordon v. United 
Airlines, Inc., 246 F.3d 878, 8992-93 (7th Cir. 2001); Graham v. Long 
Island R.R., 230 F.3d 34, 43 (2d Cir. 2000).
---------------------------------------------------------------------------

    \47\ See ETA, Unemployment Insurance Fact Sheet, https://oui.doleta.gov/unemploy/docs/factsheet/UI_Program_FactSheet.pdf 
(last accessed Feb. 8, 2024); ETA, The Comparison of State 
Unemployment Insurance Laws (2023), https://oui.doleta.gov/unemploy/pdf/uilawcompar/2023/complete.pdf (last accessed April 4, 2024).
    \48\ See, e.g., Conn. Gen. Stat. Ann. Sec.  31-236(a)(16)(B) 
(2022); Iowa Code Sec.  96.5(2)(d)(2) (2023); Mass. Gen. Laws ch. 
151A Sec.  25(e) (2018).
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    The Department acknowledges that some aspects of this final rule as 
adopted--specifically, the requirements that an employer engage in 
progressive discipline and maintain particular records (Sec.  
655.122(n)(2)(i)(E) and (n)(4)(ii)-(iii))--may require some employers 
to develop new procedures for compliance. However, the Department 
believes that these aspects of the proposal complement the other 
provisions to ensure that any for-cause termination is sufficiently 
warranted by the disciplinary circumstances and that a record of those 
circumstances exists.
    As explained in the NPRM, progressive discipline ensures that

[[Page 33972]]

workers are not harshly punished for minor, first-time infractions and 
reinforces the conditions for termination found in Sec.  
655.122(n)(2)(i), specifically that rules, policies, and productivity 
standards are communicated to the workers and are reasonable. See 88 FR 
63783. A for-cause termination nullifies a worker's entitlement to 
important protections (Sec. Sec.  655.122(h)(2), 655.122(i), and 
655.153) that serve the statutory purpose of preventing adverse effect 
on the wages and working conditions of similarly employed workers in 
the United States, and ensuring that an employer only hires H-2A 
workers when there are insufficient able, willing, and qualified 
workers in the United States.\49\
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    \49\ See the NPRM for a more extensive analysis as to how the 
protections afforded by Sec.  655.122(h)(2), Sec.  655.122(i), and 
Sec.  655.153 protect against adverse effect to the wages and 
working conditions of similarly employed workers in the United 
States and ensure that H-2A workers are only hired if there are 
insufficient workers who are able, willing, qualified, and available 
to do the work. See 88 FR 63781.
---------------------------------------------------------------------------

    The Department therefore has a responsibility pursuant to 8 U.S.C. 
1188(a)(1) to ensure that an employer is relieved of these obligations 
only in situations where the employer has sufficient justification to 
terminate a worker for cause. The protections afforded by Sec. Sec.  
655.122(h)(2) (outbound transportation), 655.122(i) (three-fourths 
guarantee, including meals and housing until the worker departs for 
other H-2A employment or to the place outside the United States from 
which the worker came), and 655.153 (the right of a U.S. worker to be 
contacted for work in the next year) lose all meaning if any infraction 
or failure to meet performance standards, no matter how minor or 
occasional, results in the loss of those protections. A progressive 
discipline process applied in a rational and consistent manner to all 
employees with similar infractions ensures that consequences are 
commensurate with the severity of the infraction and that the most 
serious consequences (i.e., termination) are reserved for the most 
serious offenses. However, a progressive discipline process also 
acknowledges that frequent minor infractions may compound the severity 
of misconduct and provides employers with the tools to manage their 
workforce, up to and including termination for a frequent violator of a 
relatively non-serious rule (e.g., arriving late for work) if all the 
proposed criteria for for-cause termination have been met.
    In response to criticisms both that the proposal was too complex 
and too vague, the Department recognizes that the complexity of 
administrative and management procedures will vary among employers. 
Procedures developed by a small family farm with two employees will 
look very different than those developed by a corporation with 
thousands of workers. Owing to these differences, as well as to the 
unique circumstances in different regions and industries, the 
Department opts to maintain flexibility in the regulations for 
employers to develop their own progressive discipline system and 
maintain supporting records. While many commenters interpreted this 
flexibility as being too vague, the Department continues to believe 
that this flexibility allows employers to develop and implement the 
systems that work best for their businesses. A progressive discipline 
system need not be overly complex to comply with the Department's 
definition. In its enforcement, the Department will accept progressive 
discipline and recordkeeping systems as compliant so long as they 
conform with the regulatory requirements described in Sec.  
655.122(n)(2)(ii) and 655.122(n)(4). Similarly, the Department declines 
to identify certain behaviors as being worthy of termination or not as 
it believes that the circumstances surrounding these behaviors is 
crucial to determine the appropriate action and this final rule 
provides the employer with the appropriate framework to make these 
determinations, including by allowing for immediate termination for 
egregious misconduct, discussed in greater detail below.
    The Department disagrees with commenters who stated that the 
proposal, and particularly progressive discipline, is inappropriate for 
use in agricultural settings or by small growers. Use of progressive 
discipline, and maintenance of the associated records, permeates the 
employment landscape in the United States, including in agricultural 
industries. Some organizations supporting the agricultural industry 
writ large or specific agricultural sectors provide resources and 
guidance to assist agricultural employers to implement progressive 
discipline systems that may be adaptable to H-2A program requirements. 
Some employers already disclose progressive discipline policies in 
their job orders \50\ and one anonymous employer commented that they 
already had a progressive discipline system. Similarly, a Departmental 
ALJ has previously held an employer liable for the three-fourths 
guarantee and transportation costs after finding that the employer 
terminated a worker without following the progressive discipline 
process that it disclosed in the job order.\51\
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    \50\ See, e.g., H-300-23035-750680: ``Violation of these rules 
will be disciplined as follows First offense: Oral warning and 
correction. Second offense: Written warning and unpaid leave for 
balance of day. Third/Final Offense: immediate job termination.'' H-
300-22333-610058: ``The employer generally uses a 3-step 
disciplinary process: (1) verbal warning for first violation; (2) 
written warning for second violation; and (3) termination upon third 
violation. Certain violations are so severe that they may result in 
termination without prior warning.''
    \51\ See In re John Peroulis & Sons Sheep, Inc., ARB Case No. 
2013-0083, 2015 WL 4071576 (June 15, 2015), at *2, n. 5 (quoting the 
work contract as disclosing that ``[t]ermination may be carried out 
by the employer but only after two written warnings (not necessarily 
for the same offense). The warnings will be written in a language 
understandable to the worker and the worker will be given an 
opportunity to sign the warning. Termination may be carried out 
without first having issued any warning if the employee's offense is 
of a severe or emergency nature such as a threat to the life, safety 
and/or health of the worker, livestock, or others; or, is the 
intentional destruction of property.'') See also In re John Peroulis 
& Sons Sheep, Inc., ALJ Case No. 2012-TAE-00006 (ALJ Mar. 19, 2013) 
(Order on Cross-Motions for Summary Decision); (ALJ June 27, 2013) 
(Decision and Order); re-issued on different grounds after remand 
(ALJ May 24, 2017) (Order on Remand).
---------------------------------------------------------------------------

    Some commenters characterized the recordkeeping provisions 
(especially pertaining to records of discipline that do not ultimately 
result in termination) as a significant portion of the perceived burden 
of the progressive discipline system. The Department emphasizes that 
recordkeeping need not be complex or take any particular format 
(although it should be understandable to the worker and to outside 
parties, such as WHD investigators). Therefore, the Department will 
accept recordkeeping in any format (e.g., handwritten notes, computer 
spreadsheet, notation in worker file), so long as the content complies 
with the regulations. That is, the records must document each 
infraction and step of progressive discipline, any evidence the worker 
presented in their defense, any investigation related to the 
discipline, and any subsequent instruction afforded the worker, in 
compliance with Sec.  655.122(n)(4)(ii). Additionally, the employer 
must provide a copy of this documentation (except for a record of any 
investigation related to the discipline) to the worker in a language 
understood by the worker within 1 week of the implementation of the 
disciplinary measure, in compliance with Sec.  655.122(n)(4)(i)(E).
    These records form an important part of the progressive discipline 
process; without the records, the employer would be unable to show the 
record of misconduct or failure to comply with

[[Page 33973]]

performance expectations that ultimately resulted in the termination. 
While the Department recognizes many employers will be required to 
maintain disciplinary records even when workers are not terminated, 
these records are relevant for two reasons: (1) in case the misconduct 
or failure to meet performance standards eventually rises to the level 
or the frequency at which termination is necessary; and (2), to show 
consistent application of disciplinary procedures amongst the 
employer's agricultural workforce. These records may also provide the 
employer with exculpatory evidence if under investigation for illegally 
terminating a U.S. worker in violation of Sec.  655.135(g), retaliating 
against a worker for engaging in a protected right in violation of 
Sec.  655.135(h), or engaging in discriminatory behavior in violation 
of Federal or State anti-discrimination laws.
Comments on Specific Provisions
    The paragraphs below describe and discuss the comments on specific 
provisions. In the NPRM, the Department did not propose substantive 
changes to language in Sec.  655.122(n)(1) (which outlines the process 
for notifying authorities about the abandonment or termination for 
cause of a worker and the obligations of which the employer is relieved 
upon proper notification), but received one comment, and ultimately 
does not adopt changes to that paragraph in this final rule. The NPRM 
proposed in Sec.  655.122(n)(2) to define termination for cause, 
establish six conditions to be satisfied in order for a termination for 
cause to exist, list reasons for termination that would not constitute 
termination for cause, and require the employer to bear the burden of 
demonstrating that any termination for cause meets these requirements. 
The Department received comments on these provisions, and this final 
rule clarifies the definition of termination for cause; finalizes five 
conditions, not six, that must be satisfied in order for a termination 
for cause to exist; clarifies among whom a policy, rule, or performance 
expectation must be consistently applied; adds a definition of 
egregious misconduct; lists additional reasons for termination that 
would not constitute termination for cause; and makes other minor edits 
as described in more detail below. The NPRM did not propose substantive 
changes to language in Sec.  655.122(n)(3) (regarding when job 
abandonment begins), received one comment, and does not adopt changes 
in this final rule. The NPRM proposed some changes to recordkeeping 
obligations in Sec.  655.122(n)(4) and received comments, and this 
final rule adopts the proposed language with a minor clarification.
Consequences for a Worker Terminated for Cause or Who Voluntarily 
Abandons Employment, Sec.  655.122(n)(1)
    The NPRM did not propose substantive changes to the language in 
this paragraph, which outlines the consequences for a worker who is 
terminated for cause or voluntarily abandons employment--namely, loss 
of access to the three-fourths guarantee; payment for outbound 
transportation; and, if a U.S. worker, the right to be called back for 
work the next year. Farmworker Justice suggested that the provision be 
expanded to require employers to ``call-back'' any H-2A workers who 
were not terminated for cause for the next year's contract. The 
Department declines to make this change as it did not propose any such 
revisions in the NPRM.
Definition of Termination for Cause, Sec.  655.122(n)(2)
    As described earlier in this section, the NPRM proposed that a 
worker would be terminated for cause when the employer terminates the 
worker for failure to meet productivity standards or for failure to 
comply with employer policies or rules. This final rule adopts the 
proposed regulation with modifications. Specifically, in this final 
rule, the Department removes the specific reference to ``productivity 
standards'' and defines termination for cause as occurring when the 
employer terminates the worker for failure to comply with employer 
policies or rules or satisfactorily perform job duties in accordance 
with reasonable expectations based on criteria described in the job 
offer.
    Some commenters, including Northern Family Farms, LLP, McCorkle 
Nurseries, Inc., and NCAE, stated that the definition as proposed was 
too narrow because it did not allow for terminations for qualitative 
reasons. Commenters stated that qualitative evaluations are essential 
for an employer's ability to manage its workforce and hold workers to 
appropriate standards, and that growers producing fresh market produce 
(i.e., produce for sale in the grocery store) are likely to emphasize 
quality of work over quantity produced, which would be measured by a 
productivity standard. M[aacute]sLabor stated that the NPRM was 
ambiguous as to whether a failure to comply with employer policies or 
rules would allow for qualitative criteria.
    The Department agrees with commenters that an employer's ability to 
manage their workforce by assessing work quality is essential. Not all 
work is quantifiable and, even when quantifiable, the quality of work 
performed may be of equal or greater importance than the speed at which 
it is performed. For example, a worker who harvests peaches such that 
every peach is bruised may not be performing up to the employer's 
standards, even if meeting outlined productivity standards. In the 
NPRM, the Department intended the term ``employer policies and 
procedures'' to include qualitative criteria for evaluation. However, 
commenters stated that the proposed regulatory language was unclear on 
this point. As such, the Department modifies the proposal to explicitly 
include qualitative criteria for evaluation, as explained more fully 
below. M[aacute]sLabor also stated that it was reasonable for the 
Department to require employers to articulate in the job offer the 
standards by which workers are measured, including the level of skill 
and care exhibited in the performance of duties (e.g., performing 
duties in a careful manner that protects the marketability of the 
crop). The Department agrees and has incorporated the agent's feedback 
into this final rule as described below.
    The Department modifies the definition to allow for termination for 
cause if a worker fails to ``satisfactorily perform job duties in 
accordance with reasonable expectations based on criteria listed in the 
job offer.'' The Department intends for the term ``criteria'' to be 
broad and encompass the components of a job offer, including job 
qualifications and requirements as described in Sec.  655.122(b), and 
job duties. If terminating a worker for failure to satisfactorily 
perform job duties, the employer must be able to identify the specific 
criteria described in the job offer upon which they are basing the 
termination. If a job duty is not included in the job offer, failure to 
satisfactorily perform that job duty is not a valid reason for 
termination for cause. The Department includes the term ``reasonable 
expectations'' in the regulatory text to allow for some flexibility in 
applying broad or general criteria. The Department uses the same 
definition of ``reasonable'' as discussed in the preamble corresponding 
with proposed Sec.  655.122(n)(2)(i)(D).\52\
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    \52\ Proposed Sec.  655.122(n)(2)(i)(C).
---------------------------------------------------------------------------

    After consideration of these comments, the Department removes the 
explicit reference to productivity standards in the adopted regulatory 
language. However, if an employer uses productivity standards to 
evaluate employees or as a condition of job

[[Page 33974]]

retention or both, that employer would be required to describe this 
standard as one of the criteria in the job offer to comply with both 
this section and Sec.  655.122(l)(3).
    M[aacute]sLabor also suggested that the Department require that 
employers disclose behavioral attributes (such as not taking excessive 
breaks during productive hours, no loafing or recalcitrance, and an 
ability to maintain respectful and positive relations with supervisors 
and other workers) in the job offer when those attributes may serve as 
a basis for termination. The Department declines to make this change. 
The Department believes that such behavioral attributes better fit 
within the realm of policies and rules, and previously stated in the 
NPRM that policies and rules need not be disclosed in the job offer 
(although they must be clearly communicated to the workers). See 88 FR 
63782. The Department continues to believe that it should not require 
all policies and procedures to be disclosed in the job offer, as 
policies and rules may be extensive and fill an entire sizable employee 
handbook. However, while the Department will not require it, an 
employer may include whatever policies and rules in the job offer that 
it deems appropriate, as long as they do not conflict with applicable 
law or regulation. As Sec.  655.122(n)(2)(i)(A) requires that the 
worker be informed of the policy or rule, and Sec.  655.122(n)(iv) 
states that the employer has the burden of showing that any termination 
for cause meets the requirements of paragraph (n)(2), inclusion of the 
policy or rule in the job offer will document to the Department's 
satisfaction that the worker was informed of the policy or rule, so 
long as the job offer was accurately communicated to the worker 
(usually via a copy of the work contract provided in compliance with 
Sec.  655.122(q)). The Department notes that many job orders currently 
include policies and rules, such as policies pertaining to cell phone 
usage.
Conditions for Termination for Cause: Worker Knowledge, Sec.  
655.122(n)(2)(i)(A)
    The first of these conditions is that the employee has been 
informed (in a language understood by the worker) of the policy, rule, 
or productivity standard, or reasonably should have known of the 
policy, rule, or productivity standard. The Department adopts the 
proposal with minor modifications for readability and conformance with 
changes to Sec.  655.122(n)(2) as explained below.
    There were no comments explicitly in opposition to this first 
criterion. Farmworker Justice emphasized that this criterion is 
critical to any termination for cause provision and provided numerous 
suggestions as to how to strengthen this provision. These suggestions 
included requiring employers to inform workers in a variety of formats 
to ensure accessibility--including using images to communicate to 
workers with low literacy skills and large font size and easy-to-read 
fonts for workers with visual impairments--and they stated that workers 
need the opportunity to ask questions. Farmworker Justice also 
suggested that all policies and rules be individually provided in 
writing to the workers, that policies and rules not be permitted to be 
communicated solely in meetings or via posters, and that the employer 
has the burden to show that it has a policy and that any union received 
a copy of the policy. Farmworker Justice also urged the Department to 
interpret ``reasonably should have known'' narrowly and place the 
burden on the employer to show why a worker reasonably should have 
known about any rules or policies that were not explicitly 
communicated. The Department declines to make further changes to the 
regulation as it believes that this final rule addresses many of the 
commenter's concerns as discussed below.
    The regulation as proposed and as finalized requires that the 
worker be informed (in a language understood by the worker), or 
reasonably should have known, of the policy, rule, or performance 
expectation. If an employer informs a worker of a policy or rule in 
such a way that the worker could not reasonably be expected to 
understand, the Department will not consider that worker to be informed 
of the policy or rule. The Department will review on a case-by-case 
basis whether the worker reasonably could be expected to understand the 
policy or rule in the way that it was communicated. The Department 
declines to require employers to provide all policies and rules in 
writing and individually to workers. The Department appreciates the 
commenter's concerns that information provided in meetings may be 
unclear and that workers may be reluctant to review posters and expects 
that many employers will provide many policies and rules in writing 
(e.g., in an employee handbook or a list of rules). However, the 
Department believes that verbal notices, meetings, and posters may be 
effective avenues for employers to communicate important information to 
workers, and sometimes may be more effective than dissemination of a 
written policy that the worker may not read. The Department will not 
consider a worker to be informed of a policy or rule if the 
communication occurs in a meeting where the worker is unable to hear or 
understand, or via a poster that workers are discouraged from reviewing 
or placed in a location that workers do not frequent. Additionally, the 
Department reminds employers that, in an investigation by the 
Department, WHD will confirm that the worker has been informed, or 
reasonably should have known, of the rule or policy--i.e., the meeting 
or verbal notice occurred, the employer disseminated the written 
notification, or the employer posted the poster.
    Additionally, the Department revises Sec.  655.122(n)(2) to require 
that employers disclose in the job offer all criteria for evaluation, 
not just productivity standards. The work contract, which must be 
provided in writing no later than when an H-2A worker applies for the 
visa or the first day that a corresponding worker begins work, Sec.  
655.122(q), discloses the terms of the job offer and thus should 
include these criteria. The provision of this document while the H-2A 
worker remains in their home country allows them to review terms and 
conditions with trusted family, friends, or advisors. The Department 
believes that this will alleviate some of the commenter's concerns.
    As stated in the preamble to the NPRM, if the employer does not 
explicitly communicate the policy or rule, the Department will review, 
in the event of a termination, on a case-by-case basis, whether a 
reasonable person would know that the policy or rule exists. For 
example, a reasonable person would know that conduct that is obviously 
illegal, such as unlawful sexual harassment or assault, can be a basis 
for discipline or termination. Similarly, a reasonable person would 
know that purposefully damaging the crop would be a basis for 
discipline or termination. See 88 FR 63782.
    With respect to the suggestion that the regulation clarify that the 
employer has the burden of proof that it has informed workers of 
policies and rules, or that workers reasonably should have known of the 
policy or rule, Sec.  655.122(n)(2)(iv), both in the NPRM and as 
adopted in this final rule, already communicates this. The Department 
declines to require an employer to provide any union with a copy of 
rules and policies as the Department believes that this would be a 
significant policy proposal warranting greater development and public 
feedback via the rulemaking process. However, a worker may share

[[Page 33975]]

documents related to their employment with whomever they wish, 
including unions, and an employer may not retaliate against a worker 
for having done so when such sharing constitutes protected activity 
under Sec.  655.135(h) or is in furtherance of such protected activity. 
For example, if a worker seeks advice from a legal services provider or 
other representative regarding a proposed disciplinary action or 
deduction from wages, or consults with other workers regarding whether 
they are being paid the proper piece rate as required by the job order, 
such activity would be protected.
Conditions for Termination for Cause: Compliance Is Within the Worker's 
Control, Sec.  655.122(n)(2)(i)(B) \53\
---------------------------------------------------------------------------

    \53\ Proposed Sec.  655.122(n)(2)(i)(C).
---------------------------------------------------------------------------

    The Department proposed that the third criterion for termination 
for cause (second as adopted in this final rule) would require that 
compliance with the policy, rule, or productivity standard is within 
the worker's control. The Department adopts this proposal with a minor 
edit to change ``productivity standard'' to ``performance 
expectations'' to conform with edits to Sec.  655.122(n)(2), and 
redesignates the paragraph as (n)(2)(i)(B).
    No commenters explicitly opposed this criterion. Farmworker Justice 
asked the Department to provide additional details, examples, or both 
as to what would be evaluated to determine if compliance was within the 
worker's control. The Department will consider the following examples 
as illustrative of situations where compliance with a policy, rule, or 
performance standard may fall outside the worker's control: the 
appropriate tools or equipment are broken, faulty, or not provided; the 
crop is immature and not fully ready for harvest, but the worker is 
held to a productivity standard for a fully mature crop; workers are 
unable to meet productivity standards because of waiting time (e.g., 
for fields to dry, or for the product to be weighed and measured); 
performance is evaluated on a per-crew basis instead of a per-worker 
basis, and a worker has no control over their coworkers' performances; 
and all residents of a housing unit are held responsible for housing 
policy violations committed by one worker. These examples are intended 
to be illustrative, not exhaustive.
    Farmworker Justice also suggested that any disclosure of a 
productivity standard include a notice that workers with disabilities 
may request reasonable accommodation. The Department declines to make 
this change but will make referrals to the Equal Opportunity Employment 
Commission as appropriate. Additionally, the Department notes that 
employers must comply with all applicable Federal, State, and local 
laws and regulations during the period of employment that is the 
subject of the Application for Temporary Employment Certification. 20 
CFR 655.135(e).
Conditions for Termination for Cause: Reasonableness and Consistent 
Application, Sec.  655.122(n)(2)(i)(C) \54\
---------------------------------------------------------------------------

    \54\ Proposed Sec.  655.122(n)(2)(i)(D).
---------------------------------------------------------------------------

    The Department proposed that the fourth criterion (third as adopted 
in this final rule) would require that the policy, rule, or 
productivity standard is reasonable and applied consistently. This 
final rule adopts this proposal with minor edits to change 
``productivity'' to ``performance'' to conform with edits to Sec.  
655.122(n)(2), to confirm that consistent application must occur 
amongst the employer's H-2A workers and workers in corresponding 
employment, and to redesignate the paragraph as Sec.  
655.122(n)(2)(i)(C).
    M[aacute]sLabor stated that the term ``applied consistently'' left 
no room for consideration of degrees of severity in making termination 
decisions. M[aacute]sLabor stated that true congruency in employment 
decisions is impossible because the contributing factors are so varied. 
They suggested that the Department strike the term ``applied 
consistently'' and add qualifiers that expressly allow for discretion, 
such as degree of severity, whether the infraction is a first offense 
or a repeat violation, and whether termination considered other 
infractions or performance issues.
    The Department believes that it is reasonable to require an 
employer to apply rules, policies, and performance standards (both 
qualitative and quantitative) consistently among its workforce. It is 
fundamentally unjust to hold some workers to a standard or rule with 
which other workers are not required to meet or comply. However, the 
consequences of failure to comply with rules or standards may vary 
depending on the employer's progressive discipline policy as required 
by Sec.  655.122(n)(2)(ii). The Department believes that the language 
as adopted affords employers the flexibility to consider these 
additional qualifiers that m[aacute]sLabor suggested, such as degree of 
severity and frequency of the offense, when determining the appropriate 
disciplinary measure. Two workers with equivalent disciplinary records 
who both are equally tardy, or who both have equally failed to meet 
performance standards, should be subject to the same or equivalent 
discipline (or no discipline), depending on the employer's procedures. 
On the other hand, a worker who is 45 minutes tardy may face different 
consequences than a worker who is 3 minutes tardy. Similarly, as long 
as any disciplinary actions are undertaken as part of progressive 
discipline, a worker who is tardy every day may face different 
consequences than a worker who is tardy for the first time, and a 
worker with a legitimate excuse for tardiness may face different 
consequences than a worker without an excuse. In these examples, the 
employer has consistently enforced a rule (that workers should not be 
tardy) but is considering legitimate factors (such as severity of the 
violations, frequency of the infraction, and explanation from the 
worker) when determining appropriate disciplinary consequences. A 
progressive discipline system of the type that the Department proposed 
and adopts here, where discipline involves graduated and reasonable 
responses to worker misconduct or failure to meet performance standards 
and where disciplinary measures are proportional to the misconduct or 
failure but may increase in severity if the misconduct or failure is 
repeated, actually requires the employer to make determinations of the 
type the commenter suggested. The Department believes that this comment 
demonstrates the importance of a progressive discipline system as well 
as recordkeeping; an employer may impose a severe disciplinary measure 
after a relatively minor infraction because of a history of other 
offenses, but must be able to produce a record of those offenses.
    AILA, m[aacute]sLabor, wafla, and USA Farmers disagreed with the 
use of the term ``reasonable,'' saying that the term is too subjective. 
Farmworker Justice supported the provision, but recommended that the 
Department define how a rule, policy, or standard is reasonable. 
Farmworker Justice also suggested that the Department define housing 
rules as being reasonable only when the purpose is to preserve the 
safety and health of the workers. The Department believes that the term 
``reasonable'' is appropriate and sufficient in this provision and 
therefore declines to modify the regulation, and provides additional 
explanation in this section.
    The Department will consider a policy, rule, or performance 
expectation to be reasonable where it clearly represents the employer's 
permissible interests, meaning that the rule has a

[[Page 33976]]

clear relationship to the employer's legitimate business needs. This 
definition is consistent with how some State courts have interpreted 
the term ``reasonable'' in the context of unemployment benefits. See, 
e.g., Best Lock Corp. v. Review Bd. of Ind. Dep't of Emp. & Training 
Servs., 572 NE2.d 520 (Ind. Ct. App. 1991); Snyder Indus., Inc. v. 
Otto, 321 NW2d 77 (Neb. 1982). For example, the Department will not 
consider housing rules to be reasonable if they are unrelated to 
safety, health, legal, or other legitimate interests of the employer. 
Farmworker Justice stated that some workers have been terminated for 
``having too many cars at the labor camp''; the Department would not 
consider such a rule to be reasonable unless the employer can show that 
the number of cars at the labor camp affects the employer's legitimate 
interests.
    An employer's interest will not be considered legitimate where it 
is contrary to Federal, State, or local law. For example, the 
Department will not consider rules to be reasonable if they unduly 
restrict workers' movement or communication in off-work time (e.g., no 
cell phones permitted in the housing, or workers may only leave if 
escorted by a supervisor) or are discriminatory (e.g., women--but not 
men--residing in housing must ensure that the residence is maintained 
in a clean and tidy manner). To be considered reasonable, it must also 
be possible to comply with a policy, rule, or performance expectation, 
meaning that a worker can feasibly follow the rule or policy, or meet 
the performance expectation, in the context of the specific 
circumstances. The Department will consider all facts of the situation 
when determining whether compliance with the rule, policy, or 
performance expectation is possible.
    As stated earlier in this section, a requirement that rules and 
policies be reasonable and enforced consistently is not novel or unique 
to this final rule. Many State adjudicators examine the reasonableness 
and consistent enforcement of rules when determining when to award 
unemployment compensation, and selective enforcement of rules may also 
result in disparate treatment of similarly situated employees, thus 
indicating illegal discrimination. Even in the Department's H-2A 
enforcement, in the examples described earlier, lack of consistent 
application of rules or policies sometimes is used as evidence that the 
employer had terminated a worker not-for-cause. In other words, 
employers must already ensure that their rules are reasonable and 
consistently enforced.
    Farmworker Justice encouraged the Department to codify in 
regulations that productivity standards must be static, quantifiable, 
and objective. The Department believes that clarification in the 
preamble is sufficient, and notes that productivity standards no longer 
appear in Sec.  655.122(n) in this final rule (although they continue 
to appear in Sec.  655.122(l)(3) and this topic is discussed further in 
the corresponding preamble). Some commenters, including IFPA, TIPA, 
GFVGA, NHC, Titan Farms, LLC, and an individual, commented that the 
term ``applied consistently'' was unclear in terms of the comparators 
(i.e., among whom the rule should be consistently applied). Farmworker 
Justice suggested that the employer be required to show consistent 
applicability of a rule, policy, or standard across its corporate 
structure. This final rule clarifies that the rule, policy, or 
performance expectation must be applied consistently amongst the 
employer's H-2A workers and workers in corresponding employment. The 
Department believes that this is the appropriate class of comparators 
because these workers will be engaged in the same job duties at the 
same time. Policy and rule changes from year to year may occur, and 
therefore the Department does not think it necessary to require 
consistency over a longer period of time than that covered by an 
Application for Temporary Employment Certification. However, to the 
extent that workers do return year after year and encounter different 
policies, rules, and performance expectations, the employer should 
ensure the workers are aware of any changes to comply with Sec.  
655.122(n)(2)(i)(A). Where an employer has multiple Applications for 
Temporary Employment Certification and corresponding job orders 
covering different scopes of work at the same time, these groups of 
workers may be held to policies or performance expectations unique to 
the criteria listed in the job order (e.g., a supervisor employed under 
one job order may be held to a different standard of conduct than a 
non-supervisor employed under a different job order, or a truck driver 
employed under one job order may be required to maintain a Commercial 
Driver's License whereas a harvester employed under a different job 
order may not). While the Department understands Farmworker Justice's 
desire for consistency in all levels of a corporate structure, such a 
requirement may require an employer to hold workers in very different 
positions to the same standard, potentially resulting in illogical 
outcomes and contradicting the requirement found in Sec.  655.122(n)(2) 
of this final rule that performance expectations be based on criteria 
listed in the job order.
    Finally, Farmworker Justice stated that the employer should bear 
the burden of showing that policies, rules, and standards are applied 
consistently. The Department believes that this requirement is already 
incorporated in the regulations in Sec.  655.122(n)(2)(iii), which 
provides that ``the burden of demonstrating that any termination for 
cause meets the requirements'' in Sec.  655.122(n)(2) falls on the 
employer.
Conditions for Termination for Cause: Fair and Objective Investigation, 
Sec.  655.122(n)(2)(i)(D) \55\
---------------------------------------------------------------------------

    \55\ Proposed Sec.  655.122(n)(2)(i)(E) in the NPRM.
---------------------------------------------------------------------------

    The Department proposed that the fifth criterion (fourth as adopted 
in this final rule) would require that the employer undertake a fair 
and objective investigation into the job performance or misconduct. In 
this final rule, the Department adopts the language as proposed but 
redesignates the paragraph as (n)(2)(i)(D).
    M[aacute]sLabor stated that the terms ``fair'' and ``objective'' 
were unclear and subjective. M[aacute]sLabor requested that, absent a 
clear, unambiguous, and easily enforced and understood definition, this 
provision should be removed. Farmworker Justice supported the 
Department's proposal, but similarly requested clarification on what 
constituted a fair and objective investigation. The Department believes 
that these terms are clear given their common meanings and are often 
used in law without definition. See, e.g., O'Rourke v. City of 
Lambertville, 963 A.2d 339 (N.J. Super. Ct. App. Div. 2008); Adamovich 
v. Pa. Dep't of Pub. Welfare, 504 A.2d 952 (Pa. Commw. Ct. 1986). A 
fair and objective investigation means that an employer will evaluate 
the job performance or misconduct impartially and without favoritism, 
and that it will not assume that the worker engaged in misconduct or 
failed to meet performance expectations before reviewing relevant 
facts.
    Farmworker Justice also requested that the Department require 
specific steps in a fair and objective investigation, including 
informing the worker of the process; giving written notice of the 
allegations; and providing the worker an opportunity to provide 
information in response. The Department declines to make this edit, as 
these steps are covered in this final rule at Sec.  
655.122(n)(2)(i)(E), which provides a definition of progressive 
discipline that includes components

[[Page 33977]]

such as, among other things, notification, instruction by the employer, 
and opportunity to correct conduct. Finally, Farmworker Justice 
suggested that any fair and objective investigation include a worker 
interview with a competent interpreter, if necessary. Farmworker 
Justice noted that sometimes a supervisor with a biased viewpoint 
serves as interpreter in investigatory interviews. The Department does 
not believe that a worker interview will always be a necessary 
component of a fair and objective investigation, and therefore declines 
to expressly incorporate this requirement into the regulation. However, 
the Department cautions employers that, if it determines a supervisor 
acted in bad faith when interpreting (e.g., by deliberately 
mistranslating a worker's explanation to paint the supervisor in a 
better light), the Department may conclude that the employer did not 
conduct a fair and objective investigation. Additionally, this final 
rule requires an employer to permit any worker engaged in agriculture 
as defined and applied in 29 U.S.C. 203(f) to designate a 
representative to attend any investigatory interview that the worker 
reasonably believes might result in disciplinary action (see Sec.  
655.135(m)), and this representative may serve as an interpreter.
Conditions for Termination for Cause: Progressive Discipline, Sec.  
655.122(n)(2)(i)(E) \56\
---------------------------------------------------------------------------

    \56\ Proposed Sec.  655.122(n)(2)(i)(F) and (n)(2)(ii).
---------------------------------------------------------------------------

    The Department proposed that the sixth criterion (fifth in this 
final rule) would require that the employer correct the worker's 
performance or behavior using progressive discipline. Additionally, the 
Department proposed to define progressive discipline as a system of 
graduated and reasonable responses to an employee's failure to meet 
productivity standards or failure to comply with employer policies or 
rules. The Department further proposed that disciplinary measures 
should be proportional to the infraction, but may increase in severity 
if the infraction is repeated, and may include immediate termination 
for egregious misconduct.
    The NPRM also proposed that, prior to each disciplinary measure, 
the employer must notify the worker of the infraction and allow the 
worker to present evidence in their defense. Following each 
disciplinary measure, except where the appropriate disciplinary measure 
is termination, the employer must provide relevant and adequate 
instruction to the worker and afford the worker reasonable time to 
correct the behavior or meet the productivity standard following such 
instruction. The employer must document each disciplinary measure, the 
evidence the worker presented in their defense, and the resulting 
instruction, and must clearly communicate to the worker that a 
disciplinary measure has been imposed.
    This final rule adopts this proposal with minor edits. 
Specifically, the Department edits ``productivity standard'' to 
``performance expectation'' to conform with edits to Sec.  
655.122(n)(2), defines egregious misconduct in the regulation, 
clarifies that the infraction must be documented, and requires that the 
employer must provide a copy of documentation to the worker within one 
week of the disciplinary measure. Also, this final rule combines two 
separate paragraphs in the NPRM into one paragraph at Sec.  
655.122(n)(2)(i)(E). The Department received a substantial number of 
general comments, summarized above, both in support and in opposition 
to the inclusion of a progressive discipline condition. Comments on the 
regulatory language and specific components of a progressive discipline 
system are discussed in this section.
    Farmworker Justice stated that an employer's progressive discipline 
policies should articulate steps with specific examples of 
proportionality regarding common rule violations, such as tardiness. 
Farmworker Justice also stated that the Department's regulations should 
require consideration of mitigating and extenuating circumstances and 
list out the types of egregious behavior that could lead to immediate 
termination and the mitigating factors that must be considered. The 
Department declines to incorporate additional requirements for an 
employer's progressive discipline system into the regulation. As 
previously mentioned, the Department opts to maintain flexibility in 
the regulations for employers to develop their own progressive 
discipline system that may include consideration of mitigating and 
aggravating factors and maintain supporting records. The Department 
believes that this flexibility protects workers while allowing 
employers to develop and implement the systems that work best for their 
businesses.
    Farmworker Justice also suggested specific steps for a progressive 
discipline policy, including the requirements that an employer document 
each step in writing; prepare all documents contemporaneously; provide 
all documents to the worker within a short period of time; provide 
documentation to a worker union; communicate the consequences of any 
future misconduct or failure to meet performance standards; and provide 
a contemporaneously created written notice to the worker. Sections 
655.122(n)(2)(i)(E) and (n)(4) in this final rule already require an 
employer to document each disciplinary measure. The Department modifies 
Sec.  655.122(n)(2)(i)(E) in this final rule to require an employer to 
provide a copy of the resulting documentation to the worker, in a 
language understood by the worker, within 1 week of the implementation 
of the disciplinary measure. Even if the disciplinary measure is a 
verbal warning (which is often the first step of a progressive 
discipline system), the regulations (both as proposed and as adopted) 
require the employer to later document that verbal warning. Therefore, 
it should not be overly burdensome to provide a copy of that 
documentation to the worker, although additional time may be required 
to translate the documentation. Additionally, the Department believes 
that 1 week is sufficient time for any relevant instruction to be 
provided or planned. Because of this change, the Department removes the 
regulatory requirement that the employer must ``clearly communicate to 
the worker that a disciplinary measure has been imposed,'' as the 
provision of such documentation will communicate this concept.
    The Department declines to modify the regulations to require that 
documentation be maintained contemporaneously. Some corrections in the 
field will be verbal and, therefore, may not be documented until a 
manager or foreperson returns to the office that evening or the next 
day. Therefore, these records would not be created 
``contemporaneously'' in the strictest definition of the term. However, 
the requirement that documentation be provided to the worker within 1 
week means that documentation must be created within 1 week. The 
Department will view with great skepticism any documentation of 
disciplinary records that occurs significantly after the infraction 
occurs.
    The Department declines to require an employer to provide any union 
with a copy of disciplinary documentation as this would be a 
significant policy proposal warranting greater development and public 
feedback via the rulemaking process. However, the worker may share 
their own disciplinary records with whomever they wish, and an employer 
may not retaliate against the worker when such

[[Page 33978]]

sharing constitutes protected activity under Sec.  655.135(h) or is in 
furtherance of such protected activity, as described above. The 
Department also declines to require that the employer communicate the 
consequences of any future rule or policy violation. The consequences 
for a future rule or policy violation may vary depending on, for 
example, the severity of the future infraction. Therefore, an employer 
may not be able to communicate with certainty the appropriate next step 
in the progressive discipline process until the infraction or failure 
to meet performance standards occurs. However, the Department 
encourages employers to maintain as transparent a process as possible, 
and notes that employers may communicate to workers what the 
consequences would be for any future infraction if it has already 
determined what those consequences would be (e.g., if behavioral issues 
are so extensive and well documented that any future infraction, 
regardless of severity, will result in termination). This communication 
would constitute instruction to the worker as required by Sec.  
655.122(n)(2)(i)(E).
    In the preamble to the NPRM, the Department identified egregious 
misconduct as ``behavior that is plainly illegal or that a reasonable 
person would understand as being offensive, such as violence, drug or 
alcohol use on the job, or unlawful assault, as opposed to failure to 
meet performance expectations or productivity standards.'' 88 FR 63783. 
However, the Department did not include a definition of egregious 
misconduct in the proposed regulatory text of the NPRM. FLOC suggested 
that the Department define egregious misconduct in the regulations so 
that it is ``limited to instances of serious or gross misconduct, such 
as those involving violence, threats of violence or willful destruction 
of property.'' The Department agrees that a regulatory definition of 
egregious misconduct is useful and has added a definition to Sec.  
655.122(n)(2)(i)(E) in this final rule. This definition included in 
this final rule is similar to what the Department included in the 
preamble to the NPRM, but provides additional detail. Specifically, the 
Department defines egregious misconduct as intentional or reckless 
conduct that is plainly illegal, poses imminent danger to physical 
safety, or that a reasonable person would understand as being 
outrageous. The Department believes that this definition is 
sufficiently broad so that it will encompass all circumstances for 
which the appropriate discipline for a first-time offense is 
termination, but narrow enough that workers who commit minor 
infractions, or who commit infractions unintentionally and in a manner 
that cannot be considered reckless, will continue to be entitled to the 
progressive discipline protections in Sec.  655.122(n)(2)(i)(E). 
Importantly, failure to meet performance expectations will never 
constitute egregious misconduct. The Department also emphasizes that an 
employer terminating a worker for cause for egregious misconduct must 
meet all other conditions outlined in Sec.  655.122(n)(2)(i)(A) through 
(D) of this final rule.
    As with the description of egregious misconduct in the preamble to 
the NPRM, the definition in Sec.  655.122(n)(2)(i)(E) of this final 
rule includes conduct that is plainly illegal. Examples of plainly 
illegal conduct include battery and sexual assault.
    The description of egregious misconduct in the NPRM preamble 
included conduct that a reasonable person would understand as being 
grossly offensive. In Sec.  655.122(n)(2)(i)(E) of this final rule, the 
Department has clarified this definition by breaking it into two parts: 
conduct that poses imminent danger to physical safety, and conduct that 
a reasonable person would understand as being outrageous. Conduct that 
poses imminent danger to physical safety is behavior that could 
reasonably be expected to cause death or serious physical harm either 
to the worker or to others if not immediately stopped. An example of 
conduct that poses imminent danger to physical safety is a worker 
operating heavy machinery while drunk. Conduct that a reasonable person 
would understand as being outrageous is conduct that a reasonable 
person would understand as going beyond all possible bounds of decency 
to be regarded as atrocious and utterly intolerable. Examples of 
conduct that is outrageous include severe sexual harassment and racial 
harassment, and intentional destruction of property.
    This definition of egregious misconduct also includes a requirement 
that the conduct be intentional or reckless. This aspect of the 
definition is important to ensure that workers are not penalized with 
immediate termination for cause for unintentional errors, unless those 
errors are so careless and without regard for safety, decency, or the 
law that the worker's judgment cannot be trusted in the future.
    The Department also makes minor changes to this section for 
readability and to clarify that any documentation of the disciplinary 
measure must also record the infraction.
Conditions for Termination for Cause: Disclosure of Productivity 
Standards in the Job Order, Proposed Sec.  655.122(n)(2)(i)(A).
    The NPRM proposed that the second criterion for termination for 
cause would require that where termination is for failure to meet a 
productivity standard, such standard must be disclosed in the job 
offer. The Department does not adopt this proposal as it is now 
substantively included in the definition of termination for cause found 
in Sec.  655.122(n)(2). Any comments are discussed in the preamble 
corresponding with that section and with Sec.  655.122(l)(3).
Termination for Reasons That Are Not For-Cause, Sec.  
655.122(n)(2)(iii)
    The NPRM proposed four different reasons that could never be 
considered termination for cause, including where the termination is 
contrary to law; for an employee's refusal to work under conditions 
that the employee reasonably believes will expose them or other 
employees to an unreasonable health or safety risk; because of 
discriminatory reasons; or where the employer failed to comply with its 
obligations under proposed Sec.  655.135(m)(4) (finalized as Sec.  
655.135(m)) in an investigatory interview that contributed to the 
termination. This final rule adopts the proposal with minor 
modifications. Specifically, the Department adds ``familial status'' 
and changes ``citizenship'' to ``citizenship status'' as reasons for 
which an employer may not discriminate. The Department also changes 
``meeting'' to ``investigatory interview'' to conform with changes to 
Sec.  655.135(m).
    Farmworker Justice suggested that the Department provide further 
clarifying examples as to where the termination is contrary to a 
Federal, State, or local law. The Department would consider 
terminations to be contrary to applicable law where, for example, the 
termination is in retaliation for the worker filing for workers' 
compensation benefits; in retaliation for a worker taking leave to 
which they are entitled by law; and for refusal to take a lie detector 
test. Farmworker Justice also recommended that ``citizenship'' be 
replaced with ``citizenship status,'' and that ``family status'' be 
added. This final rule uses the term ``citizenship status'' because 
this term is used in 8 U.S.C. 1324b(a) prohibiting discrimination. This 
final rule also adds that discriminatory termination based on familial 
status will not be considered for cause; this change is consistent with 
State law in many

[[Page 33979]]

States \57\ and the Department believes that workers should not be 
penalized for (or for not) being married or having children. Moreover, 
discriminatory termination based on familial status would not 
constitute a for-cause termination because it would not have a clear 
relationship to the employer's legitimate business needs. The 
Department also reminds employers that any termination that does not 
meet the standards in Sec.  655.122(n)(2)(i) of this final rule will 
not be considered a for-cause termination, even if that termination is 
not for a reason explicitly prohibited in Sec.  655.122(n)(2)(ii).
---------------------------------------------------------------------------

    \57\ See, e.g., 775 Ill. Comp. Stat. 5/1-102(A), 5/1-103(Q) 
(prohibiting employment discrimination based on marital status); 
Minn. Stat. Sec.  363A.08 (prohibiting employment discrimination 
based on marital status and familial status).
---------------------------------------------------------------------------

    Farmworker Justice made a few suggestions that the Department 
declines to adopt for various reasons. Specifically, Farmworker Justice 
recommended that the Department clarify that termination is not for 
cause when done in retaliation against workers seeking improvements in 
worker housing. The Department declines to make this edit because this 
right exists under H-2A anti-retaliation regulations at Sec.  
655.135(h). Farmworker Justice also suggested that termination would 
not be for cause where the employer failed to comply with progressive 
discipline process. The Department believes that this final rule is 
already clear that termination for cause does not exist without 
progressive discipline (see finalized Sec.  655.122(n)(2)(i)(E)). 
Farmworker Justice additionally suggested that the Department clarify 
that termination is not for cause where the employer has failed to 
provide reasonable accommodations required by the ADA and other State 
and Federal laws. The Department declines to make this edit because 
this final rule already states that a termination that is contrary to a 
Federal, State, or local law will not be considered for-cause.
    Finally, Farmworker Justice suggested that the Department clarify, 
either in regulations or in other guidance, that refusing to lift 
excessive weight cannot be the basis for termination for cause because 
OSHA guidance recommends that workers not lift more than 50 pounds 
without assistance. The Department declines to make this edit because 
OSHA does not have a standard limiting how much a person may lift or 
carry; rather, the National Institute for Occupational Safety and 
Health (NIOSH) has a mathematical equation for calculating a 
recommended weight limit for one person, which is a maximum of 51 
pounds.\58\ Given that this is a recommendation, not a requirement, and 
because agriculture often involves heavy lifting, the Department 
declines to explicitly state that refusing to lift weight in excess of 
50 pounds cannot be the basis for termination for cause. However, WHD 
may still review, in the course of an investigation, whether a worker 
has refused to lift weight because they reasonably believed that doing 
so would expose them to an unreasonable health and safety risk.
---------------------------------------------------------------------------

    \58\ OSHA, OSHA procedures for safe weight limits when manually 
lifting, https://www.osha.gov/laws-regs/standardinterpretations/2013-06-04-0 (last accessed Feb. 8, 2024), and NIOSH, NIOSH Lifting 
Equation App: NLE Calc, https://www.cdc.gov/niosh/topics/ergonomics/nlecalc.html (last accessed Feb. 21, 2024).
---------------------------------------------------------------------------

The Employer Bears the Burden of Demonstrating That any Termination for 
Cause Meets Requirements, Sec.  655.122(n)(2)(iv)
    The Department proposed that the employer bear the burden of 
demonstrating that any termination for cause meets the requirements of 
Sec.  655.122(n)(2). No comments necessitated changes to the regulatory 
language, but the Department makes one non-substantive edit for 
readability, specifically replacing ``of this'' with ``in.'' Many 
agents, associations, and employers, including IFPA and GFVGA, opposed 
this provision, but did not provide a reason other than stating that 
employers did not terminate their employees to evade regulatory 
requirements. The California LWDA supported this provision because it 
aligned with their State policy and because the employer is the entity 
that drafts and implements the rules underlying the factors for 
termination.
Abandonment, Sec.  655.122(n)(3)
    The NPRM did not propose changes to regulatory language but 
proposed to redesignate the language describing abandonment in current 
paragraph Sec.  655.122(n) to a new paragraph Sec.  655.122(n)(3). The 
Texas Cotton Ginners' Association submitted comments suggesting that 
abandonment occur sooner than 5 days without reporting to work, but as 
the Department did not propose changes beyond renumbering, it did not 
consider this comment. The Department adopts the proposed redesignation 
in this final rule.
Recordkeeping, Sec.  655.122(n)(4)(i)-(iii)
    The NPRM proposed that, in addition to the records of notification 
of termination for cause or abandonment, the employer maintain 
disciplinary and termination records. This final rule adopts the 
proposal with minor edits for clarity. Specifically, in paragraph Sec.  
655.122(n)(4)(i), the Department clarifies that the employer must 
document the infraction in addition to each step of progressive 
discipline. All comments on this provision are covered in the section 
describing general comments.

C. Application for Temporary Employment Certification Filing Procedures

1. Section 655.130, Application Filing Requirements
a. The Department Proposes To Require Enhanced Disclosure of 
Information About Employers: Owners, Operators, Managers, and 
Supervisors
    The Department proposed to expand its collection of information 
about employers and the managers and supervisors of workers at places 
of employment by collecting additional information about the owner(s) 
of agricultural businesses that employ workers under the H-2A 
Application, the operators of the place(s) of employment identified in 
the job order, and the managers and supervisors of the workers 
performing labor or services at those place(s) of employment. OFLC 
currently requires an employer to disclose information about the 
identity of the employer and its agent or attorney; the places where 
work will be performed; and, when requested by the CO, the employer's 
use of a foreign labor recruiter. See Sec.  655.135(k); Form ETA-9142A; 
Form ETA-790A; Form ETA-790A, Addendum B. Obtaining this information is 
necessary for the Department to assess the nature of the employer's job 
opportunity, monitor program compliance, and protect program integrity. 
For example, employers must identify in the H-2A Application and job 
order all places of employment and provide identifying information like 
the FEIN and DBA name on the Form ETA-9142A, Form ETA-790A, and Form 
ETA-790A, Addendum B.
    In the NPRM, the Department proposed to require that each 
prospective H-2A employer, as defined at 20 CFR 655.103(b), provide the 
following information in relation to the owner(s) of each employer, any 
person or entity (if different than the employer(s)) who is an operator 
of the place(s) of employment, including an H-2ALC's fixed-site 
agricultural business client(s), and any person who manages or 
supervises the H-2A workers and workers in corresponding

[[Page 33980]]

employment under the H-2A Application: full name, date of birth, 
address, telephone number, and email address.
    The Department also proposed to revise the Form ETA-9142A to 
require that the employer provide additional information about prior 
trade or DBA names the employer used in the 3 years preceding its 
filing of the H-2A Application, if any, rather than collecting only the 
DBA name the employer currently uses. Accordingly, the Department 
proposed to revise and restructure Sec.  655.130 by adding four new 
paragraphs, (a)(1) through (4), to specify the information employers 
must provide at the time of filing an H-2A Application.
    In a new paragraph (a)(1), the Department proposed to retain the 
first sentence currently in Sec.  655.130(a), which addresses the H-2A 
Application and supporting documentation the employer must submit. The 
Department proposed to move the second sentence of Sec.  655.130(a), 
which contains language regarding collection of the employer's 
information--i.e., FEIN, valid physical location in the United States, 
and means of contact for recruitment--to proposed paragraph (a)(2). In 
paragraph (a)(2), the Department proposed to explicitly require 
disclosure of the employer's name and the additional employer 
information collection the Department proposed to require (i.e., the 
identity, location, and means of contact for each owner). Proposed 
paragraph (a)(3) required the employer to provide the identity, 
location, and contact information of all persons or entities who are 
operators of the place(s) of employment listed in the job order, if 
different from the employer(s) identified under paragraph (a)(2), 
including an H-2ALC's fixed-site agricultural business client(s) who 
operate the place(s) of employment where the workers employed under the 
H-2A Application will perform labor or services. In addition, proposed 
paragraph (a)(3) required the employer to provide the identity, 
location, and contact information of all persons who will manage or 
supervise H-2A workers and workers in corresponding employment under 
the H-2A Application at each place of employment.
    Proposed paragraph (a)(4) required the employer to continue to 
update the information required by the above paragraphs until the end 
of the work contract period, including extensions thereto, and retain 
this information post-certification and produce it upon request by the 
Department. To effectuate proposed Sec.  655.130(a)(4), the Department 
proposed a new record retention paragraph at Sec.  655.167(c)(9) that 
would require the employer to retain the information specified in 
paragraphs (a)(2) and (3) of Sec.  655.130 for the 3-year period 
specified in Sec.  655.167(b).
    The Department received comments both in support of and opposed to 
the proposed information collections from Federal elected officials, 
labor unions, workers' rights advocacy organizations, individuals, 
employers, trade associations, farm bureaus, and agents. After 
consideration of all comments, the Department is finalizing the 
proposals with minor changes, as explained below.
    The Department received comments in support of the proposal from 
elected officials, workers' rights advocacy organizations, and labor 
unions. A joint comment from 15 U.S. Senators supported the proposed 
information collection as a way to ``strengthen protections against 
abusive third parties by enhancing DOL's enforcement capabilities 
against supervisors, contractors, joint employers, successors in 
interest, and others who coordinate so closely with employers that they 
should be considered a single employer.'' Some workers' rights advocacy 
organizations, UFW Foundation, CAUSE, UMOS, and PCUN, and a couple of 
other advocacy organizations, Green America and the North Carolina 
Justice Center, asserted the proposal would provide the Department 
``more understanding of [an employer's] operation and seasonality of 
it, and ultimately, the ability to take enforcement actions against 
more people who are taking part in abusive and unlawful activities, 
including successors in interest.'' UFW included worker accounts of 
various abuses by agents, crew leaders, and foremen, including sexual 
assault, retaliatory pretextual terminations, withholding of food and 
water, and various types of threats against workers, and believed the 
proposed information collection would aid enforcement related to these 
egregious violations.
    Farmworker Justice supported the proposed information collections 
as a necessary means to carry out vital program integrity and worker 
protection responsibilities. They cited numerous examples of debarred 
employers reconstituting with owners and managers switching roles to 
avoid enforcement, including cases in which family members have applied 
for certification for the benefit of another family member and owner of 
a debarred employer. They supported the collection of owner 
information, asserting it would be ``obviously useful in detecting 
fraud in the H-2A program, as it would allow the Department to more 
easily detect instances in which a single owner/operator uses multiple 
business entities in an attempt to skirt H-2A regulations or to 
continue seeking H-2A workers despite having been debarred.'' They 
believed the proposed information collections would assist in 
identifying employer reconstitution to subvert the law because 
``[o]verlapping management with the debarred employer is a giveaway'' 
that the employer has ``attempt[ed] to evade debarment by rebranding'' 
and ``obfuscat[ing] management structure.'' Farmworker Justice and the 
Agricultural Worker Project of Southern Minnesota Regional Legal 
Services commented that the manager and supervisor information would 
permit the Department to ``scrutinize whether the principals or 
managers of those entities [filing for labor certification] are family 
members of recently debarred entities.'' Farmworker Justice also 
believed the proposals would assist the Department in conducting the 
single employer test at the filing stage because, they asserted, 
employers ``often use overlapping job orders from two separate but 
jointly-owned and operated entities, so that the employer can keep H-2A 
workers at their place of employment year-round on alternating job 
orders.'' Finally, Farmworker Justice supported the collection of 
fixed-site grower information, asserting it is ``useful in preventing 
the displacement of US workers by H-2A workers, particularly when a 
grower that employs domestic workers begins outsourcing its labor to an 
H-2ALC,'' in which case ``it is impossible for the workers (or worker 
advocates) to determine whether the fixed-site grower is using H-2A 
workers because the grower's name never appears at all on the job order 
or supporting documentation.'' The Department values and appreciates 
these commenters' support and their informed perspectives on the need 
for and potential impact of the proposal.
    In contrast, the Department received many comments from employers, 
trade associations, agents, a public policy organization, and an 
immigration lawyers' association expressing opposition to the proposal 
as an unnecessary breach of privacy that would expose employers to 
litigation risk, potentially expose the private information of 
employees to the public, and impose an unreasonable and unjustified 
information production burden at the filing stage.
    Many comments from employers, agents, and trade associations 
asserted the Department failed to provide a

[[Page 33981]]

``rational basis'' to conclude it needed the additional information, 
showing only that the information is helpful, not necessary. USA 
Farmers asserted the Department provided ``no statutory authority for 
this extreme invasion of personal privacy and dramatic departure from 
the decades of operation of the H-2A program,'' the information is 
``not necessary or reasonable to further any legitimate purpose,'' and 
the Department ``fail[ed] to provide any data whatsoever that describes 
the magnitude of the supposed problem it claims to be addressing.'' An 
employer, Willoway Nurseries, and several trade associations, including 
AmericanHort, Michigan Farm Bureau, and USApple, more specifically 
asserted the info collection proposal is ``onerous and unnecessary to 
catch the 32 employers debarred from the H-2A program from 
reconstituting as another employer.'' USA Farmers asserted the 
Department need not collect this information at the filing stage 
because ``during an investigation of an H-2A employer, the Department 
already routinely . . . collects information on any other businesses 
the employer operates.''
    Similarly, m[aacute]sLabor asserted that the Department did not 
``offer any compelling reason why this information ought to be 
disclosed on the H-2A application itself, rather than merely as a 
document retention requirement on par with payroll and earnings 
records.'' Several trade associations--including AmericanHort, NCFC, 
FSGA, and FFVA--and Willoway Nurseries objected to collection of 
``information of all managers and supervisors'' specifically, asserting 
it ``is unnecessary at the application stage of the H-2A program and is 
easily and regularly attainable at the enforcement stage of the H-2A 
program.'' NHC added that employers who refuse to produce the 
information during a later investigation face consequences and this 
should be sufficient incentive.
    While the Department appreciates the comments, the Department 
disagrees with employer, trade association, and agent assertions that 
the NPRM failed to explain the Department's need for this information 
generally or, specifically, its need for the information at the time 
the employer files the H-2A Application. As discussed above, as part of 
its review of an application, OFLC assesses whether the employer has a 
temporary or seasonal need for workers, including whether two facially 
distinct employers are a single employer, and the Department is 
authorized to enforce ``employer compliance with terms and conditions 
of employment'' in the H-2A program. 8 U.S.C. 1188(g)(2). The Secretary 
has delegated the responsibility of issuing temporary agricultural 
labor certifications to OFLC \59\ and has delegated responsibility for 
enforcement of the worker protections to the WHD Administrator.\60\ The 
information the Department collects through the Form ETA-9142A, H-2A 
Application for Temporary Employment Certification, and all required 
supporting documentation, constitutes the information necessary for the 
Department to assess an employer's need and whether there is an 
insufficient number of qualified U.S. workers who are available to fill 
the employer's job opportunity, and that the wages and working 
conditions of workers in the United States similarly employed will not 
be adversely affected by the employment of H-2A workers. The Department 
also may use this information in post-adjudication audit examinations 
or in program integrity proceedings (e.g., revocation or debarment 
actions) or in both, and WHD or other enforcement agencies may request 
this information from OFLC during an investigation or enforcement 
proceedings.
---------------------------------------------------------------------------

    \59\ See Secretary's Order 06-2010, Delegation of Authority and 
Assignment of Responsibility, 75 FR 66268 (Oct. 27. 2010).
    \60\ See Secretary's Order 01-2014, Delegation of Authority and 
Assignment of Responsibility to the Administrator, Wage and Hour 
Division, 79 FR 77527 (Dec. 24, 2014).
---------------------------------------------------------------------------

    The NPRM explained that the new collections of information about 
owners, operators, managers, and supervisors would allow the Department 
to gain a more accurate and detailed understanding of the scope and 
structure of the employer's agricultural operation, which is essential 
to the Department's fulfillment of various obligations in the 
administration and enforcement of the H-2A program. The Department 
noted the additional information would enhance its enforcement 
capabilities by helping the Department identify, investigate, and 
pursue remedies from program violators; ensure that sanctions, such as 
debarment or civil money penalties, are appropriately assessed and 
applied to responsible entities, including individuals and successors 
in interest when appropriate; and determine whether an H-2A employer 
subject to investigation has prior investigative history under a 
different name. For example, contact information for owners, operators, 
and supervisors will assist the Department in locating the employer and 
workers for the purposes of conducting an investigation, presenting 
findings (either verbally or in a written determination) and obtaining 
payment for back wages and civil money penalties following a final 
order of the Secretary. OFLC also may use this information in post-
adjudication audit examinations or in program integrity proceedings 
(e.g., revocation or debarment actions) or in both. The information 
will help OFLC verify that persons representing employers both in the 
labor certification process and in the process of recruiting, managing, 
or supervising workers are acting on behalf of the employers within the 
scope of the terms and conditions of the labor certification and any 
contracts or agreements with employers, and in compliance with the 
revised regulations and all employment-related laws, such as laws 
prohibiting discrimination, retaliation, or the imposition of unlawful 
recruitment or visa-related fees. The new information collections will 
also facilitate interagency information sharing and permit OFLC and WHD 
to share relevant identifying information with other agencies when 
necessary to aid an investigation or enforcement action.
    The NPRM also explained the Department's need to collect the 
information at the time the employer files the H-2A Application, rather 
than require production of this information only in the event of an 
investigation or audit, and the Department will expand on those reasons 
here. During the application process, the new information collections 
will assist the Department in determining whether the employer has 
demonstrated a bona fide temporary or seasonal need, or, conversely, 
whether an employer has, through multiple related entities, sought to 
obtain a year-round H-2A labor force. As the Department noted in more 
detail above in the preamble to Sec.  655.103(e) Definition of single 
employer for purposes of temporary or seasonal need and contractual 
obligations, some employers divide their business such that it appears 
two separate entities are each requesting a temporary agricultural 
labor certification when, in fact, the workers are in the same AIE 
engaged in the same job opportunity for longer than the attested period 
of need on any one application. Having information about the owners, 
operators, and managers at the filing stage will assist the Department 
in detecting potential nominally distinct employers who are acting as a 
single employer. It will also greatly assist the Department in 
discovering if an employer is acting as a single employer with a 
debarred non-petitioning entity, as the Department will already have 
the debarred entity's

[[Page 33982]]

data on record. As stated above in the preamble to Sec.  655.103(e), 
the Department considers the totality of the circumstances surrounding 
the relationship among the entities, and no one singular detail--such 
as having the same owner--is determinative in the analysis.
    The NPRM further noted that collection of prior DBA names and 
identifying information for people other than the employer at the time 
of filing would make it easier for OFLC and WHD to search across 
applications within a filing system database to identify instances in 
which employers have changed names, or roles, to avoid complying with 
program regulations or avoid monetary penalties or serious sanctions 
such as program debarment. The Department noted the information 
collected about owners, operators, and supervisors provided at the 
application stage may assist the Department to identify whether an 
individual or successor in interest should be named on any 
determination and therefore subject to any sanctions or remedies 
assessed. Although the NPRM did not provide ready data, it explained 
that in the experience of the Department, some H-2A employers have 
sought to avoid penalties and continue participating in the program 
despite having been debarred by reconstituting as a new legal entity 
while ultimately retaining the underlying business that was debarred 
from the H-2A program. Commenters including Farmworker Justice and the 
Agricultural Worker Project of Southern Minnesota Regional Legal 
Services also provided specific examples of entities that have evaded 
debarment under the current regulations through reconstituting under a 
different corporate entity with reshuffled ownership, as noted above 
and in the preamble discussing the Department's revisions to the 
successor-in-interest provision. In an audit or investigation of an 
employer, this information will allow the Department to better identify 
those persons with a financial stake in the certified H-2A employer. 
Collecting this information from all applicants at the time of filing, 
rather than only collecting this information during an audit or 
investigation, can be useful for other similar purposes as well, such 
as identifying instances when an H-2ALC Application indicates it is 
supplying an H-2A workforce to a debarred employer during the debarment 
period.
    As previously mentioned, some trade association commenters 
supported collection of owner data as a means to prevent debarred 
employers from reconstituting to evade the law, but TIPA, McCorkle 
Nurseries, Inc., Titan Farms, LLC, and IFPA asserted the Department 
failed to provide a sufficient definition of owner and expressed 
concern that the ``complex ownership structure'' common to many 
agricultural operations due to high capital costs would make it 
difficult to provide information on owners and operators. Titan Farms, 
LLC, IFPA, and NHC asserted the Department's ``failure to provide an 
adequate definition of what operator, manager, and supervisor would 
include'' prevented ``meaningful comment'' on the proposal. Commenters 
including Titan Farms, LLC, IFPA, TIPA, U.S. Custom Harvesters, Inc., 
and Demaray Harvesting and Trucking, LLC similarly opposed collecting 
information about owners because it would place an ``extensive 
administrative burden on employers'' due to the imprecise definition of 
owner, complex ownership structure of many operations, and a potential 
requirement to include even landowners, rather than business owners.
    NHC, Titan Farms, LLC, and IFPA expressed concern that the 
Department would require employers to collect information on 
leaseholders, shareholders and other investors, and other types of 
``owners'' in various ownership situations, for which the Department 
has no need. AmericanHort and NCFC similarly expressed concern they 
would have to disclose information about silent partners and minority 
shareholders. Commenter including Titan Farms, LLC, IFPA, and NHC 
expressed concern that the Department would require disclosure of 
information on owners who ``do not have a controlling interest or are 
[not] involved in any way with business decisions, including workforce 
decisions.'' USA Farmers similarly asserted collection of ownership 
information would be particularly burdensome if the collection includes 
``an owner who may have no involvement in the operation of the 
company'' and USApple added that ``[m]inority owners and other 
investment groups will have very little knowledge of the day-to-day 
business practices, and some invest in multiple entities.'' USApple 
expressed concern the Department would require disclosure of landlords 
if an association member rented land on which the business operates, 
which would be unnecessary because the landlord has no ``information or 
authority over the operation.'' M[aacute]sLabor urged the Department to 
clarify how it expects employers to disclose owner information if the 
place of employment is ``owned by a consortium of investors and 
entities, including multinational corporations and conglomerates with 
complicated business structures.'' M[aacute]sLabor also asked the 
Department to clarify how it expects employers to disclose this 
information if the place of employment is ``owned by a private equity 
group'' or ``[a] multinational conglomerate with layers of holding 
companies and subsidiaries.''
    U.S. Custom Harvesters, Inc. and Demaray Harvesting and Trucking, 
LLC asserted the ownership disclosure requirement would be particularly 
burdensome for custom combine employers who only have information for a 
client's point of contact and ``do not have access to additional 
information about that farm's ownership structure'' because these 
employers ``provide services for multiple farm owners and operators'' 
while ``operat[ing] on a disclosed itinerary.'' Demaray Harvesting and 
Trucking, LLC asserted the disclosure requirement would be particularly 
burdensome for farm labor contractors, because they do not have 
information about the full ownership structure of every employer to 
which they provide labor.
    Some commenters, including Michigan Asparagus Advisory Board and an 
individual commenter, expressed similar concerns about the Department 
proposal to collect the name, date of birth, and contact information 
for managers and supervisors of H-2A workers. Titan Farms, LLC, IFPA, 
NHC, and TIPA expressed concern the proposal would require employers to 
disclose information on ``potentially hundreds'' of employees, 
``depending on the size of the operation.'' Western Range Association 
asserted the disclosure requirement would be particularly burdensome 
for employers of workers in herding and production of livestock on the 
range because many of these employers ``operate on publicly-owned 
ground'' and a requirement to ``collect and track the names of every 
manager of the [Bureau of Land Management], Forest Service, State 
Government, or municipality would be difficult if not impossible. The 
records the employers would need to retain would be abundant and 
unreasonable to keep up to date.''
    Titan Farms, LLC, IFPA, NHC, and TIPA expressed concern that the 
duty to update this information would impose a substantial burden due 
to high ``turnover rate within agriculture.'' USApple expressed concern 
about potential enforcement or other ``ramifications for not having 
listed an individual due to employment changes

[[Page 33983]]

during processing'' of the H-2A Application.
    Willoway Nurseries and several trade associations, including 
Michigan Farm Bureau, FSGA, FFVA, and NCFC, also expressed concern 
about the Department's burden estimate calculations. Specifically, 
AmericanHort expressed concerns that the Department's ``analysis under 
both of those acts of impact and burden is drastically low'' and a 
``gross underestimation,'' which it asserted ``is evidenced by the 
Department's claim that small businesses will be faced with a mere one-
time cost of $54.00 to familiarize themselves with this rulemaking, and 
only $108.00 to complete the new application with all owner, manager, 
and supervisor information.''
    The Department also received a comment from Farmworker Justice that 
suggested several changes to strengthen the proposed provisions in this 
final rule. Farmworker Justice expressed concern that the NPRM did not 
propose to ``collect information for fixed-site growers who may not be 
joint employers of the H-2A workers'' and did ``not require the 
applicant to list the actual business name of the operator of the 
fixed-site location, their trade names, or the names of owners.'' 
Farmworker Justice urged the Department to require employers ``provide 
information for all owners and operators of fixed-site locations at 
which workers will perform work'' to collect the DBA, business name, 
and owner name for all fixed-site places of employment, which 
Farmworker Justice asserted would be ``obviously useful in detecting 
fraud in the H-2A program, as it would allow the Department to more 
easily detect instances in which a single owner/operator uses multiple 
business entities in an attempt to skirt H-2A regulations or to 
continue seeking H-2A workers despite having been debarred.'' 
Farmworker Justice also suggested the Department should require 
employers to ``submit information detailing exactly what workers 
performed the work at the fixed-site in the previous year, how they 
were recruited for those jobs, and what efforts have been undertaken to 
pursue those recruitment avenues in the current year,'' which they 
asserted would prevent employers from using an H-2ALC to avoid the 
requirement to contact its former U.S. workers.
    Farmworker Justice further urged the Department to revise paragraph 
Sec.  655.130(a)(2) to ``provide that the applicant must include 
information for all employers.'' Farmworker Justice also urged the 
Department to collect additional information, including information 
about: (1) transportation providers, to better ensure they are properly 
licensed; (2) workers' compensation policyholders, so the Department 
knows whether the policyholder is a professional employer organization, 
in which case DOL should ``follow up with the employer to ensure that 
coverage extends to workers in transit during the entire period of the 
clearance order''; (3) information about owners and operators of 
housing, to ``allow workers and worker advocates to better understand 
whether the housing is in compliance''; and (4) ``additional 
information from first-time employers and fixed-site growers'' about 
their positive recruitment efforts prior to using the program, to 
ensure the employer does not alter this recruitment to avoid hiring 
U.S. workers in favor of H-2A workers. Finally, Farmworker Justice 
emphasized the need for the Department to collect and analyze 
information indicating family relationships in multiple filings for 
program integrity and enforcement purposes.
    The Department appreciates and agrees with comments indicating a 
need for the Department to more clearly define the type of owner 
information sought and to clarify the level of due diligence expected 
of employers when providing this information, and the information 
related to supervisors and managers. The definitions of the terms 
``owner'' and ``operator,'' as well as the terms ``supervisor'' and 
``manager,'' are included in the Paperwork Reduction Act (PRA) 
information collection request (ICR) package that accompanies this 
final rule. Specifically, definitions for both ``owner'' and 
``operator'' were proposed in the draft instructions for completing 
Form ETA-9142A and its appendices, which were published along with the 
NPRM and for which the Department also requested public comment. The 
proposed form instructions not only included proposed definitions of 
both terms but also provided an explanation of how the Department 
determined each proposed definition. After review of the public 
comments, the Department has revised the definitions to clarify that, 
for purposes of Sec.  655.130, ``owner'' or ``operator'' means any 
person who owns or has a controlling operational role in the 
employer(s) and place(s) of employment. With respect to owners 
specifically, the Department will consider a person or entity an owner 
if the person or entity legally owns or is an owner with a controlling 
operational role in the employer's business. The Department will 
require the employer to disclose the majority owners, defined as an 
owner with ownership of more than 50 percent of a business, and any 
owner who owns less than 50 percent of an organization, but exercises 
any decision-making responsibilities over the business. If the owner or 
operator of the place(s) of employment is a branch, subsidiary, or 
affiliate of a parent corporate or joint venture, the employer must 
list the owners and operators of the parent entity. As noted in the PRA 
package and form instructions for the NPRM and this final rule, the 
Department also expects the employer to provide information about 
operators of the place(s) of employment, defined as any person or 
entity who runs the agricultural business, making day-to-day management 
decisions. Finally, as explained in the NPRM and above, the Department 
is collecting this information to enhance the Department's ability to 
identify, investigate, and pursue remedies from program violators, 
including entities debarred from the H-2A program, and to that end, the 
Department also expects the employer to provide this information for 
any owner or operator of a business that is currently debarred from the 
H-2A program by OFLC, by WHD, or by a court of law, regardless of 
ownership stake or level of control.
    The Department considers the totality of the circumstances 
surrounding the business formation and conduct of the owner in 
determining ownership of an entity. No one factor would be 
determinative in the analysis. Some examples that demonstrate ownership 
are official State, local, or Federal documentation (e.g., articles of 
incorporation, business license, deed) of the ownership of an entity. 
Another example demonstrating entity ownership is whether a judicial or 
administrative decision or action makes a definitive determination 
about ownership of an entity.
    If an individual or entity is listed as an owner or operator of the 
places of employment, or as the employing entity, on an official 
Federal, State, or local document, like incorporation documents, or 
judicial or administrative records like those that indicate transfer of 
ownership, the Department expects the employer to provide identifying 
information for these individuals or entities. In many cases, this 
information will be publicly available on State or local websites.
    This final rule requires the employer to exercise due diligence 
when determining and disclosing primary owners and owners that exercise 
control over the entity that operates the place(s) of employment for 
the integrity and

[[Page 33984]]

enforcement purposes noted in the NPRM and this preamble. This final 
rule does not seek to take enforcement action against employers for 
failing to disclose every person or entity that may have an indirect or 
marginal stake in a complex organization and does not require the 
employer to disclose owner or operator information for any person or 
entity that does not fall into the above definitions, such as 
individual shareholders of corporate, cooperative, or joint 
arrangements that do not have a majority stake in or exercise control 
over the entity. Similarly, this final rule requires the employer to 
exercise due diligence, and demonstrate a good-faith effort, in 
gathering, disclosing, and updating as necessary the identity, 
location, and contact information of owners, operators, managers, and 
supervisors.
    In response to comments specifically about disclosure of landlord 
information, the Department expects the employer to disclose this 
information if the landlord is an owner of the employer(s) or is an 
operator of the place(s) of employment who runs the agricultural 
business, making day-to-day management decisions. In response to the 
comments specifically expressing concern about disclosure of the 
required information where land is owned or operated by Federal, State, 
or local government, the Department expects the employer to provide the 
name of the Federal, State, or local agency or government entity that 
owns or operates the land or employs the managers or supervisors of 
workers employed under the H-2A Application.
    The Department is not revising the proposed definitions of 
``manager'' and ``supervisor'' in this final rule. As defined in the 
instructions and PRA package accompanying Form ETA-9142A, Appendix C, 
and in the preamble to this final rule, a manager is a person whose 
duties and responsibilities include formulating policies, managing 
daily operations, and planning the use of materials and HR with respect 
to the employment of H-2A workers. A supervisor is the person(s) who 
supervises and coordinates the activities of H-2A and corresponding 
agricultural, range, aquacultural, and related workers. The Department 
based these definitions on the O*NET definitions used for related 
occupational codes and believes these definitions are sufficient to 
ensure employers understand and comply with the requirement to disclose 
information about the managers and supervisors of H-2A and 
corresponding workers. In response to comments about the burden of 
production and the Department's estimates, the Department has addressed 
these two issues in the supporting documentation in the PRA package the 
Department has prepared for this rulemaking under OMB Control Number 
1205-0466, available at https://www.reginfo.gov.
    While the Department appreciates the Farmworker Justice suggestion 
to expand the proposed information collection to include transportation 
providers, workers' compensation policy holders, owners and operators 
of housing, recruitment information from first-time employers and 
fixed-site growers, as well the collection of family relationships, the 
Department declines to adopt these suggestions. The Department has 
determined that the collection of additional information items exceeds 
the scope of the proposed collections, which focus on the enhanced 
disclosure of information about employers, and if adopted, would 
deprive the full regulated community of its opportunity to comment. 
Even if the additional collections items did not exceed the scope of 
the proposed collections, the Department has determined that the 
collections, as proposed, are sufficient to accomplish the purpose as 
noted above and in the NPRM. The Department appreciates Farmworker 
Justice's concern regarding the use of family members in varying roles 
to avoid regulatory requirements and enforcement. However, the 
Department has determined that collection of information on the owners, 
operators, managers, and supervisors, in addition to information the 
Department already collects like point of contact, agent, and various 
other potential identifying information, is sufficient to ensure 
employers do not utilize family members to evade compliance with the 
law.
    More specifically, the Department agrees with Farmworker Justice 
that family relationships in various roles across multiple applications 
can indicate potential noncompliance and attempts to evade the law or 
sanctions. However, the Department does not believe it is necessary for 
this final rule to more explicitly require the employer to disclose any 
potential owners, supervisors, managers, or operators with a family 
relationship to any owner or operator of the employer. The disclosure 
requirements in this final rule, combined with the existing requirement 
to disclose information like the identity of the agent and point of 
contact, address(es), occupation, and period of need, will be 
sufficient to assist the Department in identifying family relationships 
in filings that may indicate fraud or other intentional failures to 
comply with the law.
    In response to Farmworker Justice, the Department is clarifying 
language at Sec.  655.130(a)(2) to specify that this provision applies 
to all employers of any worker employed under the Application for 
Temporary Employment Certification. The Department is not adopting the 
commenter's suggestions to collect additional information about fixed-
site employers. Currently, on the Form ETA-790A, H-2ALCs must identify 
the name(s) and location(s) of each fixed-site agricultural business 
where the H-2A worker(s) will perform labor or services, and provide 
fully executed work contract(s) with each fixed-site agricultural 
business, which assists OFLC in determining compliance with all 
application filing requirements for H-2ALCs under Sec.  655.132. This 
information is collected on the job order. As proposed in the NPRM, 
this final rule requires that each prospective H-2A employer, as 
defined at Sec.  655.103(b), provide the following information in 
relation to the owner(s) of each employer, any person or entity (if 
different than the employer(s)) who is an operator of the place(s) of 
employment, including an H-2ALC's fixed-site agricultural business 
client(s), and any person who manages or supervises the H-2A workers 
and workers in corresponding employment under the H-2A Application: 
full name, date of birth, address, telephone number, and email address. 
The Department is adopting as proposed paragraph (a)(3), which requires 
the employer to provide the identity, location, and contact information 
of all persons or entities that are operators of the place(s) of 
employment listed in the job order, if different from the employer(s) 
identified under paragraph (a)(2), including an H-2ALC's fixed-site 
agricultural business client(s) that operate the place(s) of 
employment, and of all persons who manage or supervise any H-2A worker 
sponsored under the H-2A Application or any worker in corresponding 
employment. As noted above, employers must exercise due diligence when 
gathering, disclosing, and updating this information and be able to 
demonstrate good faith in their efforts to do so. The Department 
believes the additional information collected under this final rule 
will bolster the Department's enforcement capabilities with respect to 
H-2ALCs and fixed-site employers and will ensure the Department is able 
to accomplish the objectives explained above and in the NPRM.
    The Department also received many comments from trade associations,

[[Page 33985]]

employers, and agents expressing concern about disclosure of personally 
identifiable information (PII) and the Department's assurances that it 
would protect this information from unauthorized disclosure. 
M[aacute]sLabor asserted that the proposed information collection was 
``morally and ethically objectionable,'' that it ``raises major 
questions of compliance with privacy and data protection laws,'' and 
that the NPRM failed to adequately address ``the implications of this 
disclosure requirement under the Privacy Act of 1974.'' Citing 5 U.S.C. 
552a(e)(1), IFPA, TIPA, GFVGA, NHC, and Titan Farms, LLC noted that the 
Privacy Act permits Federal agencies to ``maintain in their records 
only information about an individual `relevant and necessary to 
accomplish a purpose of the agency required to be accomplished by 
statute or by executive order of the President.''' USA Farmers 
generally asserted the proposed collections would violate ``various 
state laws on the collection and dissemination of [PII]'' and 
m[aacute]sLabor stated the Department failed to consider the 
implications of State privacy laws in States like California, Colorado, 
Connecticut, Utah, and Virginia.
    Many commenters, including Willoway Nurseries, FFVA, and NCFC, 
asserted that requiring an employer to provide ``such an onerous amount 
of information just to file an application is unnecessary and starkly 
against the requirements of the Paperwork Reduction Act and the Small 
Business Regulatory Enforcement Fairness Act.'' USApple expressed 
concern that the Department did not explain how it would protect this 
information from ``unlawful disclosure under [FOIA].'' Finally, SRFA 
expressed concern that the Department provided only a general assertion 
that it would disclose information only according to the law and 
information sharing agreements and that was not sufficient to ``assuage 
concerns the information would be subject to data breaches.''
    Some commenters expressed concern that the proposed information 
collections would violate the privacy of owners, operators, and 
employees, expose them to data breaches and potential harassment or 
security threats, and expose the employer to liability for non-
consensual disclosure of their information or to potential immigration 
enforcement if the manager and supervisor is not authorized to work in 
the United States. Titan Farms, LLC, IFPA, TIPA, U.S. Custom 
Harvesters, Inc., and Demaray Harvesting and Trucking, LLC opposed the 
collection of owner information for similar reasons, expressing 
concerns the collection would ``infring[e] on owners' privacy rights,'' 
potentially ``disclos[e] confidential business information,'' and 
``pose an extensive administrative burden on employers, without any 
documented regulatory value or authority.'' M[aacute]sLabor asserted 
``there may be compelling financial or public relations reasons for not 
disclosing ownership interests'' and noted ``[i]nstitutional or other 
passive investors may insist on anonymity as a strict contractual 
condition.''
    New York State Farm Bureau, Labor Services International, an 
individual commenter, TIPA, SRFA, and m[aacute]sLabor opposed the 
proposal to collect information about managers and supervisors, 
asserting this disclosure would be a ``direct violation,'' ``serious 
invasion,'' and ``egregious breach'' of employee privacy and would 
constitute a ``routine . . . unjustified disclosure of employee 
information.'' M[aacute]sLabor asserted the proposal would risk 
effectively ``doxing'' employees and putting them at risk of 
``potential harassment and threats from online sources, increasing the 
likelihood [they] will be the target of junk mail/spam, commercial 
solicitations, phishing emails'' and other potential dangers. TIPA and 
SRFA asserted the proposal would expose employees to ``retaliatory 
targeting'' and would be ``abjectly dangerous.'' AmericanHort, NCFC, 
and USApple expressed concern, specifically, that the Department would 
publish employees' PII on the public disclosure data on the OFLC 
website or on Seasonaljobs.dol.gov because entries in the disclosure 
data and the Seasonaljobs website are produced using scans of 
information in the employer's Form ETA-9142A and Form ETA-790A. 
Similarly, an individual commenter expressed concern that the proposal 
would ``forc[e] employers to disclose the private information of their 
employees on the internet'' because ``any information provided on the 
face of the H-2A application is subject to public disclosure'' and the 
commenter asserted this public disclosure would ``endanger[ ] so many 
people.''
    Several commenters specifically expressed concern about disclosing 
PII about an employee without obtaining the employee's consent. Some 
commenters, including IFPA, Titan Farms, LLC, and TIPA, noted 
``employees have not chosen to participate in the H-2A program and 
should not be required to have their information disclosed to the 
government.'' Similarly, m[aacute]sLabor asserted the proposed 
collection of manager and supervisor information violated ``a 
fundamental tenet of the employer-employee relationship that employees 
have a right to keep their personal information private and to require 
their consent before their employers disclose personal information.'' 
These commenters also expressed concern that disclosure may require 
some employers to breach employment or union contracts if they contain 
provisions prohibiting disclosure of an employee's information. USA 
Farmers asserted the Department lacks any reasonable basis to subject 
an employee to having their personal information delivered to the 
government and then made public merely because an employee works for an 
employer that participates in the H-2A program. An individual commenter 
expressed concern it would be unable to retain managers and supervisors 
if the Department required disclosure of their identifying information. 
Commenters including Titan Farms, LLC, IFPA, NHC, and TIPA expressed 
concern that non-consensual disclosures or disclosures in data breaches 
could expose employers to ``risk of employment-based litigation'' for 
the disclosure, though the commenters did not elaborate on what 
employment-based litigation might result. These commenters also 
expressed concern disclosing manager and supervisor information may 
expose employers or their employees to immigration enforcement, citing 
a high number of agricultural employees who are not authorized to work 
in the United States.
    The Department is not requesting the disclosure of immigration 
status and therefore does not anticipate increased immigration 
enforcement by DHS as a direct result of this information collection. 
Also, as noted in the NPRM, the Department will collect, store, and 
disseminate all information and records in accordance with the 
Department's information sharing agreements and System of Records 
Notice (SORN), principles set forth by OMB, and all applicable laws, 
including the Privacy Act of 1974 (Pub. L. 93-579, sec. 7, 88 Stat. 
1909 (1974)), Federal Records Act of 1950 (Pub. L. 81-754, 64 Stat. 585 
[codified as amended in chapters 21, 29, 31, and 33 of 44 U.S.C.] 
(1950)), the PRA (44 U.S.C. 3501 et seq.), and the E-Government Act of 
2002 (Pub. L. 107-347 (2002)).
    As noted by commenters, the Privacy Act of 1974 requires the 
Department ``maintain in its records only such information about an 
individual as is relevant and necessary to accomplish a purpose of the 
agency required to be accomplished by statute or by executive order of 
the President.'' 5 U.S.C.

[[Page 33986]]

552a(e)(1). The Privacy Act also requires the Department ``collect 
information to the greatest extent practicable directly from the 
subject individual when the information may result in adverse 
determinations about an individual's rights, benefits, and privileges 
under Federal programs.'' 5 U.S.C. 552a(e)(2). In the NPRM and above, 
the Department explained at length the need for this information to 
accomplish its statutory mandates under the INA. Collection of this 
information directly from each owner, operator, manager, and supervisor 
for each H-2A Application would not be practicable because the 
Department will not know the identity of these persons or entities 
until the employer provides the information required under new Sec.  
655.130, and even assuming the Department knew these identities, it 
would be administratively infeasible for the Department alone to obtain 
this information directly from each person and entity while continuing 
to effectively review and process H-2A Applications within the relevant 
statutory deadlines.
    Pursuant to Department policies, all PII collected on the H-2A 
Application is extended Privacy Act protections to the maximum extent 
practicable. In accordance with the Privacy Act, the Department 
publishes a SORN in the Federal Register when the Department creates or 
substantively modifies a system of records. The SORN addresses the 
authority underpinning the system of records, the measures the 
Department takes to safeguard information, the Department's record 
access and retention procedures, and the Department's routine uses for 
the records.\61\ For the purposes of this rulemaking, the Department 
will modify the existing SORN, DOL/ETA-7, Foreign Labor Certification 
System and Employer Application Case Files. All PII the Department 
collects is protected by administrative, technical, procedural, and 
physical safeguards against unauthorized access and disclosure, and all 
PII the Department maintains is stored in a manner that is safe from 
access by unauthorized persons at all times. When the collected 
information is no longer needed, all electronic or paper information is 
erased or destroyed in accordance with applicable National Archives and 
Records Administration (NARA) approved record retention schedules.
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    \61\ See DOL/ETA-7, Foreign Labor Certification System and 
Employer Application Case Files, https://www.dol.gov/agencies/sol/privacy/eta-7 (last accessed Apr. 9, 2024).
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    The Department appreciates commenters' concerns that the collection 
and retention of this information could require an employer to violate 
State-level privacy laws. However, commenters failed to note specific 
State law provisions that would prohibit the employer's production or 
retention of this information. Without this information, it is 
difficult to assess the commenters' concerns more closely, including 
whether the State laws apply to the proposed collection here. However, 
as discussed above and in the NPRM, the Department will collect, store, 
and disseminate all information and records in accordance with the 
Department's information sharing agreements and SORN, principles set 
forth by OMB, and all applicable laws. In addition, the Department has 
explained the critical need for this information and will collect and 
store this information in the same manner it collects and stores other 
information necessary to process H-2A Applications and administer the 
H-2A program. The Department expects the employer to fulfill its 
retention obligations with respect to this information the same way the 
employer is expected to retain information specified in Sec.  655.167 
and records required under Sec.  655.122.
    In response to concerns about potential disclosures of this 
information, the Department reiterates that it may release this 
information if authorized under FOIA or may share the information with 
other agencies when authorized and necessary for criminal, civil, or 
administrative law enforcement and investigative purposes. The 
Department will only be required to provide PII under limited 
circumstances when authorized by law. Similarly, the Department will 
only provide this information in response to a FOIA request when there 
is no applicable FOIA exemption to permit the Department to withhold 
the information in full or in part, and the Department routinely 
processes incoming FOIA requests. The Privacy Act strictly limits the 
information that may be disclosed, but has several potentially relevant 
disclosure exemptions, such as those at 5 U.S.C. 552a, paragraphs 
(b)(2), (b)(7), and (b)(9)-(11).
    As noted in the PRA package accompanying the NPRM, the Department 
may release this information when authorized in connection with appeals 
of denials before the Department's Office of Administrative Law Judges 
(OALJ) and Federal courts, in which case records may be released to the 
employers that filed such applications, their representatives, or to 
named foreign workers or their representatives. The Department also may 
release this information in connection with the administration and 
enforcement of immigration laws and regulations, in which case the 
records may be released to such agencies as the Department's OIG or 
WHD, the Department of Justice (DOJ), DHS, or the Department of State. 
As noted above, more information about the Department's proposed 
changes to the H-2A information collection instruments, the 
Department's collection and use of this information, and the 
Department's estimate of the corresponding burden is available in 
supporting documentation in the PRA package the Department has prepared 
for this rulemaking under OMB Control Number 1205-0466, available at 
https://www.reginfo.gov. In addition, please refer to the 
Administrative Information section below for the Department's responses 
to comments regarding the Small Business Regulatory Enforcement 
Fairness Act of 1996 (SBREFA).
    The Department appreciates and takes seriously the comments related 
to privacy concerns, including comments regarding how the proposed 
collection would affect both the retention of managers and supervisors 
and immigration enforcement, but reiterates that pursuant to policy, 
all PII collected on the H-2A Application is extended Privacy Act 
protections to the maximum extent practicable. All PII the Department 
collects is protected by administrative, technical, procedural, and 
physical safeguards against unauthorized access and disclosure, and all 
PII the Department maintains is stored in a manner that is safe from 
access by unauthorized persons at all times. When the collected 
information is no longer needed, all electronic or paper information is 
erased or destroyed in accordance with applicable NARA approved record 
retention schedules.
    Additionally, the Department will only provide PII under limited 
circumstances when authorized by law. The Department will not publish 
PII as part of its regular disclosure data. The Department will redact 
this information as it currently does for information such as 
Employer's FEIN, Attorney's FEIN, and Attorney's State Bar Number. 
Similarly, the Department will not publish this information on the 
Seasonaljobs websites, which is primarily used for the dissemination of 
information about agricultural job opportunities to job seekers.
    Finally, the Department explained above and in the NPRM why there 
is a vital need to collect this information. The Department expects 
that employers will provide this information completely and accurately 
at the time of filing. As with information regarding

[[Page 33987]]

anticipated worksites or use of foreign labor recruiters, for example, 
the Department expects employers to make a good-faith effort in 
obtaining this vital information about the persons or entities that 
will manage or supervise the agricultural workers and those who own or 
operate places where those workers will be employed.
2. Section 655.135, Assurances and Obligations of H-2A Employers
a. Section 655.135, Introductory Language, WHD Authority
    In the NPRM, the Department proposed a minor clarifying revision to 
the introductory language to Sec.  655.135 to include explicit 
reference to compliance with 29 CFR part 501 as part of an H-2A 
employer's obligations. Previously, the introductory language in the 
regulations specified only that an employer seeking to employ H-2A 
workers must agree as part of the job order and Application that it 
will comply with all requirements under 20 CFR part 655, subpart B. 
Those requirements included compliance with WHD's investigative and 
enforcement authority under 29 CFR part 501, as specified in 20 CFR 
655.101(b). The Department proposed revisions in the NPRM to make these 
obligations more explicit in Sec.  655.135 and on the job order, to 
better ensure that both workers and employers are fully aware of WHD's 
authorities. The Department did not receive any comments on this 
proposed revision. Therefore, for the reasons set forth in the NPRM, 
the Department adopts the language as proposed.
b. Sections 655.135(h), (m), and (n), 655.103(b), Worker Voice and 
Empowerment
    Before an employer may hire H-2A workers, it must apply for and 
obtain from the Department a certification that: (1) there are 
insufficient available U.S. workers who are able, willing, and 
qualified to perform the employer's job opportunity; and (2) the 
employment of H-2A workers in the job opportunity ``will not adversely 
affect the wages and working conditions of workers in the United States 
similarly employed.'' 8 U.S.C. 1188(a)(1). Courts have long recognized 
that Congress delegated to the Department broad authority to implement 
the INA's prohibition on adverse effect at 8 U.S.C. 1188(a)(1)(B). See, 
e.g., Overdevest, 2 F.4th at 982-83; AFL-CIO v. Dole, 923 F.2d 182, 
184-85 (D.C. Cir. 1991) (citing AFL-CIO v. Brock, 835 F.2d 912, 917 
(D.C. Cir. 1987)); see also Nat'l Council of Agric. Emps. v. U.S. Dep't 
of Lab., No. 22-3569, 2024 WL 324235, at *2 (D.D.C. Jan. 29, 2024) 
(discussing the Department's regulatory authority under the H-2A 
program). The Department has historically understood the INA's adverse 
effect requirement both as requiring parity between the terms and 
conditions of employment provided to H-2A workers and other workers 
employed by an H-2A employer, and as establishing a baseline 
``acceptable'' standard for working conditions below which workers in 
the United States would be adversely affected. See, e.g., 1978 Final 
Rule, 43 FR at 10312, 10314; 1987 H-2A IFR, 52 FR at 20508, 20513; see 
also Garcia-Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276, 1285 
(11th Cir. 2016) (explaining that the regulations' provision of minimum 
``baseline benefits'' to H-2A workers, including sound working 
conditions, ``ensure[s] that foreign workers will not appear more 
attractive to the `employer' than domestic workers, thus avoiding any 
adverse effects for domestic workers'') (citations omitted). As courts 
have observed, the Department cannot seek to make jobs more attractive 
to U.S. workers, but instead must ``neutralize any `adverse effect' 
resultant from the influx of temporary foreign workers.'' Williams v. 
Usery, 531 F.2d 305, 307 (5th Cir. 1976).
    As explained in the NPRM, the Department recognizes that some of 
the characteristics of the H-2A program, including the temporary nature 
of the work, frequent geographic isolation of the workers, and 
dependency on a single employer, create a vulnerable population of 
workers for whom it is uniquely difficult to advocate or organize 
regarding the terms and conditions of employment or to seek access to 
certain service providers. The Department also has significant 
enforcement experience with H-2A workers who have faced retaliation for 
asserting or advocating for their rights. The Department explained in 
the NPRM that it believed that this vulnerability of the H-2A 
workforce, and the ability of employers to hire this vulnerable 
workforce, may suppress or undermine the ability of farmworkers in the 
United States to negotiate with employers and advocate on their own 
behalf regarding working conditions in their shared workplaces, in 
light of the availability of the H-2A workforce. In other words, even 
if workers in the United States were to raise concerns regarding their 
terms and conditions of employment, under the current H-2A regulatory 
framework, employers may turn to the H-2A program for an alternative 
workforce that faces significant barriers to similar advocacy, thus 
undermining advocacy efforts by or on behalf of similarly employed 
workers in the United States. In addition, in light of the barriers 
they face, H-2A workers are less able and less likely to advocate on 
behalf of themselves or their coworkers to seek compliance with the 
terms and conditions of employment set forth in the Department's 
regulations, employment below which will adversely affect workers in 
the United States.\62\
---------------------------------------------------------------------------

    \62\ 88 FR at 63787-88; see also CDM, Ripe for Reform: Abuses of 
Agricultural Workers in the H-2A Visa Program 4, 6 (2020) (CDM 
Report), https://cdmigrante.org/ripe-for-reform; Farmworker Justice, 
No Way to Treat a Guest: Why the H-2A Visa Program Fails U.S. and 
Foreign Workers 7, 11, 17, 21-31 (2012) (Farmworker Justice Report), 
https://www.farmworkerjustice.org/wp-content/uploads/2012/05/7.2.a.6-No-Way-To-Treat-A-Guest-H-2A-Report.pdf (Farmworker Justice 
Report); Jordan, M., Black Farmworkers Say They Lost Jobs to 
Foreigners Who Were Paid More, N.Y. Times (Nov. 12, 2021), https://www.nytimes.com/2021/11/12/us/black-farmworkers-mississippi-lawsuit.html; Polaris, Labor Trafficking on Specific Temporary Work 
Visas, A Data Analysis 2018-2020 13-18 (May 2022) (Polaris 2018-2020 
Report), https://polarisproject.org/wp-content/uploads/2022/07/Labor-Trafficking-on-Specific-Temporary-Work-Visas-by-Polaris.pdf; 
Daniel Costa et al., EPI, Federal Labor Standards Enforcement in 
Agriculture 3-6 (Dec. 2020) (EPI 2020 Report), https://www.epi.org/publication/federal-labor-standards-enforcement-in-agriculture-data-reveal-the-biggest-violators-and-raise-new-questions-about-how-to-improve-and-target-efforts-to-protect-farmworkers/.
---------------------------------------------------------------------------

    In the NPRM, the Department expressed its concern that the H-2A 
program currently does not provide sufficient protections for H-2A and 
corresponding workers to advocate on behalf of themselves or their 
coworkers regarding working conditions without fear of reprisal. 
Therefore, in the NPRM, the Department proposed changes to its 
regulations that would expand the H-2A anti-retaliation provision and 
include new employer obligations that would reduce or remove these 
barriers to worker empowerment.
    In addition to seeking comment on the specific proposed revisions, 
discussed further below, the Department sought comment on whether H-2A 
workers are more vulnerable to labor exploitation than similarly 
employed workers in the United States, whether the existing worker 
protections are sufficient to prevent violations of the H-2A program, 
and whether agricultural workers in the United States have greater 
voice and empowerment to advocate regarding the terms and conditions of 
their employment. The Department received significant comments on these 
issues.
    Those commenters that agreed that H-2A workers are a more 
vulnerable workforce than their counterparts in the United States cited 
a range of evidence in support of this conclusion, including

[[Page 33988]]

specific examples of worker experiences, data, and studies on the H-2A 
program. These comments reflect that the nature of the H-2A program 
makes these workers particularly vulnerable to retaliation and threats 
of retaliation, and that the existing worker protections are 
insufficient to ensure program compliance. For example, CCUSA and USCCB 
stated that several Catholic Charities agencies that serve migrant 
farmworkers across the country ``report the regular and widespread 
occurrence of illicit and unjust practices'' among H-2A workforces, 
including restrictions on mobility, worker isolation, and insufficient 
health care. The California LWDA, a State labor agency, stated that it 
has seen that ``[f]armworkers experience a range of abusive labor 
practices, including underpayment of wages, inadequate implementation 
and enforcement of workplace safety measures, and substandard employer-
provided housing conditions.'' With respect to H-2A workers in 
particular, the agency stated that in its experience ``H-2A workers 
appear to be even more fearful to seek assistance or otherwise exercise 
their legal rights because they are more vulnerable to employer 
misconduct'' than other farmworkers, citing a ``grave imbalance of 
power between employers and H-2A workers because their visas, 
encompassing both their authorization for employment and right to 
remain in the United States, are tied to a single employer.''
    AIHA, an association committed to occupational health and safety, 
noted that, as compared to H-2A workers, similarly employed 
agricultural workers do not face threats of deportation, are not tied 
to a single employer, and ``[t]hey are also more likely to be English-
speaking, less likely to depend on the employer for housing, and less 
likely to lose future job opportunities.'' The National Women's Law 
Center echoed these same concerns, commenting that H-2A workers are 
dependent upon their employers to work and to remain in the United 
States: ``If workers lose their H-2A employment, they must leave the 
country unless they can find another employer to sponsor them. As a 
result, H-2A workers will work to the limits of human endurance in an 
effort to please their employers, keep their jobs, and have the chance 
of being rehired in future years.'' CAUSE, which advocates on behalf of 
H-2A workers and other working-class and immigrant communities in 
California's Central Coast, stated that ``H-2A workers who wish to 
stand up to unfair or illegal conduct have reason to fear retaliation 
in the form of discharge and deportation as well as denial of a job and 
visa in a future season.''
    Many commenters also stated that greater worker protections are 
needed to empower workers to advocate regarding working conditions 
without fear of retaliation and to prevent H-2A program violations. The 
UFW Foundation gathered and submitted with their comment the first-hand 
experiences of numerous farmworkers to demonstrate these needs. For 
example, the comment quoted an H-2A worker as saying that ``most 
workers stay silent because of fear of not being allowed to come back'' 
and another H-2A worker explaining that he didn't advocate for himself 
because ``I know the consequences if I speak and I don't want to lose 
my job.'' Yet another H-2A worker stated that ``we cannot ask for 
better treatment because they will simply return us to our country.'' A 
former H-2A worker reported that colleagues who complained about wages, 
housing, or other working conditions were punished.
    Many commenters also cited a 2020 report from EPI which reflects a 
similar conclusion, noting that farmworkers' fear of retaliation and 
deportation can contribute to an underreporting of violations.\63\ The 
GAO 2015 Report reflects this potential for underreporting as well, 
explaining that the dependency of H-2A workers on the employer for a 
visa and employment authorization creates disincentives for workers to 
report program abuses, leading to an underreporting of violations.\64\
---------------------------------------------------------------------------

    \63\ EPI 2020 Report at 13.
    \64\ GAO 2015 Report at 37.
---------------------------------------------------------------------------

    The EPI 2020 Report also set forth that 70 percent of WHD 
investigations of farms found violations and that a farm employer's 
probability of being investigated in any year is 1.1 percent.\65\ The 
National Women's Law Center stated, ``less than one percent of 
agricultural employers are investigated per year, yet when WHD does 
investigate . . . it detects wage and hour violations 70 percent of the 
time, indicating that wage theft by employers is grossly undetected.'' 
In fact, in the previous 5 fiscal years, in 88 percent of WHD's H-2A 
investigations, WHD found employers in violation of the law. In H-2A 
cases where back wages are owed, the average worker is owed $746.\66\ 
In its 2020 report, among other recommendations to address its 
findings, EPI encouraged the Department to ``build on the good work 
done by advocates and unions to educate farmworkers about their rights 
and the process of reporting violations.'' \67\ In its comment on the 
NPRM, EPI reiterated its conclusion from its 2020 report and also cited 
a more recent EPI study from 2023 that ``found that violations of H-2A 
rules account for much higher shares of back wages owed and civil money 
penalties assessed than violations of other laws on farms, and now 
account for an overwhelming share of the back wages owed and civil 
money penalties assessed in agriculture that are the result of closed 
investigations.'' \68\
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    \65\ EPI 2020 Report at 18-19, 56.
    \66\ DOL, Enforcement Data, https://enforcedata.dol.gov/homePage.php (last accessed Apr. 1, 2024).
    \67\ EPI 2020 Report at 8.
    \68\ Daniel Costa & Philip Martin, EPI, Record-low Number of 
Federal Wage and Hour Investigations of Farms in 2022 12 (Aug. 22, 
2023), https://www.epi.org/publication/record-low-farm-investigations/.
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    An individual commenter also noted that the recruitment of H-2A 
workers ``is tainted by rampant abuses,'' including trafficking and 
labor exploitation. A group of 15 U.S. Senators identified labor 
trafficking as a major concern in the H-2A program, citing the Polaris 
2018-2020 Report finding that the Human Trafficking Hotline identified 
2,841 victims of labor trafficking who held an H-2A visa from 2018 to 
2020, that 58 percent of those reported they had worked excessive 
hours, and that 41 percent reported their wages had been withheld or 
taken. The Alliance to End Human Trafficking noted that, in its 
experience, ``traffickers thrive where vulnerability is high.''
    Commenters also observed that agricultural labor is dangerous, and 
these risks are compounded for H-2A workers who may be less likely to 
report safety concerns out of fear of reprisal. The California LWDA 
reported that ``Cal/OSHA considers the agricultural industry a high 
hazard industry, an industry with the highest incidence of preventable 
occupational injuries and illnesses and workers' compensation losses.'' 
A group of State Attorneys General cited a report from Union of 
Concerned Scientists outlining the dangers of farmwork and how these 
dangers are likely to be increasing, particularly dangers related to 
climate change.\69\ These State Attorneys General also cited to a NIOSH 
website that observed, based on BLS data, that agricultural workers 
report one of the highest fatal injury rates and also that there is 
``well-known underreporting of

[[Page 33989]]

injury'' in the industry.\70\ Specifically, according to NIOSH, in 
2021, workers in the agriculture, forestry, fishing, and hunting 
industry experienced one of the highest fatal injury rates at 20 deaths 
per 100,000 full-time workers, compared to a rate of 3.6 deaths per 
100,000 workers for all U.S. industries. The State Attorneys General 
comment also pointed out that ``workers trapped in abusive or coercive 
environments are less likely to take rests or complain about lack of 
adequate environmental protections, which enables dangerous health and 
safety violations to persist.'' Citing a study from the Annual Review 
of Public Health, AIHA noted that H-2A workers ``are incentivized to 
continue employment even when presented with working conditions and 
labor standards violations that are hazardous to their health and 
safety.'' \71\
---------------------------------------------------------------------------

    \69\ Union of Concerned Scientists, Farmworkers at Risk (2019), 
https://www.ucsusa.org/sites/default/files/2019-12/farmworkers-at-risk-report-2019-web.pdf.
    \70\ NIOSH, Agricultural Safety, https://www.cdc.gov/niosh/topics/aginjury/default.html (last accessed Apr. 2, 2024).
    \71\ Sally M. Moyce & Marc Schenker, Migrant Workers and Their 
Occupational Health and Safety, 39 Annual Rev. of Public Health 351 
(2018), https://www.annualreviews.org/docserver/fulltext/publhealth/39/1/annurev-publhealth-040617-013714.pdf; See also Federico 
Castillo et al., Environmental Health Threats to Latino Migrant 
Farmworkers, 42 Annual Rev. of Public Health 257-276 (2021), https://www.annualreviews.org/docserver/fulltext/publhealth/42/1/annurev-publhealth-012420-105014.pdf.
---------------------------------------------------------------------------

    Some commenters also noted that the proposed rule would benefit 
employers as well as workers. As one individual commenter noted, ``[a]n 
employer may be economically disadvantage[d] if it prefers not to cut 
wage and safety corners but its competitors do.'' Another individual 
commenter explained that ``consistent and fair treatment of workers 
across the country not only helps the worker, but helps the farmers who 
do the right thing in the first place.''
    On the other hand, many commenters refuted that H-2A workers are a 
vulnerable workforce or that greater worker protections are needed to 
ensure program compliance. Several commenters, including IFPA, U.S. 
Custom Harvesters, Inc., TIPA, and Titan Farms, LLC, opined that the 
conditions the Department cited in the NPRM as underpinning the 
perceived vulnerability of H-2A workers--including the workers' 
dependence on one employer for employment, housing, food, water, and 
transportation--are conditions the Department ``itself has created'' 
through regulations and that it is ``unfathomable that the Department 
is utilizing its own extensive regulatory requirements as its rationale 
for more regulatory requirements on U.S. businesses.'' Several 
commenters, including Western Growers, AmericanHort, and Willoway 
Nurseries, cited a number from a report of the Cato Institute observing 
that there are over 200 regulatory requirements in the H-2A 
program.\72\ Several commenters suggested that ``[i]f the Department is 
concerned with the impact its regulation has on the workforce,'' the 
Department should consider ``revisions to the existing regulations to 
provide more flexibilities for the workers'' to make workers less 
vulnerable.
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    \72\ David J. Bier, Cato Institute, Immigr. Rsch. & Pol'y Br. 
No. 17, H-2A Visas for Agriculture: The Complex Process for Farmers 
to Hire Agricultural Guest Workers 17-30 (Mar. 2020) (counting 209 
unique regulatory requirements for the H-2A program between DOL, 
DHS, and Department of State regulations), https://www.cato.org/publications/immigration-research-policy-brief/h-2a-visas-agriculture-complex-process-farmers-hire.
---------------------------------------------------------------------------

    The Department disagrees that its regulations have created the 
conditions giving rise to the vulnerability of H-2A workers, such as 
the statutory dependency on a single employer for a visa, frequent 
geographic isolation, and language barriers described above. The 
Department's existing regulations and those included in this final rule 
are intended to empower workers to voice concerns regarding their terms 
and conditions of employment without fear of reprisal by employers, 
agents, recruiters, and other persons who may seek to exploit this 
dependence. In addition, the Department's regulations do not reduce 
worker flexibilities related to housing, transportation, meals, and 
other needs, but instead establish the minimum terms and conditions of 
employment under this unique program that are necessary to prevent 
adverse effect on similarly employed workers in the United States.
    Several commenters also asserted that the H-2A program ``provides a 
significant financial opportunity for this critical workforce and their 
families, which is not accounted for by the Department within this 
proposal.'' For example, GFVGA observed that many workers return to the 
same employer year after year, and ``are eager to recruit friends and 
family members into the program.'' USA Farmers stated that H-2A workers 
are not more vulnerable but instead have ``more legal protections and 
benefits'' than U.S. farmworkers. In addition, many commenters felt 
that the Department's statements in the NPRM regarding the 
vulnerability of H-2A workers exhibited bias against agricultural 
employers. Several commenters, including NCFC and FFVA, noted that the 
``vast majority of employers who use the [H-2A program] do so with an 
eye towards compliance.'' IFPA explained that over the years many 
``employers have developed a deeper understanding of the program and as 
a result continue to adopt protocols to ensure compliance, more 
transparent and efficient recruiting practices, as well as incentive 
packages for workers to return.'' In support of this point, IFPA, NCAE, 
the U.S. Chamber of Commerce, and several other commenters cited a blog 
post from the Rural Migration News at the University of California-
Davis. According to the commenters, that blog post--relying on the 2020 
EPI report discussed above--stated that between 2005 and 2019, ``71 
percent of all violations found on vegetable farms occurred on only 5 
percent of all the U.S. vegetable farms.'' \73\ These commenters 
asserted that this data suggests that the proposed regulations are 
unnecessary and the Department should instead focus on targeted 
enforcement against the ``bad apples.'' Similarly, citing the House 
Committee on Agriculture's Agricultural Labor Working Group Interim 
Report, wafla commented that the Department and SWAs should better 
utilize existing regulatory and enforcement tools rather than adopt the 
proposed worker voice and empowerment regulations.\74\
---------------------------------------------------------------------------

    \73\ Rural Migration News, The H-2A Program in 2022 (May 16, 
2022), https://migration.ucdavis.edu/rmn/blog/post/?id=2720.
    \74\ House Comm. On Agric., Agric. Lab. Working Grp., Interim 
Report (Nov. 7, 2023), https://agriculture.house.gov/uploadedfiles/house_committee_on_agriculture_-_alwg_interim_report_-_final_-_11.7.23.pdf. Notably, this report also includes findings from a 
Labor Perspectives roundtable that reflect many of the same concerns 
identified in the comments on the NPRM regarding the barriers H-2A 
workers face to reporting program violations. Id. at 28-30.
---------------------------------------------------------------------------

    The Department appreciates the opportunity to state clearly that 
its mission is to promote and achieve compliance with labor standards 
to protect and enhance the welfare of the nation's workforce. The 
Department respects that the majority of H-2A employers seek to comply 
with the law. Unfortunately, despite these good intentions and as 
explained above, violations of the H-2A program requirements remain 
pervasive. Although the so-called ``bad apple'' employers may commit a 
large share of the violations WHD encounters in its investigations, the 
fact remains that when WHD investigates H-2A employers, it typically 
does not find full compliance with the law, with back wages averaging 
several hundred dollars owed per worker. But WHD cannot investigate 
every farm on which H-2A workers are employed. WHD's enforcement 
initiatives are data-driven and seek to target the agency's limited

[[Page 33990]]

resources where needed most. WHD also supplements its enforcement 
efforts through employer and worker outreach programs, understanding 
that it may reach a larger audience by leveraging advocacy 
organizations, employer associations, community-based organizations, 
and State and Federal agencies. For example, WHD partnered with the 
North Carolina Department of Labor's Agriculture Safety and Health 
Bureau to reach farmworkers in the Southeast. In recent years, WHD has 
also hosted regional multi-day virtual agricultural seminars educating 
hundreds of stakeholders--including employers, associations, agents, 
workers, and advocates--about their rights and obligations under the H-
2A provisions of the INA and other laws enforced by the agency. In 
addition, the Department has developed websites in both English and 
Spanish, www.MigrantWorker.gov and www.TrabajadorMigrante.gov, that aim 
to educate workers about their rights, increase WHD's visibility, and 
streamline workers' ability to contact WHD with questions, concerns, or 
complaints.\75\ Even so, as many commenters pointed out and as 
discussed above, a farm employer's probability of being investigated by 
WHD in any year is small. This final rule seeks to supplement these 
data-driven enforcement and outreach efforts by giving workers the 
tools they need to ensure that they are being properly paid and to 
advocate on their own behalf regarding working conditions, without fear 
of reprisal. And, as one individual commenter stated, ``consistent and 
fair treatment of workers across the country not only helps the worker 
but helps farmers who do the right thing in the first place.''
---------------------------------------------------------------------------

    \75\ See www.MigrantWorker.gov (English language version) and 
www.TrabajadorMigrante.gov (Spanish language version), at https://www.dol.gov/general/migrantworker and https://www.dol.gov/general/trabajadormigrante. See also https://www.dol.gov/agencies/whd/espanol and https://www.worker.gov/es for additional Spanish 
language Department resources for workers.
---------------------------------------------------------------------------

    The Department also recognizes that the H-2A program benefits H-2A 
workers in many ways and that the program provides many workers with a 
financial opportunity that may not exist in their home communities. 
Many workers do return to the same employer year after year. But, as 
several commenters pointed out, this dynamic can lead to significant 
vulnerability for these workers--the fact that workers rely upon the 
same employer for such an important economic opportunity makes them 
less likely to speak up about working conditions or noncompliance; 
workers may not feel empowered to raise concerns with their employer 
for fear of retaliation, not only by their current employer, but by 
labor recruiters and other H-2A employers as well, and may lack 
resources to find other H-2A employment. The Department seeks, in this 
final rule, to empower workers to seek compliance and protection of 
their rights.
    In addition, a number of commenters, including NCAE and IFPA, took 
issue with the Department's statement that the dangers and hardships 
inherent in agricultural labor and the lack of protections for worker 
organizing have contributed to worsening working conditions and led to 
a decreasing number of agricultural workers in the United States 
willing to accept such work. Citing data from USDA, IFPA asserted that 
the growth in the H-2A program is ``more likely a result of an aging 
domestic agricultural work force and a decrease in the number of 
migratory farmworkers.'' The Department acknowledges these trends in 
the agricultural workforce but notes that regardless of the root cause, 
use of the H-2A program has grown dramatically over the past decade 
while overall agricultural employment in the United States has remained 
stable, meaning that fewer workers in the United States are employed as 
farmworkers.\76\ This increasing reliance upon the H-2A program makes 
the entire agricultural workforce as a whole more vulnerable to abuse 
and exploitation for the reasons discussed above, and therefore greater 
worker protections are needed to ensure that workers feel safe and have 
the ability to ensure that their rights are being protected.
---------------------------------------------------------------------------

    \76\ According to USDA's Economic Research Service, employment 
of farmworkers in the United States has remained stable since the 
1990s, but the number of positions certified in the H-2A program has 
increased sevenfold from 2005 to 2022. See USDA, Farm Labor, https://www.ers.usda.gov/topics/farm-economy/farm-labor (last visited Apr. 
2, 2024); USDA, H-2A Seasonal Worker Program Has Expanded Over Time, 
https://www.ers.usda.gov/data-products/chart-gallery/gallery/chart-detail/?chartId=104874 (last visited Apr. 2, 2024).
---------------------------------------------------------------------------

    As several commenters noted, the Department's H-2A regulations 
already include numerous and substantial protections for workers, 
including various minimum terms and conditions of employment under the 
H-2A program that are necessary to prevent adverse effects on similarly 
employed workers. However, as the Department's enforcement experience 
and the above comments, data, and studies reflect, greater protections 
are needed to empower workers to speak up on their own behalf to 
enforce these terms and conditions of employment. As the American 
Federation of Labor & Congress of Industrial Organizations (AFL-CIO) 
stated in its comment, ``[g]uaranteeing such wages and working 
conditions on paper means nothing if the H-2A workers are unable or 
unwilling because of fear and intimidation to take action if they are 
not paid the required wages or are otherwise abused.'' Workers' rights 
cannot be secured unless they are protected from all forms of 
discrimination resulting from any worker's attempt to advocate on 
behalf of themselves or their coworkers. The Department and courts have 
long recognized that such protections are necessary and essential to 
the effective functioning of a complaint-based enforcement system. See, 
e.g., 88 FR at 63790; Mitchell v. Robert DeMario Jewelry, Inc., 361 
U.S. 288, 292 (1960) (agreeing with the Department's interpretation of 
the FLSA's anti-retaliation provision that ``effective enforcement 
could . . . only be expected if employees felt free to approach 
officials with their grievances''). As the comments and the 
Department's enforcement experience make clear, the current protections 
are not enough to prevent adverse effect. Therefore, after 
consideration of the comments received, the Department concludes that 
the H-2A workforce is uniquely vulnerable, and as a result, H-2A 
workers are less able and less likely to advocate on behalf of 
themselves or their coworkers to seek compliance with the terms and 
conditions of H-2A employment that the Department has determined are 
necessary to prevent adverse effect on the wages and working conditions 
of workers in the United States similarly employed. Additionally, the 
ability of employers to hire this uniquely vulnerable workforce may 
suppress the ability of agricultural workers in the United States to 
negotiate with employers and advocate on their own behalf regarding 
their terms and conditions of employment.
    The Department proposed in the NPRM to prevent such adverse effect 
by revising the assurances and obligations of H-2A employers to include 
stronger protections for workers who advocate regarding their working 
conditions on behalf of themselves and their coworkers. Specifically, 
the Department proposed to broaden the provision at Sec.  655.135(h), 
which prohibits unfair treatment, by adding a number of protected 
activities that the Department considered would play a significant role 
in safeguarding collective action--activities that workers must be able 
to

[[Page 33991]]

engage in without fear of intimidation, threats, and other forms of 
retaliation. The Department also proposed several new employer 
obligations at Sec.  655.135(m) that would ensure H-2A employers do not 
interfere with workers' efforts to advocate regarding their working 
conditions, including a number of requirements that would advance 
worker voice and empowerment and further protect the rights proposed 
under Sec.  655.135(h). The Department also proposed a new employer 
obligation at Sec.  655.135(n) that would explicitly allow H-2A workers 
and workers in corresponding employment the right to invite or accept 
guests to worker housing and also would provide a narrow right of 
access to worker housing to labor organizations. Some of these 
provisions were limited to those workers who are engaged in agriculture 
as defined and applied in 29 U.S.C. 203(f)--that is, those who are 
exempt from the protections of the NLRA.
    As detailed below in the section-by-section analysis, the 
Department is adopting several of its proposals relating to worker 
voice and empowerment in this final rule, modified as discussed in 
response to the comments received. The Department concludes that these 
provisions, which safeguard worker voice and empowerment, will prevent 
adverse effect on similarly employed workers in the United States by 
alleviating some of the barriers H-2A workers face when raising 
complaints about violations of their rights under the program and 
advocating regarding working conditions.
    Many commenters opposing the proposed rule argued that the 
Department failed to provide a ``rational basis'' for its conclusion 
that the proposed worker voice and empowerment provisions will prevent 
the identified adverse effect on similarly employed workers in the 
United States. As IFPA phrased the issue, ``[w]hat remains unanswered 
throughout the entire Department proposal is how greater access for 
labor organizations to foreign-citizen workers in the [H-2A] program 
will improve conditions for U.S. workers elsewhere.'' Similarly, wafla 
posited that the Department ``assumes that unionization is the answer 
to additional worker protections.'' Commenters also observed that many 
employees may not wish to join a union and should not be forced to do 
so.
    The Department welcomes the opportunity to clarify this point. This 
final rule does not provide for collective bargaining rights nor does 
the rule compel a worker to join a union. As finalized, the rule does 
not grant any rights to labor organizations. Rather, as detailed below, 
the final rule does the following: clarifies and expands protections 
for engaging in protected activities, including exercising rights under 
State and local laws; offers new protections for workers engaged in 
FLSA agriculture to engage in concerted activity; provides limited 
access to representation in disciplinary proceedings; and ensures 
greater access for workers to key service providers and to information 
about workers' rights. The Department believes that each of these 
provisions, taken individually, will reduce the fear of retaliation and 
other barriers currently faced by the H-2A workforce when seeking to 
advocate on behalf of themselves and their coworkers regarding their 
working conditions or violations of their rights, if they so choose. 
Empowering workers in this way thus can improve compliance with the 
various terms and conditions of H-2A employment that the Department has 
separately determined are necessary to prevent adverse effect on 
similarly employed workers. The Department believes that these improved 
protections also will help place the H-2A workforce on more equal 
footing with similarly employed workers and thus reduce the potential 
for this workforce's vulnerability to undermine the advocacy efforts of 
similarly employed workers.
    The right to engage in concerted activity specifically, as 
described in greater detail in Section VI.C.2.b.viii below, is a 
demonstrated and powerful tool to empower worker voice to address 
working conditions, whether or not the workers' concerted activity 
results in formal representation by a labor union or other organized 
group. For example, in its comment, the AFL-CIO pointed to evidence 
that worker engagement in concerted activity ``significantly increases 
the enforcement of a broad range of employment laws and thus prevents 
the exploitation of workers.'' It particularly noted the role that 
representation by labor unions has played in increasing the likelihood 
that workers will voice complaints and increasing the likelihood of 
inspections under the Occupational Safety and Health Act.\77\ In its 
comment, FLOC also provided evidence that collective action by workers 
can help prevent adverse effect, particularly through improving 
employer compliance with the terms and conditions of employment under 
the H-2A program. For example, FLOC noted that it has negotiated CBAs 
covering about 10,000 farmworkers in North Carolina, including many H-
2A workers as well as non-H-2A workers. It also noted that although the 
H-2A regulations prohibit workers from paying recruitment fees, many H-
2A workers are still illegally required by unscrupulous recruiters to 
pay such fees. FLOC stated that it ``has to a large extent eliminated 
these fees for workers employed under its [CBA] . . . due to the 
extensive provisions in the [CBA] providing job protection for those H-
2A workers who file complaints regarding their U.S. employment, 
including complaints concerning recruitment fees.'' FLOC explained that 
its CBA indirectly assists in enforcing the regulatory provision by 
barring the blacklisting of union members who complain about illegal 
recruitment fees. FLOC also noted that its negotiated CBA with the 
North Carolina Growers Association also requires that all disciplinary 
actions and terminations be subject to a ``just cause'' standard, and 
provides union staff with access to all employer housing facilities and 
work sites, in order to inspect working conditions and assist workers 
in enforcing compliance. The UFW also quoted one H-2A worker stating 
that having representation would be helpful because the employers 
``would stop threatening us all the time with returning us to our 
country and not giving us more work.'' It also cited evidence that many 
farmworkers regularly experience wage theft, especially regarding piece 
rates, and that concerted activity helps ensure that workers are paid 
the wages as promised in the job order. For example, one worker stated 
that after she worked on a piece rate basis for a month picking 
tangerines, the contractor refused to pay the workers because they did 
not have proof of how many tangerine bins they had picked. After the 
workers sought help from the UFW, the contractor finally paid the 
workers the wages they had earned. As reflected in the comments 
received, concerted activity by farmworkers can result in significantly 
fewer violations and improved compliance with laws even in non-union 
settings. As further detailed below, workers in several States have 
joined together to seek better enforcement of laws against sexual 
harassment, retaliation, and discrimination on farms, either by 
campaigning for voluntary agreements or by working with legal aid 
groups and/or government agencies to file complaints under applicable 
State laws and/or Federal anti-discrimination, minimum wage, and anti-
human

[[Page 33992]]

trafficking laws. Indeed, workers can engage in advocacy and concerted 
activities for the purpose of mutual aid and protection without 
engaging with or being represented by a labor organization. For 
example, although farmworkers in some States have been able to enforce 
their rights by joining unions, in other States they have chosen 
instead to band together in worker centers to campaign for voluntary 
agreements. See, e.g., comments by FLOC, the UFW Foundation, the 
Farmworker Association of Florida, and CDM; see also the Campaign for 
Fair Food supported by the Coalition of Immokalee Workers in Florida. 
Farmworkers also have engaged in concerted, collective action through 
litigation to enforce their rights. See, e.g., Garcia-Celestino, 843 
F.3d at 1285 (class action filed by H-2A workers in Florida bringing 
claims against labor contractor and fruit grower under FLSA, State 
minimum wage law, and State breach of contract law for failure to pay 
required wages); Gonzalez-Rodriguez v. Gracia, No. 5:21-CV-406, 2023 WL 
2450170 (E.D.N.C. Feb. 6, 2023) (collective action filed under FLSA by 
H-2A workers who worked as both cooks and field workers in North 
Carolina alleging that employer failed to pay them, physically and 
sexually abused them, took possession of their passports and threatened 
violent retaliation if they attempted to escape); Reyes-Trujillo v. 
Four Star Greenhouse, Inc., 513 F. Supp. 3d 761, 773-74 (E.D. Mich. 
2021) (complaint filed by H-2A workers against grower under Federal and 
State laws alleging that employer and its labor contractor did not pay 
them properly and retaliated against workers who raised concerns by 
having them jailed and removed from the United States).
---------------------------------------------------------------------------

    \77\ See David Weil, Enforcing OSHA: The Role of Labor Unions, 
30 Indus. Rel. 20 (1991).
---------------------------------------------------------------------------

    And as detailed in the NPRM and below, concerted activity under 
this rule need not include any formal organization of workers, as it 
includes employee activity ``engaged in with or on the authority of 
other employees, and not solely by and [on] behalf of the employee 
himself,'' and can consist of two or more workers presenting joint 
requests or grievances to their employer, among other activities. 88 FR 
at 63793 (citations omitted). Concerted activity also encompasses 
workers' individual actions when they seek to initiate, induce, or 
prepare for group action, or when workers bring shared complaints to 
the attention of management or an enforcement agency. Id. As stated in 
the NPRM, activity for ``mutual aid or protection'' encompasses 
activities for which ``there is a link between the activity and matters 
concerning the workplace or employees' interests as employees.'' Id. 
(citations omitted). For example, as further detailed below, 
``concerted activity for mutual aid and protection'' can be as simple 
as one worker speaking up for another, or two workers approaching their 
employer jointly, to complain about a lack of clean drinking water or 
inadequate or unsanitary toilet facilities in violation of OSHA field 
sanitation standards.\78\ The Department also recognizes that there are 
many ways that workers can seek to advocate on behalf of their working 
conditions and seeks in this final rule to protect all such activities. 
Therefore, after consideration of the comments, the Department has 
modified the worker voice and empowerment provisions from those 
proposed in the NPRM. As described in greater detail below, in response 
to concerns raised by commenters, the Department will not finalize the 
proposals to require employers to provide a requesting labor 
organization with a list of employee contact information, nor the 
requirement that an employer disclose whether it will bargain in good 
faith over a neutrality agreement with a labor organization, nor the 
right of access to employer-furnished housing for labor organizations. 
The Department will finalize, with the modifications described below, 
the worker protections against unfair treatment at Sec.  655.135(h) and 
the right to a representative in certain disciplinary proceedings at 
Sec.  655.135(m). The Department also adopts a significantly modified 
version of the ``captive audience meetings'' provision at proposed 
Sec.  655.135(m)(3). Finally, the Department will finalize the explicit 
right of H-2A or corresponding workers to invite or accept guests to 
worker housing.
---------------------------------------------------------------------------

    \78\ See, e.g., DOL, OSHA Fact Sheet #51: Field Sanitation 
Standards under the Occupational Safety and Health Act (2008), 
https://www.dol.gov/agencies/whd/fact-sheets/51-osh-act-field-sanitation.
---------------------------------------------------------------------------

    A number of commenters argued that the Department lacks statutory 
authority to promulgate its proposed worker voice and empowerment 
regulations. Several trade associations, including FFVA and IFPA, 
commented that the Department's proposal unlawfully sought to make jobs 
more attractive to U.S. workers. These commenters also argued the 
Department lacks authority to establish a ``baseline'' of acceptable 
standards for working conditions below which workers in the United 
States would be adversely affected. Other commenters stated that the 
Department's proposals could not prevent adverse effect when many 
agricultural workers in the United States lack collective bargaining 
rights. For example, wafla commented that the baseline of working 
conditions is ``the absence of collective bargaining rights in 
agriculture'' and that the Department therefore lacked authority to 
attempt to expand collective bargaining rights for H-2A workers. 
Commenters also asserted that the Department failed to properly 
consider the needs and rights of employers in developing these worker 
voice and empowerment proposals, noting that the H-2A statute requires 
the Department to balance the competing goals of providing U.S. 
employers with a needed workforce while preventing adverse effect on 
similarly employed workers in the United States. Relatedly, commenters 
stated that the Department selectively proposed to adopt only certain 
provisions of the NLRA, excluding protections built into the NLRA for 
employers to challenge unfair labor practices by unions.
    The Department does not intend with this final rule to make jobs 
more attractive to U.S. workers. See Williams, 531 F.2d at 306-07 
(Department may not set AEWR based on ``attractiveness to workers''). 
Neither is the Department granting collective bargaining rights to H-2A 
and corresponding workers, nor regulating the conduct of unions. 
Instead, as described above, the Department seeks to prevent adverse 
effect on similarly employed workers by ensuring that workers have the 
tools to ensure that their rights under the H-2A program are not 
violated and to advocate regarding the terms and conditions of their 
employment, on more equal footing with similarly employed workers in 
the United States. Though such similarly employed workers may be 
excluded from the NLRA's protections, they may be less likely to face 
the unique vulnerabilities and forms of retaliation experienced by H-2A 
workers described above. The tools adopted in this final rule include 
the right for workers to engage in protected, concerted activity 
without fear of retaliation and additional worker protections to 
empower workers in order to engage in advocacy regarding the terms and 
conditions of employment. In adopting these provisions, the Department 
is exercising its long-recognized authority to establish the minimum 
terms and conditions of employment (i.e., the ``baseline'' of working 
conditions) necessary to ``neutralize any `adverse effect' resultant 
from the influx of temporary foreign workers.'' Id.; see also Garcia-
Celestino, 843 F.3d at 1285. As

[[Page 33993]]

detailed below in the section-by-section analysis, the Department has 
determined that the worker voice and empowerment provisions adopted in 
this final rule are necessary to address a demonstrated imbalance of 
power between employers and H-2A workers and prevent adverse effect on 
similarly employed workers. The Department has considered the burden 
imposed on employers for each proposal and has determined that the 
provisions adopted in this final rule strike the necessary balance, 
such that the Department can satisfy its statutory mandate under 8 
U.S.C. 1188(a)(1) when granting a labor certification to a prospective 
H-2A employer.
    Many commenters also asserted that the Department's proposals would 
be preempted by the NLRA if finalized. As the Department explained in 
the NPRM, some of the provisions of the proposal, including some of 
those adopted in this final rule, are limited to persons who are 
engaged in FLSA agriculture (i.e., as defined and applied in 29 U.S.C. 
203(f)). This final rule provides, as described more fully below, 
certain protections for these workers to engage in concerted activity 
and provides certain rights necessary to safeguard collective action. 
The Department explained in the preamble of the NPRM that these 
provisions are not preempted by the NLRA because the NLRA's coverage 
extends only to workers who qualify as ``employee[s]'' under sec. 2(3) 
of that Act, and the NLRA's definition of employee expressly excludes 
``any individual employed as an agricultural laborer.'' 29 U.S.C. 
152(3). Congress has provided that the definition of ``agriculture'' in 
sec. 3(f) of the FLSA also applies to the NLRA. See, e.g., Holly Farms 
Corp. v. NLRB, 517 U.S. 392, 397-98 (1996). Following the plain text of 
the statute, both Federal courts and the NLRB have long held that the 
NLRA does not apply to agricultural workers, worker organizing by 
agricultural workers, or unions ``composed exclusively of agricultural 
laborers.'' Di Giorgio Fruit Corp. v. NLRB, 191 F.2d 642, 647 (D.C. 
Cir. 1951); see also, e.g., Villegas v. Princeton Farms, Inc., 893 F.2d 
919, 921 (7th Cir. 1990). Because the rights and protections relating 
to concerted activity in this final rule apply only to workers who fall 
within the NLRA and FLSA definitions of ``agriculture,'' these 
provisions apply exclusively to workers who are exempt from the NLRA.
    As the Supreme Court explained in San Diego Building Trades Council 
v. Garmon, 359 U.S. 236 (1959), the NLRA preempts regulation of 
activities that either are or arguably are ``protected by Sec.  7 of 
the [NLRA], or . . . an unfair labor practice under Sec.  8.'' Id. at 
244; see also UAW-Labor Emp. & Training Corp. v. Chao, 325 F.3d 360, 
363 (D.C. Cir. 2003). Conduct may be ``arguably'' governed by sec. 7 or 
8 of the NLRA when there is a plausible argument for preemption ``that 
is not plainly contrary to [the Act's] language and that has not been 
authoritatively rejected by the courts or the Board.'' Int'l 
Longshoremen's Ass'n v. Davis, 476 U.S. 380, 395 (1986) (citations 
omitted). Because agricultural workers are expressly excluded from the 
NLRA by the plain text of the statute, agricultural worker concerted 
activity is neither protected by sec. 7 of the Act nor subject to sec. 
8's limitations on unfair labor practices. See 29 U.S.C. 152(3); see 
also Bud Antle, Inc. v. Barbosa, 45 F.3d 1261, 1274 (9th Cir. 1994) 
(``If Bud's employees are `agricultural laborers,' then the NLRA does 
not apply, and the company's conduct is not arguably prohibited under 
the Act.''); Villegas, 893 F.2d at 921 (agricultural workers' 
retaliation claim not preempted by NLRA because they are excluded from 
the NLRA's protections); Di Giorgio, 191 F.2d at 647-49 (holding that 
NLRA sec. 8's prohibition on secondary boycotts did not apply to a farm 
union, because an organization composed exclusively of agricultural 
workers is not governed by the NLRA). Therefore, because this final 
rule's provisions relating to concerted activity apply only to 
agricultural workers, the conduct that is protected under those 
provisions is not even arguably governed by the NLRA and thus not 
preempted under Garmon. Id.
    The NLRA also preempts regulation of employer or worker conduct 
that Congress intended to leave unregulated ``to be controlled by the 
free play of economic forces.'' Int'l Ass'n of Machinists & Aerospace 
Workers v. Wis. Emp't Relations Comm'n, 427 U.S. 132, 140 (1976) 
(citation omitted). Machinists preemption applies to State or Federal 
regulation of ``economic weapons'' that would ``frustrate effective 
implementation of the [NLRA's] processes.'' Id. at 147-48 (citations 
omitted). However, Federal courts have held repeatedly that Congress' 
exclusion of agricultural employees from the NLRA's protection 
indicates that Congress did not intend to occupy the field of 
agricultural labor relations and that labor regulations covering 
agricultural employees do not frustrate effective implementation of the 
NLRA. See United Farm Workers of Am. v. Ariz. Agric. Emp't Rels. Bd., 
669 F.2d 1249, 1257 (9th Cir. 1982) (NLRA does not preempt State 
regulation of agricultural laborers); Willmar Poultry Co. v. Jones, 430 
F. Supp. 573, 577-78 (D. Minn. 1977) (same). Similarly, courts have 
held that Machinists preemption does not bar labor relations 
regulations that apply to other workers excluded from the NLRA. See, 
e.g., Davenport v. Wash. Educ. Ass'n, 551 U.S. 177, 181 (2007) (public 
employees); Chamber of Commerce v. City of Seattle, 890 F.3d 769, 793 
(9th Cir. 2018) (independent contractors); Greene v. Dayton, 806 F.3d 
1146, 1149 (8th Cir. 2015) (domestic service workers). Accordingly, the 
provisions of this final rule applicable only to agricultural employees 
excluded from the NLRA are not prohibited under Machinists preemption.
    Many commenters attempted to distinguish Garmon and Machinists, and 
related cases, from the Department's proposed rule, opining that 
because the Department is a Federal agency, rather than a State, a 
different preemption analysis must apply. For example, Willoway 
Nurseries stated that the Department's preemption analysis ``negates 
the point that Congress spoke as to what the Executive could do when it 
comes to agricultural workers, and they are exempt from the provisions 
of the NLRA.'' FFVA similarly opined that, ``[w]hile states may be able 
to legislate where Congress has not `occupied the field,' the U.S. 
Department of Labor, importantly, is not a state.'' The comment 
continued, ``[r]egarding labor policy for agricultural workers, 
Congress was in no way silent as to a policy. The NLRA expressly 
excluded agriculture laborers from the provisions of the Act.''
    These commenters fail to recognize that, as the Supreme Court and 
circuit courts have made clear, both the Machinists and Garmon analyses 
apply to consideration of whether the NLRA preempts any laws or 
regulations, whether promulgated by the Federal government or by State 
governments. Over 30 years ago, the Supreme Court observed that ``[t]he 
Machinists rule creates a free zone from which all regulation, whether 
federal or State, is excluded.'' Golden State Transit Corp. v. City of 
Los Angeles, 493 U.S. 103, 111 (1989) (citations omitted). The lower 
courts have recognized this as well. See, e.g., Chamber of Commerce v. 
Reich, 74 F.3d 1322 (D.C. Cir. 1996) (``Nor, as we have noted, is there 
any doubt that Machinists `pre-emption' applies to federal as well as 
state action.''). As set forth above, the Department's rule is not 
preempted under Machinists. Similarly, Garmon preemption is equally 
relevant to determining whether the NLRA preempts Federal or State laws 
or

[[Page 33994]]

regulations. See, e.g., UAW-Labor Emp. & Training Corp., 325 F.3d at 
363 (considering whether Department posting regulation was preempted by 
the NLRA under Garmon); Nat'l Ass'n of Mfrs. v. Perez, 103 F. Supp. 3d 
7, 22 (D.D.C. 2015) (same). As the D.C. Circuit has explained, the 
relevant inquiry under Garmon is whether the activity in question is 
``arguably'' protected or prohibited under the NLRA; this question 
applies equally to examine State and Federal laws and regulations. UAW, 
325 F.3d at 363-65. And as explained above, the provisions of this 
final rule relating to self-organization are neither arguably protected 
nor arguably prohibited under the NLRA.
    For the most part, though, commenters asserted that the 
Department's proposals would be preempted by the NLRA because, in their 
view, the Department lacks any authority to protect rights relating to 
self-organization and concerted activity for workers excluded from the 
NLRA. Commenters, including employers, trade associations, and a group 
of State Attorneys General, also contended that the Department exceeded 
its authority under the INA by regulating labor relations in the 
agricultural sector. In particular, these commenters pointed to the 
exclusion from the NLRA's protections of agricultural workers to 
demonstrate that the Department lacks authority for its proposed 
regulations. A comment from 22 State Attorneys General stated that the 
Department is ``seeking to circumvent'' Federal law ``by granting 
foreign workers federal rights that no American agricultural worker 
has.'' The U.S. Chamber of Commerce stated that ``nothing in INA Sec.  
1188's words or context suggests that Congress meant to enact a full-
scale program of labor-management relations.'' The National Right to 
Work Legal Defense Foundation, Inc. stated that there is ``no 
reasonable basis for concluding that [the INA] grants the Department 
sweeping authority to create substantive labor laws for agricultural 
employees.'' And the Michigan Farm Bureau stated, ``Congress spoke as 
to what the Executive could do when it comes to agricultural workers, 
and they are exempt from the provisions of the NLRA.''
    In other words, these commenters argue that because the NLRA does 
not protect concerted activity involving agricultural workers, no other 
Federal law nor agency may do so. The D.C. District Court confronted 
and rejected a similar argument in Nat'l Ass'n of Mfrs. v. Perez, 
regarding a Departmental posting regulation, explaining that ``[t]he 
Supreme Court has never found that Congress intended for the NLRA to 
occupy the `field' with respect to the regulation of labor concerns.'' 
103 F. Supp. 3d at 25. The district court further explained that 
``Congress did not intend for the NLRA to wholly occupy the field with 
respect to labor regulation and thereby foreclose all other regulation 
of that area.'' Id. Importantly, the court also observed that the 
Department's regulation there was subject to the authority of the 
Procurement Act and not the NLRA. Id.
    Here too, the Department is neither attempting to extend the full 
rights and benefits of the NLRA to agricultural workers nor attempting 
to devise a ``full-scale program of labor-management,'' as the U.S. 
Chamber of Commerce asserted. Instead, as set forth above, the 
Department is issuing these regulations pursuant to its statutory 
authority under the INA to better protect against adverse effect on 
similarly employed workers caused by the use of the H-2A program. This 
final rule, as detailed more fully in the section-by-section analysis 
below, provides for certain rights and protections to better protect 
workers employed under the H-2A program and excluded from the NLRA's 
coverage to engage in concerted activity, including self-organization, 
to better protect against adverse effect in light of the unique 
vulnerability of this workforce described above. Accordingly, these 
provisions establish and clarify labor standards for workers employed 
under the H-2A program. The labor standards in this rule do not apply 
to agricultural workers beyond the scope of the H-2A program. While the 
Department recognizes and appreciates the significant labor needs of 
U.S. agricultural employers, it notes that employer participation in 
the H-2A program is voluntary. Employers that object to compliance with 
the requirements of this final rule need not participate in the H-2A 
program at all. However, those employers that do seek the benefits of 
the H-2A program--namely, the ability to employ H-2A workers--must 
agree, as a condition of receiving the necessary labor certification, 
to comply with the terms and conditions of employment that the 
Department has determined are necessary to prevent adverse effect on 
similarly employed workers. Cf. Adm'r v. Azzano Farms, Inc., ARB No. 
2020-0013, 2023 WL 3042229, at *10 (ARB Mar. 30, 2023) (observing that 
the ARB has long recognized that employers that opt to participate in 
and obtain the benefits of the INA's temporary labor certification 
programs may not later disavow the requirements of those programs). As 
detailed in this section, the Department has determined that certain 
additional or expanded requirements are necessary to prevent such 
adverse effect.
    In addition, even within the context of the H-2A program, the 
Department's final rule does not require collective bargaining, 
employer recognition, or any other action by the employer in response 
to worker organizing. Cf. Rest. Law Ctr. v. City of New York, 90 F.4th 
101, 118 (2d Cir. 2024) (concluding that a New York State law 
protecting workers from arbitrary terminations and reductions in work 
hours and providing for arbitration is not preempted by the NLRA under 
Machinists). Instead, as outlined above and further detailed in the 
section-by-section analysis below, this final rule clarifies and 
expands existing protections for workers engaging in protected 
activities, including exercising rights under State and local laws; 
offers new protections for workers engaged in FLSA agriculture to 
engage in concerted activity; provides limited access to representation 
in disciplinary proceedings; and ensures greater access for workers to 
key service providers and to information about workers' rights.
    Finally, the rights and protections detailed herein, which are 
pursuant to and in furtherance of the INA's requirements, are mutually 
supplemental to those required under the NLRA; an employer subject to 
either act (or both acts, in certain cases, as discussed below) must 
comply with all applicable laws and neither precludes application of 
the other. See Powell v. U.S. Cartridge Co., 339 U.S. 497, 518-520 
(1950).
    For example, as noted in the preamble to the NPRM, because certain 
provisions of this proposed rule would be limited to workers engaged in 
FLSA agriculture, the Department recognizes and intends that workers 
who are not engaged in FLSA agricultural labor (e.g., those workers 
engaged in logging occupations) will not be covered by those provisions 
of this final rule. The vast majority of workers excluded from these 
protections, however, are covered by the NLRA and are thus already 
afforded a right to engage in concerted activity under that law. 
Nothing in this final rule alters or circumscribes the rights of 
workers already protected by the NLRA to engage in conduct and exercise 
rights afforded under that law.
    A number of commenters also stated that the Department's proposed 
regulations would violate the major questions doctrine, as set forth by 
the Supreme Court in West Virginia v. EPA, in which the Court held an 
agency

[[Page 33995]]

``must point to clear congressional authorization for the power it 
claims,'' rather than a ``merely plausible textual basis,'' in 
``certain extraordinary cases.'' 597 U.S. 697, 723 (2022) (citations 
omitted). The Department's final rule does not implicate the major 
questions doctrine. First, this is not a rule that asserts 
``extravagant statutory power over the national economy,'' id. at 724. 
The Department does not seek to regulate employers generally with this 
rule, or even agricultural employers at large; this rule applies only 
to those agricultural employers that have opted to participate in the 
H-2A program. Accordingly, the labor standards and protections in this 
rule do not apply to agricultural workers beyond the scope of the H-2A 
program. While an increasing number of employers have chosen to 
participate in the H-2A program, the program still makes up only a 
small fraction of the agricultural workforce.\79\
---------------------------------------------------------------------------

    \79\ In 2022, direct on-farm employment amounted to 2.6 million 
jobs. See USDA, Agriculture and its related industries provide 10.4 
percent of U.S. employment, https://www.ers.usda.gov/data-products/chart-gallery/gallery/chart-detail/?chartId=58282 (last visited Apr. 
4, 2024). By comparison, in 2022 the Department certified H-2A 
temporary labor certifications for around 370,000 jobs. See USDA, 
Florida, California, and Georgia accounted for one-third of H-2A 
jobs in FY 2022, https://www.ers.usda.gov/data-products/chart-gallery/gallery/chart-detail/?chartId=106604# (last visited Apr. 4, 
2024).
---------------------------------------------------------------------------

    Second, this is not a case where the agency relied on statutory 
language in the ``vague language of an ancillary provision.'' West 
Virginia, 597 U.S. at 724 (citation omitted). Nor has the Department 
relied on a ``long-extant statute'' to claim ``unheralded power.'' 
Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014). Nor is this a 
case in which the Department lacks ``comparative expertise in making 
[the relevant] policy judgments,'' West Virginia, 597 U.S. at 729 
(citation omitted), or has asserted authority that falls outside its 
``particular domain,'' Ala. Ass'n of Realtors v. HHS, 141 S. Ct. 2485, 
2489 (2021). To the contrary, as previously noted, the relevant grant 
of authority at issue here at 8 U.S.C. 1188(a) is one that the 
Department has long relied on to establish program requirements that 
ensure that the employment of H-2A workers does not adversely affect 
the wages and working conditions of workers in the United States 
similarly employed, and is an area where the Department has significant 
expertise. See, e.g., 2023 NPRM, 88 FR at 63787; 2010 H-2A Final Rule, 
75 FR at 6948 (discussing the need to ``prevent[] the exploitation of 
foreign workers, with its concomitant adverse effect on U.S. 
workers''); 2008 H-2A Final Rule, 73 FR at 77159 (noting that foreign 
workers ``may be subject to exploitation in ways that would adversely 
affect the wages and working conditions of U.S. workers by creating 
conditions resembling those akin to indentured servitude, driving down 
wages and working conditions for all workers, foreign and domestic''); 
1987 H-2A IFR, 52 FR at 20508, 20513 (describing the ``minimum'' terms 
and conditions of employment necessary to prevent adverse effect). 
Since the inception of the H-2A program, these program requirements 
have included protections from retaliation for workers who exercise or 
assert their rights under the H-2A program, including by raising 
concerns or filing a complaint regarding the terms and conditions of 
their employment. 1987 H-2A IFR, 52 FR at 20517. Similarly, the 
Department has long required H-2A employers to provide workers with 
certain rights and benefits not required of other agricultural 
employers that do not utilize the H-2A program, such as the provision 
of meals or kitchen facilities and the provision of transportation and 
subsistence costs, on the basis that such requirements are necessary 
under the H-2A program to prevent adverse effect. Id. at 20513-16. This 
final rule simply continues the Department's long history of 
establishing the minimum terms and conditions of employment necessary 
under the H-2A program to prevent adverse effect on similarly employed 
workers. It does so by seeking to expand and improve the tools 
available to workers protected under the H-2A program to prevent 
exploitation and to ensure compliance with the law, in light of the 
Department's program experience and evidence described above 
demonstrating that the current framework of protections are 
insufficient to satisfy the Department's statutory mandate. In other 
words, this final rule does not purport to broadly grant collective 
bargaining rights to agricultural workers, nor to grant rights to labor 
organizations; rather, consistent with the Department's history of 
regulating under the H-2A program, this rule seeks to provide 
protections to workers in the H-2A program in order to prevent adverse 
effect.
i. Section 655.103(b), Definitions
    In support of the new employer obligations the Department proposed 
in the NPRM, the Department proposed adding two new definitions to 
Sec.  655.103(b). For the reasons discussed below, in this final rule 
the Department adopts the proposed definition of ``key service 
provider'' with modifications and adopts the definition of ``labor 
organization'' as proposed.
    The Department proposed to define ``key service provider'' to mean 
a health-care provider; a community health worker; an education 
provider; an attorney; a legal advocate or other legal service 
provider; a government official, including a consular representative; a 
member of the clergy; and any other service provider to which an 
agricultural worker may need access. The list of service providers 
included in the proposed definition was intended to be illustrative and 
not exhaustive. The Department sought comment on the scope of this 
proposed definition, in particular as to whether it would be 
sufficient, whether other types of service providers should be included 
in the list of examples in the regulation, or whether this definition 
would be too broad.
    The Department also proposed to define ``labor organization'' to 
mean ``[a]ny organization of any kind, or any agency or employee 
representation committee or plan, in which workers participate and 
which exists for the purpose, in whole or in part, of dealing with 
employers concerning grievances, labor disputes, wages, rates of pay, 
hours of employment, or conditions of work.'' The proposed definition 
is similar to the one used under the NLRA, with a key difference to 
reflect the nature of the H-2A program. While the proposed definition 
would thus incorporate many NLRA principles regarding the meaning of 
the term ``labor organization,'' the Department intended the range of 
organizations that would be considered labor organizations under these 
proposed regulations to be broader than under the NLRA because the 
Department's proposed definition would include organizations in which 
agricultural workers participate, whereas such organizations are 
excluded under the NLRA. The Department conveyed its belief that this 
broader definition is appropriate given the unique characteristics of 
the H-2A program and sought comment on the scope of the proposed 
definition. The Department also sought comment on whether the 
definition should include additional criteria or protections to ensure 
that any such organization would not be dominated, interfered with, or 
supported by employers, as would be prohibited by sec. 8(a)(2) of the 
NLRA, 29 U.S.C. 158(a)(2). The Department also welcomed comments on 
whether other terms introduced by the proposed regulations should be 
defined in 20 CFR 655.103(b) and on other definitions that the 
Department should consider.

[[Page 33996]]

    The Department received several comments in support of the proposed 
definition of ``key service provider'' from farmworker advocates and 
labor unions, and several comments in opposition to the proposed 
definition from agricultural associations and agricultural employers.
    Several commenters commended the proposed definition as appropriate 
and not overly broad. CCUSA and USCCB expressed gratitude for the 
Department's inclusion of ``member of the clergy'' within the 
definition of ``key service provider,'' commending the Department on 
its explicit recognition of the important role played by clergy and 
religious representatives in the lives of H-2A workers.
    Many commenters opposing the proposed definition said that the 
inclusion of the phrase ``and any other service provider to which a 
worker may need access'' would result in ambiguity and lead to 
confusion about the types of service providers the definition is 
intended to cover. Additionally, some commenters supported the addition 
of the provision but also urged the Department to consider adding other 
types of service providers to the illustrative list of examples in the 
definition, such as emergency responders, law enforcement officers, 
community outreach workers, and translators and interpreters. One 
commenter, the National Legal Aid & Defender Association (NLADA), asked 
the Department to clarify that it is the function and not the title of 
a service provider that determines whether the service provider falls 
within the definition.
    The Department received comments in support of the proposed 
definition of ``labor organization'' from farmworker advocates and a 
SWA stating that the definition would provide clarity on the rights in 
the corresponding changes under the proposed rule. It also received 
comments in opposition to the proposed definition from agricultural 
associations, agricultural employers, and farm bureaus. Several 
commenters opposing the proposal commented that the proposed definition 
was overly broad, insufficiently clear, and would cause confusion among 
employers and workers alike about which organizations would be eligible 
for inclusion. Many pointed out that the Department's proposed 
definition was broader than the definition included in the NLRA. Some 
commenters recommended that the Department establish a directory of 
eligible labor organizations but did not suggest specific criteria for 
inclusion or exclusion in such a directory. Other commenters expressed 
that the Department should not expand the proposed definition of 
``labor organization.'' The Department did not receive any comments 
regarding sec. 8(a)(2) of the NLRA, suggesting other needed 
definitions, or recommending other changes to existing definitions.
    In response to comments about the definition of ``key service 
provider,'' in the final rule, the Department revises the definition to 
improve clarity and to expand the list of illustrative examples. 
Specifically, the Department adds ``a translator or interpreter,'' ``an 
emergency services provider,'' and ``a law enforcement officer'' to the 
list of illustrative examples in the definition. The Department agrees 
with commenters that such service providers should be explicitly 
included, as the services they provide are indispensable to a 
population of workers that is so often geographically and culturally 
isolated. The Department declines to add ``community outreach worker'' 
as the meaning of this term may not be commonly understood; the 
Department, nevertheless, believes that such individuals fall within 
the other illustrative examples included in the definition. The 
Department also replaces the phrase ``and any other service provider to 
which the worker may need access'' with the phrase ``and any other 
provider of similar services.'' The Department believes that this 
wording is clearer and avoids potential confusion about the meaning of 
``key service provider'' while retaining the broad and inclusive 
meaning of the term. The Department also believes that this phrasing 
will properly convey that it is the function of the service provider 
and not the provider's title that determines inclusion under this 
definition, as suggested by commenters. The Department believes that 
this definition of ``key service provider,'' particularly as applied 
under new Sec.  655.135(h)(1)(v), will help to prevent adverse effect 
on similarly employed workers in the United States by ensuring that H-
2A and corresponding workers can consult with and receive necessary 
services to assist them in ensuring employer compliance with the terms 
and conditions of employment and advocating regarding working 
conditions, including health and safety, without fear of retaliation.
    Upon consideration of comments related to the definition of ``labor 
organization,'' the Department adopts the definition as proposed in the 
NPRM. The definition will only be used in connection with the new 
protection under final 20 CFR 655.135(h)(2)(i) for ``concerted 
activity'' by persons engaged in agriculture as defined and applied in 
29 U.S.C. 203(f). The Department believes that the proposed definition 
is sufficiently clear to provide a reasonable standard by which 
employers, workers, and labor organizations may determine the 
organizations to which the new provision refers. The Department also 
believes that this definition is sufficient to effectuate the rights 
under new Sec.  655.135(h)(2)(i) intended to prevent adverse effect on 
similarly employed workers.
    While the Department appreciates commenters' suggestions that the 
Department maintain a directory of eligible labor organizations, it 
does not believe that any such directory or list is necessary. The 
Department is not finalizing its proposals to provide employee contact 
information to labor organizations, to require H-2A employers to 
provide access to labor organizations, or to state whether they would 
agree to bargain with such an organization upon request over 
neutrality. Thus, this final rule does not create any independent 
rights or obligations for which such labor organizations would be 
``eligible,'' as originally proposed.
ii. Section 655.135(h), No Unfair Treatment
    The Department proposed to expand the scope of what constitutes 
prohibited unfair treatment under Sec.  655.135(h) to better protect 
workers who exercise certain rights or engage in self-advocacy from 
intimidation or discrimination, including protections for consulting 
with key service providers; for exercising rights under any applicable 
Federal, State, or local laws or regulations, including safety and 
health laws; and, for certain workers, for engaging in concerted 
activities for the purpose of mutual aid or protection relating to 
wages or working conditions. The Department also proposed to 
redesignate current paragraphs (h)(1) through (h)(5) as (h)(1)(i) 
through (h)(1)(iv) and (h)(1)(vi). These prohibitions on unfair 
treatment would continue to require an employer to assure that it ``has 
not and will not intimidate, threaten, restrain, coerce, blacklist, or 
in any manner discriminate against, any person'' who has engaged in 
certain enumerated protected activities pertaining to the H-2A program 
requirements, namely, filing a complaint, instituting a proceeding, 
testifying in a proceeding, consulting with an attorney or legal 
assistance program regarding any H-2A violation, or exercising or 
asserting any right or protection under the H-2A program. See 20 CFR 
655.135(h) (2023). The Department also proposed three new

[[Page 33997]]

categories of protected activity. First, the Department proposed to 
protect consulting with a ``key service provider'' (as defined above) 
on any matter pertaining to the H-2A program requirements, in proposed 
new Sec.  655.135(h)(v). Second, the Department proposed to explicitly 
protect exercising rights (including filing a complaint, instituting a 
proceeding, or testifying in any proceeding) under applicable Federal, 
State, or local laws or regulations, including safety and health laws, 
in proposed new Sec.  655.135(h)(vii). Third, the Department proposed a 
new category of protected activity limited to persons engaged in FLSA 
agriculture, to protect them from intimidation or other discrimination 
if the person has engaged in activities related to self-organization, 
including: any effort to form, join, or assist a labor organization; a 
secondary activity such as a secondary boycott or picket; or other 
concerted activities for the purpose of mutual aid or protection 
relating to wages or working conditions; or for refusing to engage in 
any or all of such activities. See proposed Sec.  655.135(h)(2). To 
help inform workers of their rights under the H-2A program, the 
Department also proposed to include the protections that would be 
afforded under proposed Sec.  655.135(h) in the disclosures required on 
the job order. The Department sought comments on each of these proposed 
provisions, which will be discussed separately below.
General Comments
    The Department received many comments in support of its proposal to 
expand retaliation protections from Members of Congress, State 
Attorneys General, farmworker advocates, State agencies, legal aid 
organizations, farm labor unions, and others. These commenters noted 
that farmworkers in general, and H-2A workers in particular, are living 
and working in a foreign land, are often unfamiliar with their 
geographical surroundings and legal rights, often live in isolated 
environments where their access to information and resources is 
limited, and are entirely dependent on their employers due to their 
visa status. As noted above in Section VI.C.2.b, these factors make 
them particularly vulnerable to intimidation, retaliation, and coercion 
by employers when they seek to advocate for their rights.\80\ They 
noted that preventing employers from suppressing the exercise of those 
rights is critically important for H-2A workers and that the proposed 
changes would strengthen farmworkers' rights and ability to advocate 
for and enforce the minimum working conditions required under the H-2A 
program without fear of retaliation from employers.
---------------------------------------------------------------------------

    \80\ See Farmworker Justice Report at 30-31 (noting that H-2A 
workers fear retaliation in the form of discharge, deportation, or 
the denial of a job in the future; H-2A workers work for short 
periods and often ``lack the trust established among co-workers over 
a longer period of time''); CDM Report at 4-6.
---------------------------------------------------------------------------

    Commenters cited numerous examples of farmworkers who have 
experienced threats, retaliation, or both from employers when they 
sought to assert their rights, file complaints, or pursue legal action. 
The UFW Foundation asserted that many farm employers have prohibited 
their workers from meeting with service providers, including legal 
services, medical providers, or other advocates, and that other 
farmworkers have been unable to access needed services for fear of 
retaliation, leaving many farmworkers unaware of or afraid to assert 
their rights. They noted that such tactics make it difficult for the 
Department or worker advocates to detect egregious violations such as 
wage theft, charging workers for recruiter fees, and other violations 
of employment-related laws, and to enforce existing worker protections 
under the H-2A program. Farmworker Justice noted that some employers 
have attempted to surveil workers and restrict their movements, which 
can intensify workers' isolation and fear of retaliation.
    Another commenter cited a number of court cases in which H-2A 
workers have complained of retaliation, as well as studies showing that 
H-2A workers are unlikely to complain about unlawful and substandard 
working conditions because of fear. See, e.g., West v. Butikofer, No. 
19-cv-1039, 2020 WL 5245226, at *2 (N.D. Iowa Aug. 18, 2020); Arreguin 
v. Sanchez, 398 F. Supp. 3d 1314, 1320, 1325 (S.D. Ga. 2019); Ruiz v. 
Fernandez, 949 F. Supp. 2d 1055, 1076 (E.D. Wash. 2013); Lopez v. Fish, 
No. 2:11-cv-113, 2012 WL 2126856, at *1 (E.D. Tenn. May 12, 2012). 
These commenters stated that better access to advocates and service 
providers would help correct these problems and ensure acceptable 
working conditions for both H-2A and other farmworkers. They supported 
strengthening protections against retaliation and making sure that 
these protections are clearly communicated at the beginning of the 
employment relationship, such as through the job order, to help ensure 
that employers who break the law and engage in intimidation do not go 
unpunished.
    The Department also received several comments from agricultural 
associations and agricultural employers generally opposing its 
proposals, as discussed above in Section VI.C.2.b, although very few 
specifically referenced the ``unfair treatment'' proposals. Other 
commenters contended that the proposed rules were overbroad, redundant, 
and unnecessary, that workers are already protected against retaliation 
by the existing rules, and that expanding the prohibitions would lead 
to unfounded accusations against employers.
    Some commenters requested clarification or modification of the 
existing anti-retaliation protections. Farmworker Justice requested 
that the Department include broader language expressly protecting 
workers from retaliation for asking questions about pay; suggesting 
that restrooms be cleaned more frequently; or ``exercising any right'' 
or ``opposing any practice'' covered under Federal, State, or local 
laws; and asked the Department to clarify that ``filing a complaint'' 
in Sec.  655.135(h)(1)(i) and proposed Sec.  655.135(h)(1)(vii) should 
be interpreted broadly. A State agency suggested that the Department 
add the specific term ``interfere with'' to the list of prohibited 
adverse actions in Sec.  655.135(h)(1), since ``interference'' with 
protected rights is a prohibited unfair labor practice under both the 
NLRA, 29 U.S.C. 158(a)(1) and the ALRA, Cal. Lab. Code Sec.  1153, and 
also appears in California anti-retaliation statutes. The commenter 
also recommended adding a subsection that specifically prohibits 
discrimination against any person who has ``assisted, or participated 
in any manner in an investigation, proceeding, or hearing under 8 
U.S.C. 1188,'' opining that participating in or providing evidence in 
an investigation is not currently protected under the Department's 
existing language.
    An employer agent suggested that in lieu of redesignating and 
expanding the ``unfair treatment'' framework as outlined in the NPRM, 
the Department should instead simply require employers to provide 
``assurances'' that they will not discriminate or retaliate, and should 
also include ``affirmative defenses'' stating that an adverse 
employment action will not be deemed unfair treatment if the adverse 
employment action was for a lawful, job-related reason or the employer 
had no actual or constructive knowledge of the protected actions taken 
by the worker. This comment suggested that the absence of a requirement 
that the employer had actual or constructive notice of a worker's 
engagement in protected activity could create perverse incentives for 
fraud and abuse,

[[Page 33998]]

especially where an employer may have legitimate, job-related reasons 
for discharging a worker. The comment contended that, under the 
existing language, any grievance or consultation would trigger legal 
protection from adverse employment action, even if the grievance or 
consultation does not concern any legally protected action or right, 
making it difficult or impossible for an employer to terminate a 
worker's employment even where they have a legitimate basis for doing 
so.
General Discussion
    The Department adopts the proposed revisions with the modifications 
described in this section-by-section analysis. As explained in the NPRM 
and above, the Department continues to believe that these additional 
protections for unfair treatment and retaliation are necessary to 
prevent an adverse effect on the working conditions of workers in the 
United States similarly employed, as required under 8 U.S.C. 
1188(a)(1), since workers must be free to file complaints and otherwise 
seek to enforce their rights without fear of retaliation or 
discrimination. The Department has long recognized that such 
protections are essential to the effective functioning of a complaints-
based enforcement regime. Mitchell 361 U.S. at 292 (agreeing with the 
Department's interpretation of the FLSA's anti-retaliation provision 
and explaining that Congress ``chose to rely on information and 
complaints received from employees seeking to vindicate rights'' and 
``effective enforcement could thus only be expected if employees felt 
free to approach officials with their grievances''); WHD, Field 
Assistance Bulletin No. 2022-02, Protecting Workers from Retaliation 
(Mar. 10, 2022) (FAB 2022-02); \81\ see also Kasten v. St.-Gobain 
Performance Plastics Corp., 563 U.S. 1, 12 (2011) (explaining that the 
FLSA ``antiretaliation provision makes [its] enforcement scheme 
effective by preventing `fear of economic retaliation' from inducing 
workers `quietly to accept substandard conditions.' '') (quoting 
Mitchell, 361 U.S. at 292). Based on both its enforcement experience 
and on the numerous comments citing examples of intimidation and 
retaliation against workers in the H-2A program, the Department 
believes that expanding the regulations' protections against unfair 
treatment is necessary to prevent adverse effect on the working 
conditions of workers in the United States.
---------------------------------------------------------------------------

    \81\ Available at https://www.dol.gov/sites/dolgov/files/WHD/fab/fab-2022-2.pdf.
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    For example, in the last few years alone, the Department has 
debarred and assessed penalties against H-2A employers that instructed 
workers to lie about their pay to investigators and threatened to kill, 
harm, punish, fire, blacklist, or deport workers for talking to 
authorities.\82\ The Department also assessed penalties against at 
least two H-2ALC employers who confiscated workers' passports at three 
different farms to keep them from leaving their employment after they 
discovered that they were being underpaid.\83\ In other recent cases, 
the Department charged a vineyard employer with unfair treatment 
violations after it retaliated against H-2A employees who asked why 
they were not being paid the required contract wage rate by dismissing 
them and sending them back to their home countries before the 
termination of the work contract.\84\ In another instance, nine H-2A 
farmworkers filed a civil lawsuit against the employers for wage theft, 
underpayment, false imprisonment, and retaliation.\85\ The Department 
has also recently obtained temporary restraining orders and preliminary 
injunctions against H-2A employers who, after workers requested more 
food and water, threatened workers with a gun, shooting twice near the 
workers, and who have threatened to physically assault, harm, fire, and 
deport workers who complained or spoke to WHD investigators.\86\ In 
many of these cases, investigators reported that workers sought to 
remain anonymous for fear of retaliation, and often refused to speak 
with or cooperate with investigators at the worksite for fear that 
their employer would find out; in one case, the employer interrupted an 
employee interview and sought to eject the investigator from the 
property. These examples are just a few among the many cases where WHD 
has investigated and uncovered retaliation by H-2A employers against 
workers who raised concerns regarding their rights under the program.
---------------------------------------------------------------------------

    \82\ Individuals associated with this employer also pleaded 
guilty to criminal charges for their role in the forced labor 
racketeering conspiracy. See DOJ, Press Release, Owner of Farm Labor 
Contracting Company Pleads Guilty in Racketeering Conspiracy 
Involving the Forced Labor of Mexican Workers (Sept. 27, 2022), 
https://www.justice.gov/opa/pr/owner-farm-labor-contracting-company-pleads-guilty-racketeering-conspiracy-involving-forced; DOJ, Press 
Release, Three Defendants Sentenced in Multi-State Racketeering 
Conspiracy Involving Forced Labor of Mexican Agricultural H-2A 
Workers (Oct. 27, 2022), https://www.justice.gov/opa/pr/three-defendants-sentenced-multi-state-racketeering-conspiracy-involving-forced-labor-mexican.
    \83\ See DOL, News Release, US Department of Labor fines North 
Carolina employers $139K after they shortchanged farmworkers; seized 
passports, visas to intimidate them (Nov. 16, 2023), https://www.dol.gov/newsroom/releases/whd/whd20231116; DOL, News Release, 
Department of Labor debars labor contractor who threatened, 
intimidated farmworkers; assesses $62K in penalties for abuses of 
agricultural workers (Oct. 23, 2023), https://www.dol.gov/newsroom/releases/whd/whd20231023; DOL, News Release, US Department of Labor 
Investigation Results in Judge Debarring North Carolina Farm Labor 
Contractor for Numerous Guest Worker Visa Program Violations (Mar. 
16, 2021), https://www.dol.gov/newsroom/releases/whd/whd20210316.
    \84\ See DOL, News Release, Corrected: US Department of Labor 
investigations of labor contractors, vineyard yield $231K in 
penalties, recover $129K in back wages for 353 agricultural workers 
(Jun. 1, 2023), https://www.dol.gov/newsroom/releases/whd/whd20230601-0.
    \85\ See Texas RioGrande Legal Aid, Press Release, Farmworkers 
Sue Kentucky Tobacco Farm for Wage Theft, Retaliation, and Overtime 
Violations (Dec. 11, 2023), https://www.trla.org/news-releases/farmworkers-sue-kentucky-tobacco-farm-for-wage-theft-retaliation-amp-overtime-violations.
    \86\ See, e.g., DOL, Press Release, US Department Of Labor 
Alleges Tunica Fish Farm, Processing Plant, Owners Interfered With 
Federal Wage Investigation, Seeks Temporary Restraining Order (Sept. 
7, 2023), https://www.dol.gov/newsroom/releases/whd/whd20230919-1; 
Su v. Battle Fish North, Case No. 23-CV-00348, 2023 WL 6619595 
(filed N.D. Miss. Sept. 7, 2023) (DOL Motion for Temporary 
Restraining Order and Preliminary Injunction); Su v. Battle Fish 
North, Case No. 23-CV-00348 (N.D. Miss. Sept. 27, 2023) (Order 
granting preliminary injunction); DOL, Press Release, Federal Court 
Orders Louisiana Farm, Owners to Stop Retaliation After Operator 
Denied Workers' Request for Water, Screamed Obscenities, Fired Shots 
(Oct. 28, 2021), https://www.dol.gov/newsroom/releases/whd/whd20211028-0.
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    The Department did not propose any changes to the prohibited 
conduct or existing protected activities under current Sec.  
655.135(h), other than to redesignate current paragraphs (h)(1) through 
(h)(5) into paragraphs (h)(1)(i) through (h)(1)(iv) and paragraph 
(h)(1)(vii). Therefore, it declines to adopt any substantive changes 
suggested by commenters to those provisions and finalizes those 
redesignations as proposed. However, the Department seeks to clarify 
that the existing protections for ``fil[ing] a complaint'' in final 
Sec.  655.135(h)(1)(i) and ``exercis[ing] or assert[ing] . . . any 
right or protection'' under the program in final Sec.  
655.135(h)(1)(vi) already protect a wide range of advocacy, including 
asking questions about pay, requesting compliance with health and 
safety requirements, opposing illegal practices, reporting criminal 
conduct, talking to WHD investigators, and participating in or 
providing evidence in an investigation. See, e.g., Kasten, 563 U.S. at 
17 (holding that ``filing any complaint'' includes oral complaints 
under the FLSA); FAB No. 2022-02 at 9 (explaining that asking an H-2A 
employer to provide food and water is covered under the existing ``no 
unfair treatment'' provisions).

[[Page 33999]]

iii. Section 655.135(h)(1)(v), Consulting With Key Service Providers
    Recognizing that H-2A workers frequently face barriers in accessing 
certain services, as discussed in the NPRM, the Department proposed to 
broaden the range of service providers and advocates with whom 
consultation regarding the terms and conditions of employment under the 
H-2A program is explicitly protected. Specifically, the Department 
proposed to add a new paragraph (h)(1)(v) to the existing list of 
protected activities at Sec.  655.135(h), which would protect 
consulting with a ``key service provider,'' as defined in proposed 
Sec.  655.103(b), regarding matters under the H-2A program. This 
proposal, like those in the existing list of protected activities at 
current Sec.  655.135(h), would not be limited to persons engaged in 
FLSA agriculture. The Department noted that workers are already 
entitled to access and meet with many different service providers to 
discuss or assert rights under the H-2A program, without fear of 
retaliation under the Department's current regulatory framework. For 
example, under the current regulations, an employer may not retaliate 
against a worker because the worker goes to see a doctor to care for an 
injury the worker incurred while on the job, or because the worker 
consults a worker's rights advocacy organization regarding the 
employer's failure to pay the wages promised in the job order. See, 
e.g., 20 CFR 655.135(e) and (h)(5). However, it proposed to make these 
rights explicit, and to include this express assurance on the job order 
(Form ETA-790A), in order to help ensure that workers will be aware of 
this protection. The Department stated that clarifying protections for 
consultation with such providers would increase the likelihood that 
workers will receive necessary services, help prevent the frequent 
isolation that renders workers more vulnerable to H-2A violations and 
other forms of labor exploitation, and better equip workers to enforce 
their rights under the program.
    The Department received many comments in support of this proposal 
from farmworker advocates, State agencies, legal aid organizations, and 
others. In particular, the UFW Foundation asserted that farmworkers 
need better protections for consulting with key service providers such 
as health-care providers, education providers, legal services 
providers, clergy, governmental officials, or consular representatives. 
They cited many examples where employers have prohibited employees from 
meeting with such providers, including legal services and medical 
providers, and where workers have been unable to access needed services 
for fear of retaliation. For example, the comment highlighted ``a 
[farmworker] from Oaxaca . . . [who] fainted because of the heat and he 
was fired after going to the doctor'' and another farmworker of 35 
years explained that he ``was once fired unjustly due to me telling the 
foreman that I had a foot injury.'' Another farmworker was threatened 
with losing her job after she complained about the lack of water while 
working in extreme heat.
    An H-2A farmworker in Washington stated that his employer 
prohibited him from meeting with a key service provider and that he 
feared retaliation if the employer found out about the meeting. Another 
H-2A farmworker in Washington mentioned that his employer also 
prohibited him from meeting with key service providers, and, if other 
workers did meet with providers, they had to do so covertly. An H-2A 
worker in Nevada stated that workers on his farm have to pay for each 
medical visit outside of their workplace, and, if the worker gets too 
sick, the employer sends them back to their home country so that the 
employer is not responsible for any medical bills. He also commented 
that two H-2A farmworker colleagues died in a car accident in October 
2023 and their employer refused to do anything about it until the 
Mexican consulate intervened.
    Another farmworker association, the Farmworker Association of 
Florida, commented that many farmworkers remain isolated and lack 
access to medical care, transportation, and necessary medications, and 
that guaranteed access to advocates and service providers would help 
correct these problems, reduce fear of retaliation, and improve working 
conditions. Farmworker Justice also strongly supported the proposal, 
commenting that H-2A workers need access to a variety of essential 
services, including access to medical care for routine appointments, 
care for chronic conditions, emergency medical attention, and access to 
legal service providers, consulates, and other advocates to obtain 
important information about their rights and legal representation when 
their rights are violated. They stated that workers are commonly 
prevented from filing for workers' compensation or obtaining medical 
care out of fear of retaliation, that some employers threaten to send 
workers home because they are injured and cannot work, and that other 
employers insist on going with workers to the doctor, or refuse to 
transport them to the doctor, to prevent the report of a workplace 
injury. Farmworker Justice also recommended that the provision should 
be expanded to include additional rights for legal service providers, 
emergency providers, and others. The Department received a few comments 
from trade associations and agents opposing the proposal as 
unnecessary, because workers already enjoyed the right to meet with 
legal services and medical providers, and because the right was already 
guaranteed in certain States.
    The Department adopts the proposal without modification, for the 
reasons set forth in the NPRM, and because the comments demonstrated 
the need for this protection to be made explicit. Although such 
consultation is protected under the Department's current regulations, 
the comments demonstrate that workers are being prohibited from 
accessing these key service providers, and thus the Department believes 
it is necessary to clearly spell out this right for both workers and 
employers. This final rule will help increase the likelihood that 
workers receive the vital services that they need to ensure compliance 
with their rights and protections under the program and to advocate 
regarding working conditions. As explained above, workers must be free 
to exercise such rights without fear of retaliation to avoid adverse 
effect on similarly employed workers.
iv. Section 655.135(h)(1)(vii), Exercising Rights Under Federal, State, 
or Local Laws
    The Department also proposed to clarify existing regulations by 
adding a new provision, Sec.  655.135(h)(1)(vii), to explicitly protect 
complaints, proceedings, and testimony under any applicable labor- or 
employment-related Federal, State, or local law or regulation, 
including those related to health and safety. It explained that the 
proposal was intended to explicitly prohibit employers from retaliating 
against any person who files a complaint, institutes or causes to be 
instituted any proceeding, or testifies or is about to testify in any 
proceeding under or related to any applicable Federal, State, or local 
labor- or employment-related law, rule, or regulation. The Department 
noted that these activities are already protected under the 
Department's existing regulatory framework because existing 20 CFR 
655.135(e) requires employers to comply with all applicable Federal, 
State, and local laws, and Sec.  655.135(h)(1) and (5) prohibit 
retaliation against workers who assert

[[Page 34000]]

their rights under the H-2A program. However, the Department explained 
that making these rights explicit would better inform workers and 
employers of their rights and protections both under the H-2A program 
itself and under other applicable laws. To this end, the new provision 
would expressly protect workers who seek to enforce their rights under 
other worker protection laws, including Federal, State, or local laws 
and regulations that may apply to workers protected under the H-2A 
program (see, e.g., the Occupational Safety and Health Act, 29 U.S.C. 
ch. 15, or the FLSA, 29 U.S.C. 201 et seq.) against retaliation.
    As noted above, the Department received many comments generally 
supporting this proposal to expand retaliation protections, including 
comments from Members of Congress, State Attorneys General, farmworker 
advocates, State agencies, legal aid organizations, farm labor unions, 
and others. Many workers' rights advocacy organizations expressed 
support for the proposed provision protecting individuals who exercise 
rights under Federal, State, or local laws, for a variety of reasons. 
For example, a number of State Attorneys General commented that the 
provisions would promote access to information about worker rights, 
reduce their fear of retaliation, prevent employers from suppressing 
workers' exercise of those rights, encourage self-advocacy and 
organizing, and positively impact H-2A workforces. The California LWDA 
stated that it has encountered instances of employers retaliating 
against agricultural employees for filing charges or testifying in a 
proceeding related to State labor law violations, which the commenter 
said the rule would help prevent. The commenter cited numerous examples 
of retaliation arising under the ALRA, Cal. Lab. Code Sec.  1153, 
noting that such retaliation ``strikes at the very protections that the 
ALRA seeks to enforce by denying workers access'' to processes and 
remedies administered by the California Agricultural Labor Relations 
Board (ALRB).\87\ The commenter noted that such cases demonstrate that 
farmworkers need protections not only when they file complaints or 
initiate proceedings under 8 U.S.C. 1188, but also when they file 
complaints under other applicable Federal, State, or local laws or 
regulations like the ALRA. Finally, the commenter also recommended 
adding language to specifically prohibit discrimination against any 
person who has ``assisted, or participated in any manner in an 
investigation, proceeding, or hearing,'' noting that the Department's 
proposed language does not expressly protect persons who may not 
testify in a proceeding, but who have participated in or supported the 
investigation by providing evidence or being interviewed by the 
Department or a legal service provider. Given the heightened 
vulnerability that H-2A workers face, the commenter suggested that such 
protections would provide further protection for workers and encourage 
them to cooperate in government enforcement proceedings. Another 
commenter, CDM, highlighted the frequency of sexual harassment and 
discrimination in the H-2A program, asserting that H-2A employers and 
recruiters routinely violate U.S. anti-discrimination laws by 
discriminating based on race, color, age, sex (including pregnancy, 
sexual orientation, and gender identity), and national origin in both 
hiring and employment.\88\ It asked that the Department make it easier 
to file complaints and improve remedies for H-2A workers and applicants 
who face discrimination. CDM also stated that the proposed protection 
was insufficient and asked the Department to create additional 
independent anti-discrimination protections for H-2A workers that would 
be enforceable both by the Department and by private rights of action.
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    \87\ See, e.g., H & R Gunlund Ranches, Inc., 39 ALRB No. 21 
(2013) (finding that an employer violated the Act when it laid off a 
crew that had filed an unfair labor practice charge). The commenter 
also noted that many such investigations uncover violations of 
multiple Federal, State, or local laws or regulations, citing 
Cinagro Farms, Inc., 48 ALRB No. 2 (2022) (Board found an unfair 
labor practice where the employer fired workers protesting 
misclassification and unpaid wages, and an independent violation 
where the employer misclassified employees as independent 
contractors in violation of the California Labor Code); Gurinder S. 
Sandhu dba Sandhu Bros. Poultry and Farming, 40 ALRB No. 12 (2014) 
(finding that worker's sexual harassment complaints were protected 
concerted activity); Oceanview Produce Co., 21 ALRB No. 8 (1995) 
(finding that employees engaged in protected concerted activity when 
they refused to sign employer's attendance form for a required 
safety training that never occurred).
    \88\ See, e.g., CDM and Penn Law Transnational Legal Clinic, 
Engendering Exploitation: Gender Inequality in U.S. Labor Migration 
Programs (Jan. 2018), https://cdmigrante.org/wp-content/uploads/2018/01/Engendered-Exploitation.pdf.
---------------------------------------------------------------------------

    A workers' rights advocacy organization, PCUN, strongly supported 
the proposal, stating that the organization works with dozens of 
farmworkers who have experienced retaliation for seeking better working 
conditions and that the proposed rule would be especially helpful for 
such workers. In particular, it noted that farmworkers in Oregon 
recently experienced retaliation for seeking to enforce the new State 
OSHA regulations to protect workers from extreme heat (see footnote 79 
for citations to these and other State employment regulations governing 
heat exposure). Workers contacted PCUN to report that they were 
laboring in over 100-degree heat and that the labor contractor they 
were working for did not provide them with water or shade. After the 
workers spoke out, they were all fired. This kind of retaliation is a 
major deterrent for workers to speak out when they see violations, 
including violations of labor law, discrimination on the basis of sex 
and immigration status, threats of violence, and issues of human 
trafficking, in addition to occupational health and safety standards.
    The Department received a few comments opposing this and the other 
unfair treatment proposals as unnecessary or overly burdensome. For 
example, one commenter noted that such provisions duplicate existing 
laws and protections, and that this topic is already sufficiently 
covered by existing H-2A program requirements and by protections 
offered by the Department of State, various agencies within DHS, DOJ, 
and even multiple agencies among the 50 States. Another commenter 
suggested that in lieu of or in addition to expanding the ``unfair 
treatment'' framework to encompass the exercise of rights under any 
applicable Federal, State, or local laws as outlined in the NPRM, the 
Department should require employers to provide assurances or 
attestations that they do not discriminate.
    The Department considered the comments and adopts the proposal to 
explicitly protect complaints, proceedings, and testimony under any 
applicable labor- or employment-related Federal, State, or local law or 
regulation, with the modifications described. The Department believes 
that making such protection explicit will help clarify and inform 
workers of their rights, reduce their fear of retaliation for seeking 
to exercise those rights, protect self-advocacy, and empower workers to 
enforce their existing rights to be free from discrimination and to a 
safe and healthy workplace, which in turn will better protect against 
adverse effect on similarly employed workers. As revised, the provision 
will expressly protect workers seeking to file complaints under 
Federal, State, or local anti-discrimination, health, or safety laws. 
This includes recently adopted regulations to protect against heat 
stress in States like California, Colorado,

[[Page 34001]]

Oregon, and Washington,\89\ and will also protect workers' rights to 
organize, to engage in collective bargaining, and to be free of unfair 
labor practices in States like California and New York that have passed 
laws guaranteeing such rights under State law. See, e.g., ALRA, Cal. 
Lab. Code Sec.  1153 (West 2024); N.Y. Lab. Law Sec. Sec.  701-718 
(West 2024). The Department disagrees with commenters who contended 
that the proposal is unnecessary, given the ample evidence of ongoing 
retaliation and fear of retaliation provided by other commenters. 
However, the Department adopts the recommendation of commenters who 
suggested that the new provision include language expressly clarifying 
that individuals who assist or participate in an investigation or 
hearing under such laws are protected. As revised, the final provision 
will expressly protect such participation or assistance in proceedings 
arising under State employment laws and State labor laws such as those 
cited above, as well as safety and health laws, consistent with this 
rulemaking's stated goals of disclosure and ensuring that workers are 
aware of their rights. The Department has therefore modified the 
provision to add the specific terms ``assisted or participated'' (or is 
about to ``assist or participate'') in any ``investigation'' or 
``hearing,'' and to specifically reference ``employment laws and labor 
laws'' in addition to health and safety laws, as previously proposed. 
Thus, the revised provision will protect any person who has ``[f]iled a 
complaint, instituted, or caused to be instituted any proceeding; or 
testified, assisted, or participated (or is about to testify, assist, 
or participate) in any investigation, proceeding, or hearing under or 
related to any applicable Federal, State, or local laws or regulations, 
including safety and health, employment, and labor laws'' from unfair 
treatment on that basis. Finally, the Department declines to modify the 
proposal to include a private right of action in this provision (or any 
of the provisions at Sec.  655.135(h)), since it did not propose or 
seek comment on such a proposal.
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    \89\ See, e.g., Cal. Code Regs. tit. 8, Sec.  3395 (Heat Illness 
Prevention in Outdoor Places of Employment) (2024); Colo. Rev. Stat. 
Ann. Sec.  8-13.5-203 (Extreme overwork protections) (West 2024); 
Or. Mfrs. & Com. v. Or. Occupational Safety and Health Division, No. 
1:22-cv-00875, 2022 WL 17820312, at *9 (D. Or. Dec. 20, 2022) 
(dismissing challenge to Oregon Administrative Rules that protect 
Oregon workers from exposure to excessive ambient heat temperatures 
and hazardous levels of wildfire smoke while at work); Wash. Admin. 
Sec. Sec.  296-62-095-296-62-09560 (General Occupational Health 
Standards--Outdoor Heat Exposure), 296-307-097-WAC 296-307-09760 
(Safety Standards for Agriculture--Outdoor Heat Exposure) (2024).
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v. Prohibitions on Seeking To Alter or Waive the Terms and Conditions 
of Employment, Including the Right to Communicate With the Department
    In the preamble to the NPRM, the Department noted that its 
regulations, including Sec.  655.135(h), have long protected a worker's 
ability to communicate with the Department. In addition, the Department 
noted that its H-2A regulations have long required employers to fully 
disclose in the job order the material terms and conditions of 
employment under the job opportunity and have long prohibited employers 
from seeking to later alter those terms and conditions. See 20 CFR 
655.103(b), 655.122(b) and (q); 29 CFR 501.5.
    The Department also shared its observation, however, that in recent 
years, there has been a troubling trend of H-2A employers imposing 
``side agreements'' that purport to add or waive certain terms and 
conditions of employment as compared to those disclosed in the job 
order. For example, after terminating a group of workers without cause, 
one H-2A employer presented the workers with forms falsely asserting 
that the workers had left voluntarily, purporting to waive the workers' 
rights to the three-fourths guarantee. Sun Valley Orchards, 2021 WL 
2407468, at *10-11. Other H-2A employers have required workers to sign 
arbitration agreements after the workers have arrived at the place of 
employment, without having disclosed such a requirement in the job 
order. See, e.g., Martinez-Gonzalez v. Elkhorn Packing Co., 25 F.4th 
613, 619 (9th Cir. 2022); Magana-Mu[ntilde]oz v. West Coast Berry 
Farms, LLC, No. 5:20-cv-02087, 2020 WL 3869188, at *5 (N.D. Cal. July 
9, 2020); Cisneros v. Alco Harvest, Inc., 97 Cal. App. 5th 456, 459 
(Cal. Ct. App. 2023). These practices violate the H-2A regulations and 
may mislead workers regarding their rights under the H-2A program, 
including their ability to communicate with the Department. Therefore, 
the Department reiterated in the preamble to the NPRM, as it does here, 
its longstanding requirements relevant to these ``side agreements.''
    First, the Department's H-2A regulations include robust disclosure 
requirements. Specifically, employers must disclose in the job order 
all material terms and conditions of employment. See 20 CFR 655.103(b) 
(defining ``job order'' as ``[t]he document containing the material 
terms and conditions of employment''); 20 CFR 655.121(a)(4) (requiring 
H-2A job orders to meet the requirements specified for agricultural 
clearance orders under 20 CFR part 653, subpart F); 20 CFR 
653.501(c)(1)(iv) and (c)(3)(viii) (requiring agricultural clearance 
orders to include material terms and conditions of employment). Each 
job qualification and requirement listed in the job order must be bona 
fide, as well as normal and accepted among non-H-2A employers in the 
same or similar occupations. 20 CFR 655.122(b) (job qualifications and 
requirements). Finally, the employer must provide H-2A workers with a 
copy of the written work contract (at minimum, the terms of the job 
order) before the worker travels to the place of employment. Such 
written disclosure must be made to workers in corresponding employment 
no later than the first day work commences. 20 CFR 655.122(q) 
(disclosure of work contract).
    These requirements ensure that employers seeking to employ H-2A 
workers are adequately and accurately testing the local labor market to 
determine the availability of U.S. workers for the actual job 
opportunity and are not imposing inappropriate requirements that 
discourage otherwise qualified U.S. workers from applying. See 2010 H-
2A Final Rule, 75 FR at 6901, 6906-6908. These requirements also ensure 
that workers are apprised of the accurate terms and conditions of 
employment before accepting employment with the employer and, in the 
case of many workers, traveling great distances and at significant 
personal expense to do so. Adm'r v. Frank's Nursery LLC, ARB Nos. 2020-
0015 and 2020-0016, 2021 WL 4155563, at *3-4 (ARB Aug. 25, 2021) 
(describing the importance of disclosure to workers of all material 
terms and conditions of employment before the worker accepts the job 
offer), aff'd, No. 21-cv-3485, 2022 WL 2757373 (S.D. Tex. July 14, 
2022).
    Thus, pursuant to these requirements, an employer may not seek to 
add new material terms and conditions of employment after the worker 
arrives at the place of employment, even if such terms and conditions 
would otherwise be permissible if they had been disclosed in the job 
order. For example, even if a mandatory arbitration agreement would be 
a permissible term and condition of employment for a particular H-2A 
job opportunity if disclosed in the job order, it is a violation of the 
H-2A regulations for the employer to impose such a material term and 
condition of employment on the workers if it was not disclosed in the 
job order. See Frank's Nursery, 2022 WL 2757373, at *3-4 (affirming WHD

[[Page 34002]]

Administrator's determination of violation and assessment of a civil 
money penalty for employer's failure to disclose in the job order a 
drug testing policy); see also Magana-Mu[ntilde]oz, 2020 WL 3869188, at 
*5 (discussing the Department's regulatory requirements for H-2A job 
orders and concluding that an arbitration agreement is a material term 
or condition of employment that must be disclosed in the job order); 
Cisneros, 97 Cal. App. 5th at 460-61 (same); cf. ETA v. DeEugenio & 
Sons #2, OALJ No. 2011-TLC-00410, slip op. at 3-5 (OALJ June 13, 2011) 
(affirming CO's denial of labor certification because employer failed 
to demonstrate that arbitration and grievance clauses listed in job 
order were normal and accepted requirements among non-H-2A employers in 
the occupation); ETA v. Bourne, et al., OALJ No. 2011-TLC-00399, slip 
op. at 9-11 (OALJ June 6, 2011) (same); ETA v. Head Bros., OALJ No. 
2011-TLC-00394, slip op. at 5-7 (OALJ May 18, 2011) (same); but see ETA 
v. Frey Produce et al., OALJ No. 2011-TLC-00403, slip op. at 6 (OALJ 
June 3, 2011) (concluding arbitration is not a job ``qualification or 
requirement'').
    Second, and in addition to the disclosure requirements, the 
Department's H-2A regulations prohibit any person from seeking to have 
a worker waive any right afforded under the H-2A program. 29 CFR 501.5. 
Thus, an employer may not--at any time--request that a worker waive or 
reduce any of the terms and conditions of employment disclosed in the 
job order or other rights under the H-2A program, such as the provision 
of meals as disclosed in the job order, the right to the three-fourths 
guarantee, the prohibition on the payment of fees, the right to file 
complaints under Federal, State or local laws, or the payment of the H-
2A wage rate for hours spent engaged in corresponding employment. For 
example, through its enforcement experience, the Department has learned 
of H-2A employers presenting their entire workforces with side ``opt-
out'' agreements under which the workers purport to waive their right 
to employer-provided meals on certain days, despite the employer's 
disclosure in the job order that meals will be provided every day. The 
regulations prohibit such practices. In addition, an employer may never 
seek to prevent a worker from engaging in activity protected under the 
H-2A regulations, such as filing a complaint with, speaking with, or 
cooperating with the Department or other Federal, State, or local 
agency concerning the worker's rights. See 20 CFR 655.135(h); 29 CFR 
501.4(a).
    As explained in the NPRM, the Department is concerned that ``side 
agreements'' carry significant potential to mislead workers regarding 
their rights under the H-2A program, including the right to file 
complaints with and communicate with the Department. For example, an H-
2A worker who is terminated without cause but is required to sign a 
form purportedly ``resigning'' from the job may believe--incorrectly--
that they may no longer file a complaint with the Department to enforce 
their right to the three-fourths guarantee or their right to the cost 
of return transportation and subsistence. Another worker may 
misunderstand a ``side'' arbitration agreement as preventing the worker 
from filing a complaint with the Department before first submitting the 
issue to the employer's arbitration procedures, even though an employee 
who agrees to arbitrate a statutory claim is not waiving any 
substantive rights under the statute. Gilmer v. Interstate/Johnson Lane 
Corp., 500 U.S. 20, 25 (1991). Moreover, an H-2A worker's agreement 
with their employer to arbitrate employment disputes does not limit the 
Department's ability to enforce the H-2A program's requirements. Cf. 
EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) (arbitration agreement 
between employer and employee did not bar EEOC enforcement action under 
the ADA); Walsh v. Arizona Logistics, Inc., 998 F.3d 393, 397 (9th Cir. 
2021) (arbitration agreement between employer and employee did not bar 
Department enforcement under FLSA). Accordingly, where an H-2A 
employer's job order discloses the existence of an arbitration clause 
that is otherwise permissible, the SWA and OFLC review the disclosure 
for actual or implied restrictions on workers' access to complaint 
systems and may require employers to include language in the job order 
affirmatively stating that the worker may not be prevented from filing 
complaints or communicating with the Department.
    For efficiency and clarity, and to better inform workers of their 
rights under the H-2A program, the Department proposed in the NPRM to 
add standard language to the job order affirmatively stating that a 
worker may not be prevented from communicating with the Department or 
any other Federal, State, or local government agencies regarding the 
worker's rights. The Department also invited comments suggesting other 
means it could use to better inform workers of their rights and to 
better inform employers and workers alike of the longstanding 
limitations on ``side agreements.''
    The Department received comments in support and in opposition to 
this proposal. Farmworker Justice expressed concern that such 
agreements are often presented in writing even though a worker may not 
be able to read, and that even if a worker can read, these side 
agreements are often presented in English, rather than the worker's 
primary language. Farmworker Justice also stated that workers may be 
denied the opportunity to have someone review the side agreements with 
them prior to signing them or may be forced to sign these agreements 
through intimidation, yelling, threats, or other unlawful measures. 
This same commenter also noted that such side agreements may force 
workers to waive rights afforded to them under the H-2A program, or, in 
the case of arbitration agreements, may lead workers to believe that 
they do not have a right to communicate with the Department. Another 
commenter, CDM, expressed concern over the imposition of breach of 
contract fees and other severe penalties on H-2A workers who leave--or 
attempt to leave--employment before the scheduled conclusion of the 
work contract.
    Commenters in opposition, which included agricultural employers and 
agricultural associations, raised several concerns. First, some 
commenters pointed to the Ninth Circuit decision in Martinez-Gonzalez 
v. Elkhorn Packing Co., LLC, asserting that an H-2A employee and 
employer may enter into a binding arbitration agreement not 
specifically disclosed in the H-2A job order. These same commenters 
also asserted that the U.S. Supreme Court has held that arbitration 
agreements in the employment context are valid and enforceable under 
the Federal Arbitration Act. Additionally, these commenters stated that 
if the Department wanted to review arbitration agreements as part of an 
employer's job order, it could do so by defining such agreements as a 
``material term and condition of employment.'' Commenters then asked 
the Department to specify what it would want to review with respect to 
an employer's arbitration agreement upon submission of a job order or 
temporary agricultural labor certification application. Additionally, 
one anonymous employer commented that it allows its U.S. workers to opt 
out of the H-2A contract.
    For the reasons stated in the NPRM and as reflected in the comments 
in support of the proposal, the Department reiterates here its position 
prohibiting these side agreements. Similarly, the Department is 
including on the job

[[Page 34003]]

order the proposed standard language affirmatively stating that a 
worker may not be prevented from communicating with the Department or 
any other Federal, State, or local government agencies regarding the 
worker's rights. The Department believes that these clarifications will 
help prevent adverse effect on similarly employed workers in the United 
States by better informing workers of the terms and conditions of the 
job opportunity and of their rights under the program, improving 
employer compliance with the Department's longstanding requirements 
regarding disclosure of the terms and conditions of employment, and 
protecting workers from retaliation for asserting their rights under 
the program, including when communicating with any Federal, State, or 
local agency regarding those rights.
    With respect to Farmworker Justice's concern regarding the 
disclosure of some ``side agreements'' in a language not understood by 
the worker, the Department notes that, in addition to the disclosure 
requirements discussed above, the employer must provide each worker a 
copy of the work contract ``in a language understood by the worker as 
necessary or reasonable.'' 20 CFR 655.122(q).
    In response to concerns from commenters opposed to this proposal, 
the Department clarifies that it did not take a position in the NPRM 
and does not take a position in this final rule on whether an 
undisclosed arbitration agreement may be valid under the Federal 
Arbitration Act or under any applicable State law. Rather, as in the 
NPRM, the Department reiterates its longstanding policy that under the 
Department's H-2A regulations, an arbitration agreement is a material 
term and condition of the job that must be disclosed in the job order 
and that it is a violation for the employer to impose such a material 
term and condition of employment on the workers if it is not included 
in the job order and disclosed in the work contract. The Ninth 
Circuit's decision in Elkhorn does not require a different conclusion. 
There, the court addressed only the enforceability of the arbitration 
agreement at issue under the doctrines of economic duress and undue 
influence. Elkhorn, 25 F. 4th at 629. The court did not consider 
whether failure to disclose the existence of the agreement in the job 
order constituted a violation of the H-2A regulations, nor did it 
consider the impact of any such violation on the enforceability of the 
agreement under the Federal Arbitration Act or California law. Id.; see 
also Cisneros, 97 Cal. App. 4th at 461 (distinguishing questions 
presented in Elkhorn from question of whether failure to disclose 
arbitration agreement in H-2A job order violated the H-2A program 
regulations).
    With respect to some commenters' assertions that the Department 
should amend its regulations to list arbitration agreements as a 
material term or condition that must be disclosed in the job order, the 
Department declines to do so, as such a revision is neither required 
nor practical. As described in the NPRM, the Department's H-2A 
regulations have long required an employer to include in the job order 
all material terms and conditions of the employer's specific job 
opportunity. While the regulations identify certain such materials 
terms and conditions, the regulations are not exhaustive and make plain 
that the employer must include those additional material terms and 
conditions of employment specific to the employer's job opportunity. 
See, e.g., 20 CFR 655.121(a)(4) (incorporating requirements of 20 CFR 
part 653, subpart F) and 653.501(c)(iv) (providing nonexhaustive list 
of material terms and conditions of employment that must be disclosed 
in job order); cf. Frank's Nursery, 2021 WL 4155563, at *3-4 
(concluding that drug testing--which also is not explicitly listed in 
the Department's regulations as a material term or condition of 
employment--is a material term or condition of employment that must 
disclosed on the job order). Similarly, the Department did not intend 
in the NPRM to suggest that H-2A employers must submit for SWA or CO 
review every arbitration agreement or other ``side agreement.'' 
Employers that intend to seek such agreements from workers as a 
requirement or condition of employment must disclose their existence in 
the job order and work contract in sufficient detail to provide 
adequate disclosure to workers and to permit the Department to consider 
whether such agreements constitute normal and accepted requirements 
among non-H-2A employers in the occupation; employers need not submit 
the entire agreement to satisfy these requirements. As in the normal 
course of processing job orders and applications, the reviewing SWA or 
CO may require additional information from the employer, if necessary.
    In response to the comment from an anonymous employer indicating 
that it allows its U.S. workers to opt out of the H-2A contract, the 
Department notes that under the H-2A regulations, an H-2A employer's 
non-H-2A workers engaged in corresponding employment are entitled to 
the required wage rate for time spent performing that work, and to 
other benefits offered in the job order. See, e.g., 20 CFR 655.103(b) 
(definition of corresponding employment); 20 CFR 655.122(l) (rates of 
pay); 20 CFR 655.122(i) (three-fourths guarantee). Moreover, in 
accordance with 29 CFR 501.5, it is unlawful for any person to 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 afforded to that worker under the INA or 
under the H-2A regulations. Moreover, under 29 CFR 501.5, any agreement 
by a worker purporting to waive or modify any rights, even if entered 
into voluntarily, is void, with certain very limited exceptions.
vi. Section 655.135(h)(2)(i), Activities Related to Self-Organization 
and Concerted Activity
    At Sec.  655.135(h)(2), the Department also proposed a new 
protected activity relating to self-organization and concerted 
activity, which would be limited to persons engaged in FLSA 
agriculture, namely those workers who are not eligible for protection 
under sec. 7 of the NLRA, 29 U.S.C. 157, because they are not 
``employees'' as defined in 29 U.S.C. 152(3). As discussed above, the 
Department explained that these additional proposed protections are 
necessary to prevent an adverse effect on the working conditions of 
workers in the United States similarly employed. 8 U.S.C. 1188(a)(1). 
Specifically, the Department proposed at Sec.  655.135(h)(2) to protect 
engaging in activities related to self-organization, including any 
effort to form, join, or assist a labor organization, as defined in 
proposed Sec.  655.103(b); a secondary activity such as a secondary 
boycott or picket; or other concerted activities for the purpose of 
mutual aid or protection relating to wages or working conditions. The 
Department also proposed to protect a person's refusal to engage in any 
such activities.
    The Department explained that its enforcement experience has shown 
that the existing H-2A regulations currently do not provide sufficient 
protections for such workers to safely and consistently engage in self-
advocacy to assert their rights, which adversely affects workers in the 
United States similarly employed. To address these concerns, the 
Department proposed to explicitly protect H-2A and corresponding 
workers engaged in FLSA agriculture who engage in concerted activity. 
The Department sought comments on whether the proposed additional 
protections would better empower and equip workers to enforce their 
existing

[[Page 34004]]

rights, thus reducing adverse effect on the working conditions of all 
similarly situated workers. The Department specifically sought comment 
on its proposed use of the terms ``concerted activity'' and ``mutual 
aid or protection,'' which it explained were based upon the general 
body of case law from the Federal courts and the NLRB broadly 
construing similar language in sec. 7 of the NLRA; however, it 
recognized that these terms must ultimately be interpreted consistently 
with the statutory purpose of the INA and the H-2A program, including 
the need to prevent adverse effect on workers in the United States and 
in light of the H-2A program's unique characteristics. It also 
specifically sought comments on whether to include the terms ``a 
secondary activity such as a secondary boycott or picket.'' Because the 
NLRA's prohibition on labor organizations engaging in secondary 
boycotts or pickets does not apply to the agricultural employees to 
whom the Department's proposed rule would apply (see 29 U.S.C. 
158(b)(4)), the Department suggested that expressly protecting such 
activities would clarify workers' existing rights, prevent unnecessary 
confusion, avoid disputes, and help parties comply with their 
obligations under the proposed rule.
    Many commenters endorsed the proposal to protect ``concerted 
activity'' as necessary to ensure effective enforcement and to avoid 
adverse effect on working conditions for all workers engaged in 
agriculture, noting that H-2A and other farmworkers frequently suffer 
from retaliation when seeking to engage in self-advocacy and organizing 
efforts. For example, Farmworker Justice commented that such additional 
regulatory safeguards against retaliation for engaging in concerted 
protected activity are essential to protecting and enforcing safe, 
fair, and legal working conditions, and that ``affording employees the 
right to freely discuss workplace concerns without fear of reprisal 
assures self-enforcement and employer compliance'' with their legal 
obligations. Farmworker Justice recommended that the regulations 
specifically protect workers' rights to discuss their workplace 
concerns among themselves and that employers be prohibited from taking 
any action to suppress these conversations, noting that ensuring the 
rights of agricultural workers to provide each other mutual aid and 
support can reinforce and improve enforcement. They further noted that 
the ability to confer and to engage in concerted protected activity 
with their coworkers to assert their legal rights and safe working 
conditions is even more important to H-2A workers, because their legal 
and work permit status is tied to a single employer. PCUN noted that 
many farmworkers report never having seen a DOL or State labor or 
safety inspector during their time working in agriculture. PCUN 
supported the proposal because it would give farmworkers more 
information and agency in making decisions about whether they want to 
act collectively, give ``modest protections'' to farmworkers who wish 
to advocate for regarding their working conditions through the use of a 
union, and reduce unlawful interference from employers.
    Other workers' rights advocacy organizations also expressed support 
for the proposed provision, stating that farmworkers are very concerned 
about retaliation for taking concerted action to organize and enforce 
their rights, that retaliation against workers is very common, and that 
such tactics both violate workers' freedom of association and reduce 
the ability of authorities to enforce labor laws. Several advocacy 
organizations commented that these additional proposed protections are 
important to address the intimidation that farmworkers routinely face 
and to equip them with agency to advocate regarding their working 
conditions. Many individual commenters expressed support for 
strengthening workers' rights to advocate and unionize, with one adding 
that such activity can help protect them from unjust firing and 
retaliation.
    As described above in Section VI.C.2.b, FLOC commented that it has 
been able to achieve many improvements for agricultural workers through 
collective bargaining with employers covering about 10,000 farmworkers 
in North Carolina, including many H-2A workers. It commented that the 
proposed protections would greatly help H-2A farmworkers in their 
efforts to act collectively and to obtain remedies for likely 
violations of the H-2A program's requirements. A joint comment from 
several State Attorneys General also expressed support for the 
provision, reasoning that it would positively impact H-2A workforces, 
who are particularly at risk of coercion by employers, by preventing 
employers from suppressing their exercise of their rights. The 
California LWDA expressed support for the proposed protections, stating 
that similar protections in its State have led to both workers being 
better able to advocate regarding their working conditions and stronger 
enforcement of labor laws. This commenter further recommended that the 
Department more closely align the proposed provision with language in 
the NLRA, removing references to wages and working conditions, arguing 
that such alignment would reduce litigation and allow relevant parties 
to rely on existing legal interpretations.
    By contrast, many employers and trade associations opposed the 
proposal, for a variety of reasons. As described and addressed in 
Section VI.C.2.b, they contended that the Department's proposal exceeds 
its statutory authority, and that the Department failed to demonstrate 
how the proposed provision would prevent adverse effects on similarly 
employed workers in the United States, many of whom do not currently 
enjoy the protections the Department is proposing since they are 
excluded from the NLRA.
    Wafla, a trade association, commented that the provision is 
redundant because Federal and State laws already protect individuals 
from threats, intimidation, restraint, coercion, and blacklisting; the 
commenter also expressed concern that the language defining concerted 
activity is too broad and that the protection could ``morph from 
employee discussions among themselves into activity by labor union 
officials and labor advocates who could claim to represent workers 
without their explicit consent.'' The National Right to Work Legal 
Defense Foundation, Inc. commented that the proposed provision would be 
unworkable because the Department cannot provide an enforcement body or 
mechanism such as the NLRB, which administers the similar rights and 
obligations created by the NLRA. The commenter asserted that the 
Department has not explained how the ``substantive rights and 
privileges'' created by the proposed rule would be enforced. The 
commenter stated that, since the Department has no statutory authority 
to regulate union conduct or punish unions and their officials for 
their transgressions against employees, the proposal would be 
particularly unclear for employees who wish to refrain from supporting 
a union or engaging in union activity.
    An agent requested that the Department amend its proposals under 
Sec.  655.135(h) to include objective standards, notice provisions, and 
other revisions to ensure due process toward employers. They contended 
that employers should remain free to take adverse employment action for 
lawful, job-related reasons against workers who engage in protected 
activity as long as the adverse employment action is unrelated to the 
protected activity, the employer did not know about the

[[Page 34005]]

protected activity, or both. They pointed out that the proposed 
provision was so broad that it would be difficult or impossible for an 
employer to discipline any worker who has ever engaged in concerted 
activity, even where they have a legitimate basis for doing so. A 
couple of unions and several advocacy groups specifically took issue 
with the Department's statement in the NPRM that it did not intend for 
its proposal to preempt any applicable State laws or regulations that 
may regulate labor-management relations, organizing, or collective 
bargaining by agricultural workers. 88 FR 63795. These commenters urged 
the Department to clarify in both preamble and regulatory text that the 
proposal is, in fact, intended to preempt State laws that, in the 
commenters' views, are less protective than the proposed provision, 
specifically citing two provisions of North Carolina State law, N.C. 
Gen. Stat. sec. 95-79(b), which prohibit agreements by farmworker 
unions providing for deduction of union dues and certain agreements 
relating to litigation with agricultural producers. See, e.g., Farm 
Labor Organizing Committee v. Stein, 56 F.4th 339, 345-51 (4th Cir. 
2022). By contrast, wafla commented that States are free to choose 
whether to create agricultural collective bargaining rights applicable 
to workers in their own States under our system of federalism, and the 
Department cannot set or enforce a national baseline that applies to H-
2A workers in every State.
    Many commenters opposed the proposal to explicitly protect workers' 
rights to engage in secondary activity. The U.S. Chamber of Commerce 
commented that the proposal violates the NLRA even though that law does 
not cover agricultural employees, contending that the NLRA would still 
prohibit a labor organization with mixed membership of agricultural and 
non-agricultural employees from engaging in a secondary boycott. Thus, 
the Chamber contended that the Department cannot protect individual 
workers who engage in such activity because the NLRA bans covered or 
``mixed'' labor organizations from engaging in that activity. The 
Chamber also cited the legislative history of the secondary boycott 
provision in the NLRA, suggesting that Congress was concerned about the 
impact of labor disputes in the agricultural sector. Several other 
trade associations, including AmericanHort, NHC, USApple, the Michigan 
Farm Bureau, Western Growers, and FSGA, also opposed the proposal. Many 
of these commenters asserted that the proposal to protect secondary 
activity, boycotts, and picketing was specifically preempted by the 
NLRA, that it exceeds the Department's statutory authority under the 
INA, and that the Department has failed to explain how the proposal 
would alleviate adverse effects on workers in the United States.
    Other commenters, including a workers' rights advocacy organization 
and a labor union, expressed support for the proposal to specifically 
protect ``secondary activity,'' but expressed concern that the term 
``secondary activity'' is not defined in either the rule or the NLRA. 
These commenters recommended that the Department include a specific 
definition, set forth in the AFL-CIO's comment, in the final rule. The 
AFL-CIO also stated that protecting secondary activity would be 
appropriate given the ``fissured structure'' of the farm labor 
industry, where labor recruiters supply workers to farm labor 
contractors who, in turn, provide labor on farms, who later sell their 
products to food processors, restaurants, and grocery stores. The 
comment stated that this severely fissured structure leads to abuse of 
workers because it involves a complex, hidden supply chain where labor 
recruiters and labor contractors must compete with one another based on 
labor costs. Additionally, one employer expressed general support for 
allowing workers to boycott and picket.
    The Department has considered the comments and adopts the provision 
with modifications as described below. After reviewing the comments, it 
is clear that the fear of retaliation against farmworkers for taking 
concerted action to organize and enforce their rights is very common, 
and that the lack of legal protections for most farmworkers, especially 
H-2A workers who are vulnerable for the reasons set forth in Section 
VI.C.2.b, particularly because they are tied to a single employer, has 
contributed to this problem. The Department believes that prohibiting 
discrimination against workers for engaging in such activity would help 
address the intimidation reported by farmworkers, and thereby empower 
workers to join together to take action to enforce their rights under 
the program. As detailed in the NPRM and above, H-2A and corresponding 
workers must be free to advocate on behalf of themselves and their 
coworkers regarding the terms and conditions of their employment, 
without fear of retaliation, to prevent adverse effect on similarly 
employed workers. The Department emphasizes that the activity that is 
being protected in this final rule is not ``collective bargaining'' or 
``unionization,'' but instead is ``concerted activity for mutual aid 
and protection,'' which encompasses numerous ways that workers can 
engage, individually or collectively, to enforce their rights. As 
discussed above in Section VI.C.2.b, farmworkers across the nation have 
engaged in a variety of concerted activity for mutual aid and 
protection to enforce their rights, including by banding together in 
worker centers to campaign for voluntary agreements and working with 
legal aid groups to file class action lawsuits.
    As explained above in Section VI.C.2.b, providing additional 
protections for H-2A and corresponding workers to safely and 
consistently advocate on their own behalf regarding working conditions 
and assert their rights is necessary to ensure that the employment of 
H-2A workers does not adversely affect the wages and working conditions 
of similarly employed workers in the United States. Proposals to 
prohibit retaliation for self-advocacy and concerted activity thus fall 
within the Department's authority to ensure that foreign labor 
certification of H-2A workers does not adversely affect similarly 
employed workers in the United States. And, as explained in Section 
VI.C.2.b, this proposal is not preempted by the NLRA.
    In addition, the Department disagrees that the proposed provision 
is redundant or unnecessary, that it would provide H-2A workers with 
more protection than other agricultural workers, that it would protect 
``labor union officials and labor advocates'' rather than workers, or 
that it would create ``new rights and privileges'' for labor 
organizations. The provision is carefully crafted to apply only to 
``any person engaged in agriculture as defined and applied in 29 U.S.C. 
203(f)'' (i.e., only those workers who are not already protected by 
sec. 7 of the NLRA), and it applies equally to H-2A and corresponding 
workers. By contrast, it does not apply to or create any rights for 
``labor union officials,'' ``labor advocates,'' or labor organizations. 
It also does not purport to require recognition, collective bargaining, 
or any other action by an employer in response to worker organizing 
activity. Any such obligations, if they exist, would only apply in 
those States that have elected to apply their State labor relations 
programs to agricultural workers and would be unaffected by the new 
provision proposed by the Department. Instead, this new provision 
simply prohibits discrimination or retaliation against farmworkers who 
seek to self-organize or engage in other

[[Page 34006]]

concerted activity for mutual aid or protection.
    Under the new provision, as explained in the NPRM preamble, an 
employer generally could not prohibit activities related to self-
organization or other concerted activities for the purpose of mutual 
aid or protection that occur during nonproductive time, for example 
during lunch breaks, rest breaks, or while workers are riding as 
passengers in a vehicle when being transported between worksites. 
Nonproductive time also includes any noncompensable time, such as time 
after the end of the worker's workday. Similarly, the new provision is 
intended to permit workers to gather and converse for the purpose of 
mutual aid or protection in nonwork or common areas during nonwork 
hours, even if such areas are on employer premises, as explained in the 
NPRM preamble. For example, workers should generally be free to meet 
with one another after the end of their workday to discuss wages or 
working conditions in parking areas; common areas of worker housing, 
such as indoor or outdoor eating areas; recreational facilities; or 
other locations on the premises where workers would otherwise typically 
gather after work. In addition, although employers may establish 
reasonable work rules that limit discussions or meetings unrelated to 
the job while the worker is actively performing work, they may not 
apply or enforce work rules selectively to discourage worker self-
organization or other concerted activities. For example, employers may 
place reasonable restrictions on employees' use of personal devices 
while in the field but may not apply such restrictions only to certain 
individuals who the employer suspects are engaged in organizing or 
other concerted activities, or only to those text messages or phone 
conversations that the employer perceives to be related to worker self-
organization or other concerted activities. Similarly, employers may 
establish reasonable work rules limiting personal conversations during 
productive working hours where such conversations would affect 
productivity but may not selectively enforce such rules against workers 
for conversing about self-organization or other concerted activities. 
Such selective enforcement or discrimination in response to protected 
activity would likely violate this final rule as set forth in 20 CFR 
655.135(h)(2)(i).
    However, because of the breadth of activity that is protected under 
Sec.  655.135(h)(2)(i) as concerted activity for mutual aid and 
protection, and in response to the commenters' concerns that this 
provision may limit employers from taking disciplinary actions against 
employees for reasons unrelated to protected activity, the Department 
has clarified in the final regulatory text that Sec.  655.135(h)(2) 
prohibits only those adverse actions that are taken because of the 
listed protected activities. In particular, the Department has revised 
the language at Sec.  655.135(h)(2) to prohibit adverse actions against 
any person because such person has engaged in the protected activities 
set forth in that provision or has refused to engage in such 
activities. This revision is consistent with the Department's original 
language prohibiting discrimination and its intent to expressly 
prohibit intimidation, threats, restraint, coercion, blacklisting, 
discharging, or any other form of discrimination by an H-2A employer in 
retaliation against agricultural workers, including prospective or 
former workers, for engaging in protected activities and ensures due 
process for employers who are charged with such a violation. As 
recently explained by the Supreme Court, discrimination typically means 
``[t]o make a difference in treatment or favor (of one as compared with 
others),'' or treating someone worse than another who is similarly 
situated. Bostock v. Clayton Cty., 140 S. Ct. 1731, 1740 (2020) 
(construing Title VII's prohibition against discrimination, and quoting 
Webster's Second 745 (1954)); see also Murray v. UBS Sec., LLC, 144 S. 
Ct. 445, 453 (2024); Burlington N. & Santa Fe Ry. v. White, 548 U.S. 
53, 59 (2006) (``[T]he term `discriminate against' refers to 
distinctions or differences in treatment that injure protected 
individuals.''). Finally, the Department notes that this revision does 
not require that protected activity be the sole reason for the action 
against an employee. Rather an employer will violate Sec.  
655.135(h)(2) whenever protected activity is a but-for cause of an 
adverse action against an employee. See Bostock, 140 S. Ct. at 1739 
(explaining that an adverse action can have multiple but-for causes).
    The Department declines the suggestion to delete the phrase 
``relating to wages or working conditions.'' As the Department 
explained in the NPRM, the use of the terms ``concerted activity'' and 
``mutual aid and protection'' draws upon the general body of case law 
from the Federal courts and the NLRB broadly construing similar 
language in the NLRA. The Department adopts its proposed 
interpretations of ``concerted activity'' and ``mutual aid and 
protection'' in this final rule. See 88 FR 63793-63794. The Department 
believes it is appropriate to interpret these terms broadly in order to 
protect workers' ability to advocate on behalf of themselves and their 
coworkers regarding the terms and conditions of employment without fear 
of retaliation, in order to prevent adverse effect. As explained herein 
and in the NPRM, such advocacy can take a number of forms and the 
Department concludes it would be contrary to its intent and purpose in 
adopting this new provision to protect only a narrow set of concerted 
activities. However, the Department's regulation must ultimately be 
interpreted consistently with the statutory purpose of the INA and the 
H-2A program, and thus the Department retains the reference to the 
general term ``wages and working conditions,'' which it believes is 
broad and encompassing. For example, as discussed above, farmworkers 
who band together to protest unsafe housing or transportation, lack of 
clean drinking water or bathroom facilities, lack of accessible kitchen 
facilities, unfair or undisclosed deductions for food and beverages, or 
being offered poor quality or spoiled food would be covered, as would 
workers who jointly discussed or expressed concerns about their wages 
or an employer's failure to comply with health and safety laws.
    In addition, the Department has modified the language in this final 
rule to remove the express reference to ``a secondary activity such as 
a secondary boycott or picket.'' It recognizes the concerns expressed 
by commenters about the complexity of the concept of secondary activity 
as developed under decades of caselaw construing NLRA sec. 158(b)(4)(i) 
and (ii),\90\ and has determined that the inclusion of such

[[Page 34007]]

terms in this final rule would create unnecessary confusion and would 
not further the stated goals of clarity and disclosure. As the Supreme 
Court has recognized, the question of what constitutes secondary 
activity is ``among the labor law's most intricate.'' NLRB v. Local 825 
Int'l Union of Operating Eng'rs, 400 U.S. 297, 303 (1971). Thus, the 
Department has determined that including this term, even with the 
definition proposed by some commenters, could lead to uncertainty, and 
therefore is removing the term from this final rule. Instead, the 
Department seeks to clarify the breadth of activities that are 
protected as ``concerted activities for the purpose of mutual aid or 
protection relating to wages or working conditions'' of H-2A workers 
and similarly employed workers.
---------------------------------------------------------------------------

    \90\ The term ``secondary activity,'' as developed in the 
caselaw, generally regulates the activities of labor organizations, 
and refers to a key distinction under the NLRA between lawful 
``primary strikes and primary picketing,'' which are expressly 
protected, and threatening or coercive ``secondary'' conduct--that 
is, conduct aimed at a ``secondary'' or ``neutral'' employer, which 
is expressly prohibited. See 29 U.S.C. 158(b)(4). As explained by 
the NLRB, ``[t]he NLRA protects the right to strike or picket a 
primary employer--an employer with whom a union has a labor dispute. 
But it also seeks to keep neutral employers from being dragged into 
the fray. Thus, it is unlawful for a union to coerce a neutral 
employer to force it to cease doing business with a primary 
employer. That is only one aspect, however, of a complex legal 
picture.'' NLRB, Secondary boycotts (Section 8(b)(4)), https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/secondary-boycotts-section-8b4 (last accessed Feb. 22, 2024); see also Di 
Giorgio Fruit Corp. v. NLRB, 191 F.2d 642, 649 (D.C. Cir. 1951) 
(explaining that a Teamsters Local was engaged in ``primary 
picketing'' at the place of its members' own employment, in support 
of a strike against their employer, which is ``called a primary 
activity in the language of labor law,'' and thus did not fall 
within the NLRA's ban against secondary activity.)
---------------------------------------------------------------------------

    The Department generally agrees with the AFL-CIO and Farmworker 
Justice that otherwise lawful ``peaceful expressive activity'' by 
groups of individual workers, such as handing out flyers, leafleting, 
or picketing outside a grocery store that sells agricultural products 
derived from the labor of H-2A workers in order to discourage customers 
from buying those specific products, would generally be protected as 
``concerted activity for mutual aid and protection'' under this final 
rule. Notably, this type of concerted activity has been deemed 
permissible even in the NLRA context. See, e.g., NLRB v. Fruit and 
Vegetable Packers and Warehousemen, Local 760, 377 U.S. 58, 71-73 
(1964) (a labor union's engaging in peaceful expressive activity, such 
as consumer handbilling or picketing at a retail grocery store seeking 
to persuade customers not to buy apples that were produced by a certain 
agricultural employer, was not prohibited ``secondary activity'' under 
NLRA sec. 8(b)(4)(ii) where the activity did not ``threaten, coerce, or 
restrain'' anyone and was directed at customers rather than employees 
of the store); see also Edward J. DeBartelo Corp. v. Florida Gulf Coast 
Building Trades Council, 485 U.S. 568, 578 (1988) (peaceful consumer 
handbilling or leafleting by a labor union at the entrances to a 
shopping center urging consumers not to patronize those stores was 
protected under the First Amendment and was not an unfair labor 
practice under NLRA); Wartman v. United Food and Commercial Workers 
Local 653, 871 F.3d 638, 644 (8th Cir. 2017) (labor union did not 
violate NLRA by picketing grocery stores, even though the picketing 
effectively disrupted the stores' relationships with customers and 
suppliers, where union's objective was to urge the public not to shop 
at the stores and to pressure the store owners to resolve a labor 
dispute but not to force or require any person to cease doing business 
with any other person); but see 520 South Michigan Avenue Associates, 
Ltd. v. Unite Here Local 1, 760 F.3d 708, 711 (7th Cir. 2014) 
(remanding for trial on whether certain activities engaged in by a 
labor union against a hotel were coercive and whether any such coercive 
conduct actually caused damages to the hotel or was protected under the 
NLRA or the First Amendment or both).
    Thus, under this final rule, a group of workers engaged in a labor 
dispute who meet with the management of a grocery store to explain 
their labor dispute and seek to persuade the store to stop carrying the 
products sold by the workers' employer until the labor dispute is 
resolved would be engaged in protected concerted activity, as long as 
otherwise not prohibited by law. Similarly, in response to the comment 
from the AFL-CIO, the Department clarifies that, to the extent that 
individual workers are engaged in otherwise lawful peaceful leafleting 
or picketing at an agricultural worksite, including a ``fissured 
workplace'' (such as an employee of a farm labor contractor picketing 
on the premises of the farm where they work, which is owned by a grower 
or other entity that may or may not be a joint employer of the 
workers), such lawful activity is generally protected under this final 
rule, since the object of the activity is to affect working conditions 
at the workers' own place of work. These examples are intended to be 
illustrative and not exhaustive.
    As explained in the NPRM, the Department intends to interpret the 
terms ``concerted activity'' broadly, to include concerted activities 
for the broad purpose of ``mutual aid or protection'' as well as for 
the narrower purpose of ``self-organization,'' as long as the object of 
the activity is related to the workers' own wages and working 
conditions. See, e.g., Eastex, Inc. v. NLRB, 437 U.S. 556, 565-66 
(1978) (explaining that the terms as set forth in NLRA sec. 7 are 
intended to protect workers from retaliation by their employers, even 
``when they seek to improve terms and conditions of employment or 
otherwise improve their lot as employees through channels outside the 
immediate employee-employer relationship,'' such as through political 
or administrative action). And even though ``some concerted activity 
bears a less immediate relationship to employees' interests as 
employees than other such activity[, and w]e may assume that at some 
point . . . becomes so attenuated that an activity cannot fairly be 
deemed to come within the `mutual aid or protection' clause,'' it is 
neither necessary nor appropriate to attempt to precisely delineate 
those boundaries here. Id. at 567-68.
    As further discussed below, the Department does not intend to 
protect concerted activity that is currently prohibited by State 
law,\91\ or to preempt, supersede, or otherwise interfere with the 
operation of State laws that authorize or regulate organizing, 
collective bargaining, unfair labor practices, or labor-management 
relations in the agricultural sector. Instead, it intends for this rule 
to complement State collective bargaining laws, not to conflict with 
them, as well as to ensure workers are able to engage in lawful 
concerted activity without being retaliated against in States without 
such laws. As under its existing unfair treatment provisions, the 
Department will thoroughly investigate any complaint and consider all 
the facts, including, among other things, relevant State laws, the 
nature of the adverse action, any judicial or administrative findings 
of unlawful conduct, and evidence relating to causation, before 
determining whether unlawful retaliation or discrimination has 
occurred.
---------------------------------------------------------------------------

    \91\ For example, in New York, ``[n]otwithstanding any other 
provision of law, for farm laborers the term `concerted activities' 
shall not include a right to strike or other concerted stoppage of 
work or slowdown.'' N.Y. Lab. Law Sec.  703); See also N.Y. Lab. Law 
Sec.  704-b(1)) (``It shall be an unfair labor practice for a farm 
laborer or an employee organization representing farm laborers to 
strike any agricultural employer.''); See also Cal. Lab. Code 
Sec. Sec.  1154(d)(2) and 1154.5 (making it an unfair labor practice 
for ``a labor organization or its agents'' to engage in secondary 
strikes, or boycotts; ``publicity which includes picketing and has 
the effect of requesting the public to cease patronizing such other 
employer'' permitted only by certified representative labor 
organizations; publicity other than picketing permitted only in 
certain circumstances).
---------------------------------------------------------------------------

    Finally, as noted in the NPRM, the remedies provided for under this 
proposed regulation are not intended to be exclusive; if an 
agricultural worker has other remedies available under State or local 
law, the remedies contemplated under this proposal are not intended to 
displace them. 88 FR at 63792. In addition, the Department does not 
intend for this provision to preempt any applicable State laws or 
regulations that expressly protect agricultural workers or regulate 
labor-management relations, organizing, or collective bargaining in the 
agricultural sector. 88 FR at 63792, 63795. Several commenters, such as 
the AFL-CIO, FLOC, Comit[eacute] de Apoyo a los Trabajadores 
Agr[iacute]colas, and CDM, asked

[[Page 34008]]

the Department to ``clarify'' that it does intend for this regulation 
to preempt State laws that, in their view, are less protective than the 
proposed provision. They specifically cited two provisions of North 
Carolina's 2017 Farm Act, N.C. Gen. Stat. sec. 95-79(b), which prohibit 
certain agreements providing for deduction of union dues or litigation 
with agricultural producers or both. See Farm Labor Organizing 
Committee v. Stein, 56 F.4th 339, 345-51 (4th Cir. 2022) (finding that 
the provisions did not violate the equal protection clause or the First 
Amendment rights of the union or its members to expressive activity and 
to freedom of association, and were rationally related to legitimate 
state interests). In the commenters' view, the North Carolina statute 
directly conflicts with the proposed regulation protecting concerted 
activity, and the proposed regulation should therefore preempt the 
State law, as in Maine Forest Products Council v. Cormier, 51 F.4th 1 
(1st Cir. 2022). That case held that a Maine statute prohibiting 
certain employment by non-U.S. residents was preempted by the INA and 
the H-2A regulations, because the H-2A program unmistakably conflicted 
with the restrictions imposed by the Maine law. See also Rogers v. 
Larson, 563 F.2d 617, 626 (3d Cir. 1977) (holding that a Virgin Islands 
statute prohibiting hiring of foreign workers was preempted by the INA 
for similar reasons).
    It is generally true where State laws are ``in conflict or at 
cross-purposes'' with Federal law, such as the INA, ``Congress has the 
power to preempt state law,'' Arizona v. United States, 567 U.S. 387, 
399 (2012), and that courts have found preemption where it is 
impossible for a private party to comply with both State and Federal 
law (i.e., conflict preemption) or where under the circumstances of a 
particular case the challenged State law stands as an obstacle to the 
accomplishment and execution of the full purposes and objectives of 
Congress (i.e., obstacle preemption). Id.; Cormier, 51 F.4th at 3 
(citing Arizona, 567 U.S. at 399). Federal regulations can be just as 
preemptive as Federal laws. For example, in Cormier, the First Circuit 
recently held that the federally enacted H-2A program confers a right 
on private actors (either explicitly or implicitly) that unmistakably 
conflicted with the restrictions imposed by the Maine law, which 
prohibited Maine landowners from hiring anyone who is not a ``resident 
of the United States,'' including an H-2A worker, to drive trucks 
``transport[ing] forest products'' within the State. 51 F.4th at 3, 8. 
See also Dandamudi v. Tisch, 686 F.3d 66, 80 (2d Cir. 2012) (State 
statute was obstacle to accomplishment and execution of the full 
purposes and objectives of Congress where it disqualified certain 
immigrants merely because of their immigration status); Rogers v. 
Larson, 563 F.2d at 626 (same, where Territorial law gave preference to 
citizens and permanent residents over lawful immigrants who were 
authorized to work). However, to find preemption, there must be a clear 
conflict between the two provisions, or at least a ``direct and 
significant obstacle.'' In Cormier, the court held the Maine statute 
was ``a blunt intrusion on the implicit federal right,'' and 
``constitutes a direct and significant obstacle to achieving the H-2A 
program's clear and manifest objectives,'' since it ``would nullify the 
implicit federal right of the employer to hire foreign laborers on a 
temporary basis, and ``thus rudely ``interfere[s] with the careful 
balance struck by Congress.'' Cormier, 51 F.4th at 10 (quoting Arizona, 
567 U.S. at 406). Furthermore, the State law was ``in tension with the 
structure and purpose of the H-2A statutory provisions and would 
effectively give states a veto power over the federal program'' by 
overriding ``the specific H-2A work authorizations provided by federal 
law.'' Cormier, 51 F.4th at 11.
    By contrast, courts have declined to find that all State employment 
laws relating to immigrants are preempted by the INA. See, e.g., 
DeCanas v. Bica, 424 U.S. 351, 355 (1976) (holding that a California 
State law restricting employment of unauthorized immigrants was not 
preempted by the INA); LeClerc v. Webb, 419 F.3d 405, 424 (5th Cir. 
2005) (Louisiana Supreme Court rule that rendered ``nonimmigrant 
aliens'' ineligible to sit for the Louisiana Bar was not preempted by 
the H-1B provisions of the INA, since ``the field of alien employment 
law tolerates harmonious state regulation''). ``Federal regulation . . 
. should not be deemed preemptive in the absence of persuasive 
reasons--either that the nature of the regulated subject matter permits 
no other conclusion, or that the Congress has unmistakably so 
ordained.'' LeClerc v. Webb, 419 F.3d at 423 (quoting DeCanas, 424 U.S. 
at 356). Indeed, Cormier itself notes that the H-2A regulations 
themselves specifically require compliance with all applicable 
employment-related laws that pertain to working conditions. 51 F.4th at 
10 (citing 20 CFR 653.501(c)(3)(iii)). Here, unlike the Maine law at 
issue in Cormier, the Department does not believe that the North 
Carolina State law presents a clear conflict or a ``direct and 
significant obstacle'' to the operation of the H-2A program or the 
specific regulation in question. The law does not appear to govern 
whether a farmworker in North Carolina may engage in protected 
concerted activity as outlined herein, or whether a North Carolina 
employer could discipline a worker for such activity, and unlike the 
Maine law at issue in Cormier would not ``effectively give states a 
veto power over the federal program'' or ``override the specific H-2A 
work authorizations provided by federal law.'' 51 F.4th at 7-8. As 
noted in the preamble to the NPRM, the Department is cognizant that 
over a dozen States have enacted laws that regulate organizing, 
collective bargaining, labor-management relations, overtime, heat 
stress, tools, and other issues affecting agricultural workers.\92\ It 
has carefully crafted its new protections for concerted activity to 
avoid creating conflicts with existing State laws and regulations that 
provide for a system of collective bargaining for farmworkers and/or 
explicitly prohibit retaliation against farmworkers for exerting other 
rights guaranteed by State laws or regulations.\93\
---------------------------------------------------------------------------

    \92\ See, e.g., ALRA, Cal. Lab. Code Sec.  1153; Colorado 
Agricultural Labor Rights and Responsibilities Act, Colo. Rev. Stat. 
8-13.5-201 (state law requiring access and employer-provided 
transportation to ``key service providers''); Arizona Agricultural 
Employment Relations Act, Ariz. Rev. Stat. Ann. Sec.  3-3101-3125; 
Ariz. Rev. Stat. Ann. Sec.  23-1381-1395; New York Farm Laborers 
Fair Labor Practices Act (2020) (amending New York Labor Law Code 
Sec. Sec.  701-718, Chapter 31, Article 20. Or. Rev. Stat. secs. 
658.405 through 658.511 (state laws requiring licensing and bonding 
of agricultural recruiters); Generally speaking, the Department 
supports such protections for farmworkers and believes that they can 
help to avoid adverse impact on the working conditions of workers in 
the United States by helping to improve such conditions for all 
workers.
    \93\ In addition, this final rule does not require employers to 
recognize any labor organization, to engage in collective 
bargaining, or to reach any CBA; rather, any such agreement would be 
governed and enforced solely under any applicable Federal, State, or 
local law.
---------------------------------------------------------------------------

vii. Section 655.135(h)(2)(ii), Refusing To Attend or Participate in 
``Captive Audience Meeting'' Related to Protected Activity
    The Department proposed a new provision at Sec.  655.135(m)(3) to 
prohibit employers from engaging in ``coercive speech'' intended to 
oppose workers' protected activity, such as organizing or advocating 
regarding their working conditions on behalf of themselves and their 
coworkers. Specifically, the Department proposed to prohibit employers 
from engaging in ``coercive employer speech intended to oppose workers' 
protected activity'' (sometimes

[[Page 34009]]

referred to as ``captive audience meetings'' or ``cornering''), in 
which the employer seeks to persuade workers not to engage in protected 
activity, unless the employer (a) explains the purpose of the meeting 
or communication; (b) informs employees that attendance or 
participation is voluntary and that they are free to leave at any time; 
(c) assures employees that nonattendance or nonparticipation will not 
result in reprisals (including any loss of pay if the meeting or 
discussion occurs during their regularly scheduled working hours); and 
(d) assures employees that attendance or participation will not result 
in rewards or benefits (including additional pay for attending meetings 
or discussions concerning their rights to engage in protected activity 
outside their regularly scheduled working hours). The proposal was 
modeled on the ``Johnnie's Poultry'' safeguards that were developed by 
the NLRB to ensure that workers are not coerced into cooperating with 
their employers in various situations. See 88 FR at 63798 (citing 
Johnnie's Poultry Co., 146 NLRB 770, 774 (1964) (providing safeguards 
required when employers question employees about protected activity to 
prepare a defense against unfair-labor-practice charges); Sunbelt 
Rentals, Inc., 374 NLRB No. 24 (2022) (reaffirming Johnnie's Poultry 
rule). The Department explained that it sought to balance workers' 
rights to engage in (or to refrain from engaging in) concerted 
activity, and employers' rights to engage in speech concerning any such 
activity, without unduly infringing on either party's expression. It 
also sought to prohibit employers from retaliating against a worker for 
attending or refusing to attend such a ``captive audience'' meeting or 
discussion, even if the meeting were to occur during their regularly 
scheduled working hours.
    The Department sought comment on whether there would be other ways 
to better protect workers' rights to refrain from listening to 
employers' coercive speech, whether other safeguards or employer 
disclosures would be appropriate, and how to most appropriately tailor 
the prohibition to avoid infringing on employer's free speech rights 
while protecting workers' right to engage in protected activity.
    The Department received a significant number of comments in strong 
opposition to proposed Sec.  655.135(m)(3), many of which raised First 
Amendment concerns and contended that the proposed prohibition exceeded 
the Department's authority. The U.S. Chamber of Commerce, for example, 
contended that ``the Department's proposal contains unconstitutional 
restrictions on employers' free speech rights.'' Referring to this 
proposed provision and other proposed provisions relating to worker 
voice and empowerment, U.S. Representatives Foxx and Thompson opined 
that ``Congress has given no authority to DOL to impose these mandates 
on H-2A employers,'' and that ``[s]uch authority cannot be found in the 
Immigration and Nationality Act or the Fair Labor Standards Act.'' 
Wafla contended that ``this proposed section silences employer free 
speech rights,'' and that ``[t]he proposed rules, taken as a whole, are 
hypocritical because they recognize employee association and speech 
rights while gagging employers' free speech rights.'' The U.S. Chamber 
of Commerce noted that ``mandatory work meetings in which an employer 
talks about unions . . . have long been lawful under the NLRA and, more 
important, protected by the U.S. Constitution.'' Commenters also 
contended that both the First Amendment and the NLRA protect employers' 
freedom to hold mandatory work meetings and to express their views, 
regardless of the subject matter, stating that NLRA precedent balances 
the interests of employers and employees by expressly protecting 
employer speech, except when the speech amounts to a ``promise of 
benefit'' or ``threat of reprisal.'' The Chamber said that the 
Department cannot mean that all mandatory work meetings are inherently 
coercive and thus ``it seems to mean that all meetings about unions are 
coercive,'' and that doing so ``draws the Department into regulating 
the substance of an employer's speech--a subject it is constitutionally 
forbidden to touch.''
    USA Farmers opined that this proposal ``lacks a valid legal basis 
and plainly violates an employer's First Amendment rights.'' USA 
Farmers also stated that ``[a]n employer has the right to communicate 
with employees,'' and that ``[a]n employer can also require employee 
attendance at meetings and such meetings are routinely counted as 
compensable time.'' It also suggested that any restrictions on speech 
should be applied evenly, not just to employers but to outside groups. 
The Cato Institute commented that the proposal was too broad because 
the proposed ``speech restrictions apply not just during a union 
campaign but any time an employer opposes unionization.'' Many 
commenters, including IFPA, asked for clarification of the proposal, 
stating that it is not clear how or when employers would need to 
provide the required disclosures to employees, and that the proposal 
did not provide guidance regarding the records that would be needed to 
verify such notice was given to workers.
    Labor unions and worker advocates generally supported the proposal, 
stating that it would help to protect workers by preventing employers 
from trying to discourage workers from advancing their rights in the 
workplace and would help to ensure that the employment of H-2A workers 
does not adversely affect the working conditions of similarly employed 
workers in the United States. Farmworker Justice expressed support for 
the proposal, commenting that agricultural employers have a ``unique 
ability'' to control and require the attendance of H-2A workers at 
mandatory meetings, while the UFW shared personal anecdotes from 
farmworkers they have worked with, describing experiences with 
employers using captive audience meetings to stifle union activity.
    Several elected officials and State agencies also supported the 
proposal, commenting that it would help to address the intimidation and 
isolation faced by farmworkers. For example, 11 State Attorneys General 
observed that this proposal, combined with other worker voice and 
empowerment proposals in the NPRM, would help protect workers from 
misinformation, retaliation, and coercive speech that hinders self-
advocacy and organizing. The California LWDA said that employer captive 
audience meetings have detrimental effects on workers' ability to 
organize, reasoning that the proposed prohibition would protect both 
employers' speech rights and workers' rights to refrain from listening 
to coercive speech.
    However, several of these commenters questioned the practical 
effect of the proposed rule without modification. For example, the AFL-
CIO suggested that any final rule should clarify when employer speech 
should be deemed ``coercive'' and when it would be permissible. It 
suggested that the rule be revised to entirely prohibit employers from 
engaging in ``speech addressed to H-2A workers intended to oppose those 
workers' protected activity'' without providing express warnings. 
Farmworker Justice suggested that the proposal should also require 
``that the employer supplement any oral assurances in writing to the 
worker before the employer engages in a discussion of union activity or 
participation.''
    After consideration of the comments received, this final rule 
adopts a modified version of the proposal. This final rule does not 
adopt the language at proposed Sec.  655.135(m)(3) prohibiting

[[Page 34010]]

coercive employer speech, but instead incorporates a version of that 
proposal into the protected activity framework at Sec.  
655.135(h)(2)(ii). The Department considered the objections voiced by 
many commenters, in particular those questioning whether the proposed 
prohibition as drafted would interfere with employers' speech. In 
addition, the Department notes that at least five States have enacted 
laws that target the same problem in a way that avoids concerns about 
potential infringement on the First Amendment rights of employers while 
protecting workers' rights as well. Four States, namely Connecticut 
(2022), New York (2023), Maine (2023), and Minnesota (2023), have 
recently joined Oregon (2010) \94\ by enacting laws that do not 
prohibit mandatory captive audience meetings per se, but instead 
protect workers who leave or refuse to attend such meetings (or who 
refuse to listen to such speech) from being disciplined or fired. For 
example, the New York law prohibits employers from disciplining or 
discriminating against employees for refusing to attend employer-
sponsored meetings, listen to speech, or view communications that are 
primarily intended to convey the employer's opinion about ``religious 
or political matters,'' including the decision to join or support any 
labor organization. The Department therefore concludes that the 
interest underlying this proposal--i.e., preventing employers from 
coercing or threatening farmworkers into attending meetings or 
listening to employer speech intended to oppose protected activity, 
under the implied threat of discipline if the farmworkers exercise 
their protected right not to listen to such speech--can be better 
served by instead adding a new protected activity to the proposed anti-
retaliation provision at Sec.  655.135(h)(2).
---------------------------------------------------------------------------

    \94\ See, e.g., Conn. Gen. Stat. Ann. Sec.  31-51q (2022), Me. 
Rev. Stat. Ann., tit. 26, Sec.  600-B (effective Sept. 19, 2023); 
2023 Minn. S.F. No. 3035, codified as Minn. Stat. Ann. Sec.  181.531 
(effective August 1, 2023); N.Y. Lab. Law Sec.  201-d (McKinney 
2023); Or. Rev. Stat. Sec.  659.786(1) (2010).
---------------------------------------------------------------------------

    Therefore, the Department is not adopting the proposed language to 
prohibit coercive speech outright, but instead incorporates a version 
of the proposed provision into the list of protected activities in the 
``unfair treatment'' provisions at Sec.  655.135(h)(2)(ii). The final 
provision expressly prohibits employers from retaliating or 
discriminating against a worker for refusing to attend a ``captive 
audience'' meeting (or portion thereof), if the primary purpose of the 
meeting (or a certain portion of the meeting) is to communicate the 
employer's opinion concerning any activity protected under these 
regulations. It also protects a worker from retaliation for refusing to 
listen to employer-sponsored speech or view employer-sponsored 
communications, if the primary purpose of the speech or communication 
(or that portion of the speech or communication) is to communicate the 
employer's opinion concerning any activity protected under these 
regulations, even if the meeting, speech, or communication occurs 
during their regularly scheduled working hours.
    This protection is limited to those workers engaged in FLSA 
agriculture. As explained in the NPRM, the Department believes that ``a 
worker's right to engage, or not engage, in self-organization and 
concerted activity under [final Sec.  655.135(h)(2)(i)] \95\ would 
include the worker's right to listen and the worker's right to refrain 
from listening to employer speech concerning the worker's exercise of 
those rights.'' 88 FR at 63797 (citing NLRA sec. 7). This modification 
is intended to permit H-2A employers to freely engage in speech 
regarding these topics, as requested by certain commenters, including 
employers, trade associations, Members of Congress, and a think tank. 
At the same time, the revision responds to comments by worker advocates 
urging the Department to protect workers' rights to refrain from 
listening to employer speech on these topics. Therefore, this final 
rule includes regulatory text to expressly protect those rights in 
Sec.  655.135(h)(2)(ii).
---------------------------------------------------------------------------

    \95\ Proposed Sec.  655.135(h)(2).
---------------------------------------------------------------------------

    As with the protection for ``concerted activity'' in 20 CFR 
655.135(h)(2)(i), this provision is limited to those workers who are 
not already protected by sec. 7 of the NLRA. And as with the other 
protections against unfair treatment for concerted activity, this new 
protection will also be disclosed to workers through the job order and 
through other worker outreach tools. The Department believes that this 
approach strikes a better balance between protecting workers' rights to 
engage in (or to refrain from engaging in) concerted activity and 
protecting employers' First Amendment right to engage in speech 
concerning any such activity, without unduly infringing on either 
party's expression. The Department acknowledges that employers 
generally have First Amendment rights to express any views, arguments, 
or opinions on any subject, including but not limited to the protected 
concerted activities outlined in 20 CFR 655.135(h)(2)(i), as long as 
they do not engage in unlawful threats or coercion. However, the 
Department also believes that workers enjoy First Amendment rights to 
decline or refuse to attend mandatory employer-sponsored speeches or 
meetings concerning the exercise of their rights to engage in protected 
activities. Workers should therefore be free to leave (or refuse to 
attend) such a ``captive audience meeting,'' and should not be 
threatened, disciplined, coerced, suffer other reprisals, or lose out 
on any reward or benefit if they exercise their protected rights not to 
listen to such speech or to attend such a meeting. As detailed above, 
the Department believes that ensuring that workers can individually or 
collectively advocate regarding their working conditions, without fear 
of reprisal, will better prevent adverse effect as required under 8 
U.S.C. 1188(a)(1). As also detailed above, protecting the right to 
engage in (or to refuse to engage in) concerted activity is a 
demonstrated method to empower such worker advocacy. The Department 
also believes that protecting workers' rights to refuse to attend such 
``captive audience meetings'' is an important aspect of the worker's 
right to engage in or refuse to engage in concerted activity, as set 
forth in new Sec.  655.135(h)(2)(i). As the comments received on the 
``captive audience'' proposal reflect, a worker must have the freedom 
to choose whether to listen to--or not to listen to--speech concerning 
the benefits or drawbacks of engaging in concerted activity to fully 
effectuate their right to engage in, or to refuse to engage in, such 
activity. The Department believes that expressly protecting a worker's 
right to refuse to attend or to leave such a meeting is the simplest 
and fairest method of ensuring that workers' participation is voluntary 
at all times.
    Finally, consistent with the preamble discussion in the NPRM, this 
revised provision is not intended to affect attendance at mandatory 
meetings on subjects other than those involving workers' exercise of 
protected rights (e.g., work assignments for the day, tools, job 
training, or safety instructions). The Department recognizes, as it did 
in the NPRM, that employers may and do regularly require workers to 
attend meetings on such work-related subjects. But if the employer 
announces a special meeting at the beginning or end of the workday to 
express their opinion regarding labor unions, health and safety 
complaints, or whether workers should communicate with government 
investigators, a worker may choose not to attend that meeting and may 
instead choose to continue performing their regularly assigned duties. 
Similarly, if the ``primary

[[Page 34011]]

purpose'' of a regular 30-minute daily meeting is to discuss work 
assignments, but the employer changes topics and instead devotes the 
last 15 minutes to discussing whether workers should engage in certain 
protected activity, a worker would have the choice to leave that 
meeting at that point. Of course, the employer may choose to minimize 
any disruption by, for example, announcing that the first 10 minutes of 
the meeting will be about organizing, and allowing workers who object 
to wait elsewhere, then invite them into the meeting when they change 
topics and begin making work assignments. However, the employer is not 
required to do so. And if a retaliation complaint is received, WHD will 
thoroughly investigate all the facts and circumstances of the case (as 
it does with any complaint) before charging the employer with unfair 
treatment.
viii. Proposed Sec.  655.135(m)
    The Department proposed a new employer obligation at Sec.  
655.135(m) that included a number of protections intended to help 
prevent an adverse effect on the working conditions of workers in the 
United States similarly employed, 8 U.S.C. 1188(a)(1). The obligations 
under proposed Sec.  655.135(m) would apply only to workers engaged in 
FLSA agriculture. Specifically, the Department proposed requirements 
that an employer provide to a requesting labor organization the contact 
information of H-2A workers and workers in corresponding employment 
employed at the place(s) of employment; permit a worker to designate a 
representative of their choosing to attend any meeting that may lead to 
discipline; refrain from captive audience meetings unless the employer 
provides certain information to ensure that any such meeting is not 
coercive; and attest either that they will bargain in good faith over 
the terms of a proposed labor neutrality agreement with a requesting 
labor organization or that they will not do so and provide an 
explanation for why they have declined. For the reasons explained 
below, the Department finalizes, with modifications, the proposal that 
employers must permit workers to designate a representative in certain 
disciplinary meetings. The Department does not finalize the proposal to 
provide a requesting labor organization contact information for H-2A 
and corresponding workers, nor does it finalize the proposal requiring 
employers to attest that they will bargain in good faith over a labor 
neutrality agreement or provide a reason for declining to do so. As 
explained above in Section VI.C.2.b.vii, the Department has also 
withdrawn the proposal to prohibit all coercive employer speech or 
require that certain warnings be given to ensure that the workers have 
the opportunity to opt out of attending such speeches or meetings, and 
instead has finalized an alternative at Sec.  655.135(h)(2)(ii) that 
protects a worker from retaliation for opting out of (or refusing to 
attend) such a ``captive audience meeting'' or speech.
A. Section 655.135(m), Designation of Representative
    In the NPRM, the Department proposed to require employers to permit 
a worker to designate a representative of their choosing to attend any 
meeting between the employer and the worker where the worker reasonably 
believes that the meeting may lead to discipline and to permit the 
worker to receive advice and assistance from the representative during 
any such meeting. As noted above, this proposal was limited to workers 
engaged in FLSA agriculture.
    The NPRM set forth two rationales for the proposal. First, the 
Department believes that this obligation would help safeguard workers 
against unjust discipline (including termination) by giving workers the 
opportunity to secure a witness, advisor, or advocate in a potentially 
adversarial situation. Second, allowing H-2A workers and workers in 
corresponding employment the option to have a representative in these 
meetings (if they so choose) would allow them to better advocate for 
themselves regarding the terms and conditions of their employment and 
thereby prevent adverse effect on the working conditions of similarly 
employed workers in the United States. That is, the ability to have a 
representative's presence at such a meeting would enhance workers' 
ability to act in concert with their coworkers to protect their mutual 
interest in ensuring that their employer does not impose punishment 
unjustly.
    In the preamble to the NPRM, the Department clarified that there 
was no limit to who a worker may designate as a representative. As the 
NPRM explained, it would be impractical to limit such representatives 
to union representatives, given low union density in agricultural 
workplaces, or to coworkers, because the temporary nature of H-2A work 
may limit the development of relationships with coworkers. For example, 
the worker may prefer to designate a representative who is not employed 
by the employer, such as a legal aid advocate, member of the clergy, or 
other key service provider.
    The NPRM requested commenter feedback on a few specific questions. 
First, the Department sought comments regarding the scope of situations 
in which employers' obligations under the proposal would apply, 
including, for example, whether the obligation should apply in all 
situations that a worker may reasonably believe could involve or lead 
to discipline (such as where employers correct work techniques, give 
instructions, or provide training), or should apply only in situations 
more analogous to the ``investigatory interviews'' addressed in NLRB v. 
J. Weingarten, Inc., 420 U.S. 251, 267 (1975). The Department further 
sought comment on whether it should draw on sources other than 
Weingarten (and the line of cases applying Weingarten) in determining 
applicability of this obligation or should consider any other 
interactions between farm employers and their interactions with 
nonunionized agricultural workers. Second, the Department sought 
comments on how to ensure that workers are adequately informed of the 
employer's obligation to permit workers to request a representative and 
the circumstances under which this obligation would arise. Finally, the 
Department requested comments as to how to best implement this 
obligation in an agricultural setting, including those settings subject 
to Sec. Sec.  655.200 through 655.235 (herding and livestock production 
workers).
    Several commenters expressed support for the proposal. A group of 
State Attorneys General expressed the view that the proposal would have 
a positive impact on H-2A workers who face heightened risks of coercion 
and abuse by employers, adding that the proposal would prevent 
employers from suppressing workers from exercising their rights. A 
group of U.S. Senators also supported the proposal as one way to ensure 
that workers can advocate regarding their working conditions without 
fear. Similarly, an advocacy organization expressed the view that the 
proposal would bolster workers' ability to engage in concerted activity 
and would prevent unfair discipline by employers. A State government 
agency, California LWDA, observed that agricultural workers in 
California already enjoy a right to representation in investigatory or 
pre-disciplinary meetings and opined that access to such 
representatives should be extended to H-2A workforces.
    Other commenters objected to the provision as a general matter or 
expressed concerns about certain aspects of the provision. A few trade 
associations questioned the

[[Page 34012]]

Department's authority for the proposal. For example, one commenter, 
FFVA, stated that the proposal lacks congressional authority, and 
another, USA Farmers, stated that the proposal lacks a valid statutory 
basis. Along similar lines, a few commenters expressed the view that 
the Department did not adequately explain how the proposal would 
protect workers in the United States from adverse effect. Other 
commenters stated that the proposal amounted to an attempt by the 
Department to selectively apply provisions of the NLRA to H-2A workers.
    Because the NPRM proposed that the designated representative would 
not be limited to union representatives or coworkers, several 
commenters identified that this proposal would require employers to 
permit third parties unaffiliated with farming operations to enter the 
workplace. Some of these commenters expressed employer concerns about a 
requirement to permit unaffiliated third parties to enter the 
workplace. For example, several commenters--FFVA, AmericanHort, and 
Western Growers--expressed the view that the proposal would effect a 
physical taking of property under Cedar Point, 141 S. Ct. 2063. Other 
commenters, including FFVA, Western Growers, NCAE, and American Farm 
Bureau Federation, expressed concern that the provision would allow 
outsiders who may be unaware of food safety protocols in worksites 
where workers are harvesting or otherwise preparing food products. 
These commenters stated that the provision would therefore interfere 
with employers' obligations under the Food Safety Modernization Act and 
its implementing regulations and under the Global Food Safety 
Initiative, which FFVA stated requires producers to restrict site 
access to certain personnel trained in food safety protocols. Another 
trade association, the American Farm Bureau Federation, further 
commented that requiring H-2A employers to permit unaffiliated third 
parties onsite would increase liability risks and insurance costs for 
employers.
    Many commenters opposed the rule on the grounds that it was vague 
and could unnecessarily delay disciplinary actions. Some trade 
associations expressed the view that the proposal would cause 
significant disruption to the workplace because the proposed 
definitions of ``meeting'' and ``discipline'' are vague, which could be 
interpreted to require employers to allow an employee to have a 
representative present for minor counseling or correction of job 
performance. One advocacy group, the Cato Institute, observed that the 
proposal does not include a requirement that the representative appear 
at the appointed time for the ``meeting.'' Other commenters, including 
wafla and USA Farmers, stated that representation could take days or 
weeks to arrange in the setting of agricultural work and expressed 
concerned that the proposal would leave employers open to liability in 
cases where the behavior needing correction is dangerous to other 
employees. Commenters, including Cato and Mercer Ranch, Inc., similarly 
said that the proposal is vague and impractical. Another trade 
association expressed concern that involving additional parties in each 
disciplinary meeting could lead to breaches of confidential business 
information or further disputes or perceptions of unequitable treatment 
between employees.
    After considering comments discussed above, the Department adopts 
the proposed revisions at Sec.  655.135(m) with some modifications. 
First, this final rule provides that the employer's obligation will be 
limited to investigatory interviews analogous to investigatory 
interviews under Weingarten. However, this final rule maintains the 
approach, as described in the preamble to the NPRM, of permitting 
workers to designate the person of their choice as a representative, 
regardless of whether the designated representative is a union 
representative, a coworker, or someone else. Second, the Department 
deletes the final sentence of the provision which would have required 
employers to permit third-party designated representatives to 
physically access the worksite. In its place, the Department adds two 
new sentences clarifying that: (1) where the worker's designated 
representative is present at the worksite, the employer must permit the 
representative to attend the investigatory interview in-person; but (2) 
when the worker's designated representative is not present at the 
worksite, the employer must permit the representative to attend the 
investigatory interview remotely, by telephone or videoconference. 
Third, the Department makes non-substantive changes to the regulatory 
text to revise ``workers'' to read ``a worker'' or ``the worker,'' for 
consistency with other parts of this final rule. Fourth, the provision 
is renumbered as Sec.  655.135(m). The Department further explains the 
first and second modifications in turn.
    First, in a modification to the provision as proposed in the NPRM, 
this final rule adopts from the NLRA context the principle that 
employees should have recourse to representatives in ``investigatory 
interviews.'' As discussed in the NPRM, it is well-established that 
under the NLRA, in a workplace covered by a CBA, employers must grant 
an employee's request to have a representative present in an 
investigatory interview that the employee reasonably believes might 
result in disciplinary action. See Weingarten, 420 U.S. at 256, 267. In 
Weingarten, the Supreme Court concluded that denying a representative 
constitutes interference with an employee's right to engage in 
concerted activities for mutual aid or protection under sec. 7 of the 
NLRA. Id. An employee's request for a representative constitutes 
concerted activity because a representative's presence safeguards the 
interests of employees generally, not solely the interest of the 
requesting employee. See id. at 260-61. Courts have cited similar 
considerations in deeming reasonable the view that sec. 7 of the NLRA 
permitted nonunion workers to designate a coworker to provide 
assistance during investigatory interviews that may lead to 
disciplinary action. See Epilepsy Found. of Ne. Ohio v. NLRB, 268 F.3d 
1095, 1100 (D.C. Cir. 2001).
    The NPRM proposed that in the H-2A program, the employer's 
obligation would apply in the context of ``meetings between the 
employer and a worker where the worker reasonably believes that the 
meeting may lead to discipline.'' Under the original proposal, the 
scope of situations in which this obligation would have applied is 
broader than the ``investigatory interviews'' in which a worker's right 
to a representative is recognized under sec. 7 of the NLRA. See 
Weingarten, 420 U.S. at 253, 257-58 (recognizing right to 
representative in ``investigatory interview which the employee 
reasonably believed might result in disciplinary action'').
    After reviewing the comments, the Department adopts the 
``investigatory interview'' concept from Weingarten and its progeny. 
The Department's decision to draw from a concept that developed in the 
NLRA context is similar to its decision to adopt language similar to 
sec. 7 in Sec.  655.135(h)(2)(i). As in Sec.  655.135(h)(2)(i), the 
Department adopts the ``investigatory interview'' concept from the NLRA 
context to enhance workers' ability to engage in concerted activities 
for the purpose of mutual aid or protection, thus helping to avoid 
adverse effects on similarly employed workers in the United States. In 
incorporating the term ``investigatory

[[Page 34013]]

interview'' in this final rule, the Department draws on the Weingarten 
body of case law but notes that the term must be interpreted 
consistently with the statutory purpose of the INA and the H-2A 
program, in light of the H-2A program's unique characteristics and the 
changes the Department is making in this final rule.
    The Department also believes that adopting the ``investigatory 
interview'' concept is the best way to address several concerns raised 
by commenters while still maintaining protections for workers. In 
particular, trade associations expressed the view that the terms 
``meeting'' and ``discipline'' in the NPRM proposal are vague, creating 
challenges for employers in determining when their obligation arises. 
Trade associations also expressed the view that ``meetings'' would 
capture an overly wide range of communications between employers and 
employees, thereby burdening employers. Adopting the ``investigatory 
interview'' concept addresses both these concerns because it clearly 
limits the obligation to a narrower and more clearly defined range of 
employer-employee communications. Moreover, adopting the 
``investigatory interview'' concept from Weingarten will assist 
employers and employees in determining the scope of an employer's 
obligation under these regulations, because stakeholders may refer to a 
wide body of interpretive material applying Weingarten, including 
decisions by courts and the NLRB. The Department intends that the 
following core principles--taken from decisions applying Weingarten--
should apply in determining the scope and application of 
``investigatory interviews'' under these regulations. These core 
principles will apply to these regulations regardless of whether, in 
the future, courts or the NLRB limit the scope of the Weingarten right 
under sec. 7 of the NLRA.
    As noted above, an ``investigatory interview'' arises in a 
``situation where [a worker] reasonably believes the investigation will 
result in disciplinary action.'' Weingarten, 420 U.S. at 257 (emphasis 
added). Therefore, whether a meeting or conversation constitutes an 
``investigatory interview'' must be evaluated from an objective 
standard. Consol. Edison Co. of New York, Inc., 323 NLRB 910 (1997). 
The question is whether a similarly situated worker would reasonably 
believe that discipline might result from the interview, considering 
all the circumstances. Weingarten, 420 U.S. at 257-58 & n.5; Consol. 
Edison, 323 NLRB 910. For example, ``run-of-the-mill shop-floor 
conversation as, for example, the giving of instructions or training or 
needed corrections of work techniques,'' generally do not constitute 
``investigatory interviews,'' since ``[i]n such cases there cannot 
normally be any reasonable basis for an employee to fear that any 
adverse impact may result from the interview.'' Weingarten, 420 U.S. at 
258. Moreover, an employee does not have a reasonable fear of 
discipline in a conversation where the employer merely announces a 
disciplinary decision that the employer has already made, see Baton 
Rouge Water Works Co., 246 NLRB 995, 997 (1979), or where the employer 
states that the worker does not face discipline, Gen. Elec. Co., 240 
NLRB 479, 480 (1979).
    However, the intent of the employer or its representative is not 
dispositive of whether an interaction constitutes an investigatory 
interview; that is, an interaction may constitute an ``investigatory 
interview'' even where the employer did not intend to seek discipline, 
so long as a similarly situated worker would reasonably believe that 
discipline might result. Consol. Edison, 323 NLRB 910. In that 
analysis, the individual worker's previous treatment by the employer 
(including prior discipline of the worker) is relevant to assessing 
whether a similarly situated worker would reasonably maintain such a 
belief. See Verizon Cal., Inc. & Commc'ns Workers of Am., Loc. 9588, 
AFL-CIO, 364 NLRB 1008, 1011-12 (2016); E.I. Dupont De Nemours & Co., 
Inc., 362 NLRB 843, 843, 855-56 (2015).
    The worker's request for a representative need not take a 
particular form or incorporate any particular words, so long as the 
request is sufficient to place the employer on notice that the worker 
desires a representative. Montgomery Ward & Co., 269 NLRB 904, 905 n.3 
(1984). Of course, the worker's explicit request for a representative 
is sufficient, see, e.g., Consol. Edison, 323 NLRB at 914; Montgomery 
Ward, 273 NLRB at 1227, but the request need not be explicit if it 
provides sufficient notice, such as, for example, where the worker asks 
the employer whether he needs assistance from a representative, see, 
e.g., NLRB v. N.J. Bell Tel. Co., 936 F.2d 144, 145 (3d Cir. 1991).
    A worker may make a request for a representative at any point 
during an investigatory interview. See, e.g., Prudential Ins. Co. of 
Am., 251 NLRB 1591, 1591-92 (1980), enforcement denied on other 
grounds, 661 F.2d 398 (5th Cir. 1981). Before the interview, the 
employer must inform the worker about the subject matter of the 
interview and must permit the worker to consult with the 
representative. Pac. Tel. & Tel. Co. v. NLRB, 711 F.2d 134, 136-37 (9th 
Cir. 1983). During the interview, the employer must permit the 
representative to provide active assistance and advice to the worker. 
NLRB v. Texaco, Inc., 659 F.2d 124, 126 (9th Cir. 1981) (citing 
Weingarten, 420 U.S. at 262-63). The worker may designate the 
representative of his choice, absent extenuating circumstances. 
Anheuser-Busch, Inc. v. NLRB, 338 F.3d 267, 276-78 (4th Cir. 2003). 
Finally, once the worker has requested a representative, the employer 
has several options: (1) grant the request (including delaying the 
interview if necessary); (2) forgo the interview; or (3) offer the 
employee the choice between continuing the interview without a 
representative or having no interview at all. NLRB v. N.J. Bell Tel. 
Co., 936 F.2d 144, 148-49 (3d Cir. 1991).
    As explained, these core principles defining the scope of 
``investigatory interviews'' under this final rule reflect decisions 
applying Weingarten. Under Weingarten, of course, the designated 
representatives are typically shop stewards or other union 
representatives. However, although the Department adopts Weingarten's 
``investigatory interview'' concept, the Department maintains the 
NPRM's approach that, under the H-2A regulations, a worker who chooses 
to designate a representative in an investigatory interview is not 
limited to designating a union representative. Again, ``investigatory 
interview'' as used in this final rule must be interpreted consistently 
with the statutory purpose of the INA and the H-2A program, in light of 
the H-2A program's unique characteristics. In the H-2A context, due to 
low unionization rates in agricultural workplaces, limiting designated 
representatives to union representatives would severely curtail 
workers' ability to identify a representative. Also, the Department 
believes it is appropriate to permit a worker to designate a non-
coworker as a representative because the temporary nature of H-2A work 
contracts means that it may be difficult for a H-2A worker to build 
trusted relationships with coworkers. This approach is consistent with 
the core principle that an employer must permit the worker to designate 
the representative of their choice. Anheuser-Busch, 338 F.3d at 276-78. 
In the NLRA setting, that principle protects the worker's ability to 
select the union representative of their choice, but in the H-2A 
context, that principle protects the worker's ability to select any 
representative of their choice.

[[Page 34014]]

    The second modification to the NPRM involves removing the final 
sentence of the proposed provision requiring representatives to be 
guaranteed physical access to the worksite and adding two sentences 
pertaining to representatives' attendance at investigatory interviews. 
First, where the designated representative is present at the worksite 
at the time of the investigatory interview, the employer must permit 
the representative to attend the investigatory interview in person. The 
second sentence clarifies that where the designated representative is 
not present at the worksite at the time of the investigatory interview, 
the employer must permit the designated representative to ``attend'' an 
investigatory interview remotely, by telephone or videoconference.
    The proposal to require a designated representative access to the 
worksite or property was intended to facilitate the worker's ability to 
designate the representative of their choice. The Department believes 
that removing that requirement and substituting the new modified 
requirements will continue to serve that goal, while also mooting 
employers' concerns about the entry of unaffiliated third parties on 
employer worksites, liability risks, and food safety obligations, and 
their assertion that the entry of unaffiliated third parties raises 
``takings'' concerns under Cedar Point. Clarifying that representatives 
may attend remotely also ensures that the worker may designate the 
representative of their choice. See Anheuser-Busch, 338 F.3d at 276-78. 
With remote attendance as an option, a worker may more easily obtain 
participation from their representative of choice, even if the 
representative is not local. Also, if the employer, worker, and 
worker's representative are all amenable, this final rule does not 
prohibit a worker's representative who is not usually present at the 
worksite from attending a scheduled investigatory interview in person. 
In other words, if the employer schedules an investigatory interview 
for a future date and agrees to the in-person participation of a 
worker's representative who is not usually present at the worksite 
(e.g., a key service provider such as a member of the clergy), that 
representative may attend the investigatory interview in person. The 
Department notes that the final rule's requirement that the employer 
``must permit the worker to receive advice and active assistance from 
the designated representative during any such investigatory interview'' 
applies equally where the representative participates remotely and 
where the representative participates in person.
    As explained, the Department believes that these modifications will 
address comments stating the language proposed in the NPRM was vague or 
unclear. The Department believes that its modifications to the 
regulatory language will also mitigate implementation concerns raised 
in the comments. For examples, the modifications will address 
employers' concerns that the language proposed in the NPRM could 
prevent employers from providing minor counseling or routine 
corrections of job performance. Under the core principles outlined 
above, investigatory interviews normally do not include giving 
instructions or providing corrections of work techniques. Typically, 
the Department will consider that an employer's obligation under Sec.  
655.135(m) will arise when the employer's representative (such as an 
owner, manager, or supervisor) seeks to question a worker, the 
questioning is part of an investigation, and the worker reasonably 
believes that they might face discipline. Along similar lines, the 
modifications address concerns that the proposal would expose employers 
to liability for dangerous circumstances. Under the core principles, 
investigatory interviews do not include interactions where the employer 
announces a disciplinary decision that the employer has already 
reached. In certain situations implicating safety considerations, 
employers routinely impose discipline without conducting an interview; 
for example, where an employer's representative witnesses conduct such 
as unsafe operation of a vehicle or machinery. Nothing in this final 
rule prevents an employer from intervening to stop a dangerous 
situation. However, any situation where an employer seeks to question a 
worker, and the worker believes that questioning may result in 
discipline, constitutes an investigatory interview.
    The modifications will also mitigate concerns that the proposal 
would lead to wasted time on the worksite (on the rationale that 
arranging a representative could take days or weeks to arrange) and 
that the proposal did not explain what employers should do if a 
representative is not available or does not timely appear. Under the 
core principles, if an employer is concerned about delays in arranging 
a representative, the employer has the option to forgo the interview or 
offer the employee the choice between continuing the interview without 
a representative or having no interview at all. Should the employer opt 
to forgo the interview, an employer may impose discipline without 
conducting an interview so long as any resulting termination complies 
with the requirements of for cause termination as described further 
below. Or, if applicable in actual fact, the employer may tell the 
worker that the interview will not lead to discipline and may in that 
case proceed with an interview without a representative present. The 
Department believes that these options for employers will significantly 
mitigate delays.
    However, where the employer requires an investigatory interview to 
undertake a fair and objective investigation into job performance or 
misconduct in compliance with Sec.  655.122(n)(2)(i)(D) and the worker 
requests a representative, the employer must allow a reasonable delay 
for the representative to join the investigatory interview (either in 
person or remotely). The Department will look at all facts and 
circumstances when determining what constitutes a reasonable delay, 
including, for example, whether the designated representative is 
engaged in time-sensitive work that cannot be paused, is assigned to 
work in a different location, or cannot readily be contacted due to 
lack of telephone service in remote areas. The Department will also 
consider the time sensitivity of the employer's need to conduct the 
investigatory interview. Moreover, the Department emphasizes that the 
employer must not consider the worker's request for a representative in 
any way in the employer's decision whether to impose discipline. 
Additionally, employers must adhere to the core principle requiring 
that employers inform workers of the subject of the interview and 
employers must not intimidate or coerce workers into declining a 
representative. For example, an employer does not fulfill its 
obligation under Sec.  655.135(m) where the employer misrepresents the 
subject of the interview, or where the employer relays to a worker that 
the worker will avoid discipline if they decline a representative, but 
that the worker may face discipline if it requests a representative.
    The Department further underscores that, should the employer 
eventually seek to terminate a worker for cause under 20 CFR 655.122(n) 
based on such discipline, or based on a series of infractions, the 
employer must establish that it satisfied the five conditions specified 
in Sec.  655.122(n), including that it undertook a fair and objective 
investigation into the performance or misconduct and that it engaged in 
progressive discipline. Where an employer opts to forgo an 
investigatory

[[Page 34015]]

interview after a worker requests a representative, the Department will 
examine whether the investigation was fair and objective even absent 
the investigatory interview. Moreover, more generally, because Sec.  
655.135(m) is an employer obligation, the Department may take 
enforcement action against an employer that unlawfully fails to permit 
a worker to designate a representative.
    The changes to the regulatory text respecting remote attendance of 
representatives will also mitigate employers' concerns about delays. 
Because the regulations now provide for remote attendance by 
representatives, in the case of remote participation, employers need 
not delay an investigatory interview until such representatives arrive 
in person. Moreover, consistent with the regulatory text and the core 
principles outlined above, if the worker designates a representative 
who is not immediately available, the worker may select an alternative 
representative, including a representative who is available to attend 
remotely. Under the core principles, the worker may select the 
representative of their choice, but if there are extenuating 
circumstances, the employer need not delay the interview. The 
Department will consider such extenuating circumstances to include 
where the designated representative's failure to timely appear causes 
undue delay. As explained above, the Department will consider all facts 
and circumstances in analyzing whether longer delays are reasonable.
    The Department believes that requirements of new Sec.  655.135(m), 
as modified from the NPRM as discussed above, will help to protect 
against adverse effect on similarly employed workers. As explained 
above, the Department believes that protecting workers' right to engage 
in concerted activity will better prevent adverse effect caused by use 
of the H-2A program. Allowing H-2A workers and workers in corresponding 
employment the option to have a representative in an investigatory 
interview (if they so choose) under new Sec.  655.135(m) will enhance 
workers' ability to act in concert with their coworkers to protect 
their mutual interest in ensuring that their employer does not impose 
punishment unjustly. The protections in new Sec.  655.135(m) also will 
help safeguard workers against unjust discipline (including termination 
and infractions that may lead to termination) by giving workers the 
opportunity to secure a witness, advisor, or advocate in a potentially 
adversarial situation. These protections thus will bolster the 
clarifications made regarding a termination for cause under Sec.  
655.122(n) of this final rule--clarifications that are intended to 
protect a worker's entitlement to protections under other regulatory 
provisions that prevent adverse effect (Sec. Sec.  655.122(h)(2), 
655.122(i), and 655.153).
    Finally, the Department has considered the question it posed in the 
NPRM about the best means to ensure that workers are informed of 
employer's obligation to permit workers to designate a representative 
in an investigatory interview. The Department did not receive comments 
on this subject, but upon reflection, the Department concludes that the 
best means to ensure that workers are adequately informed of this 
obligation is to require that employers include notification in the job 
offer. Therefore, the Department has included on the job order, in the 
conditions of employment and assurances to which an employer must 
agree, a statement regarding the requirements of new Sec.  655.135(m).
B. Proposed Sec.  655.135(m)(1), Employee Contact Information
    The Department proposed in Sec.  655.135(m)(1) to require employers 
to provide to a requesting labor organization an electronic list of 
employee contact information for all H-2A workers and workers in 
corresponding employment engaged in agriculture as defined under the 
FLSA and employed at the place(s) of employment included within the 
employer's H-2A Application. 88 FR at 63795-63796, 63825. The 
Department proposed to require the employer to update the list once per 
certification period, if requested by the labor organization. Id. The 
Department explained in the NPRM that this provision was intended to 
bolster the ability of workers to effectively self-organize and to 
engage in concerted activity protected under proposed Sec.  
655.135(h)(2), by providing workers with access to information 
regarding the arguments both for and against organization and with 
information and resources necessary to engage in concerted activity 
regarding working conditions. Id. at 63795. The proposal was modeled on 
the NLRB's voter list requirements under the NLRA. Id. at 63795-96 
(citing 29 CFR 102.62(d), 102.67(l); RadNet Mgmt., Inc. v. NLRB, 992 
F.3d 1114, 1122-23 (D.C. Cir. 2021) (provision of contact information 
to labor organizations is fundamental to effective exercise of 
organizing rights).
    The Department received a significant number of comments in strong 
opposition to proposed Sec.  655.135(m)(1). The majority of these 
comments cited the potential risks to workers' privacy and safety posed 
by sharing this information without the employee's consent. Many 
commenters, including trade associations, an agent, and an individual 
employer, observed that employers would have little if any means to 
verify the legitimacy of an organization requesting the employee 
contact information under this provision. As a result, an employer 
could inadvertently provide sensitive and private employee contact 
information to illegitimate third parties. Even where the request came 
from a bona fide labor organization, commenters noted that such an 
organization may not have received a majority of support from the 
workers nor have successfully petitioned for an election from a 
governing labor board. For example, citing Excelsior Underwear, Inc., 
156 NLRB 1236, 1245 (1966), the National Right to Work Legal Defense 
Foundation, Inc. stated that the NLRB requires disclosure of voter 
lists ``only after an election has been directed'' in light of the 
organizational interests at stake, namely that a ``real question 
concerning representation exists.'' Relatedly, several commenters 
expressed concern with the potential liability to employers for 
providing worker information without the worker's explicit consent, in 
the event of an abuse of that information by the third party. These 
commenters requested that, if finalized, the provision include an opt-
out mechanism for employees and a disclaimer of liability for 
employers, or some mechanism for pre-registration or other vetting of 
the requesting organizations by the Department. Many commenters also 
objected to the proposal due to the potential burden on employers to 
comply with the proposed provision, since multiple labor organizations 
could request the list each season, along with one update per season. 
For similar privacy-related and employer-burden reasons, many 
commenters opposed any expansion of the proposed provision to include a 
provision of employee contact information to other organizations. 
Finally, the North Carolina Farm Bureau Federation, Inc. and U.S. 
Representatives Foxx and Thompson each opined that the proposal was 
unconstitutional, citing respectively First Amendment and separation of 
powers concerns.
    The Department also received some comments in support of the 
proposal, citing the need for workers to have access to information 
regarding their rights. For example, 11 State Attorneys

[[Page 34016]]

General observed that this proposal, combined with other worker voice 
and empowerment proposals in the NPRM, would ``connect workers to 
important information about their employers and their rights.'' A group 
of U.S. Senators observed that the worker voice and empowerment 
proposals, including the employee contact information proposal, would 
``ensur[e] workers can advocate for and seek out better working 
conditions without fear.'' Some of the comments in support of the 
proposal, however, reflected similar concerns as noted above regarding 
worker privacy and recommended that any final rule include some 
verification or enforcement mechanism. For example, the AFL-CIO 
suggested that any final rule include a proviso that ``[t]he requesting 
labor organization shall not use the list for purposes other than 
seeking to represent H-2A workers or otherwise assisting them in 
relation to their terms and conditions of employment and related 
matters.'' Farmworker Justice suggested a similar caveat. On the other 
hand, the California LWDA advised against including an ``opt out'' 
mechanism in any final rule as a means to mitigate the privacy 
concerns, noting the potential for abuse of such a mechanism.
    After consideration of the comments received, the Department has 
decided not to adopt the proposed employee contact information 
provision in this final rule. The Department believes that the interest 
underlying this proposal (i.e., workers' access to information about 
their rights) is better furthered through other provisions of this 
final rule, including Sec.  655.135(n), regarding access to worker 
housing, Sec.  655.135(h)(1)(v), protecting employees from retaliation 
for inquiring about or asserting their rights or consulting with key 
service providers, and Sec.  655.135(h)(2)(i), protecting persons 
engaged in FLSA agriculture from retaliation for engaging in activities 
related to self-organization. These protections also will be disclosed 
to workers through the job order and through other employee outreach 
tools.
    However, as discussed in the NPRM, a worker's ability to gather and 
share coworkers' contact information, both amongst other workers and 
with labor organizations, is itself concerted activity, and therefore 
is protected activity under Sec.  655.135(h)(2) of this final rule. 
Quicken Loans, Inc. v. NLRB, 830 F.3d 542, 545 (D.C. Cir. 2016) (citing 
Beth Israel Hospital v. NLRB, 437 U.S. 483, 491 (1978) and Eastex, Inc. 
v. NLRB, 437 U.S. 556, 565 (1978) (rights to organization and to engage 
in concerted activity ``necessarily encompass employees' rights to 
communicate with one another and with third parties'' about 
organization and working conditions). For example, a worker who gathers 
coworkers' contact information and shares that information with a union 
so that the union can contact the workers regarding the benefits of 
unionization is engaging in protected, concerted activity and self-
organization. Under Sec.  655.135(h)(2)(i), as adopted in this final 
rule, an employer may not retaliate against the worker for gathering or 
sharing this information.
C. Proposed Sec.  655.135(m)(4), Commitment To Bargain in Good Faith 
Over Proposed Labor Neutrality Agreement
    The Department proposed adding a new provision at 20 CFR 
655.135(m)(4) that would require an H-2A employer to attest either that 
they will bargain in good faith over the terms of a proposed labor 
neutrality agreement with a requesting labor organization, or that they 
will not so bargain and provide an explanation for why they have 
declined to do so. The Department also proposed that the employer's 
response must be disclosed in the job order. The Department stated that 
the goal of this proposal was to provide workers and worker advocacy 
groups with this information about employers to enhance transparency. 
88 FR at 63798-63799.
    Commenters that supported the proposal, such as the UFW Foundation, 
stated that they appreciated the transparency it would provide. For 
example, a comment by several State Attorneys General stated that the 
required disclosures would allow workers to use the information to 
assess job opportunities. California LWDA believed the proposal would 
increase workers' access to information about job opportunities and 
workers' rights.
    Many commenters, however, opposed the proposal. Although the 
Department stated that an employer's choice whether to bargain over any 
labor neutrality agreement, and whether to ultimately enter any labor 
neutrality agreement, would be entirely voluntary, several commenters, 
including wafla and USA Farmers, raised concerns that the proposal 
would compel speech from employers, in violation of the First 
Amendment.
    Commenters also questioned whether the Department's proposal would 
prevent adverse effect. For example, USA Farmers, a national trade 
association representing agricultural employers, claimed that the 
information that the Department sought was ``wholly irrelevant to an 
employer's request for a temporary [agricultural] labor certification'' 
under the H-2A program and ``has nothing whatsoever to do with an 
employer's need for temporary labor or with preventing adverse 
effect.'' A number of trade associations that represent H-2A employers, 
such as IFPA, TIPA, and GFVGA, questioned the Department's authority 
for the proposal, stating that the INA ``does not grant the authority 
to advance labor organization, rather the authority is intended to 
prevent the adverse effect'' on workers in the United States. The 
National Right to Work Legal Defense Foundation, Inc. claimed that the 
Department lacked a statutory basis for the proposal.
    A number of commenters also expressed confusion with the proposal's 
requirements. For example, wafla, a trade association, argued that it 
would ``require an employer to disclose their hypothetical position on 
labor organizing'' without the benefit of a specific request from a 
labor organization. USA Farmers noted that it would not be possible for 
an employer to reasonably respond to the Department's request because 
of the potential unknown scenarios that might arise in the future. 
Employers and groups representing employers also raised concerns about 
facing enhanced enforcement from the Department if they chose to 
decline to bargain on the job order.
    After consideration of the comments and the concerns raised by a 
number of commenters, the Department has decided not to finalize the 
proposal. The Department also believes that a number of other 
provisions of this final rule, such as the expanded rights of access to 
worker housing at Sec.  655.135(n), the protections surrounding 
termination for cause at Sec.  655.122(n), and disclosures regarding 
productivity standards and overtime wage rates at Sec.  655.122(l)(4), 
will adequately serve the proposal's stated goals of transparency and 
disclosure of information for workers.
ix. Section 655.135(n), Access to Worker Housing
    In the NPRM, the Department proposed the addition of a new 
provision, Sec.  655.135(n), governing access to worker housing, 
intended to protect the rights of association and access to information 
for H-2A workers and workers in corresponding employment and to address 
the isolation that contributes to the vulnerability of some H-2A 
workers.
    The Department explained that, due to the temporary nature of their 
work and dependency on a single employer for work, housing, 
transportation, and

[[Page 34017]]

necessities, among other factors, H-2A workers are particularly 
vulnerable to labor exploitation, including violations of H-2A program 
requirements, dangerous working conditions, retaliation, and labor 
trafficking. Geographic isolation and employer-imposed limitations on 
workers' movements and communication exacerbate this vulnerability. The 
Department discussed studies by nongovernmental organizations 
highlighting the vulnerability faced by H-2A workers, as well as some 
employers' use of isolation and monitoring--including rules or 
practices limiting workers' ability to leave employer-furnished 
housing, leaving workers in remote areas without transportation or 
means of communication, deliberately limiting workers' access to their 
support systems, and confiscating workers' personal cellular phones and 
passports--as a means of controlling workers and forcing them to accept 
substandard and illegal working conditions.\96\ The Department 
explained that it was proposing the new provision at Sec.  655.135(n), 
governing access to worker housing, to protect workers' rights to 
association and access to information both to make them less 
susceptible to labor exploitation, including trafficking, and to 
interrupt factors that impose barriers to workers advocating or 
complaining regarding working conditions and thus have an adverse 
effect on workers in the United States similarly employed.
---------------------------------------------------------------------------

    \96\ 88 FR at 63750, 63799-63801 & nn.80-81 (citing Polaris 
2018-2020 Report; CDM Report; Farmworker Justice Report; U.S. v. 
Patricio, No. 5:21-cr-00009 (S.D. Ga.)).
---------------------------------------------------------------------------

    In light of these serious concerns, the Department proposed two 
distinct, but complementary, protections: Sec.  655.135(n)(1), which 
would protect the right of workers in employer-furnished housing to 
invite guests to their living quarters and nearby common areas, and 
Sec.  655.135(n)(2), which would provide a narrow right of access to 
labor organizations as a backstop to the protections of Sec.  
655.135(n)(1).
    Specifically, the proposed Sec.  655.135(n)(1) would provide that 
workers residing in employer-furnished housing must be permitted to 
invite, or accept at their discretion, guests to their living quarters 
and/or the common areas or outdoor spaces near such housing during time 
that is outside of workers' workday and subject only to reasonable 
restrictions designed to protect worker safety or prevent interference 
with other workers' enjoyment of these areas. The proposed regulation 
would explicitly permit workers to invite guests or to accept (or 
reject) visitors wishing to speak with them. As explained in the NPRM, 
this protection would recognize that workers do not relinquish their 
rights to association or access to information simply by virtue of 
residing in employer-furnished housing. Further, it would prevent 
employers from using the statutorily required provision of housing as a 
means to isolate or control their workforce by blocking their access to 
information and assistance from the outside. The Department explained 
that, because the right to invite or accept visitors would be limited 
to housing areas and to time that is outside of workers' workday, it 
did not anticipate that this proposal would disrupt employers' business 
operations. As proposed, Sec.  655.135(n)(1) would apply to all housing 
furnished pursuant to the employer's statutory and regulatory 
obligations. The Department explained that while it anticipated that 
this protection would be the most beneficial for workers who reside in 
housing that is geographically isolated, it recognized that even 
workers whose housing is more centrally located may be isolated by 
virtue of employer policies that limit their ability to leave housing 
or to interact with the public, even during time that is outside of 
workers' workday, and would benefit from a protected right to invite 
and accept visitors. Because workers typically reside in shared 
quarters, the Department proposed to permit reasonable restrictions 
designed to protect worker safety or to prevent interference with other 
workers' enjoyment of the housing.
    Recognizing that the effectiveness of proposed Sec.  655.135(n)(1) 
may be limited where H-2A workers are unaware of, or afraid to 
exercise, their right to invite or accept visitors in employer-
furnished housing, the Department proposed a second requirement at 
Sec.  655.135(n)(2) that would provide a narrow right of access to 
labor organizations. The Department explained that labor organizations 
would have an incentive to report concerns of labor exploitation to the 
Department or other law enforcement agencies, as well as to provide 
information to workers on their rights under the H-2A program and to 
engage in self-organization. Under the proposed Sec.  655.135(n)(2), 
where employer-furnished housing for H-2A workers and workers in 
corresponding employment who are engaged in FLSA agriculture is not 
readily accessible to the public, a labor organization would be 
permitted to access the common areas or outdoor spaces near worker 
housing for the purposes of meeting with workers during time that is 
outside of workers' workday for up to 10 hours per month.
    The Department proposed to include the protections that would be 
afforded under proposed Sec.  655.135(n) in the disclosures required on 
the job order to help inform workers of their rights under this 
proposal. Additionally, the Department proposed corresponding edits to 
Sec.  655.132(e)(1) to address instances in which the employer-
furnished housing is provided by the fixed-site agricultural business 
(``grower'') as part of its agreement with an H-2ALC. Under the current 
provision, where housing is owned, operated, or secured by the grower, 
the H-2ALC is required to include with its H-2A Application proof that 
the housing complies with the applicable standards set forth in Sec.  
655.122(d) and certified by the SWA. The Department proposed to add to 
this provision the requirement that the H-2ALC also provide with its H-
2A Application proof that the grower has agreed to comply with the 
requirements of proposed Sec.  655.135(n). The Department explained 
that, in doing so, it sought to ensure that the protections for access 
to worker housing would be met even where the H-2ALC fulfills its 
obligation to furnish housing through its agreement with its client 
grower.
    The Department sought comments on all aspects of this proposal. 
With respect to the proposed Sec.  655.135(n)(1), the Department asked 
whether this provision should be limited to workers residing in certain 
types of employer-furnished housing or in certain locations. The 
Department also sought comments on what would constitute reasonable or 
unreasonable restrictions and other means of balancing different 
workers' interests in shared housing and on visitor policies that may 
unduly hinder workers' rights to invite or accept guests. With respect 
to the proposed Sec.  655.135(n)(2), the Department sought comments on 
the proposed limitations placed on labor organizations' right of 
access, including the cap of 10 hours per month, and how to understand 
when worker housing is not readily accessible to the public; how the 
proposal would apply when workers engaged in FLSA agriculture share 
housing with workers not engaged in FLSA agriculture (Sec.  
655.135(n)(2) applies only with respect to the former); whether the 
right of access in this provision should be expanded to provide similar 
access to some or all key service providers as defined in proposed 
Sec.  655.103(b); and, if so, whether the

[[Page 34018]]

Department should limit the scope of the catchall term ``any other 
service provider to which an agricultural worker may need access.'' 
With respect to the proposed corresponding edits to Sec.  
655.132(e)(1), the Department sought comments on what would constitute 
the requisite proof that an H-2ALC would be required to submit with its 
application, as well as alternative means of ensuring compliance with 
the access protections where housing is provided directly by a grower. 
In addition, the Department sought comments on whether and how the 
protections of proposed (n) should apply with respect to workers housed 
pursuant to Sec. Sec.  655.230 (housing for work performed on the range 
in herding and range production of livestock occupations) and 655.304 
(mobile housing for workers engaged in animal shearing or custom 
combining).
    As described in more detail below, this proposal received general 
support from some legislators and many worker advocacy groups and 
individuals. For example, a joint comment of 15 U.S. Senators expressed 
support for the access provision, stating that in combination with the 
rest of the proposed rule, this would ensure workers can advocate for 
better working conditions without fear. The Alliance to End Human 
Trafficking explained that H-2A workers' isolation and vulnerability 
increases their risk of being subject to labor exploitation or 
trafficking and that the provision would help reduce this risk by 
protecting H-2A workers' rights of association and access to 
information. Farmworker Justice and NLADA explained that farmworker 
housing is often physically isolated from the surrounding community, 
creating ``conditions in which workers are vulnerable to abuse and may 
be denied their rights,'' and expressed support for the Department's 
proposal to increase workers' access to information about their rights 
and to recognize their rights to have visitors and to access essential 
services. Numerous individuals submitted public comments supporting the 
access provision, particularly the protection in paragraph (n)(1) of 
workers' right to invite guests to employer-furnished housing. 
Additionally, Farmworker Justice and NLADA noted that in some areas, 
rights of access to farmworker housing have already been established 
under State law or interpretations of Federal law and asked the 
Department to ensure that any regulatory provisions regarding access 
are minimum standards and are not intended to preempt any more 
expansive or permissive State access requirements.
    Employers, trade associations, and agents were generally opposed to 
the access provision, though this opposition was largely directed at 
the narrow right of access for labor organizations in paragraph (n)(2).
Protecting Workers' Right To Invite Guests to Housing Areas
    Worker advocacy organizations generally supported the proposed 
language of paragraph (n)(1), which was intended to protect the right 
of workers in employer-furnished housing to invite guests to their 
living quarters and nearby common areas. Advocacy organizations, such 
as the North Carolina Justice Center, UMOS, PCUN, the National Women's 
Law Center, and the UFW Foundation, explained that this provision would 
help address isolation and vulnerable living situations among H-2A 
workers. Farmworker Justice, the UFW Foundation, and AWAC described 
instances in which employers prohibited visits from service providers, 
labor organization representatives, and family, or retaliated against 
workers who met with such outside parties. The UFW Foundation explained 
that while some States already recognize the right of farmworkers to 
invite or accept guests, ``a federal rule clearly protecting that right 
is long overdue.'' Individuals also expressed support for this 
provision on a variety of grounds, including that it would allow 
workers to build connections with the surrounding community, access 
legal and medical services, and feel secure in their homes, and would 
``facilitate liberty and the pursuit of happiness.''
    While expressing support for the proposed provision, several worker 
advocacy groups, including Farmworker Justice and AWAC, explained that 
merely requiring that workers be allowed to invite guests would be an 
insufficient means of preventing worker isolation because many workers 
would be afraid to exercise this right. Both organizations suggested 
the Department should protect access for a range of service providers.
    Some employers and trade associations also supported this aspect of 
the proposal. For example, USApple described it as ``reasonable,'' 
noting that most employers permit the occupants (i.e., the workers) to 
determine who may visit and have policies in place for guests, such as 
specified hours and check-in procedures. The National Cotton Ginners 
Association and Texas Cotton Ginners' Association stated that ``the 
requirement to allow access to housing by non-employees must be 
tempered by recognizing that the employer is responsible for meeting 
all housing requirements.'' For instance, allowing workers to invite 
guests could result in guests staying overnight without the employer's 
knowledge and, potentially, in violation of occupancy requirements.
    While most of the opposition to this proposal was reserved for the 
limited right of access for labor organizations, some commenters also 
opposed the proposed language in paragraph (n)(1) intended to protect 
the right of workers in employer-furnished housing to invite guests to 
their living quarters and nearby common areas. One employer, McCorkle 
Nurseries, Inc., objected to what it characterized as ``mandatory 
access to worker housing for guests.'' Several other employers stated 
that they must be able to limit access to employer-furnished housing 
for workers' safety but noted that most employers already permit guests 
during specified hours or allow family members to pick up and drop off 
workers for visits. Several trade associations, including NHC, IFPA, 
and GFVGA, stated that they do not support ``blanket access'' for 
guests in employer-provided housing and that it is imperative to give 
employers the discretion to impose restrictions on guest access, but 
that it is common for growers providing housing to provide access to a 
specific place on the housing property to meet guests, such as a common 
area or parking lot. These organizations also noted that allowing 
guests increases both the risk of disruptions at workers' homes and 
employers' liabilities, such as potential injuries, nuisance 
complaints, and insurance costs. Seso, Inc. opined that without 
procedural safeguards around the meaning of workers' right to ``invite 
or accept'' guests, there is the ``obvious potential for rampant 
abuse,'' and Americans for Prosperity Foundation speculated that 
allowing employees to invite guests could result in union 
representatives ``pos[ing] as bona fide job seekers,'' ``get[ting] 
hired for the sole purpose of sowing discord,'' and then ``invit[ing] 
their labor contacts on the property.'' The Wyoming Department of 
Agriculture opined that the proposal would prohibit employers from 
``providing any level of restrictions or guidance to their employees 
regarding who they bring on their premises'' and ``allow undocumented 
friends or family to stay'' in the housing.
    The Department sought comment on whether the protections in 
proposed Sec.  655.135(n)(1) should be limited to workers in certain 
types of employer-

[[Page 34019]]

furnished housing or in certain locations. Farmworker Justice and NLADA 
responded that these protections ``should apply without qualification 
to all H-2A workers,'' explaining that H-2A workers often have 
difficulty accessing information and services due to limited 
transportation, limited English language proficiency, and a lack of 
integration into a local community, and that even workers in housing 
that is less physically or geographically isolated may be isolated by 
virtue of employer policies either intended to isolate workers or which 
have that effect.
    The Department also sought commenters' feedback on the types of 
visitor policies that would be reasonable to protect worker safety and 
to balance different workers' interests in shared housing versus those 
that may unduly hinder workers' rights to invite or accept guests. 
Farmworker Justice and NLADA reasoned that any determination of what 
constitutes a reasonable restriction must recognize that H-2A workers' 
legal status ties them to a single employer, making them uniquely 
vulnerable. These commenters explained that restrictions that interfere 
with workers' privacy rights or make them vulnerable to undue influence 
or retaliation, such as requiring visitors to provide prior notice or 
submit to surveillance during their visit, would not be reasonable. 
Similarly, these commenters opined that restrictions that have the 
effect of making visitation difficult would be unreasonable. For 
instance, they reasoned, while restricting visitors' shared access to 
sleeping quarters during ``sleeping hours'' may be reasonable where 
there are alternate private places to meet, it would generally not be 
reasonable if it ``unfairly and unreasonably limits a worker's ability 
to meet with their guest at the time outside work hours of that 
worker's choosing.'' These commenters also asserted that no restriction 
of emergency services should be considered reasonable and that the 
final rule should require employers to assist workers in contacting and 
accessing emergency services, particularly in areas that are difficult 
to access or where language barriers exist. The California LWDA 
emphasized the need to ensure that such reasonable restrictions are 
``narrowly construed'' and recommended minor edits to the language of 
proposed paragraph (n)(1) to provide that workers' right to invite or 
accept guests is ``subject only to reasonable restrictions to protect 
workers from immediate risks to their physical safety or prevent 
significant interference with other workers' enjoyment of these 
areas.''
    Wafla stated that owners and operators of worker housing should be 
allowed to set reasonable rules and limits regarding visitors on the 
property, including rules governing sleeping hours and locations of 
visits; workers should work within these visitation rules or conduct 
visits offsite.
Narrow Right of Access for Labor Organizations
    Commenters supporting this provision stated it was necessary due to 
H-2A workers' relative isolation. For instance, California LWDA 
expressed support for granting a narrow right of access to labor 
organizations, stating that because H-2A workers living on their 
employers' property are isolated, providing labor organizations access 
to workers in areas near their homes is ``an important and necessary 
tool to provide workers with information about their right to 
organize.'' The Concerned Law Students of the University of Georgia 
also noted that this provision would make it easier for labor 
organizations to contact workers and protect them from retaliation. 
AFL-CIO explained that allowing access by labor organizations when H-2A 
workers are both working and living on the farm will ``ensure that H-2A 
workers are not insulated from outside entities who can apprise workers 
of their rights and help them enforce their rights, thereby protecting 
them from exploitation.''
    Some commenters expressed opposition to this provision on the 
ground that it unfairly favors unions over employers. A couple of U.S. 
House Members opined that it would interfere with the important work 
that takes place on farms. M[aacute]sLabor and USApple stated that 
labor organizations should only be granted access after being invited 
by workers. Wafla criticized the Department for not proposing a 
mechanism by which labor organizations could be sanctioned if they 
engage in intimidation or coercion. Several trade associations, 
including GFVGA, NHC, and employers expressed concern that the 
provision would burden employers that would have to determine which 
organizations--potentially more than one--are entitled to the proposed 
right of access and monitor their access. Organizations such as 
AmericanHort and USApple noted that it is not clear how the Department 
would enforce the provision.
    Other commenters opposed providing a narrow right of access for 
labor organizations on the grounds that doing so would conflict with 
existing legal precedent or requirements. The U.S. Chamber of Commerce, 
NCAE, and other trade associations argued that the provision would 
constitute a per se physical taking of property under Cedar Point, 141 
S. Ct. 2063. Multiple trade associations, such as NCAE, FFVA, GFVGA, 
NHC, and wafla, and some employers warned that this proposed right of 
access would conflict with farms' food safety and biosecurity protocols 
required by either the Food Safety Modernization Act of 2011 or the 
Global Food Safety Initiative. For example, FFVA stated that these 
generally accepted practices require employers to restrict access to 
only authorized personnel who are trained in practices to ensure food 
safety.
Access for Key Service Providers
    The Department received many comments in response to its question 
on whether the right of access in proposed Sec.  655.135(n)(2) should 
be expanded to provide a similar right of access to some or all ``key 
service providers,'' as defined in proposed Sec.  655.103(b). In 
particular, Farmworker Justice and AWAC emphasized the critical role 
that service providers play in ensuring that workers' basic needs are 
met. Noting the vulnerable nature of H-2A workers (see Section 
VI.C.2.b), these commenters described H-2A workers' need to access a 
variety of essential services during their period of employment, 
including routine and emergency medical care, legal information and 
representation, and consular services. AWAC emphasized that in rural 
areas, workers also depend on churches, food banks, educators, and 
other providers for assistance in meeting their basic needs.
    These commenters all raised the need for such service providers to 
have an independent right of access, explaining that relying on 
workers' right to extend invitations alone would be insufficient 
because workers are often unaware of their rights or the available 
services and agencies, or are afraid to exercise their rights due to a 
fear of retaliation. AWAC stated that, in the rural areas it serves, 
workers often feel trapped in remote labor camps and understand from 
the presence of camp gates and ``Private Property'' or ``No 
Trespassing'' signs that they are not permitted contact with outside 
guests. According to the commenter, workers' isolation and lack of 
access to information is exacerbated by the fact that internet and cell 
phone service are extremely limited in these areas. Farmworker Justice 
cited to testimony from the passage of Oregon's farmworker housing 
access protections, which described egregious incidents such as armed 
camp guards interfering with workers' access to legal services

[[Page 34020]]

employees, workers not being permitted to see close family members, and 
a Catholic priest and nun witnessing or experiencing interference while 
trying to connect workers to medical care. They also cited a recent 
example of a farmworker who became ill and died after being unable to 
access emergency medical services.
    Advocacy organizations such as CDM, Migration that Works, and NLADA 
stated that service providers' access should not be limited by what 
they called the ``arbitrary restrictions'' that apply to labor 
organizations' access under proposed Sec.  655.135(n)(2), such as the 
10-hour-per-month limit or the requirement that the housing not be 
readily accessible to the public. Farmworker Justice explained that the 
First Amendment jurisprudence governing service providers' access--see, 
e.g., Schneider v. New Jersey, 308 U.S. 147, 152 (1939); Martin v. City 
of Struthers, Ohio, 319 U.S. 141, 144 (1943); Rivero v. Montgomery 
Cty., 259 F. Supp. 3d 334, 346 (D. Md. 2017)--differs from that 
governing labor organizations.
    Some trade associations concurred in the importance of service 
providers' access. For example, the National Cotton Ginners Association 
and Texas Cotton Ginners' Association stated that ``workers should have 
the ability to reasonably allow access of housing to `key service 
providers' such as health care-providers or community health workers.''
Job Order Disclosure and Corresponding Edits to Sec.  655.132(e)(1)
    The California LWDA supported the Department's proposal to include 
the paragraph (n) protections that are adopted in the disclosures 
required on the job order to help inform workers of their rights. It 
also supported the Department's proposed corresponding edits to Sec.  
655.132(e)(1) to address instances in which the employer-provided 
housing is provided by the grower as part of its agreement with an H-
2ALC by requiring the H-2ALC to include proof that the grower has 
agreed to comply with the requirements of Sec.  655.135(n), and 
suggested that a written statement agreeing to compliance could 
constitute the requisite proof. Farmworker Justice and NLADA likewise 
supported the Department's proposed corresponding edits to Sec.  
655.132(e)(1), calling these ``necessary and appropriate.'' They stated 
that an H-2ALC could meet this requirement by submitting a grower's 
acknowledgement of its responsibility to comply with the protections of 
Sec.  655.135(n).
    Wafla opposed the corresponding edits to Sec.  655.132(e)(1) 
because it would require growers to comply with the requirements of 
paragraph (n) where an H-2ALC meets its obligation to furnish housing 
through an agreement with the grower.
Workers Housed Pursuant to Sec. Sec.  655.230 and 655.304
    Farmworker Justice and NLADA expressed support for applying the 
protections of proposed paragraph (n) with respect to workers housed 
pursuant to Sec. Sec.  655.230 (housing for work performed on the range 
in herding and range production of livestock occupations) and 655.304 
(mobile housing for workers engaged in animal shearing or custom 
combining), noting that these workers are even more isolated than other 
H-2A workers and are entirely dependent on their employers for access 
to food and water, medical care, and other basic essential needs. 
According to the commenters, these workers have also been subject to 
some of the most egregious reports of abuse and exploitation--including 
assault and battery, false imprisonment, denial of medical care, 
withholding of food and water, confiscating documents, visa fraud, wage 
theft, and labor trafficking. In light of the workers' extreme 
isolation and vulnerability, these commenters asserted that the 
protections of paragraph (n) are necessary to enable these workers to 
access needed service providers. Further, these commenters suggested 
that the Department revise Sec.  655.210(d)(2) to require employers to 
provide these workers--who are often outside of cell phone service 
range with their whereabout known only by their employer--with a means 
to communicate directly with emergency responders at all times, such as 
a satellite phone, as well as a GPS tracking device or locator to allow 
them to provide their coordinates to emergency or other services.
    The Department did not receive any comments specifically opposing 
the application of the protections in paragraph (n) to workers housed 
pursuant to Sec. Sec.  655.230 and 655.304, though, in its opposition 
to the proposed narrow right of access for labor organizations, the 
Western Range Association stated that workers employed in the range 
production of livestock are often housed in remote locations, not on 
private property, and thus ``the employer may not have control of who 
is allowed on the property.''
    After considering the totality of the comments discussed above in 
this Section VI.C.2.b.ix, the Department adopts this proposal with 
significant modifications. As explained below, the Department finds it 
appropriate to retain the language of paragraph (n)(1) recognizing 
workers' right to invite guests, but to eliminate the language of 
paragraph (n)(2) providing a narrow right of access for labor 
organizations. The resulting paragraph is redesignated as paragraph 
(n). To paragraph (n), the Department adds additional language 
clarifying what is meant by workers' ability to ``accept'' guests. The 
Department also adopts the corresponding edits at Sec.  655.132(e)(1), 
and confirms that the protections of Sec.  655.135(n) will apply 
equally to workers housed pursuant to Sec. Sec.  655.230 (housing for 
work performed on the range in herding and range production of 
livestock occupations) and 655.304 (mobile housing for workers engaged 
in animal shearing or custom combining). As detailed above in Section 
VI.C.2.b, the Department has serious concerns regarding H-2A workers' 
unique vulnerabilities, which make them significantly more likely to 
accept employers' noncompliance with H-2A and other legal requirements 
and place them at a greater risk of serious abuse, labor exploitation, 
and trafficking. Workers' isolation and lack of information regarding 
their rights exacerbate these vulnerabilities. In this rule, the 
Department seeks to protect workers' rights to association and access 
to information to prevent labor exploitation, including trafficking, 
and to interrupt factors that impose barriers to workers advocating or 
complaining regarding working conditions and thus have an adverse 
effect on workers in the United States similarly employed.
Removal of Narrow Right of Access for Labor Organizations
    In light of the significant concerns raised by commenters regarding 
proposed paragraph (n)(2)'s narrow rights of access for labor 
organizations, the Department withdraws this portion of its proposal. 
In particular, the Department found persuasive commenters' operational 
concerns regarding employers' ability to determine which organizations 
would be entitled to access and how to appropriately monitor such 
access; the potential cumulative impact should multiple labor 
organizations seek access to employer-furnished housing areas; and the 
Department's authority to resolve any disputes between employers and 
labor organizations that may arise. Additionally, the Department has 
determined that it could address workers' isolation and the resultant

[[Page 34021]]

risks of labor exploitation and worsening working conditions through a 
more tailored measure.
    While the Department appreciates and has fully considered the other 
concerns raised by commenters, particularly those related to 
potentially conflicting legal authority or obligations, it does not 
believe these raised significant barriers to the implementation of the 
proposed right of access for labor organizations. Most notably, Cedar 
Point, 141 S. Ct. 2063, which was cited by many commenters opposing 
this provision, did not address the circumstances at issue here--
namely, agricultural workers, who by virtue of residing on employer 
property, are subject to extreme isolation and generally inaccessible 
to labor organizations or others who may wish to communicate or 
associate with the workers. See also Lechmere, Inc. v. NLRB, 502 U.S. 
527, 534 (1992) (where ```the location of a plant and the living 
quarters of the employees place the employees beyond the reach of 
reasonable union efforts to communicate with them,' employers' property 
rights may be `required to yield to the extent needed to permit 
communication of information on the right to organize''' (citing NLRB 
v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1956))); Cedar Point, 141 
S. Ct. at 2080-81 (Kavanaugh, J. concurring) (characterizing the 
Babcock Court's interpretation of the NLRA to afford union organizers 
access to company property only when ``needed''--i.e., when employees 
live on company property and union organizers have no other reasonable 
means of communicating with the employees--as consistent with a Cedar 
Point exception).
    Similarly, the Department does not believe that the requirements of 
the FDA Food Safety Modernization Act of 2011 \97\ are incompatible 
with guest access to employer-furnished housing areas. While whole-
heartedly agreeing with commenters on the importance of this 
legislation and food safety requirements more generally, the Department 
believes that employers can balance reasonable guest access to housing 
areas with the need to have more restrictions in place with respect to 
the actual worksites. Moreover, based on the comments the Department 
received, many employers do manage to balance their obligations to 
ensure food safety and to permit reasonable guest access.
---------------------------------------------------------------------------

    \97\ Public Law 111-353, 124 Stat. 3885 (Jan. 4, 2011).
---------------------------------------------------------------------------

Protecting Workers' Right To Invite Guests to Housing Areas
    As explained in the NPRM and above, the Department has serious 
concerns regarding the isolation of H-2A workers and how this 
isolation, when combined with these workers' unique vulnerabilities, 
render them particularly at risk of being subject to workplace abuses, 
labor exploitation, and trafficking. The Department's regulatory change 
governing the right to invite guests to worker housing is intended to 
protect workers' rights to association and access to information. The 
Department believes that this change will help protect workers against 
abuse, exploitation, and trafficking, and lessen barriers to workers' 
ability to advocate or complain regarding working conditions, as 
detailed above. Thus, the change should help prevent adverse effects on 
workers in the United States similarly employed.
    These concerns are shared by many of the commenters. Many worker 
advocacy organizations shared stories of workers subject to extreme 
isolation, as well as abuse and exploitation. See, e.g., AWAC comment 
(describing workers' isolation due to physical isolation of worker 
camps and the deliberate assertion of ``no entry'' policies by owners; 
cultural and linguistic isolation; near-total absence of transportation 
and resultant inability to leave the camp area, even for critical 
medical care; the lack of internet access and irregularity and 
unreliability of cellphone service; and workers' fear of retaliation 
due in part to their dependency of their employer); Farmworker Justice 
comment (describing workers' vulnerability due to dependency on 
employer and isolation due to location of housing, lack of 
transportation and often cell phone reception, fear of retaliation, and 
employer policies, as well as instances in which workers' family 
members and church representatives experienced difficulty accessing the 
workers); and UFW Foundation comment (describing workers' isolation and 
numerous instances of worker abuse and retaliation against workers).
    Indeed, most commenters, including employers, appeared to support 
workers' right to invite guests to employer-provided worker housing 
areas, provided that employers may put in place reasonable restrictions 
necessary to protect the health and safety of their workers and help 
balance the competing needs of workers in shared housing. To address 
these concerns, the Department adopts the language in proposed 
paragraph (n)(1) recognizing the right of workers residing in employer-
furnished housing to invite, or accept at their discretion, guests to 
their living quarters and/or the common areas or outdoor spaces near 
such housing during time that is outside of the workers' workday. The 
paragraph that contained this language is redesignated as paragraph 
(n). The Department disagrees with comments that suggested that this 
would provide unrestricted access for workers' guests, noting that it 
adopts the proposed language permitting ``reasonable restrictions 
designed to protect worker safety or prevent interference with other 
workers' enjoyment of these areas.'' The Department declines the 
California LWDA's suggestion that the Department narrow this language 
permitting reasonable restrictions, believing that the proposed 
language strikes the right balance of protecting workers' right to 
invite guests with the property owner's right to adopt reasonable guest 
policies.
    After considering the comments received, the Department believes 
that the reasonableness of rules governing guest access must be 
determined by those rules' effect on workers' rights of association and 
access to information in light of all the available facts. For example, 
several employers raised concerns that the language of paragraph (n)(1) 
would allow workers to invite friends or relatives to stay overnight or 
even to reside with them in worker housing for extended periods. 
Although it will evaluate questions on a guest policy's reasonableness 
based on the specific facts before it, the Department believes that, 
under many circumstances, an employer policy prohibiting overnight 
guests would be reasonable. Where such a policy would raise concern is 
in instances where evidence suggests that an employer is using the 
policy as a pretext to limit visitation, either more generally or with 
respect to specific individuals. For instance, a guest policy 
restricting visitation during ``sleeping hours,'' broadly defined as 
7:00 p.m. to 7:00 a.m. and encompassing the time that most workers and 
their guests are likely to be off work and available, would most likely 
be considered unreasonable. Similarly, a restriction on bringing guests 
into shared sleeping quarters may be reasonable where there are 
alternate spaces in the housing area in which to have a private 
conversation, but would be less so if a worker were forced to meet with 
a service provider in a crowded common area where the conversation 
could be overheard. Moreover, the Department will consider any 
restriction of the access of

[[Page 34022]]

emergency medical personnel to be unreasonable.
    The Department remains concerned that the effectiveness of the 
protection adopted may be limited where H-2A workers are unaware of, or 
afraid to exercise, their right to invite or accept visitors in 
employer-furnished housing, particularly in light of its decision to 
withdraw proposed paragraph (n)(2), and similar concerns raised by 
commenters. Worker advocacy organizations such as Farmworker Justice, 
AWAC, and NLADA described the importance of third parties, such as key 
service providers, having an independent right of access as a means of 
addressing these concerns and bolstering workers' right to invite 
guests. Several of these organizations also emphasized the need to 
broaden the range of service providers or entities with such access.
    Rather than create a specific right of access for key service 
providers, the Department has added language to the regulatory text 
clarifying workers' right to accept guests. A worker cannot choose to 
accept (or reject) a visitor if the worker has no way of knowing that a 
potential visitor wishes to communicate with them. See Rivero, 259 F. 
Supp. 3d at 345 (``Migrant farmworkers' right to receive information . 
. . would have little force if it did not also implicitly (or . . . 
explicitly) protect providers' right to contact the workers.''). 
Therefore, the Department has added the following language explaining 
this connection: ``Because workers' ability to accept guests at their 
discretion depends on the ability of potential guests to contact and 
seek an invitation from those workers, restrictions impeding this 
ability to contact and seek an invitation will be evaluated as 
restrictions on the workers' ability to accept guests.'' The Department 
believes this language will help ensure that all potential visitors--
whether family or friends, key service providers, labor organizations, 
or others--are able to contact workers, express their interest in 
communicating, and seek an invitation from one or more workers. For 
example, a representative from a local church who wishes to invite 
workers to worship and to share information on the services the church 
provides and does not have the workers' telephone numbers would be able 
to enter the employer's property, make their way to the employer-
furnished housing, knock on the door or otherwise approach workers to 
see if they would like to receive the information the church 
representative wishes to share, and perhaps leave a note or flyer for a 
worker or workers who are not present in the employer-furnished 
housing. The potential guests' ability to permissibly enter employer-
furnished housing to contact and seek an invitation from one or more 
workers will vary depending on the location and layout of the housing 
and other relevant facts. This language will also be incorporated into 
the job order to provide clarity to both workers and employers.
    Paragraph (n) is intended to protect workers' First Amendment 
rights as a means of both preventing the isolation that can lead to 
serious instances of labor exploitation and trafficking and advancing 
the Department's statutory duty of preventing adverse effect. 
Agricultural workers in the United States, including H-2A workers and 
workers in corresponding employment, enjoy fundamental First Amendment 
rights, including the rights of association and to receive information 
from those who wish to provide it. Rivero v. Montogomery Cty., 259 F. 
Supp. 3d 334, 355 (D. Md. 2017) (explaining that H-2A workers, who are 
lawful residents of the United States, ``are entitled to unfettered 
exchange of information just as much as any other individual in a 
community,'' and do not ``forfeit their constitutional rights by living 
on their employer's premises''); see also, e.g., Petersen v. Talisman 
Sugar Corp., 478 F.2d 73, 82-83 (5th Cir. 1973) (holding that property 
owner that housed migrant farmworkers on its property ``must 
accommodate its property rights to the extent necessary to allow the 
free flow of ideas and information'' between the migrant farmworkers 
and the labor and faith-based organizers that wished to visit them); 
Mid-Hudson Legal Servs., Inc. v. G & U, Inc., 437 F. Supp. 60, 62 
(S.D.N.Y. 1977) (legal service providers had First Amendment right to 
enter migrant community on farm property at reasonable times for the 
purpose of discussing with its inhabitants the living or working 
conditions prevalent at the farm); Folgueras v. Hassle, 331 F. Supp. 
615, 623 (W.D. Mich. 1971) (explaining that property owner who opened 
up portions of his property as the living areas for those working on 
his farm does not have the right to censor the associations, 
information, and friendships of the migrants living in his camps); see 
also Rivero, 259 F. Supp. 3d at 345-48 (discussing the right of service 
providers and other visitors ``to impart information and opinions'' to 
these workers in their homes); Martin v. City of Struthers, 319 U.S. 
141, 141 (1943) (``For centuries it has been a common practice in this 
and other countries for persons not specifically invited to go from 
home to home and knock on doors or ring doorbells to communicate ideas 
to the occupants or to invite them to political, religious, or other 
kinds of public meetings.''). While these rights must be balanced 
against the rights of property owners, a ``farm owner should not be 
able to wield his property rights through trespass law to completely 
suppress the exchange of ideas and information that might benefit the 
workers he houses and, potentially, the public as a whole.'' Rivero, 
259 F. Supp. 3d at 355. Given the myriad factors that isolate H-2A 
workers, from the often remote location of farmworker housing, cultural 
and linguistic barriers, lack of transportation and, often, internet 
and cell phone reception, the Department finds that there are not 
reliable alternate avenues of communication available that would 
justify limiting workers' right to invite or accept guests into their 
homes. See Rivero, 259 F. Supp. 3d at 355 & n.15 (noting that H-2A 
workers ``lead lives especially tethered to their employer''); 
Asociacion de Trabajadores Agricolas de Puerto Rico v. Green Giant Co., 
518 F.2d 130, 140 (3d Cir. 1975) (explaining that First Amendment 
protections would extend to situations involving improper isolation of 
workers and mistreatment of migrant workers). This is particularly true 
given the importance of preventing serious instances of labor 
exploitation and trafficking and the Department's statutory duty of 
preventing adverse effect.
Job Order Disclosure and Corresponding Edits to Sec.  655.132(e)(1)
    As noted above, the Department proposed to include the paragraph 
(n) protections in the disclosures required on the job order to help 
inform workers of their rights and to make corresponding edits to Sec.  
655.132(e)(1) to require an H-2ALC that meets its obligation to furnish 
housing through an agreement with a grower to include proof that the 
grower has agreed to comply with the requirements of Sec.  655.135(n). 
The Department believes that these steps will inform workers of their 
rights and help ensure compliance with the new requirements at Sec.  
655.135(n) and hereby adopts them. The Department believes that a 
written statement from the grower agreeing to comply with the 
requirements at Sec.  655.135(n) would constitute the requisite proof 
an H-2ALC would be required to submit with its Application under Sec.  
655.132(e)(1).

[[Page 34023]]

Workers Housed Pursuant to Sec. Sec.  655.230 and 655.304
    As noted above, the Department sought comments on whether and how 
the protections of proposed paragraph (n) should apply with respect to 
workers housed pursuant to Sec. Sec.  655.230 (housing for work 
performed on the range in herding and range production of livestock 
occupations) and 655.304 (mobile housing for workers engaged in animal 
shearing or custom combining). The Department agrees with the 
commenters that addressed this issue that the protections adopted in 
paragraph (n) should apply equally to workers housed pursuant to 
Sec. Sec.  655.230 and 655.304. As the relevant requirements of 
Sec. Sec.  655.132(e)(1) and 655.135 apply equally with respect to 
employers who house workers pursuant to Sec. Sec.  655.230 and 655.304, 
no further regulatory changes are required. See Sec. Sec.  655.215(a) 
(requiring compliance with Sec. Sec.  655.130 through 655.132 unless 
otherwise specified), 655.303(a) (same), and 655.130(a) (requiring all 
H-2A applicants to agree to the assurances and obligations of Sec.  
655.135). In response to the concern that employers may not have the 
ability to control who is allowed on the range land on which workers 
work and reside, the Department notes that such employers can make 
arrangements with property owners to ensure that access is provided 
pursuant to Sec.  655.135(n), just as H-2ALCs who meet their obligation 
to furnish housing through contractual arrangements with growers will 
now need to do. While the Department appreciates the suggestion by 
Farmworker Justice and NLADA that it revise Sec.  655.210(d)(2) to 
require employers to provide such workers with the means to communicate 
directly with emergency responders at all times, such as a satellite 
phone as well as a GPS tracking device or locator, it declines to adopt 
this suggestion in this final rule. As the Department did not propose 
changes to Sec.  655.210(d) in the NPRM, it did not get sufficient 
comments to determine whether this suggestion is feasible.
No Preemption of Greater Protections
    As explained in the NPRM and herein, the Department is aware that 
farmworker housing access protections already exist in some parts of 
the country under State law or by virtue of Federal First Amendment 
jurisprudence. This final rule is intended to establish minimum 
standards for access to employer-provided housing in the H-2A program. 
It is not intended to preempt or curtail any other more expansive 
access protections, whether established under the First Amendment to 
the United States Constitution, and/or other Federal, State, or local 
law. Accordingly, in addition to enforcement of Sec.  655.135(n) by the 
Department, H-2A workers, workers in corresponding employment, and 
those seeking to visit them in or near employer-provided housing may 
also be able to assert their rights through private litigation or 
complaints to State government agencies.
x. Section 655.135(o), Passport Withholding
    In the NPRM, the Department proposed adding a new paragraph (o) to 
Sec.  655.135 to better protect workers from potential labor 
trafficking by directly prohibiting an employer from confiscating a 
worker's passport, visa, or other immigration or government 
identification documents. Under the proposal, the only exceptions to 
this prohibition would be where the worker has stated in writing: that 
the worker voluntarily requested that the employer keep these documents 
safe, that the employer did not direct the worker to submit such a 
request, and that the worker understands that the passport, visa, or 
other immigration or government identification document will be 
returned to the worker immediately upon the worker's request. Even in 
such cases, the worker must be able to have ready access to the 
document, at least during regular business hours and at a location that 
does not meaningfully restrict the worker's ability to access the 
document.
    As set forth in the NPRM, H-2A workers are extremely vulnerable to 
labor exploitation, and an employer taking or holding a worker's 
passport is an egregious act that can be a strong indication of such 
exploitation. Labor trafficking, including the restriction of a 
worker's movements, harms not only the worker who is trafficked but 
also the agricultural workforce in the area by subjecting workers to 
depressed working conditions. While the current regulation at Sec.  
655.135(e) requires an employer to comply with all applicable Federal, 
State, and local laws, including the TVPA's prohibition on destroying 
or confiscating a passport, immigration document, or government 
identification document while committing or with the intent to violate 
certain trafficking offenses, 18 U.S.C. 1592(a), WHD has encountered 
difficulty enforcing this prohibition absent a trafficking conviction. 
Accordingly, to protect workers subject to this practice from potential 
labor trafficking, as well as protect other agricultural workers from 
the resulting adverse effects on working conditions pursuant to 8 
U.S.C. 1188(a)(1), the Department proposed to flatly prohibit the 
taking or withholding of a worker's passport, visa, or other 
immigration or government identification documents against the worker's 
wishes, independent of the requirements of other Federal, State, or 
local laws. In addition, the Department proposed to include the failure 
to comply with this prohibition among the violations that may subject 
an employer to debarment under Sec.  655.182 and 29 CFR 501.20. To help 
inform workers of their rights under this proposal, the Department 
proposed to include the prohibition on the withholding of passports, 
visas, and other immigration or government identification documents in 
the disclosures required on the job order. Finally, the Department 
explained that nothing in the current regulation at Sec.  655.135(e), 
nor in the proposed Sec.  655.135(o), is intended to prohibit an 
employer or agent from facilitating a prospective H-2A worker's 
submission of the worker's passport, visa, or other identification 
documents to the United States Government for purposes of visa 
application, processing, or entry to the United States, provided that 
the worker voluntarily requests the employer's assistance in these 
processes and that the documents are returned to the worker immediately 
upon return by the United States Government.
    The Department sought comments on this proposal, particularly 
regarding whether the Department should include any other requirements 
for application of the proposed exception to this prohibition, and 
whether the Department should include any additional exceptions to this 
prohibition.
    The vast majority of comments the Department received on this 
proposal were supportive. Trade associations, including IFPA and NHC; a 
workers' rights advocacy organization, the AWAC; Washington State; and 
several private employers expressed support for the proposed 
prohibition on passport withholding, without offering further 
rationale. One employer stated that it had no objection to the 
proposal.
    Numerous commenters, including the National Women's Law Center, 
Marylanders for Food and Farmer Protection, and Proteus, Inc., 
expressed general support for the proposal on the ground that it could 
help prevent human trafficking. Individuals commented that the proposal 
would protect workers from coercion and exploitation, as well as scams 
and other abuses. One individual expressed

[[Page 34024]]

support, saying that passport confiscation gives an employer too much 
leverage over an employee.
    Advocacy organizations and legislators expressed similar support, 
citing studies of labor trafficking in the H-2A program and specific 
instances of labor trafficking and reasoning that the proposal would 
provide urgently needed protections. For example, the UFW Foundation 
cited a report by Polaris, the organization that operates the National 
Human Trafficking Hotline, that identified over 2,800 H-2A workers who 
experienced labor trafficking from 2018 to 2020 \98\ and provided 
stories from five H-2A workers who experienced passport withholding. 
The Alliance to End Human Trafficking stated that, in its work with 
migrant workers, it has found that withholding of travel documents is a 
common method of coercion used by traffickers. Similarly, CCUSA and 
USCCB expressed support for the proposal, identifying restrictions on 
mobility, including restricting workers' access to their passports and 
other documents, as a pattern often seen by those engaged in pastoral 
outreach to migrant farmers. Several other workers' rights advocacy 
organizations, including Migration that Works, UMOS, CDM, and the North 
Carolina Justice Center, described the anecdotal experiences of 
specific H-2A workers whose travel documents were confiscated by 
employers and who were subsequently subjected to abusive working 
conditions. A joint comment from 15 U.S. Senators stated that 
prohibiting employers from confiscating or holding a worker's passport, 
visa, or other identification would prevent labor trafficking, and a 
joint comment from 43 U.S. House Members described the proposal as an 
urgently needed precaution.
---------------------------------------------------------------------------

    \98\ Polaris 2018-2020 Report, at 7, 10. See also 2023 NPRM, 88 
FR at 63750, 63799.
---------------------------------------------------------------------------

    A variety of commenters expressed support based on the workability 
of the proposal. Farmworker Justice noted that the requirement is not 
so complex or overly broad as to hamper legitimate and consensual 
document safekeeping by employers. Specifically, according to 
Farmworker Justice, the exception will ``still allow workers to provide 
their passports or documents to their employers if they so wish, and 
will allow for employers to help facilitate any submission of these 
documents to the U.S. Government for the purposes of visa application, 
entry to the United States, or any other proper purpose.'' AILA 
expressed similar support, stating that employees must have unfettered 
access to their documents, but it can be helpful to allow employers to 
safeguard employee documents. SRFA commented that, although allowing 
honest employers to help safeguard employees' documents can protect 
them from problems that arise from document theft, damage, or loss, the 
proposal strikes a reasonable balance between safeguarding and ensuring 
access. CDM expressed strong support for the prohibition on passport 
withholding, including the proposal to make this violation a ground for 
debarment under Sec.  655.182 and 29 CFR 501.20, and also urged the 
Department not to broaden the proposed exceptions to this prohibition 
``as their narrowness is critical to ensuring that these proposed 
changes can achieve their goal of preventing forced labor through this 
type of coercion.''
    While supporting the proposal, several commenters suggested that it 
does not go far enough to protect workers. Farmworker Justice stated 
that concerns remain about similar abuses like Social Security number 
and mail withholding. An individual called the proposal ``necessary but 
insufficient,'' recommending that the Department create an independent 
body to which workers can report abuses without fear of reprisal or 
deportation and that can conduct unannounced inspections and levy 
sanctions against noncompliant employers.
    Finally, some commenters addressed the potential overlap of the 
proposal with the existing TVPA prohibition at 18 U.S.C. 1592(a), which 
is incorporated into the H-2A regulations via Sec.  655.135(e). CCUSA 
and USCCB explained that the proposed prohibition on passport 
withholding is a ``more direct approach'' than finding a violation of 
Sec.  655.135(e) based on a violation of the TVPA and ``would be easier 
for the Department to enforce, including through potential debarment, 
and would provide clearer expectations for employers and workers 
alike.'' While stating that document confiscation is already prohibited 
by law, a couple of university professors said it would be helpful to 
include the specific prohibition in the H-2A regulations because it 
would enhance enforceability, ensure all program actors are aware of 
the prohibition, and promote a ``whole of government'' approach. The 
trade associations NCAE and Florida Citrus Mutual expressed support for 
the proposed prohibition on passport withholding, while stating that it 
is redundant with existing regulations, and the agent m[aacute]sLabor 
stated that it did not object to the proposal as it ``simply mirrors 
existing law.'' Another agent, Mountain Plains Agricultural Service, 
stated that existing law makes it ``very clear'' that passport 
withholding is prohibited and questioned what the proposal would 
accomplish. While agreeing that employers should not withhold employee 
passports, the trade association, wafla, stated that the proposal is 
duplicative and unnecessary.
    After considering the comments discussed above, the Department 
adopts the proposed prohibition on passport withholding as proposed in 
the NPRM.
    As explained in the NPRM and above, the withholding of a worker's 
passport, visa, or other immigration or government identification 
documents is an egregious restriction of a worker's movements and may 
be indicative of labor exploitation or trafficking. Not only does this 
harm the specific workers whose documents are taken, it harms the 
agricultural workforce more broadly by subjecting workers to depressed 
working conditions. While a few commenters questioned the necessity of 
the proposal given the TVPA's existing prohibition on the destruction 
or confiscation of passports and other immigration and government 
identification documents, the Department continues to believe that the 
addition of a direct prohibition at Sec.  655.135(o) will enhance its 
enforcement and ensure that workers and employers alike are aware of 
the prohibition. The majority of comments received support the 
Department's position on the importance and necessity of adding Sec.  
655.135(o), and thus the Department has determined that this addition 
is necessary to better help prevent such exploitation and trafficking, 
as well as to prevent an adverse effect on the working conditions of 
similarly employed workers in the United States as is required by 8 
U.S.C. 1188(a)(1)(B).
    The Department notes that this prohibition applies equally to a 
worker's immigration documents that may be provided by the U.S. 
Government to the employer or employer's agent in the first instance. 
For example, after approving an employer's petition (Form I-129) to 
extend an H-2A worker's period of authorized employment, USCIS 
typically attaches the worker's new arrival/departure record (Form I-
94) to the Form I-129 approval notice that USCIS provides to the 
employer and relies on the employer to give the Form I-94 to the 
worker. In such instances, an employer's failure to give the Form I-94 
to the worker would constitute a violation of Sec.  655.135(o) unless 
the employer is keeping the document safe at the worker's request and 
meets the

[[Page 34025]]

requirements of that exception (i.e., the worker provided a written 
statement indicating that the worker voluntarily requested that the 
employer keep this immigration document safe, that the employer did not 
direct the worker to submit such a request, and that the worker 
understands that the immigration document will be returned to the 
worker immediately upon the worker's request). While the Department 
appreciates the suggestions that it should address similar abuses, such 
as Social Security number and mail withholding, and that it should 
create an independent body to which workers can report violations, it 
declines to adopt either in this final rule. Neither suggestion is 
within the scope of the current rulemaking, and there is insufficient 
detail to determine whether the Department has the authority to 
implement the latter suggestion. The Department notes that, in addition 
to reporting violations to WHD, workers may report such violations to 
the applicable SWA, which has the authority to investigate, resolve, or 
refer worker complaints to enforcement agencies as appropriate, as well 
as to remove access to services for noncompliant employers. Workers may 
also access resources and assistance through DHS's Blue Campaign 
website, https://www.dhs.gov/blue-campaign, which includes information 
on reporting suspected human trafficking to law enforcement and getting 
help from the National Human Trafficking Hotline.
3. Section 655.137, Disclosure of Foreign Worker Recruitment.
a. Summary of Proposal in Sec. Sec.  655.137, 655.135(p), and 
655.167(c)(8)
    The Department proposed new disclosure requirements to enhance 
foreign worker recruitment chain transparency and bolster the 
Department's capacity to protect vulnerable agricultural workers from 
exploitation and abuse, as explained more fully below. Pursuant to its 
authority under the INA, the Department regulates the conduct of U.S. 
employers using foreign labor certification programs and doing business 
with foreign labor recruiters. 8 U.S.C. 1188(c)(3)(A)(i); 8 U.S.C. 
1188(g)(2). The INA authorizes the Department to promulgate regulations 
governing recruitment. 8 U.S.C. 1188(c)(3)(A)(i). The Department may 
only issue a labor certification to an employer that has ``complied 
with the criteria for certification (including criteria for the 
recruitment of eligible individuals as prescribed by the Secretary).'' 
Id. The INA states that ``[t]he Secretary of Labor is authorized to 
take such actions, including imposing appropriate penalties and seeking 
appropriate injunctive relief and specific performance of contractual 
obligations, as may be necessary to assure employer compliance with 
terms and conditions of employment under this section.'' 8 U.S.C. 
1188(g)(2).
    As the Department has noted in prior rulemaking, though there are 
limits to the liability the Department can impose on employers for the 
actions of recruiters abroad, the Department can regulate the conduct 
of recruiters in the H-2A program through enforcement of employer 
obligations to foreign workers, such as enforcement of the prohibition 
on the imposition of recruitment fees. 2010 H-2A Final Rule, 75 FR at 
6926. Specifically, employers must contractually forbid 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 from seeking payments or other 
compensation from prospective employees in both the H-2A and H-2B 
programs, at 20 CFR 655.135(k) and 655.20(p), respectively. The 
Department's H-2B regulations at Sec. Sec.  655.9 and 655.20(aa) 
additionally require employers to provide copies of their agreements 
with foreign labor recruiters and disclose information about the 
foreign labor recruiters that have or will be engaged in the 
recruitment of H-2B workers in connection with the employer's 
applications.
    In the NPRM, the Department proposed similar additional foreign 
labor recruiter disclosure requirements in the H-2A program to require 
the employer to identify any foreign labor recruiters, provide copies 
of the agreements between the employer and recruiter, and ensure the 
agreement clearly prohibits the foreign labor contractor or recruiter 
from seeking or receiving payments or other compensation from 
prospective employees. Specifically, the Department proposed a new 
Sec.  655.137, Disclosure of Foreign Worker Recruitment, a new related 
assurance at Sec.  655.135(p), and a new Sec.  655.167(c)(8) that 
provides applicable document retention requirements.
    The proposed new provisions at Sec.  655.137 govern what 
information and documentation an employer must provide at filing 
regarding foreign worker recruitment, as well as how it must maintain 
and update that information. These proposed provisions also cover how 
the Department may disseminate or publish the information it receives. 
Paragraph (a) proposed that if the employer engaged or plans to engage 
an agent or foreign labor recruiter, directly or indirectly, in 
international recruitment, the employer, and its attorney or agent, as 
applicable, must provide copies of all contracts and agreements with 
any agent or recruiter or both, executed in connection with the job 
opportunity, a requirement that is also covered by a new assurance 
proposed at Sec.  655.135(p). These agreements must contain the 
contractual prohibition against charging fees as set forth in Sec.  
655.135(k). In paragraph (b), the Department proposed to require that 
applications must contain all recruitment-related information required 
in the Application for Temporary Employment Certification, as defined 
in Sec.  655.103(b), including the identity and location of all persons 
and entities hired by or working for the recruiter or agent, and any of 
the agents or employees of those persons and entities, to recruit 
prospective foreign workers for the H-2A job opportunity.
    Paragraph (c) of Sec.  655.137 proposed that employers must 
continue to keep the foreign labor recruiter information referenced in 
paragraphs (a) and (b) up to date until the end of the work contract 
period, with this updated information available in the event of a post-
certification audit or upon request by the Department. Proposed Sec.  
655.167(c)(8) governs applicable employer document retention 
requirements. The Department likewise proposed sharing the foreign 
worker recruitment information it received from employers with any 
other Federal agency, as appropriate for investigative or enforcement 
purposes, as set forth in Sec.  655.130(f). Finally, the Department 
proposed in paragraph (d) to maintain a publicly available list of 
agents and recruiters (including government registration numbers, if 
any) who are party to the agreements employers submit, as well as the 
persons and entities the employer identified as hired by or working for 
the recruiter and the locations in which they are operating.
    As explained in the NPRM, the Department proposed these changes 
because disclosure of information about the recruitment chain will 
assist the Department to carry out its enforcement obligations, protect 
vulnerable agricultural workers and program integrity, and ensure 
equitable administration of the H-2A program for law abiding employers. 
Determining the identity and location of persons hired by or working 
for the recruiter or its agent to recruit or solicit prospective H-2A 
workers--effectively acting as sub-

[[Page 34026]]

recruiters, sub-agents, or sub-contractors--bolsters program integrity 
by aiding enforcement of provisions like Sec.  655.135(k), which 
prohibits the seeking or receiving of recruitment fees. In addition, 
the information collection would require additional disclosures 
relating to foreign worker recruitment that will bring a greater level 
of transparency to the H-2A worker recruitment process. By maintaining 
and making public a list of agents and recruiters, the NPRM observed 
that the Department will be in a better position to map international 
recruitment relationships, identify where and when prohibited fees are 
collected, ensure that contractual prohibitions on collecting 
prohibited fees are bona fide, and, when contractual prohibitions are 
not bona fide or do not exist, implement sanctions against and collect 
remedies from the appropriate entity. Workers will be better protected 
against fraudulent recruiting schemes because they will be able to 
verify whether a recruiter is in fact recruiting for legitimate H-2A 
job opportunities in the United States. A list of foreign labor 
recruiters will enhance transparency and aid enforcement by 
facilitating information sharing between the Departments and the 
public, and assist OFLC, other agencies, workers, and community and 
worker advocates to better understand the roles of recruiters and their 
agents in the recruitment chain, while permitting a closer examination 
of applications or certifications involving recruiters who may be 
engaged in improper behavior.
    The NPRM also noted that information about the identity of the 
international and domestic recruiters of foreign labor will assist the 
Department in more appropriately directing its audits and 
investigations. For example, in the course of its enforcement, WHD 
sometimes reviews allegations from H-2A workers that they have been 
charged recruitment fees. Those workers, however, are frequently 
unaware of the contractual arrangements between the individuals alleged 
to have charged those fees and the recruitment agencies for which they 
may serve as sub-agents or sub-recruiters, and may only know the names, 
partial names, or nicknames of such individuals. The information 
required under Sec.  655.137 will improve WHD's ability to identify 
individuals charging fees, connect such individuals' relationships with 
recruitment agencies contracted by the employer, determine whether all 
entities had contractually prohibited cost-shifting as required under 
Sec.  655.135(k), and hold the appropriate parties responsible. Such 
information will also improve WHD's ability to plan enforcement actions 
if, for example, a sub-recruiter working for multiple agencies or 
serving multiple employers is found, as a matter of practice, to be 
charging prohibited fees or otherwise engaging in conduct in violation 
of the requirements of the H-2A program. Finally, enhancing tools to 
strengthen enforcement of the prohibition on the collection of 
prohibited fees and other recruitment abuses ensures that employers who 
comply with the H-2A program requirements are not disadvantaged by the 
actions of unscrupulous employers, such as those who pass recruitment 
fees on to workers.
    The Department received comments both in support of and opposed to 
the proposal. After consideration of the comments received, the 
Department is adopting the proposals with a minor technical change, as 
discussed in more detail below.
    General Support: The Department received some comments that were 
generally supportive of the new disclosure requirements. Many Federal 
elected officials and a State government expressed support for the 
proposal to increase transparency in the recruitment process, with some 
Federal elected officials noting that the current process has ``enabled 
third party recruiters to charge prospective H-2A workers exorbitant 
fees, indebting workers who come here just to make ends meet,'' and 
others noting that the proposals will ``not only improve worker 
protections, but . . . also bring the H-2A program in line with the H-
2B program.'' Some Federal elected officials further observed that 
``[s]imilar protections . . . already exist for H-2B workers; DOL's 
rule simply extends these protections to H-2A workers.'' Concerned Law 
Students of University of Georgia, a student group, submitted a comment 
noting that ``[g]reater recruitment transparency should help 
enforcement officials and advocates find and eliminate the roots of the 
problem.'' PCUN, CAUSE, UMOS, UFW Foundation, and Green America and 
North Carolina Justice Center, workers' rights advocacy and public 
policy organizations, respectively, expressed support for how these 
changes would ``bolster DOL's enforcement capacity against exploitative 
and abusive recruiters.'' Another workers' rights organization, AWAC, 
``strongly endorse[d] . . . [the] additional transparency [and] 
protections in recruitment practices and hiring process,'' contained 
within the proposed rule. The Agricultural Justice Project, UMOS, and 
Marylanders for Food and Farmworker Protection were supportive, with 
Marylanders for Food and Farmworker Protection noting specifically that 
``[e]nhanced transparency . . . is crucial for preventing recruitment 
fraud.'' CCUSA and USCCB was also broadly supportive of this rulemaking 
effort, stating that ``[i]ncreased oversight of the H-2A recruitment 
process through the proposed provisions is commendable, as it aims to 
provide more protection to prospective workers through enhanced 
transparency.'' Additionally, many individuals expressed general 
support for the proposal. The Department values and appreciates these 
commenters' general support and their unique and informed perspectives 
on the need for and potential impact of the proposal.
b. Section 655.137(a), Collecting Contracts/Agreements; Prohibition on 
Fees
    Consistent with Sec. Sec.  655.9(a) and 655.20(aa) in the H-2B 
program, the Department proposed new provisions at Sec. Sec.  
655.137(a) and 655.135(p) to require an employer and its attorney or 
agent, as applicable, to provide a copy of all agreements with any 
agent or recruiter that the employer engages or plans to engage in the 
recruitment of prospective H-2A workers, regardless of whether the 
agent or recruiter is located in the United States or abroad. This 
proposed requirement to disclose agreements with recruiters would 
encompass all agreements, whether written or verbal, involving the 
whole recruitment chain that brings an H-2A worker to the employer's 
certified H-2A job opportunity in the United States. The Department 
received several comments on this proposal. The Department's responses 
to these comments are provided below. Following full consideration of 
these comments, the Department has decided to retain the proposal in 
this final rule, with one minor technical change. The Department has 
revised proposed Sec.  655.137(a) to include language clarifying the 
paragraph applies where an employer engages or plans to engage a 
foreign labor recruiter. This technical correction is necessary to 
ensure the paragraph is consistent with the Department's practice in 
the H-2B program, the Department's proposal to require disclosure of 
agreements where the employer engages or plans to engage a foreign 
labor recruiter, and the Department's proposed language at Sec.  
655.135(p), which requires the employer provide a copy of all 
agreements with any agent or recruiter whom it engages or plans to 
engage in the recruitment of H-2A workers.

[[Page 34027]]

    A couple of employers, including Titan Farms, LLC, and some trade 
associations, including TIPA, IFPA, GFVGA, USApple, and NHC, supported 
sharing recruitment agreements with the Department, but only if ``all 
confidential business information is redacted.'' Wafla opposed this 
aspect of the proposal because sharing the agreements may expose 
``trade secrets, pricing information, or other unique information that 
cannot be made public'' and suggested that the Department request these 
agreements only if ``[it] suspects an issue . . . during a post-
certification inspection.'' Similarly, the U.S. Chamber of Commerce, a 
trade association, opposed collection of the agreements because they 
may contain ``sensitive, proprietary business information.''
    The Department appreciates the concerns cited by commenters and 
reiterates that confidential business information or sensitive data 
will not be disclosed to the public. Consistent with the handling of 
such contracts in the H-2B program, ``[a]greements between the employer 
and the foreign labor recruiter will not be made public unless required 
by law.'' 2015 H-2B IFR, 80 FR 24042, 24057 (Apr. 29, 2015).\99\ The 
Department notes that in all the years it has been collecting these 
contracts in the H-2B program, it is not aware of an instance where the 
confidential terms or business information was disclosed to the public.
---------------------------------------------------------------------------

    \99\ Interim Final Rule, Temporary Non-Agricultural Employment 
of H-2B Aliens in the United States, 80 FR 24042 (Apr. 29, 2015) 
(2015 H-2B IFR).
---------------------------------------------------------------------------

    Collecting the contracts and agreements allows the Department to 
verify that the contractual prohibition required by Sec.  655.135(k) 
has been included. As noted in the NPRM, the Department remains 
concerned about workers being charged fees unlawfully. A recent report 
published by Polaris, an organization working to combat labor 
trafficking, notes that abuses by foreign labor recruiters continue, 
with workers reporting unlawful fees charged by ``foreign labor 
recruiters, their employers, or their direct supervisors at their 
jobs,'' and that additional transparency in the recruitment chain is 
needed to ensure the Department can identify, investigate, and hold 
accountable those employers and other entities who engage in abusive 
and unlawful behavior at various stages of the international 
recruitment process.\100\
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    \100\ Polaris, Human Trafficking on Temporary Work Visas: A Data 
Analysis 2015-2017 13 (2018), https://polarisproject.org/wp-content/uploads/2019/01/Human-Trafficking-on-Temporary-Work-Visas.pdf.
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    In their comment, Farmworker Justice, citing a 2018 CDM 
report,\101\ stated that 58% of workers recruited from Mexico 
``reported paying a recruitment fee that on average amounted to $590 
per worker'' and almost half of these workers ``needed to take out a 
loan to cover illegal recruitment fees and other pre-employment 
expenses.'' The commenter expressed concern that in other cases, 
``individuals purporting to be recruiters who have no relationship with 
an actual H-2A employer often charge prospective foreign workers for 
the chance to get a job that does not even exist.'' A different 
workers' rights advocacy organization, the North Carolina Justice 
Center, stated that some workers are ``explicitly coached by the 
recruiter to lie about the [recruitment] fee at their consular 
interview,'' further noting that ``the person charging and collecting 
the fee is a step or two removed from the U.S. based employer and is 
not directly in touch with the employer.'' This commenter expressed 
support for the Department's proposal as a way to ``make it easier to 
recover illegal fees in the future, and hopefully, motivate employers 
to take more proactive steps to make sure that no one in their 
recruiting pipeline is charging illegal fees.'' The UFW Foundation 
cited accounts of workers who were charged exorbitant fees of as much 
as $10,000 to obtain H-2A employment. These comments reflect the 
Department's concerns regarding unlawful collection of fees and 
reiterate to the Department the need to collect the foreign labor 
recruiter information to shed light on the process of recruitment, as 
well as to aid in the enforcement of the regulations.
---------------------------------------------------------------------------

    \101\ CDM, Recruitment Revealed, Fundamental Flaws in the H-2 
Temporary Worker Program and Recommendations for Change 16,18 
(2018), http://www.cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf.
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    The NPRM did not propose to change, and this final rule retains, 
Sec.  655.135(k), which will continue to require the employer to 
contractually prohibit in writing any agent or recruiter (or any agent 
or employee of such agent or recruiter) whom the employer engages, 
either directly or indirectly, from seeking or receiving payments from 
any prospective employees. The specific language covers subcontractors. 
In addition, the required contractual prohibition applies to the agents 
and employees of the recruiting agent, and the prohibition against 
charging workers recruitment-related fees encompasses both direct and 
indirect fees. As such, the written contract(s) the employer submits 
under this final rule must contain this contractual prohibition on 
charging fees and the prohibition language must include the quoted 
language specified in Sec.  655.135(k).
    A workers' rights advocacy organization, CDM, citing an account 
from a Florida worker, also urged the Department to prohibit recruiters 
or employers from requiring that workers, or people acting on behalf of 
workers, sign promissory notes or pay breach of contract fees. To this 
end, the commenter recommended amending Sec.  655.135(j) so that 
``payments'' include any payment provided by the employee, a relative, 
or any person acting on the employee's behalf. It also suggested that 
``payment'' include requiring that any employee, relative, or person 
acting on the employer's behalf ``sign a negotiable instrument or grant 
a security interest in any collateral.'' It further alleged that this 
amendment would bring the rule into ``alignment with DHS's proposed 
revisions to 8 CFR 214.2(h)(5)(xi), which would clarify that fees 
prohibited in H-2A recruitment include breach of contract fees and 
penalties.''
    The Department agrees with CDM that it is important to clearly and 
explicitly prohibit breach of contract fees from being collected from 
prospective employees, but did not propose the suggested change in the 
NPRM and the Department does not believe such a change is necessary for 
enforcement of breach of contract fees. The Department takes the 
opportunity to clarify, however, that the existing contractual fee 
prohibition language is broadly interpreted and Sec.  655.135(k) 
already requires employers to prohibit, in writing, foreign labor 
contractors or recruiters from receiving payments or compensation from 
prospective employees, and includes language that employers must 
include in contracts with foreign labor contractors or recruiters. The 
required contractual prohibition against recruitment-related fees 
applies to the agents and employees of the recruiting agent, and the 
prohibition against charging workers recruitment-related payments 
encompasses both direct and indirect fees. As such, the written 
contract(s) the employer submits under this final rule must contain 
this contractual prohibition on charging fees and the prohibition 
language must include the language specified in Sec.  655.135(k): 
``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

[[Page 34028]]

time, including before or after the worker obtains employment. Payments 
include but are not limited to any direct or indirect fees paid by such 
employees for recruitment, job placement, processing, maintenance, 
attorney fees, agent fees, application fees, or any fees related to 
obtaining H-2A labor certification.''
    Consistent with the H-2B program, this final rule requires 
employers to provide a copy of the agreement at the time the employer 
files the H-2A Application. Employers, and their attorneys or agents, 
as applicable, are expected to provide these names and geographic 
locations to the best of their knowledge at the time the application is 
filed. The Department expects that, as a normal business practice, when 
completing the written agreement with the primary recruiting agent or 
recruiter, the employer and, if applicable, the employer's authorized 
attorney or agent, will ask whom the recruiter plans to use to recruit 
workers in foreign countries, and whether those persons or entities 
plan to hire other persons or entities to conduct such recruitment, 
throughout the recruitment chain.
    At the time of collection, the Department will review the 
agreements to obtain the names of the foreign labor recruiters and 
government registration and license numbers, if any (for purposes of 
maintaining a public list, as described below), and to verify that 
these agreements include the required contractual prohibition against 
charging fees.\102\ The Department may further review the agreements 
during the course of an audit examination or investigation. 
Certification of an employer's application that includes such an 
agreement does not indicate general approval of the agreement or the 
terms therein. Where the required contractual prohibition is not 
readily discernible, the Department may request further information to 
ensure that the contractual prohibition is included in the agreement.
---------------------------------------------------------------------------

    \102\ The Department uses all available tools to ensure that 
prohibited fees are not collected by employers, agents, recruiters, 
or facilitators. The Department has previously stated that an 
employer must make it abundantly clear that the recruiter and its 
agents are not to receive remuneration from the worker recruited in 
exchange for access to the job opportunity. For example, evidence 
showing that the employer paid the recruiter no fee or an 
extraordinarily low fee, or continued to use a recruiter about whom 
the employer had received numerous credible complaints, could be an 
indication that the contractual prohibition was not bona fide. See 
2010 H-2A Final Rule, 75 FR at 6925-6926. The Department has 
similarly stated that, if it determines ``that the employer knew or 
reasonably should have known that the H-2A worker paid or agreed to 
pay a prohibited fee . . . to a foreign labor contractor or 
recruiter, the employer can still be in violation of 20 CFR 
655.135(j). However, should the circumstances demonstrate that the 
employer made a good faith effort to ensure that prospective workers 
were not required to pay prohibited fees (such as inquiry of both 
workers and agents/recruiters/facilitators regarding payment of such 
fees), the Department will take the circumstances into consideration 
in determining whether a violation occurred.'' WHD, Field Assistance 
Bulletin No. 2011-2, H-2A ``Prohibited Fees'' and Employer's 
Obligation to Prohibit Fees (May 6, 2011), https://www.dol.gov/agencies/whd/field-assistance-bulletins/2011-2.
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    To reiterate, agreements between the employer and the foreign labor 
recruiter will not be made public unless required by law. Consistent 
with the Department's current practice in the H-2B program, this final 
rule allows the Department to obtain the agreements, but the Department 
will only share with the public the identity of the recruiters, not the 
agreements in their entirety.
c. Section 635.137(b), Information Collection, and (c), Retention
    The NPRM proposed at Sec. Sec.  655.137(b) and 655.135(p) to 
require an employer and its attorney or agent, as applicable, to 
disclose to the Department the identity (i.e., name and, if applicable, 
identification number) and geographic location of persons and entities 
hired by or working for the foreign labor recruiter and any of the 
agents or employees of those persons and entities who will recruit or 
solicit prospective H-2A workers for the job opportunities offered by 
the employer. As the NPRM explained, these proposed new provisions are 
consistent with the H-2B provisions at Sec. Sec.  655.9(b) and 
655.20(aa). As in the H-2B program, the NPRM proposed to interpret the 
term `working for' to encompass any persons or entities engaged in 
recruiting prospective foreign workers for the H-2A job opportunities 
offered by the employer, whether they are hired directly by the primary 
recruiter or are working indirectly for that recruiter downstream in 
the recruitment chain. 2015 H-2B IFR, 80 FR at 24057. If the recruiter 
has a valid registration number or license number that is issued by a 
government agency and authorizes the recruiter to engage in the 
solicitation or recruitment of workers, the proposal required the 
employer to provide this unique identification information.
    The NPRM also proposed that the Department will gather the 
additional recruitment chain information when the employer files its 
application and will require the employer to submit a Form ETA-9142A, 
Appendix D, that mirrors the Form ETA-9142B, Appendix C, used in the H-
2B program, and collects information about the identity and location of 
the recruiter(s) and recruitment organization(s) the employer used or 
will use to recruit foreign workers. In addition, the Department 
proposed at Sec.  655.137(c), and in corresponding language in the new 
assurance provision at Sec.  655.135(p), to require the employer to 
update the foreign worker recruitment information disclosed in 
accordance with paragraphs (a) and (b) of Sec.  655.137 with any 
changes to foreign labor recruiter contracts, loss or revocation of 
registration number, or changes to the names and locations of people 
involved in recruitment after filing the H-2A Application, and to 
continue to make these updates until the end of the work contract 
period. Under the proposal, the employer must maintain updates to the 
foreign labor recruiter information disclosed at the time of filing the 
H-2A Application and be prepared to submit the record to the 
Department, upon request. Finally, to make clear the employer's record 
retention obligation, proposed Sec.  655.167(c)(8) required the 
employer to maintain the foreign worker recruitment information 
required by proposed Sec.  655.137(a) and (b) for a period of 3 years.
    The Department received several comments on this proposal. After 
careful consideration of the comments, the Department has decided to 
retain the proposal in this final rule, as explained below.
    Many trade associations, individuals, employers, a State government 
agency, and agents opposed the collection of this information. They 
asserted that the proposal would impose an undue burden on employers to 
identify all links in a foreign recruitment chain, may lead to 
penalties for employers for the actions or inaccurate statements of 
recruiters abroad, and may expose recruiting agency employees to risks 
in their country of origin. Some trade associations (NHC, IFPA, TIPA, 
and USApple) and an employer (Titan Farms, LLC) expressed concerns 
regarding limited employer resources, with NHC noting specifically that 
employers ``do not have the resources, nor practical ability, to 
identify and maintain the information required under this section.'' 
GFVGA, USApple, IFPA, TIPA, and an employer, Titan Farms, LLC, asserted 
that many employers, especially small employers, ``rely on their 
agent's network to recruit and may not have access to the foreign 
recruiter's name and geographic location.'' The Western Range 
Association, an agent, noted disclosure would be difficult at the time 
of filing because employers ``may not know what country they will be 
requesting a worker from'' and they may ``change their minds and 
request workers from a different country'' than initially

[[Page 34029]]

planned. This commenter suggested that collection of recruiter 
information at the DHS petition stage would be more effective. Wafla, a 
trade association, supported requiring the disclosure of only the 
foreign recruiter's name and owner on the application but opposed any 
further disclosure requirements. In particular, it stated that the 
additional disclosure requirements would be difficult because ``[s]ome 
recruiters have 10-100 employees'' and it could take ``two to three 
hours of additional preparation time'' to gather this information and 
then ``type it into FLAG.'' The Georgia Farm Bureau, a trade 
association, noted that ``any such evidence of this would take place 
between the prospective employee and third-party recruiters. Much of 
the information required to be reported by employers is not guaranteed 
to be provided by a foreign third-party entity.'' Fuerza Consulting 
Solutions incorrectly contended that the desired information was 
already collected during the audit process, rendering the proposed 
changes unnecessary.
    The U.S. Chamber of Commerce, IFPA, TIPA, NHC, USApple, GFVGA, and 
an employer, Titan Farms, LLC, asserted that the Department provided 
``no guidance on how an employer should come to identify the foreign 
recruiter information'' and ``no definition of what level of due 
diligence is required of the employer.'' Wafla expressed concern that 
the NPRM failed to clarify if the employer must ``vet the information'' 
provided by a recruiter to ensure ``the information provided by the 
foreign recruiter is [not] false'' or if employers must ``travel to a 
foreign country to verify the information'' or face potential liability 
or penalty. Some trade associations and employers opposed the 
obligation to update recruitment information throughout the contract 
period because the employer, in the words of NHC, ``would be relying on 
the foreign recruiter to communicate [updated] information to them.'' 
AILA, an immigration lawyers' association, asserted that the collection 
of information on recruiting agency employees is unnecessary because 
the actions of these employees are legally imputed to their employer, 
the recruitment agency, and thus disclosing only the recruitment agency 
is sufficient.
    The Department appreciates these comments and understands the 
concerns about time and burden to collect the information; the need for 
employers to understand their information disclosure, retention, and 
production obligations; the ability to access this information and the 
timing of the collection, including the obligation to update 
information; and concerns about how the Department will safeguard 
confidential and sensitive information. The collection of this 
information adds transparency and helps in locating individuals for 
enforcement purposes. As GAO has explained, ``[w]ithout accurate, 
accessible information about employers, recruiters, and jobs during the 
recruitment process, potential foreign workers are unable to 
effectively evaluate the existence and nature of specific jobs or the 
legitimate parties contracted to recruit for employers, potentially 
making them more vulnerable to abuse.'' \103\ The new provisions in 
this final rule are also consistent with the assessment of 
organizations investigating migrant worker abuse globally. For example, 
the United Nations Office on Drugs and Crime, in a 2015 report entitled 
``The Role of Recruitment Fees and Abusive and Fraudulent Practices of 
Recruitment Agencies in Trafficking in Persons,'' noted that 
recruitment systems are often ``opaque,'' and that a ``[l]ack of 
evidence'' contributes to low levels of trafficking convictions for 
recruiters and recruitment agencies.\104\
---------------------------------------------------------------------------

    \103\ GAO 2015 Report, at 33-34.
    \104\ U.N. Office on Drugs and Crime, The Role of Recruitment 
Fees and Abusive and Fraudulent Recruitment Practices of Recruitment 
Agencies in Trafficking in Persons 23, 47 (2015) https://www.unodc.org/documents/human-trafficking/2015/Recruitment_Fees_Report-Final-22_June_2015_AG_Final.pdf; See also 
International Labour Organization, Fair Recruitment Initiative, 
https://www.ilo.org/global/topics/fair-recruitment/fri/lang-en/index.htm (last visited Apr. 3, 2024); International Labour 
Organization, General principles and operational guidelines for fair 
recruitment and Definition of recruitment fees and related costs 
(2019), https://www.ilo.org/global/topics/fair-recruitment/WCMS_536755.
---------------------------------------------------------------------------

    The obligation to obtain information on recruiters and downstream 
employees or contractors of the recruiters is something employers or 
agents should already be doing. As the Department has noted, by 
submitting an H-2A Application, the employer ``is assuring the federal 
government that it has contractually forbidden those parties who will 
recruit workers on its behalf from seeking or receiving payments from 
prospective workers for costs which are to be borne by the employer.'' 
\105\ Making this assurance necessarily requires that ``the employer 
(either directly or through its agent) has taken affirmative, specific 
action to contractually prohibit such parties from seeking or from 
receiving such payments.'' \106\ With these actions already a part of 
the H-2A filing process, identifying this foreign recruiter information 
should not be unfamiliar to employers and collecting and maintaining 
records of the same would not be burdensome. The disclosure of this 
information to the Department, including disclosing information beyond 
the foreign recruiter's name and owner, should therefore also not be 
unduly burdensome. In response to the comment that noted disclosing 
only the recruitment agency is sufficient because the actions of 
employees are legally imputed to their employer, the Department 
believes that it is necessary for all parties involved in the 
recruiting process to be identified. Identifying each individual who 
will be recruiting allows for more complete disclosure as to who is 
legitimately recruiting for jobs and for that information to be made 
available to the public, including potential H-2A workers. 
Additionally, complete disclosure of recruiters, their employees, and 
any downstream recruiters will assist WHD in its investigations to 
identify who is collecting prohibited fees when such fees are 
collected.
---------------------------------------------------------------------------

    \105\ WHD, Field Assistance Bulletin No. 2011-2, H-2A 
``Prohibited Fees'' and Employer's Obligation to Prohibit Fees (May 
6, 2011), https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab2011_2.pdf.
    \106\ Id.
---------------------------------------------------------------------------

    The Department, however, understands that recruitment arrangements 
may not be finalized at the time of filing or may change after filing. 
The Department is only requiring that employers provide the information 
available to them at the time of filing with the understanding that an 
employer's recruiting arrangements may change after that. Similarly, 
the Department understands that it may not be possible for the employer 
or agent to capture everyone involved in the recruitment process and 
that they may receive inaccurate statements from those downstream from 
the employer. The Department only expects that employers or agents make 
reasonable efforts to obtain the requested information, and in the 
event of an audit or investigation, the extent of the employer's good-
faith efforts may be considered. See also 20 CFR 655.182(e)(4) and 29 
CFR 501.19(b)(4) (the OFLC and WHD Administrators already consider 
``efforts made in good faith'' in other contexts).
    Lastly, the Department takes seriously concerns with safeguarding 
confidential and sensitive information and will collect this 
information in accordance with the Privacy Act of 1974, the 
Department's SORN, FOIA disclosure requirements, and the PRA, as 
explained in the PRA package submitted in conjunction with this final 
rule. The

[[Page 34030]]

Department has collected this information in the H-2B program under the 
2015 H-2B IFR without any reported incidents of privacy breach and 
without any indication that the requirement imposes an excessive burden 
on employers that would outweigh the benefits of enhanced transparency 
in the foreign labor recruitment process.
d. Section 635.137(d), Registry List
    As in the H-2B program, the Department proposed at Sec.  655.137(d) 
to publicly disclose, in a public registry, the names of the agents and 
foreign labor recruiters used by employers, as well as the identities 
and locations of all the persons or entities hired by or working for 
the primary recruiter in the recruitment of prospective H-2A workers, 
and the agents or employees of these entities. The Department also 
proposed to state explicitly that it may share the foreign worker 
recruitment information it receives from employers with any other 
Federal agency, as appropriate for investigative or enforcement 
purpose, as set forth in Sec.  655.130(f). The Department received both 
comments supporting and opposing the proposal to publish a foreign 
labor recruiter list on the OFLC website. After full consideration of 
the comments, the Department has decided to retain Sec.  655.137(d) 
without change in this final rule, as explained below.
    Many commenters supported the concept of a public recruiter list 
but asserted that the Department must create a more transparent, easily 
searchable system that would permit workers to verify that recruiters 
are connected to legitimate job opportunities and do not charge illegal 
fees. Farmworker Justice supported the proposed public labor recruiter 
list to help ``enforce the removal of program access after fraud'' is 
identified. However, they expressed concern that the recruiter list 
would be inadequate if modeled after the existing recruiter list in the 
H-2B program. They stated that the existing recruiter list ``is an 
English language spreadsheet housed on an English language website that 
lists foreign recruiter names and their companies, recruitment regions, 
and a 14-digit case number for the clearance orders that they are 
associated with'' and thus is opaque and inaccessible to workers, who 
often do not speak English and typically conduct their research into 
recruiters and jobs using a smartphone. The commenter further claimed 
that worker advocacy organizations themselves were unable to match 
employer case numbers from the recruiter list ``to clearance orders 
using the Case Number search field on'' the Seasonaljobs website.
    The commenter recommended changes to the Seasonaljobs website to 
allow workers to ``log on and view information'' about recruiters and 
the jobs they are connected to, in the same way they use Seasonaljobs 
to learn about other elements of ``specific jobs . . . , including job 
duties, pay, work location, expected hours, and employer information,'' 
which the commenter asserted would provide workers with ``real-time 
information that could help them avoid abusive recruiters and 
recruitment scams.'' This suggestion was endorsed by CDM, and largely 
echoed by another workers' rights advocacy organization, Migration that 
Works, that encouraged the Department to create ``an accessible way to 
verify that an individual claiming to be a recruiter represents the 
employer and the job offer they purport to represent,'' and suggested 
that the Department ``combin[e] the employment information already 
available on Seasonaljobs.dol.gov with the recruiter registry, making 
this information available to all prospective workers at the time of 
recruitment in Spanish and other languages.'' This commenter further 
suggested that the Department require employers to continually update 
recruiter information throughout the recruitment process and require 
disclosure in a standardized format to aid searchability.
    The Department will update the H-2A Foreign Labor Recruiter List on 
a quarterly basis and will post an announcement on the OFLC website 
when updates are available. As with the H-2B recruiter list, any person 
with internet access, including U.S. and foreign workers, can access 
the public recruiter list and identify the H-2A Application numbers 
connected to recruiters in the list. The Department appreciates the 
suggestions regarding the H-2B Foreign Labor Recruiter List's format 
and will consider these suggestions but notes that the format of the 
forthcoming recruiter list is not something that would require 
amendments to the regulatory language in this final rule. However, as 
explained above, the Department will require employers in this final 
rule to continue to keep the foreign labor recruiter information 
requested in Sec.  655.137(a) and (b) up to date until the end of the 
work contract period and make this updated information available in the 
event of a post-certification audit or upon request by the Department. 
20 CFR 655.137(c). Similar to the H-2B list, the H-2A list will be 
posted on the Department's website in a standardized format. In 
addition, the H-2A Foreign Labor Recruiter List will contain the 
government registration number, if applicable, of agents and recruiters 
to further enhance transparency of the recruitment process for 
prospective H-2A workers.
    The Department declines to publish foreign labor recruiter 
information using Seasonaljobs for the same reasons it declined to 
adopt commenter suggestions to publish foreign worker demographic data 
on Seasonaljobs in the 2022 H-2A Final Rule. The intended use of the 
information published on Seasonaljobs differs from the intended use of 
OFLC's forthcoming H-2A Foreign Labor Recruiter List. The Foreign Labor 
Recruiter List in the context of the H-2B program is ``a list of people 
and entities that employers have indicated that they engage or plan to 
engage to carry out the recruitment of prospective H-2B workers'' that 
facilitates information sharing and helps to ensure ``workers are 
better protected against fraudulent recruiting schemes by enabling them 
to verify whether a recruiter is in fact recruiting for legitimate H-2B 
job opportunities . . . .'' \107\ The H-2A Foreign Labor Recruiter List 
will serve the same function in the H-2A context. In contrast, 
Seasonaljobs ``is a recruitment tool designed for broad dissemination 
of available temporary or seasonal job opportunities to U.S. workers . 
. . [that] provides information for job seekers, including work 
locations, duties to be performed, qualifications required, and dates 
of employment. . . . automate[s] the electronic advertising of H-2A job 
opportunities and ensures copies of H-2A job orders are promptly 
available for public examination.'' 2022 H-2A Final Rule, 87 FR at 
61749.
---------------------------------------------------------------------------

    \107\ OFLC, 2015 H-2B Interim Final Rule FAQs, Round 16: Foreign 
Labor Recruiter List, https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/Round-16_Foreign_Labor_Recruiter.pdf.
---------------------------------------------------------------------------

    An agent, m[aacute]sLabor, writing in opposition to the proposed 
change, argued that recruiters based in foreign countries often exist 
as alternatives to ``violence by cartels, cayotes, and other criminal 
enterprises'' involved in trafficking migrant workers and that making 
their identities public could make them the target of threats and 
violence by these organizations. An employer, McCorkle Nurseries, Inc., 
registered a similar concern.
    The Department appreciates the comments and concerns expressed 
therein. The comments, however, were submitted without any supporting 
evidence. Absent more particular evidence of specific harms that will

[[Page 34031]]

result from the Department's publishing this information, as the 
Department currently does in the H-2B program, the Department cannot 
weigh the previously noted benefits of adding transparency to the 
recruitment process against generalized and unsubstantiated concerns 
about potential consequences of disclosing this information on the H-2A 
Foreign Labor Recruiter List.
e. Miscellaneous Comments
    The Department received a few other comments that were generally 
supportive of the Department's efforts but also provided suggestions 
for further improvement. They are discussed below.
    CDM supported the Department's proposals but urged the Department 
to require H-2A employers ``affirmatively vet and monitor'' all 
recruiters used, which the commenter suggested could be accomplished by 
requiring employers to hire a recruitment compliance officer who would 
monitor recruitment efforts and investigate and address unlawful 
recruitment fees. The commenter suggested that the Department require 
that employers create and retain reports documenting the findings of 
the recruitment compliance officer.
    Several State Attorneys General urged the Department to play a more 
active role in regulating the recruitment of foreign workers and 
counseled the Department to model the final rule provisions on 
regulatory schemes used in States like California and Washington. These 
commenters noted that California's labor commissioner administers a 
program charged with the registration and supervision of foreign labor 
contractors that includes additional requirements specific to 
recruiters. The commenters urged the Department to create and maintain 
a similar program that would require registration of foreign labor 
recruiters and prohibit employers from using recruiters that are not 
subject to registration and oversight, either by the Department or in 
the countries in which they operate. Finally, these commenters urged 
the Department to make it explicit in the final rule that the 
Department will share recruiter information with State-level 
enforcement agencies, as necessary.
    The Department declines to adopt the suggestion to require that 
each employer hire a compliance officer and conduct compliance 
reporting and the suggestion to create and implement a system under 
which foreign labor recruiters would register with the Department. 
Requiring employers to hire compliance officers and conduct routine 
foreign labor recruitment compliance reporting would constitute a 
substantial change to the current regulations that was not proposed in 
the NPRM, and adoption in this final rule would preclude commenters 
from providing meaningful input. Similarly, the NPRM did not 
contemplate either the creation of a system to register and monitor 
foreign labor recruiters or the explicit sharing of recruiter 
information with State-level enforcement agencies. Both such proposals 
would require not only additional opportunity for stakeholder comment, 
but also a more thorough consideration of the costs, the additional 
information sharing requirements and monitoring systems, and the 
potential administrative, jurisdictional, and legal implications of 
their adoption; with respect to sharing recruiter information with 
enforcement agencies at the State level, the Department will do so as 
is permitted and required by law.
    The Alliance to End Human Trafficking, an advocacy organization, 
likewise endorsed the Department's proposed rule while advocating for 
more changes in this area. This advocacy organization urged the 
Department to enhance enforcement by focusing efforts more specifically 
on human and labor trafficking as a ``key component'' of overall H-2A 
program compliance efforts. It suggested increased training for agency 
employees on addressing human trafficking and the creation of a 
mechanism to provide H-2A workers with information in multiple 
languages about human trafficking and how to report violations or 
request help. This commenter recommended that the Department sanction 
employers, as well as ``downstream entities/contractors and 
subcontractors,'' if they either falsify or withhold documents, or 
deceive workers about the terms and conditions of employment. This 
commenter further suggested that the Department issue model language 
for employers to include in recruitment agreements that would prohibit 
recruitment-related fees. This commenter also urged the Department to 
provide guidance for reimbursing workers who have been charged unlawful 
recruitment-related fees.
    The Department appreciates the commenter's suggestions about 
additional staff training related to human trafficking and establishing 
requirements to provide H-2A workers with information about human 
trafficking and how to report violations or request help. However, 
these suggestions go beyond the scope of the current proposal, which 
focuses on increased transparency related to foreign labor worker 
recruitment. With respect to the request for sanctions and specific 
guidance regarding reimbursement for workers who have been unlawfully 
charged recruitment fees, the Department already cites violations, 
assesses penalties, and collects back wages, when appropriate, from an 
employer who has sought or received fees from workers in violation of 
Sec.  655.135(j), or contracted with a foreign labor recruiter without 
contractually forbidding that foreign labor recruiter from collecting 
fees in violation of Sec.  655.135(k). The Department can, and 
regularly does, debar employers from future participation in the 
program after finding that those employers have violated Sec.  
655.135(j) or Sec.  655.135(k). See 29 CFR 501.20(d). Additionally, in 
2011, the Department issued Field Assistance Bulletin No. 2011-2 
providing further guidance on H-2A prohibited fees and the employer's 
obligation to prohibit fees.\108\ This guidance clarifies that WHD may 
hold the employer responsible for fees collected by a person acting on 
the employer's behalf, which may include an employee of the employer 
(e.g., a foreperson collects the fees) or a foreign labor recruiter. 
The Department reiterates that Sec.  655.135(k) already requires 
employers to prohibit, in writing, foreign labor contractors or 
recruiters from receiving payments or compensation from prospective 
employees and includes specific language that employers must include in 
contracts with foreign labor contractors or recruiters.
---------------------------------------------------------------------------

    \108\ See WHD, Field Assistance Bulletin No. 2011-2, H-2A 
``Prohibited Fees'' and Employer's Obligation to Prohibit Fees (May 
6, 2011), https://www.dol.gov/agencies/whd/field-assistance-bulletins/2011-2.
---------------------------------------------------------------------------

    The Department also currently cites violations and assesses 
penalties against employers who have misrepresented or failed to comply 
with the terms and working conditions that were disclosed to the 
workers, and against employers who have failed to provide a written 
copy of the work contract, in a language understood by the worker, no 
later than the time the worker applies for the visa or, for a 
corresponding worker, no later than the day the work commences, in 
violation of Sec.  655.122(q). While the Department had previously 
prohibited the confiscation of passports, it has further clarified and 
made explicit at Sec.  655.135(o) in this final rule that an employer 
may not hold or confiscate a worker's passport, visa, or other 
immigration or government identification document except for specific 
circumstances, and that such

[[Page 34032]]

confiscation constitutes a reason for debarment. With regard to the 
suggestion that the Department similarly sanction entities downstream 
from the employer for misrepresenting terms and working conditions or 
falsifying or withholding documents, the Department declines to adopt 
this suggestion at this time because these actions were not proposed in 
the NPRM and the public was not given an opportunity to provide input.
    SRFA, a trade association, asked the Department to clarify what is 
meant by ``agent or recruiter.'' Specifically, the commenter noted that 
the definitions at Sec.  655.103 do not define the term ``recruiter'' 
and further explained that it is unclear how the definition of 
``agent'' is applied within the context of Sec. Sec.  655.137(a) and 
655.135(p). The commenter asked the Department to clarify if it will 
consider ``a fulltime employee of the applicant employer (as defined in 
Sec.  655.103(b)) in a capacity that, under normal conditions and in 
the course of normal daily work, does not actively undertake 
traditional recruitment activities [as] an `agent' or a `recruiter' for 
purposes of clauses Sec. Sec.  655.137(a) and 655.135(p).'' For 
example, the commenter asks if the employer would be required to 
disclose the name of one of its employees if that employee, for no fee, 
provided the employer names of H-2A-eligible foreign workers for 
potential employment and if the employer would be required to obtain an 
agreement from the employee that prohibits the imposition of fees and 
provide the Department a copy of this agreement at the time of filing.
    Similarly, AILA urged the Department to revise the ``definition of 
foreign labor recruiters in Sec. Sec.  655.137(a) and 655.135(p)'' to 
clarify ``whether DOL considers a full-time employee employed by the 
applicant employer (as defined in Sec.  655.103(b)) in a capacity that, 
under normal conditions and in the course of normal daily work, does 
not actively undertake traditional recruitment activities [as] an 
`agent' or `recruiter' for purposes of'' Sec. Sec.  655.137(a) and 
655.135(p).
    The Department declines to either define ``recruiter'' in the 
regulatory text or modify the definition of ``agent'' at this time. As 
the Department explained in the 2015 H-2B IFR, the duty to disclose 
information encompasses ``any persons or entities engaged in recruiting 
prospective foreign workers for the H-2B job opportunities offered by 
the employer, whether they are hired directly by the primary recruiter 
or are working indirectly for that recruiter downstream in the 
recruitment chain.'' 2015 H-2B IFR, 80 FR at 24057. Regarding the 
definition of ``agent,'' the Department believes the commenters' 
concerns are misplaced. The proposal requires employers to disclose the 
names of recruiters and downstream employees of the recruiter when the 
employer has ``engaged'' the recruiter ``directly or indirectly, in 
international recruitment.'' In cases where an employee of the employer 
has conducted recruitment on the employer's behalf, the Department will 
consider the employer to have conducted its own recruitment of foreign 
workers and will not require the employer to disclose the employee's 
contact information. The employer would remain bound by the prohibition 
against seeking or receiving prohibited payments from prospective 
employees, including recruitment-related fees at 655.135(j).
f. Foreign Government Sharing/SORN
    The Department also received comments regarding whether to allow 
the sharing of recruitment information, including the contracts and 
agreements between agents or recruiters and employers, with foreign 
governments that have territorial jurisdiction over the agent or 
recruiter at issue for investigative or enforcement purpose. In 
particular, the Department sought comments on the potential benefits of 
sharing this information, the scope of the content that should be 
shared, whether confidential business information is often included in 
recruiter agreements, and whether the Department should disclose the 
information or agreements to foreign governments in any circumstances.
    As discussed above with regard to the disclosure of information of 
recruiters generally, the Department believes sharing this information 
where appropriate would not only increase transparency throughout the 
international recruitment chain, but also help hold accountable those 
foreign labor recruiters who engage in improper conduct.
    Trade associations and a couple of farmers generally opposed the 
sharing of foreign labor recruiter information with foreign 
governments, with employer Titan Farms, LLC alongside trade 
associations IFPA, TIPA, and GFVGA expressing concern that this could 
impact farmers and businesses ``beyond the purpose of this 
rulemaking,'' including ``food safety, trade impacts, and foreign 
enforcement at business operations within the foreign country,'' but 
did not articulate how this information would have these impacts. 
Another advocacy organization, the U.S. Chamber of Commerce, opposed 
such sharing and stated employers would be ``loathe to share such 
sensitive business information,'' without specifying if this 
information referred to those in contracts and agreements or any 
information-sharing with foreign governments. Farmworker Justice 
expressed support for sharing information with foreign governments but 
noted that they did not believe this would meaningfully address alleged 
fraud in foreign labor recruitment. Wafla believed the information 
should be shared only if the U.S. suspected a violation of 
international law, noting the information contained in the agreements 
needed to remain confidential otherwise.
    In light of commenters' general opposition, and only limited 
support, the Department declines at this time to amend the regulatory 
text to allow for the sharing of foreign labor recruiter information, 
including the contracts and agreements among agents, recruiters, and 
employers, with foreign governments. However, the Department still 
believes that open lines of communication and transparency are 
important. Therefore, the Department intends to modify the relevant 
SORN, which details how the Department collects and maintains 
information, to allow for the sharing of foreign labor recruiter 
information that will be available to the public with the foreign 
government that has jurisdiction over a foreign labor recruiter for 
appropriate investigative or enforcement purposes. The Department 
emphasizes that the contracts and agreements between the employers and 
the foreign labor recruiters will not be made public, or disclosed to 
foreign governments, unless otherwise required by law. The Department 
believes this strikes a respectful balance between the privacy concerns 
of commenters and the need for open lines of communication with our 
international partners.

D. Labor Certification Determinations

1. Section 655.167, Document Retention Requirements of H-2A Employers
    The Department proposed a technical change to Sec.  655.167(c)(6) 
to update this paragraph's outdated cross-reference to the regulatory 
citation for the definition of ``work contract.'' The Department 
proposed another technical change to Sec.  655.167(c)(7) to add ``to'' 
before ``DHS.''
    As discussed above, the Department proposed a new record retention 
paragraph at Sec.  655.167(c)(8) that would require the employer to 
maintain the foreign worker recruitment information

[[Page 34033]]

required by Sec.  655.137(a) and (b) for a period of 3 years. The 
Department received some comments related to the burden of retaining 
this information and keeping the information up-to-date. The Department 
responded to these comments in the preamble to Sec.  655.137 above. The 
Department also proposed a new Sec.  655.167(c)(9) that would require 
the employer to retain the additional employment and job-related 
information specified in Sec.  655.130(a)(2) and (3) for the 3-year 
period specified in Sec.  655.167(b). As noted above, the Department 
received one comment specifically addressing this document retention 
requirement. The Department addressed this comment in the preamble to 
Sec.  655.130. The Department is adopting this proposal with one 
change, consistent with Sec.  655.130(a)(3), to clarify that the 
employer must retain information about all managers and supervisors of 
workers employed under the H-2A Application, notwithstanding whether 
those managers or supervisors are employed by the employer or another 
entity. The Department also proposed new paragraphs at Sec.  
655.167(c)(10) and (11) to require records of progressive discipline 
and termination for cause, as discussed more fully in the preamble to 
Sec.  655.122(n).
    The Department proposed a new paragraph (c)(12) that requires the 
employer to retain evidence demonstrating the employer complied with 
new Sec.  655.175(b)(2)(i), which requires employers with an unforeseen 
minor start date delay to notify the SWA and each worker to be employed 
under the approved H-2A Application of the delay. The Department did 
not receive comments on this evidence of notice retention obligation 
and has adopted the proposal, without change, in this final rule.

E. Post-Certification

1. Section 655.175, Post-certification Changes to Applications for 
Temporary Employment Certification
    The Department proposed a new Sec.  655.175, as well as a related 
recordkeeping obligation at Sec.  655.167(c)(12) and conforming changes 
to Sec.  655.145(b), to clarify employer obligations in the event of a 
delay in the start of work. The changes distinguish post-certification 
delays to the start of work from pre-certification requests to change 
the total period of employment and they also extend existing 
compensation protections from Sec.  653.501 to all H-2A and 
corresponding workers. In the current regulations, Sec.  655.145(b) 
addresses both the process an employer must follow to request a minor 
change to the total period of employment before the CO has made a final 
determination and the process an employer must follow to request a 
post-certification delay in the start date of work. Under existing 
paragraph (b), an employer seeking a minor change to the period of 
employment must request approval from the CO, show that the delay was 
caused by unforeseeable circumstances, and demonstrate that the crops 
or commodities will be in jeopardy prior to the expiration of an 
additional recruitment period. Paragraph (b) also requires an employer 
seeking a post-certification delay in the start of work provide housing 
and subsistence to workers who had already begun traveling to the place 
of employment, and the Wagner-Peyser Act regulations at Sec.  
653.501(c) separately require the employer to provide notice of the 
delay to the SWA and compensation to workers where the employer failed 
to comply with notice requirement.
    For clarity, the NPRM proposed to revise Sec.  655.145(b) to 
address only pre-determination amendments to the period of employment 
and proposed to relocate the provisions that address post-certification 
delays to the start of work from Sec.  655.145(b) to a new provision at 
Sec.  655.175, within the section of the regulations that would broadly 
address post-certification activities. To further distinguish the 
topics, the Department proposed to continue to use the term 
``amendment'' in Sec.  655.145(b) to refer to minor changes requested 
by the employer before the CO's determination and to use the term 
``delay'' in proposed Sec.  655.175 to refer to a post-certification 
delay in the start of work. The Department additionally clarified that 
post-certification changes are not permitted unless specified in this 
subpart (i.e., post-certification extensions continue to be permitted 
under Sec.  655.170).
    Proposed Sec.  655.175 included several changes to modify the post-
certification requirements for delays in the start of work and to 
strengthen protections for workers in the event they are not provided 
adequate notice of the delay. The Department proposed to define a 
``minor'' delay in the start of work as a delay of 14 calendar days or 
fewer. Consistent with proposed Sec.  653.501(c) and current Sec.  
655.170(a), the Department proposed to eliminate the requirement that 
the employer must request CO approval for a minor delay to the start of 
work. Instead, the Department proposed to require employers to notify 
the SWA and each worker to be employed under the approved H-2A 
Application of the delay, at least 10 business days before the 
certified start date, and to retain evidence of notification to workers 
for 3 years. As such, under this proposal, the contractual start date 
would not change as it would under the current process requiring CO 
approval to change the start date of employment.
    The Department proposed to extend the compensation protections at 
Sec.  653.501(c)(5) to H-2A and corresponding workers by requiring the 
employer to compensate workers during the delay period when the 
employer fails to provide notice to workers. Specifically, where the 
employer fails to provide timely notification to workers, proposed 
Sec.  655.175(b)(2)(ii) would require the employer to compensate 
workers at the rate of pay required under subpart B for each hour of 
the offered work schedule in the job order that work is delayed, for a 
period up to 14 calendar days. The Department proposed to require that 
the employer fulfill this obligation to the worker by no later than the 
first date the worker would have been paid had they begun employment on 
time. The Department proposed to consider compensation paid to workers 
under paragraph (b)(2)(ii) to be hours offered to the worker when 
determining an employer's compliance with the Sec.  655.122(i) three-
fourths guarantee obligation. The Department also proposed to permit an 
employer to reduce the compensation owed under paragraph (b)(2)(ii) by 
an amount equal to any wages paid to the worker(s) for work performed 
during the delay period specified in paragraph (b)(2)(ii), provided the 
wages are paid timely and the work is otherwise authorized by law. 
However, the Department did not propose to permit the employer to 
credit wages for unauthorized work, including work performed by H-2A 
workers outside the location or duties certified in the job order. 
Finally, proposed Sec.  655.175(b)(1) modified the existing subsistence 
obligations, which are currently outlined in Sec.  655.145(b), by 
requiring employers to provide daily subsistence to all workers who are 
already traveling to the place of employment, upon their arrival and 
without cost to the workers until work commences, except for days when 
the employer provides workers compensation under proposed paragraph 
(b)(2)(ii). Proposed paragraph (b)(1) also would remind employers of 
their obligations under the contract, including housing as required 
under Sec.  655.122(d).
    The Department received many comments on these proposed changes 
from individuals, workers' rights advocacy organizations, labor unions,

[[Page 34034]]

public policy organizations, legal aid organizations, employers, trade 
associations, agents, Federal elected officials, SWAs, and an 
immigration lawyers' association. Most of these comments were generally 
supportive of the proposed modification of employer obligations in the 
event of a delay in the start of work, clarification of the definition 
of minor delay, and changes to the procedures to provide workers notice 
of the delay. Farmworker Justice requested stronger employer 
requirements related to notice of the delay to workers and to housing 
and subsistence obligations. Several trade associations and agents 
requested revisions to clarify an employer's obligations in the event 
of government processing delays and to provide additional flexibility 
related to post-certification delays in the start date.
    A comment submitted by an agent, m[aacute]sLabor, and endorsed by 
other commenters generally supported the definition of `minor delay' as 
a delay of 14 calendar days or fewer. Trade association and employer 
commenters like IFPA, U.S. Custom Harvesters, Inc., and Titan Farms, 
LLC supported ``the clear delineation of what constitutes a minor 
delay'' and believed the proposal struck ``a balance of the reality of 
agricultural production which inherently is hard to predict, subject to 
weather patterns, and crop growth.'' Similarly, wafla was ``generally 
supportive of [the] idea'' of clarifying post-certification amendments, 
supported defining `minor delay' as 14 calendar days or fewer, noted it 
``aligns with `short-term' extensions of two weeks,'' supported 
elimination of CO review of start date delay requests, and endorsed 
changes that require ``employer notification . . . to the SWA and each 
worker at least 10-days before the certified start date.''
    M[aacute]sLabor urged the Department to broaden the ``unforeseeable 
circumstances'' definition and remove the requirement that the 
circumstances jeopardize crops or commodities. M[aacute]sLabor asserted 
that circumstances may delay work before crops or commodities exist, 
such as where catastrophic flooding requires the employer to 
``prepar[e] a new field for planting'' and delays the start date of 
work. M[aacute]sLabor suggested the final rule should ``partially 
mirror the standards utilized in contract impossibility requests'' at 
Sec.  655.122(o) to permit delays caused by ``external circumstances 
that do not directly or precisely result in the crops themselves being 
in jeopardy.'' M[aacute]sLabor noted that a ``start date delay is far 
less extreme of a measure than contract impossibility'' and asserted it 
does not make sense to ``have a more stringent standard for the former 
than currently exists for the latter.'' Specifically, m[aacute]sLabor 
urged the Department to revise Sec.  655.175(b) to replace the language 
``due to circumstances that could not have been foreseen, and the crops 
or commodities will be in jeopardy prior to the expiration of an 
additional recruitment period'' with the broader language ``due to 
unforeseeable circumstances beyond the control of the employer.'' The 
Department received similar comments from McCorkle Nurseries, Inc.
    The Department declines to adopt a broad standard that would permit 
a delay in the start of work in any circumstance the employer 
determines is unforeseeable and necessitates a delay. This final rule 
retains the standard OFLC has applied historically under Sec.  
655.145(b) and proposed to retain in Sec.  655.175(b). The Department 
intends for post-certification delays in the start of work under Sec.  
655.175(b) to be rare and limited to situations where unforeseen 
circumstances necessitate a minor delay after the Department has 
certified the H-2A Application and the employer's crops or commodities 
would be in jeopardy prior to the expiration of an additional 
recruitment period. The Department acknowledges that the actual day 
work begins may vary due to such factors as travel delays or crop 
conditions at the time the employer expects work to begin. The need for 
flexibility has been accounted for by permitting minor delays in 
limited circumstances under Sec.  655.175(b) and by providing for 
emergency filing procedures in cases where an employer faced with 
exigent circumstances necessitating a longer delay must withdraw the 
application and file a new application under Sec.  655.134. However, 
such flexibilities must be measured against the need to ensure 
employers provide accurate start dates to the Department and the need 
to ensure H-2A and corresponding workers are provided employment and 
compensation under the terms included in the work contract.
    When filing an H-2A Application, the employer represents that it 
has a need for full-time workers during the entire certification 
period. It is important to the integrity of the H-2A program to have 
policies in place to ensure that employers have accurately stated their 
temporary need and the terms and conditions of employment to 
prospective U.S. workers, H-2A workers, and corresponding workers. The 
first date the employer identifies on the job order and H-2A 
Application is used as the date on which work will start for purposes 
of recruitment and for calculating program requirements (e.g., the 
positive recruitment period under Sec.  655.158). As the Department has 
noted in prior rulemaking, ``[c]hanges to start dates, especially as 
the practice has become more common, also raise a concern that U.S. 
workers who might indeed be available for work on the new start date 
were not given the chance to apply originally.'' 2008 H-2B FR, 73 FR 
78019, 78046 (Dec. 19, 2008). In addition, ``[t]o the extent that 
employers more accurately describe the amount of work available and the 
periods during which work is available, it gives both U.S. and foreign 
workers a better chance to realistically evaluate the desirability of 
the offered job.'' 2012 H-2B FR, 77 FR 10038, 10073 (Feb. 21, 2012); 
2015 H-2B IFR, 80 FR at 24066. Accurate start dates help to ensure 
``U.S. workers will not be induced to abandon employment [or] to seek 
full-time work elsewhere at the beginning of the season . . . because 
the employer overstated the number of employees it actually needed to 
ramp up'' operations. 2012 H-2B FR, 77 FR at 10073. Similarly, it helps 
to ensure U.S. workers will not be ``induced to leave employment at the 
beginning of the season . . . due to limited hours of work because the 
employer misstated the months during which it reasonably could expect 
to perform the particular type of work involved in that geographic 
area.'' Id. As Farmworker Justice commented--and the Department 
agrees--``[a]ll workers consider the dates of employment in choosing 
between job options and may further suffer an opportunity cost for 
having foregone alternative work at home in reliance on a particular 
start date for the new employment.''
    As under the current regulations, this final rule permits an 
employer to delay the start of work for a brief period in a limited set 
of unforeseeable circumstances, instead of filing a new H-2A 
Application, if crops or commodities would be in jeopardy prior to an 
additional recruitment period. This final rule, however, does not 
require the employer to obtain CO approval for a minor delay request 
and requires compensation under Sec.  655.175(b)(2)(ii) only where the 
employer fails to provide the notice required under paragraph 
(b)(2)(i). The current limitation on the circumstances in which an 
employer may delay the start of work rather than file a new application 
is necessary to ensure employers provide accurate start dates at the 
time of filing and to protect workers from the adverse effects of a 
delay in the start of work. The

[[Page 34035]]

Department has not encountered difficulties in administering this 
standard when adjudicating employer requests under current Sec.  
655.145(b). The Department believes this limitation remains necessary, 
especially given that this final rule eliminates the process for 
requesting and adjudicating an employer's request for a minor delay of 
the start date of work under Sec.  655.175(b). Broader language 
permitting the employer to delay the start of work, without CO 
approval, in any case where an employer determines unforeseen 
circumstances require delaying work, would be overly broad and 
ambiguous and likely would make Sec.  655.175(b) less clear to 
employers and more difficult for the Department to enforce. It would 
also be less effective in ensuring accurate start dates are indicated 
at the time of filing and recruitment, and it would be insufficient to 
protect the interests of U.S. job seekers, who may be available to 
accept the job on a different start date, or H-2A and corresponding 
workers, who expect to begin work at the time and place specified in 
the work contract.
    The Department also disagrees with commenters' characterization of 
the Sec.  655.122(o) contract impossibility standard as broader or more 
flexible than the standard in Sec.  655.175(b) and disagrees with 
commenters' assertion that a broader or more flexible standard at Sec.  
655.175(b) is necessary or more consistent with the policy aims of 
Sec.  655.175(b) and Sec.  655.122(o). The contract impossibility 
provision requires the employer to not only show 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,'' but also that 
these specific circumstances ``make[] the fulfillment of the contract 
impossible.'' The Department does not believe it is necessary to 
specifically reference ``fire, weather, or other Act of God'' in Sec.  
655.175(b) because the language ``circumstances that could not have 
been foreseen'' is broad enough to encompass each type of potential 
circumstance. The limitation on delays under Sec.  655.175(b) (formerly 
Sec.  655.145(b)) to situations in which crops or commodities would be 
in jeopardy prior to an additional round of recruitment and the Sec.  
655.122(o) requirement to show that circumstances make it impossible to 
fulfill the work contract serve similar functions and aim to prohibit 
the abuse or overuse of what the Department considers to be drastic 
measures in response to unforeseeable exigent circumstances.
    The Department disagrees as well with commenters' assertion that it 
is necessary to broaden Sec.  655.175(b) to encompass all exigent 
circumstances that may necessitate a delay after OFLC has certified the 
H-2A Application. If, as hypothesized by one commenter, the employer 
had to undertake remedial measures to ``prepare the ground for planting 
activities'' after ``catastrophic flooding'' before planting crops, the 
employer may withdraw its application and file a new application under 
the emergency procedures provision at Sec.  655.134. In fact, the 
extent of damage contemplated by the example in those comments is 
unlikely to meet the definition of ``minor delay'' in Sec.  655.175(b) 
because the necessary delay would likely be greater than the maximum 2-
week minor delay provided for in that regulatory provision. The 
emergency procedures provision at Sec.  655.134 permits an employer to 
use the emergency application filing process where the employer shows 
there is good and substantial cause to waive the required time period 
for filing an H-2A Application and the CO has determined there is 
``sufficient time to test the domestic labor market on an expedited 
basis.'' The factors that may constitute good and substantial cause are 
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.'' 2019 H-
2A NPRM, 84 FR at 36205. The Department has noted, for example, that 
``if unusually heavy storms and rains occur after the employer submits 
its [H-2A Application], the employer can assess impacts on crop 
conditions and its temporary need and may determine it is appropriate 
to reduce staffing levels for the job opportunity described on the 
pending [Application] and file an emergency situation [Application] to 
address its need for labor or services under the new circumstances.'' 
2022 H-2A Final Rule, 87 FR at 61768.
    The Department also received comments from SWAs, trade 
associations, agents, elected officials, and workers' rights advocacy 
organizations regarding the proposed requirement that employers contact 
workers and the SWA, rather than the OFLC CO, to provide notice of the 
delay. Most comments were supportive of the proposal. Farmworker 
Justice supported the proposal as ``a common-sense change'' because the 
employer ``has been in prior contact with the workers, either directly 
or through agents'' and ``is much more likely than the SWA to have the 
most current and effective contact information.'' They added that the 
proposal would relieve some of the burden on SWAs that must prioritize 
allocation of limited resources. California LWDA supported the proposal 
to require employers notify workers of the delay directly, asserting it 
would be more effective than the current approach that requires 
employers and workers to contact the SWA.
    Some commenters suggested specific changes to the proposal to 
ensure notice of the delay is timely and can be understood by the 
worker who receives it. Washington State expressed concern that the 
proposed rule did not contain a requirement to ``notify SWAs of post-
certification changes'' and urged the Department to ``include a 
requirement that employers notify SWAs of post-certification changes at 
the same time they notify [the Department].'' Farmworker Justice urged 
the Department to strengthen the notice requirement by requiring that 
the notice of delay be provided in the primary language spoken by the 
worker; clarifying that workers ``must actually receive the notice'' 
and it is not sufficient for employers to show ``merely that notice be 
sent out;'' requiring employers ``use the most reliable or speediest 
form of communication'' such as requiring ``electronic or telephonic 
correspondence'' instead of slower methods like postal mail that 
workers may not receive before departing; and requiring employers 
``reach out to farm labor contractors or local recruiters, if unable to 
reach workers themselves, to ensure workers get the message.''
    A comment submitted by m[aacute]sLabor and endorsed by several 
other commenters opposed any written contact requirement because 
``[m]any U.S. applicants do not provide an email address, meaning an 
employer would be forced to notify workers by mail[,] which may not be 
feasible given the time constraints.'' The commenters stated that, in 
many instances, ``the employer is only given a phone number and perhaps 
a physical address'' and in such cases the employer ``cannot satisfy 
the Department's [written] notice requirement.'' The commenters also 
asserted postal mail is not an effective means to communicate a last-
minute delay to the start date because workers may not receive notice 
in time if the Department uses the date the employer

[[Page 34036]]

sends the notice by postal mail and, conversely, the employer must send 
the postal mailing more than 10 days prior to the delay if the 
Department uses the date the workers receive notice of the delay. The 
commenters objected to any overnight mail delivery requirement as 
costly and noted that it would still require employers to send the 
notice more than 10 days prior to the start date.
    In response to Washington State, the Department notes that the NPRM 
and this final rule require the employer to notify both workers and the 
SWA that the start of work is delayed. In response to workers' rights 
advocacy organization commenters and a trade association, the 
Department agrees that electronic notice of delays will be most 
effective given the time-sensitive nature of the notice. This final 
rule requires the employer to provide notice by email, telephone, or 
both if the worker provides an email address and telephone number. If 
the worker does not provide an email address or phone number, the 
employer must provide written notice using the worker's postal address 
or other contact information. The Department also agrees that the 
notice to workers must be in a language that workers can read and 
understand. The Department has revised proposed Sec.  655.175(b)(2)(i) 
to require the employer send notice to each worker in a language 
understood by the worker, as necessary or reasonable. This is 
consistent with existing work contract disclosure requirements at Sec.  
655.122(q), which the Department has noted are necessary to ensure an 
employer ``provide[s] the terms and conditions of employment to a 
prospective worker in a manner permitting the worker to understand the 
nature of the employment being offered and the worker's commitment 
under that employment.'' 2009 H-2A NPRM, 74 FR 45906, 45916 (Sept. 4, 
2009). The Department is not adopting the workers' rights advocacy 
organization suggestion to require that the employer confirm all 
workers received the notice of delay by reaching out to labor 
contractors and recruiters to locate workers who do not respond. This 
would impose an undue burden on employers, in part due to the same time 
sensitivity concerns that necessitate an electronic notice requirement. 
The Department recognizes that sending a notice of delay by mail may 
not ensure that the worker receives notification of the delay. Late 
notice, however, may still be preferable to no notice at all where more 
expedient means are not available. For this reason, notice by mail may 
not be utilized if communicating via email, telephone, or both is a 
viable option. An employer who does not possess electronic means of 
contacting a worker will not be required to send a notice by mail 
earlier than it is required to send an electronic notification. The 
Department recognizes that the unexpected nature of circumstances that 
justify a delayed start date may not permit the employer to send postal 
notice that reaches a worker at least 10 days before the date of need. 
It may also be difficult for the Department to define the scope and 
level of due diligence imposed by the requirement and to later enforce 
such a requirement. However, the Department notes that the employer 
remains obligated to comply with the terms and conditions of the 
certified H-2A Application for Temporary Employment Certification 
beginning on the first date of need certified, including employer-
provided housing, as well as subsistence under Sec.  655.175(b)(1), if 
the worker does not receive the notice.
    The Department also received comments both in support of and in 
opposition to the proposal to require that employers compensate 
workers, for a period of up to 14 calendar days, in the event of a 
delay in the start of work if the employer fails to provide the notice 
required by paragraph (b)(2)(i). Forty-three Federal elected officials 
supported the proposal to require compensation for up to 14 days in the 
event of a delay without proper notice, stating generally that the 
proposal will help to ``protect[ ] against exploitative practices 
commonly used by employers, especially as it relates to worker pay.'' 
Farmworker Justice noted that employers must provide compensation to 
U.S. workers in the event of a delay under Sec.  653.501(c) and stated 
there is ``no legitimate reason to exclude H-2A workers, who often 
travel further, absorb greater costs, and have fewer alternative 
options such as finding interim employment elsewhere.'' They asserted 
this provision ``is particularly important in light of the number of 
complaints farmworker legal services providers have received from H-2A 
workers who have no food and no money for days to weeks at the start of 
the job when no work is available, notwithstanding the promised start 
date on the clearance order.'' The UFW Foundation cited accounts from 
eight farmworkers detailing the ways delayed start dates had caused 
severe financial hardship to workers and UFW, and other commenters like 
the North Carolina Justice Center stated the Department's proposals 
would help to provide ``a safety net during a particularly vulnerable 
time, when farmworkers have little or no savings and are awaiting their 
first paycheck.'' Similarly, Farmworker Justice supported the proposal 
as a necessary protection for foreign workers who ``incur significant 
incoming travel expenses and fees, sometimes while paying high interest 
rates, including transportation to the U.S. consulate, hotel costs 
while waiting for their consular appointment, transportation costs to 
the worksite, visa fees, border crossing fees, and daily subsistence 
while en route with travel sometimes taking ten or more days.'' They 
added that delayed start dates also burden U.S. workers who ``incur 
significant inbound travel expenses when traveling from their homes to 
remote worksites, only to find that the start of work has been 
delayed.'' They noted, ``[a]ll workers consider the dates of employment 
in choosing between job options and may further suffer an opportunity 
cost for having foregone alternative work at home in reliance on a 
particular start date for the new employment.''
    Farmworker Justice also supported the Department's proposal to 
consider only employer offers of work that are within the scope of the 
approved job order, stating this is a necessary ``clarification to 
deter unsafe or undercompensated work'' not approved in the job order. 
M[aacute]sLabor supported the proposal to permit employers to credit 
the required compensation toward the employer's three-fourths guarantee 
obligation at Sec.  655.122(i) because it will help ``mitigate the 
financial burden associated with the requirement'' and avoid 
``potential `double dipping' that would result'' if employers are 
required to compensate workers for the delay and then also must provide 
``compensation under the three-fourths guarantee for the same two weeks 
if there is a shortfall.''
    In contrast, several comments submitted by trade associations, 
agents, and employers expressed opposition to the compensation 
proposal, in whole or in part. M[aacute]sLabor expressed concern that 
the proposed changes at Sec.  653.501(c) and new Sec.  655.175 failed 
to consider that ``an employer requesting a delay to the start date is 
itself experiencing hardship of some sort'' and the proposal ``tip[s] 
the scales too heavily in favor of the workers by dramatically 
increasing the costs to employers.'' Labor Services International 
asserted, generally, that the proposal will create ``communication 
chaos'' and an ``administrative nightmare'' and expressed concern 
employers will be required to provide compensation for delays in the 
start of work caused by a government delay in processing,

[[Page 34037]]

especially delays in ``availability of consular appointments.'' FFVA 
specifically expressed concern employers will be required to compensate 
workers for minor delays caused by ``the government's failure to timely 
approve H-2A workers to cross the border,'' such as when worker entry 
into the U.S. is delayed ``for multiple days without any notice'' to 
the employer due to ``unannounced section 221g investigations'' by the 
State Department. The commenter urged the Department not to require 
compensation in cases where the delay is ``caused solely by the 
government.'' Alternatively, the commenter urged the Department not to 
require compensation ``until 7 days after the initial start date . . . 
, and only for those workers who have departed for the job 
opportunity,'' which the commenter asserted would ``allow practical 
flexibility for employers [and] account for the very real delay caused 
by the government, while considering the protections needed for workers 
who have already left their homes for the job.''
    The Cato Institute opposed the proposal because it would provide 
benefits and compensation not received by workers outside of the H-2A 
program and asserted this would incentivize employment of undocumented 
workers by ``rais[ing] the cost of the H-2A program relative to illegal 
hiring.'' NCAE supported clarifications of the post-certification delay 
process, generally, but ``oppose[d] a requirement to pay for work not 
performed.'' The commenter provided a hypothetical in which an 
employer's start of work is delayed due to a hurricane pushing 
predators into an orange grove and it may take longer than the employer 
anticipated to dry the grove or clear it of predators, in which case, 
the commenter expressed concern, ``due to this `Act of God' '' the 
proposed compensation obligation would require the employer ``to make 
payment for work that was never performed,'' which ``may jeopardize the 
enterprise.'' AILA noted that brief start date delays due to weather 
and other unforeseen circumstances are common in agriculture and the 
commenter urged the Department ``not to require additional compensation 
obligations for employers in this context.'' M[aacute]sLabor opposed 
extending to H-2A and corresponding workers the compensation benefits 
currently provided to U.S. workers under Sec.  653.501 because it would 
be a ``dramatic expansion of the existing requirements.''
    As noted above, under existing regulations, if an employer seeking 
to employ workers under either a criteria (H-2A) or non-criteria (non-
H-2A) job order fails to timely notify the SWA of a start date change 
it must pay hourly wages to U.S. farmworkers who followed SWA contact 
procedures. See Sec.  653.501(c)(3)(i) and (c)(5). Section 
655.175(b)(2)(ii) in this final rule extends this obligation to H-2A 
workers and corresponding workers under the H-2A Application to ensure 
workers are compensated for anticipated hours not offered at the 
beginning of the work contract, similar to Sec.  653.501(c), and 
applies in conjunction with the existing three-fourths guarantee at 
Sec.  655.122(i), which ensures workers receive compensation for 
anticipated hours not offered during the contract period. The 
obligations in Sec.  655.175(b)(2)(ii) will apply only in circumstances 
where the employer's start of work is delayed due to unforeseeable 
circumstances and crops or commodities would be in jeopardy prior to an 
additional recruitment period, and the compensation obligation will 
apply only where the employer fails to provide workers notice of the 
delay under paragraph (b)(2)(i). The procedure at Sec.  655.175(b) will 
not apply when a worker's arrival and start of work is delayed due to, 
for example, government delays in scheduling appointments and 
interviews at the U.S. embassy or consulate. As the Department has 
explained under the current regulations, the ``provision for requesting 
a delayed start date applies when the employer wishes to delay the 
start date of all workers covered by the [H-2A Application],'' and it 
``does not cover minor travel delays or slower than expected processing 
times at USCIS or a U.S. Consulate for workers coming from outside the 
U.S.; however, these delays should not delay any other worker's start 
date or the employer's start date of work.'' \109\ The same is true 
under new Sec.  655.175. The provisions at Sec.  655.175(b) will apply 
only where the work under the approved H-2A Application will not begin 
on the certified first date of need but instead will be delayed for a 
period of no more than 14 calendar days. In a situation where the 
employer faces exigent circumstances and does not know how long the 
start of work will be delayed, such as when the employer does not know 
how long it will take to prepare an orange grove after a hurricane, the 
employer may withdraw the application and file a new application using 
emergency procedures at Sec.  655.134, if applicable.
---------------------------------------------------------------------------

    \109\ DOL, OFLC FAQs, Round 6 (Feb. 29, 2012), https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/h-2a_faq_round6.pdf.
---------------------------------------------------------------------------

    Wafla expressed concern the proposal would require employers to 
compensate workers under a piece rate in some cases, which would not be 
possible where no work has been performed due to a delay. The commenter 
urged the Department to revise proposed Sec.  655.175(b)(2)(ii) by 
removing the language ``same rate of pay required under this subpart 
B'' and adding reference to an hourly rate. The Western Range 
Association expressed concern the compensation proposal would impact 
``employers who pay monthly salaries under the `special procedures' in 
20 CFR 655.200 et seq. in a way that it would not for farms that pay on 
an hourly basis'' and the commenter noted that where one of these 
employers experiences a start date delay, the employer's ``season is 
usually pushed back or additional hours are worked in order to catch up 
for the delay.''
    The Department agrees with the trade association commenter that 
paragraph (b)(2)(ii) should not reference production-dependent 
compensation rates like piece rates, which cannot be calculated during 
a delay in the start of work, and agrees the provision should reference 
only an hourly rate. The Department has revised paragraph (b)(2)(ii) to 
require the employer provide compensation at the highest applicable 
hourly rate. The Department has also revised paragraph (b)(2)(ii) to 
provide that an employer that is subject to the wage rates at Sec.  
655.211(a) and fails to provide the required notice of delay must 
compensate workers during the delay at the hourly rate that is the 
highest of the agreed-upon collective bargaining wage rate, the 
applicable hourly minimum wage imposed by Federal or State law or 
judicial action, the monthly AEWR, or any other wage rate the employer 
intends to pay. If that rate is expressed as a monthly rate, such as 
the monthly AEWR, the employer must prorate the monthly rate as 
necessary to compensate the worker for each hour during the delay 
period in accordance with Sec.  655.175(b)(2)(ii). Employers of workers 
in the herding and production of livestock on the range are subject to 
a monthly AEWR due to ``difficulties in tracking and paying an hourly 
wage rate to workers.'' 2015 H-2A Herder FR, 80 FR at 62987. Herder 
employers are subject to the ``standard H-2A pay frequency, and the 
[2015] Final Rule requires that payments be made at least twice 
monthly.'' Id. at 62986. The Department noted that ``calculating the 
twice-monthly payment can be easily accomplished by evenly dividing the 
required monthly rate into

[[Page 34038]]

two payments.'' Id. In addition, prorating the monthly wage rate is 
already permitted in certain circumstances under Sec.  655.210(g)(2). 
The Department does not believe it will be any more difficult for 
employers to determine the rate it must pay a worker for a period of up 
to 2 weeks during which the start date is delayed and to provide this 
compensation on this same date it would have provided workers the first 
of 2 monthly payments had work begun on time.
    The Department also received comments from workers' rights advocacy 
organizations, labor unions, SWAs, individuals, and elected officials 
in support of the proposed changes to the housing and subsistence 
obligations, though some commenters suggested additional protections. 
Farmworker Justice supported the housing and subsistence provisions and 
noted this existing requirement has ``helped encourage a correct 
assessment of the start date.'' Washington State supported the proposal 
to require employer-provided housing during the delay but noted the 
NPRM did not require the employer to provide meals or money for meals 
during the delay. The SWA expressed concern this existing regulatory 
``gap'' ``has caused considerable hardship for workers'' in situations 
where the employer provides kitchen facilities during the delay period 
but does not provide workers groceries or money and transportation to 
purchase groceries. The SWA urged the Department to require employers 
to provide workers meals, or provide money and transportation to buy 
groceries, during the delay period. An individual commenter urged the 
Department to go further in this final rule and require employers 
provide a ``minimum standard compensation package'' to workers even 
where the employer provides notice of the delay.
    The Department declines to adopt the suggestion to require 
employers provide workers a daily per diem payment or a total 
compensation package during any delay period and is adopting the 
proposed housing and subsistence provision at Sec.  655.175(b)(1) 
without change. The Department believes the requirements to provide or 
reimburse workers subsistence in the same amount required during 
travel, together with the notice and compensation obligations in Sec.  
655.175(b)(2) and three-fourths guarantee obligation at Sec.  
655.122(i), will ensure workers are not disadvantaged by a delay in the 
start of work and will place workers in the position they would have 
been in had work begun on time. Employers also must comply with all 
other requirements of the certified H-2A Application, including housing 
under Sec.  655.122(d), beginning on the first date of need certified. 
However, the Department appreciates the comments and encourages 
stakeholders to review the Department's existing, extensive guidance 
relating to travel-related subsistence requirements under Sec.  
655.122(h) and the provision of meals under Sec.  655.122(g).\110\
---------------------------------------------------------------------------

    \110\ See, e.g., OFLC, Meal Charges and Travel Subsistence, 
https://www.dol.gov/agencies/eta/foreign-labor/wages/meals-travel-subsistence (last accessed Feb. 8, 2024); DOL, WHD Fact Sheet #26D: 
Meal Obligations for H-2A Employers, https://www.dol.gov/agencies/whd/fact-sheets/26d-meal-obligations-H-2A (last accessed: Feb. 8, 
2024).
---------------------------------------------------------------------------

    This final rule adopts the proposal to extend to H-2A and 
corresponding workers the existing obligation, at Sec.  653.501(c), to 
compensate workers for the delay if the employer fails to provide 
notice of the delay to workers. These provisions will ensure that, in 
rare cases a worker who is already en route to the worksite despite the 
employer's provision of 10 business days' notice or does not receive 
such notice (and therefore, is not entitled to compensation under Sec.  
655.175(b)(2)), the worker will still receive subsistence costs no 
later than the first date the worker would have been paid had work 
started on time. The Department has concluded these provisions best 
balance the need for agricultural employers to respond to unforeseeable 
exigent circumstances and the need to ensure workers receive 
compensation and benefits under the anticipated terms and conditions of 
employment and do not suffer financial hardship due to a minor delay in 
the start of work.
    The Department also received some comments that were beyond the 
scope of this rulemaking. M[aacute]sLabor urged the Department to 
revise Sec.  655.175 by adding a provision that would permit custom 
combine employers to ``add worksites and customers to its itinerary 
[after certification] provided that such worksites/customers are within 
the previously-approved [AIEs]'' and suggested the new provision should 
incorporate language from an FAQ the Department published in February 
2013. Specifically, m[aacute]sLabor urged the Department to add a new 
Sec.  655.175(c) that states an employer certified under Sec. Sec.  
655.300 through 655.304 that ``performs work in multiple [AIEs] . . . 
may augment its scheduled itinerary with additional worksites located 
within the previously approved [AIEs],'' provided the employer 
maintains an up-to-date itinerary and retains copies of contracts or 
agreements with previously undisclosed fixed-site businesses. These 
commenters also urged the Department to permit additional pre-
certification amendments, such as requests to ``add, modify, or remove 
a job requirement from the Application after the Notice of Acceptance 
has been issued.'' Specifically, the commenters suggested the 
Department should add a new Sec.  655.145(c) that would permit pre-
certification changes ``including but not limited to changes or 
additions to job duties, job requirements in accordance with Sec.  
655.122(b), productivity standards, or worksite or housing locations,'' 
if approved by the CO.
    The Department declines to adopt the commenters' suggestions. 
Adding provisions permitting the addition of worksites after 
certification would not be a regulatory change that could have been 
anticipated by the public and the public would therefore not have been 
aware it is a proposal on which comments should be offered. The comment 
is, therefore, beyond the scope of this rulemaking, and the Department 
declines to adopt the suggestion at this time. However, the Department 
notes that it addressed special procedures and post-certification 
changes to H-2A Applications for custom combine employers in the 2022 
H-2A Final Rule. That rule rescinded special procedures contained in 
informal guidance (Training and Employment Guidance Letters), codified 
procedures for employers that employ workers engaged in custom 
combining according to a planned itinerary across multiple AIEs, and 
``provide[d] appropriate flexibilities for employers engaged in these 
unique agricultural activities that are substantially similar to the 
processes formerly set out in administrative guidance letters.'' 2022 
H-2A FR, 87 FR at 61663.
    Similarly, revising Sec.  655.145 to permit additional pre-
certification application amendments, as suggested, would be a major 
change to the regulation that commenters and stakeholders could not 
have anticipated as an outcome of the minor proposed changes to that 
section or the substantive proposed changes to the provisions governing 
post-certification start date delays at new Sec.  655.175, thus 
warranting additional public notice and opportunity for comment. As 
such, the Department declines to adopt the suggestion in this final 
rule. However, when addressing similar comments in the 2022 H-2A Final 
Rule, the Department concluded that ``allowing applicants to request 
corrections to applications without restrictions would run counter to 
the Department's efforts to modernize the temporary agricultural labor 
certification process'' and noting that employers who wish to make

[[Page 34039]]

application changes outside of those permitted in Sec.  655.145 may 
file a new H-2A Application to accommodate the changes needed, 
utilizing emergency filing procedures at Sec.  655.134, if applicable. 
Id. at 61750.
    After considering all comments, the Department is adopting the 
proposals with some revisions to paragraphs (b)(2)(i) and (b)(2)(ii), 
as noted above. As under the current regulations, this final rule 
permits delays in the start of work only when such a delay is minor and 
due to unforeseen circumstances and the employer's crops or commodities 
will be in jeopardy prior to expiration of an additional recruitment 
period. Paragraph (b) limits minor delays to delays of no more than 14 
calendar days from first date of need.
    Paragraph (b)(2)(i) requires the employer to notify the SWA and 
each worker to be employed under the approved Application for Temporary 
Employment Certification of the delay at least 10 business days before 
the certified start date of need and Sec.  655.167(c)(12) requires the 
employer to retain evidence demonstrating the employer notified the SWA 
and each worker of the delay for a period of 3 years. This final rule 
requires the employer to contact the worker in writing, in a language 
understood by the worker, as necessary or reasonable, using the contact 
information the worker provided to the employer. If the worker provides 
electronic contact information, such as an email address or telephone 
number, the employer must send notice using that email address and 
telephone number and must send notice using both if the worker provides 
contact information in both formats. The employer may provide notice to 
the worker telephonically, provided the employer also sends written 
notice to the email or postal address provided by the worker. If the 
worker does not provide an email address or phone number, the employer 
must provide written notice using the worker's postal address or other 
contact information.
    Paragraph (b) provides that in the event of a minor delay (no more 
than 14 calendar days), the employer must provide to all workers who 
are already traveling to the place of employment, upon their arrival 
and without cost to the workers until work commences, daily subsistence 
in the same amount required during travel under Sec.  655.122(h)(1), 
except for days for which the worker receives compensation under Sec.  
655.175(b)(2)(ii) of this section. The employer must fulfill this 
subsistence obligation to the worker no later than the first date the 
worker would have been paid had they begun employment on time. 
Paragraph (b)(1) also includes a reminder to employers that, even in 
the event of a minor delay in the start of work, the employer must 
continue to comply with all other requirements under the certified H-2A 
Application, including, but not limited to, the provision of housing as 
described in the job order. The Department has made a minor revision to 
this paragraph and paragraph (b)(ii) to remove introductory clauses 
that reference the 14-calendar-day minor delay period, as this language 
is necessary only in paragraph (b) and inclusion of the language in 
subordinate paragraphs may create confusion or uncertainty regarding an 
employer's obligation to provide subsistence until work commences under 
paragraph (b)(1) or compensation for anticipated hours during the delay 
under paragraph (b)(2)(ii).
    Under paragraph (b)(2)(ii), if the employer fails to provide the 
timely notification required under paragraph (b)(2)(i) of this section 
to any worker(s), the employer must pay the worker(s) the highest of 
the hourly rates of pay at Sec.  655.120(a) (or, if applicable, the 
rate required under Sec.  655.211(a)(1)), for each hour of the offered 
work schedule in the job order, for each day that work is delayed, for 
a period up to 14 calendar days. The employer must provide this 
compensation on the date workers anticipated they would receive their 
first paycheck had the work begun on time. Under paragraph (b)(2)(ii), 
the employer's wage obligation will apply in any case where the 
employer fails to provide notice of the delayed start of work at least 
10 business days prior to the certified start date. This obligation 
will apply in conjunction with the three-fourths guarantee at Sec.  
655.122(i), which will continue to require employers to offer workers 
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. 
However, under Sec.  655.175(b)(2)(iii), compensation paid to a worker 
under paragraph (b)(2)(ii) of this section for any workday included 
within the time period described in Sec.  655.122(i) will be considered 
hours offered to the worker when determining an employer's compliance 
with the Sec.  655.122(i) three-fourths guarantee obligation. The 
employer may reduce the compensation owed to any worker(s) under Sec.  
655.175(b)(2)(ii) by the amount of wages paid to the worker(s) for work 
performed within the time period described in paragraph (b)(2)(ii), 
insofar as such wages are paid timely and such work is covered by the 
job order or otherwise authorized by law. The employer may not credit 
toward the three-fourths guarantee any wages for unauthorized work, 
including work performed by H-2A workers outside the location or duties 
certified in the job order.
    Paragraph (a) reminds employers that post-certification changes are 
not permitted unless specified in this subpart (e.g., post-
certification extensions continue to be permitted under Sec.  655.170). 
Paragraph (a) also reminds employers that they must continue 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 its certification. 
Employers are reminded as well that sanctions and remedies for an 
employer's failure to comply with the obligations required under this 
section may include, as appropriate, the recovery of such compensation, 
the assessment of civil money penalties, revocation of the approved 
certification under Sec.  655.181, and, if warranted, debarment of the 
employer under Sec.  655.182.
    The Department has determined the new start date delay process at 
Sec.  655.175(b) strikes an appropriate balance between the employer's 
need to respond to unforeseen exigent circumstances and the needs of 
agricultural workers to be apprised of changes to the terms and 
conditions of the job opportunity and compensated in accordance with 
the terms of employment the workers accept. The provisions related to 
compensation and subsistence will effectively address the hardship 
concern (discussed above in the preamble to Sec.  653.501(c)) by 
providing workers a source of income should the employer fail to 
provide such workers sufficient notice of a delay in the start of work, 
while continuing to allow the employer flexibility to delay the start 
of work for up to 14 calendar days if necessitated by circumstances 
that could not have been foreseen and the crops or commodities will be 
in jeopardy prior to the expiration of an additional recruitment 
period. The new compensation obligation in situations where workers are 
not notified of a start date delay will better protect agricultural 
workers from financial hardship they are likely to experience should 
they travel or otherwise rely on the information included in the job 
order, only to discover upon arriving

[[Page 34040]]

that work is not available to them. As workers' rights advocacy 
organizations noted in response to the NPRM, delayed start dates are 
harmful to workers, who value predictability and certainty in 
employment start dates, particularly where they turn down other work or 
must travel far to make themselves available to work at the time and 
place advertised in the job order. Farmworkers have expenses beyond 
housing and meals and cannot afford to lose expected pay for up to 2 
weeks, should the actual start date be later than the first date of 
need offered. The beginning of the certification period is a 
particularly vulnerable time for workers, who may have little or no 
savings as they await a first paycheck; delays in the start of work and 
resulting first paycheck exacerbate this vulnerability and can lead to 
financial hardships. Providing up to 2 weeks of compensation, due at 
the time workers anticipate receiving their first paycheck had the work 
begun on time, provides a safety net for workers to support themselves 
when work is not available. Imposing these pay obligations in the event 
workers are not notified of a delayed start of work also may help to 
ensure growers accurately disclose the first date of need in the job 
order. The new provisions in this final rule also will increase the 
likelihood that workers will receive timely notification of any delay 
in the start of work and that employers maintain accurate records of 
notices they provide.
    Limiting ``minor'' delays to delays of 14 calendar days or fewer 
eliminates ambiguity and aligns this provision with the conceptually 
similar provision at Sec.  655.170(a), which limits ``short-term'' 
extensions to 2 weeks and does not require CO approval. As is the case 
for non-minor delays, where the anticipated delay would be more than 2 
weeks or indefinite and cannot be considered ``minor,'' the employer 
may withdraw the application and refile, using emergency processing 
under Sec.  655.134, as applicable, to engage in recruitment for the 
job opportunity, which will begin on a newly identified start date. If 
the employer cannot employ workers under the terms and conditions 
promised beginning on the certified start date and can only offer a 
fraction of the work hours in the 2 weeks following the certified start 
date (e.g., the employer can offer only a single day of work, followed 
by several days without work or a similar offer of only minimal hours 
upon the worker's arrival, followed by an extended rest period), the 
Department will consider the employer's start date delayed and the 
employer will be required to comply with proposed Sec.  655.175(b), 
including all housing, subsistence, and compensation obligations and 
the obligation to provide notice of the delay to workers and the SWA.

F. Integrity Measures

1. Section 655.182, Debarment
    The NPRM proposed to revise 20 CFR 655.182 to shorten the time to 
submit rebuttal evidence to OFLC as well as shorten appeal times for 
debarment matters. The Department proposed these changes to increase 
the speed with which debarments would become effective by decreasing 
the time for parties to submit rebuttal evidence to OFLC, appeal 
Notices of Debarment to the OALJ, or appeal debarment decisions to the 
ARB from the OALJ. The Department received over 35 comments on this 
section and, for the reasons explained below, has decided not to adopt 
the proposal to reduce rebuttal and appeal times for debarment matters.
    The Department proposed to amend Sec.  655.182(f)(1) and (2) by 
reducing the period to file rebuttal evidence or request a hearing in 
response to a Notice of Debarment from 30 calendar days to 14 calendar 
days. The NPRM indicated that if the party received a Notice of 
Debarment but did not file rebuttal evidence, the Notice of Debarment 
would take effect at the end of the 14-calendar-day period unless the 
party requested, and the Administrator granted, an extension of time to 
submit rebuttal evidence. The Department proposed limited circumstances 
for granting an extension of time. The NPRM also proposed a reduction 
in time from 30 calendar days to 14 calendar days for employers to 
appeal a final determination of debarment and for any party to request 
the ARB to review the decision of the ALJ. In the NPRM, the Department 
reasoned that reducing these timeframes would lead to faster final 
agency adjudications that would more efficiently prevent H-2A program 
violators from accessing this program. As a result of a more expedited 
debarment process, workers in the United States would be protected from 
further harm.
    The Department received comments both opposed to and in favor of 
these proposals. The comments supporting the proposed changes expressed 
general agreement with the NPRM's proposals to enhance integrity 
measures in the H-2A program but did not offer any specific 
explanation.
    Many trade organizations, employers, and individuals expressed 
concerns that the shortened time frame could negatively impact a 
party's ability to defend themselves and their due process rights by 
limiting the time to review and gather all evidence needed to prepare 
and submit a rebuttal or file an appeal. Most of the same commenters 
worried that the shortened timeframe could infringe on a party's 
ability to obtain new counsel or consult counsel. Some commenters went 
as far as to say these likely outcomes went against the main goal of 
the NPRM, which sought to bolster program integrity and help protect 
workers from further harm. These commenters, and other SWAs, employers, 
and trade organizations, reasoned that parties should be afforded a 
broader timeframe to consider options and evaluate the evidence given 
the gravity and severe penalty imposed with a debarment action and 
argued the proposal would likely increase appeal filings, thereby 
creating backlogs in processing times.
    Several trade associations argued that due process concerns were 
heightened during farmers' busy season given the time-sensitive and 
perishable nature of agricultural operations and products. Another 
commenter believed the likely result of the proposed change would 
incentivize a greater number of appeals that would result in an 
additional administrative burden for all parties.
    To guard against any due process concerns, the Department proposed 
permitting parties to request an extension of time to submit rebuttal 
evidence. Several commenters, including trade associations and an 
individual employer, believed the standard to obtain an extension was 
too high in the NPRM and would only be granted in limited circumstances 
but did not explain why. Several commenters, including trade 
associations and an individual employer, offered an alternative 
approach that would require a party to notify the Department if it 
planned to file rebuttal evidence or request a hearing within the 14-
day period but allowed parties the full 30 days from the Notice of 
Debarment or final determination of debarment to provide rebuttal 
evidence or request a hearing.
    Having carefully considered the public comments, the Department 
does not adopt the proposal to shorten rebuttal and appeals time for 
debarment matters in the final rule. Although the proposed reduction in 
time would expedite the debarment process, the Department recognizes 
the due process concerns expressed by most commenters and has decided 
to retain the current regulatory timeframes. Given the severe penalty 
imposed by a

[[Page 34041]]

debarment action, the Department appreciates the comments emphasizing 
that it is important to safeguard an employer's due process rights and 
allow sufficient time to hire or consult counsel, if desired, and 
obtain the evidence needed for a rebuttal or to request a hearing. The 
Department also appreciates the comments from several agricultural 
organizations that noted that the shortened timeframe additionally 
could adversely impact farmers during their busy season given the 
nature of their work and products. Therefore, the Department has 
decided not to adopt such a change at this time for the reasons 
described above. Similarly, the Department, as described in the 
discussion of 29 CFR 501.20, has decided not to adopt the proposed 
changes to WHD's regulations governing the timeframe to appeal WHD 
debarment determinations.
    After considering the commenters' alternative approach requiring 
notice to be filed within the 14-day period, but allowing 30 days to 
file a rebuttal or request a hearing, the Department declines to adopt 
the alternative approach for two reasons. First, since the Department 
is not adopting the NPRM proposal, there is no need to consider the 
alternative offered by several commenters. Second, the Department 
believes the alternative approach would unnecessarily complicate the 
rebuttal and debarment appeals process by increasing the administrative 
burden in tracking and processing these cases. Specifically, the 
alternative suggestion would increase the administrative burden on the 
Department, and potentially delay OFLC processing of these cases, by 
requiring additional tracking of: (1) employers who notify the 
Department of their intent to file rebuttals and a subsequent 
determination of whether the rebuttals were timely filed or not filed; 
and (2) employers who notify the Department of their intent to request 
a hearing and a determination of whether the requests were timely filed 
or not ultimately filed. The suggestion also would require 
modifications to the Department's electronic processing system, which 
currently does not have the functionality to track such notifications.

VII. Discussion of Revisions to 29 CFR Part 501

    The Department proposed various revisions to the regulations at 29 
CFR part 501, which set forth the responsibilities of WHD to enforce 
the obligations of employers under the H-2A program. The Department 
proposed these amendments concurrent with and to complement the changes 
ETA proposes to its regulations in 20 CFR part 655, subpart B, 
governing the certification of temporary employment of nonimmigrant 
workers employed in temporary or seasonal agricultural employment. As 
with the proposed revisions to ETA's regulations, the proposed 
revisions to 29 CFR part 501 focused on strengthening protections for 
agricultural workers and enhancing the Department's capabilities to 
monitor program compliance and take necessary enforcement actions 
against program violators.

A. Section 501.3, Definitions

    In the NPRM, the Department proposed to define the terms key 
service provider and labor organization in Sec.  501.3(a) to conform to 
the proposed definitions of these terms in 20 CFR 655.103(b) and for 
the reasons set forth in the discussion of proposed 20 CFR 655.135(h). 
The Department also proposed to remove the definition of the term 
successor in interest from Sec.  501.3(a), to conform to and for the 
reasons described in the discussion of proposed 20 CFR 655.104. 
Finally, the Department proposed to add a new Sec.  501.3(d), defining 
the term single employer, to conform to and for the reasons described 
in the discussion of proposed 20 CFR 655.103(e).
    For the reasons described in the preamble discussion of 20 CFR 
655.103(b), this final rule adopts the definition of labor organization 
as proposed. This final rule also adopts the definition of key service 
provider in 29 CFR 501.3(a) with the same modification as explained in 
the preamble discussing 20 CFR 655.103(b). For the reasons described in 
the discussion of 20 CFR 655.104, this final rule removes the 
definition of the term successor in interest from 29 CFR 501.3(a) as 
proposed. Additionally, this final rule adopts new Sec.  501.3(d) as 
proposed, defining the term single employer to conform to and for the 
reasons described in the above discussion of 20 CFR 655.103(e).

B. Section 501.4, Discrimination Prohibited

    In the NPRM, the Department proposed to revise Sec.  501.4(a) to 
conform to the changes proposed to 20 CFR 655.135(h) that would expand 
and strengthen the Department's existing anti-retaliation provisions. 
The reasons for this proposal are described fully in the preamble 
discussion of 20 CFR 655.135(h). The Department did not propose any 
revisions to Sec.  501.4(b) regarding WHD investigations and 
enforcement of Sec.  501.4.
    For the reasons described in the preamble discussion of the 
revisions to 20 CFR 655.135(h), this final rule adopts the proposed 
revisions to 29 CFR 501.4(a) with the same modifications as outlined in 
the preamble discussion of 20 CFR 655.135(h).

C. Section 501.10, Severability

    As set forth in the discussion of proposed 20 CFR 655.190, the 
Department proposed a new Sec.  501.10 stating that if any provision is 
held to be invalid or unenforceable by its terms, or as applied to any 
person or circumstance, or stayed pending further agency action, the 
provision will be construed so as to continue to give the maximum 
effect to the provision permitted by law. The proposed regulatory text 
further stated that where such holding is one of total invalidity or 
unenforceability, the provision will be severable from the 
corresponding part and will not affect the remainder thereof.
    As the NPRM explained, the Department believes that a severability 
provision is appropriate because each provision within the H-2A 
regulations can operate independently from one another, including where 
the Department proposed multiple methods to strengthen worker 
protections and to enhance the Department's capabilities to conduct 
enforcement and monitor compliance. The NPRM also emphasized that it is 
important to the Department and the regulated community that the H-2A 
program continue to operate consistent with the expectations of 
employers and workers, even if a portion of the H-2A regulations is 
held to be invalid or unenforceable.
    For the reasons described in the preamble discussion of the 
revisions to 20 CFR 655.190, the Department adopts the severability 
provision at Sec.  501.10 with minor modifications.

D. Sections 501.20, 501.33, 501.42, Debarment and Revocation

    The Department proposed revisions to WHD's debarment and revocation 
regulations at Sec. Sec.  501.20, 501.33, and 501.42, to align with the 
proposed changes to ETA's revocation and debarment regulations at 20 
CFR 655.181 and 655.182. These proposals and the Department's final 
determinations in this rule are described briefly here, and are 
described fully in the section-by-section analysis of 20 CFR part 655, 
subpart B.
1. Timeline To Appeal
    For consistency with and conformance to the Department's

[[Page 34042]]

proposal under 20 CFR 655.182 to expedite debarment processing, the 
Department proposed to shorten the timeframe to appeal any WHD 
determination seeking debarment from 30 calendar days to 14 calendar 
days. In shortening the appeal timeframes for matters involving 
debarments, the Department sought to bolster program integrity and help 
protect workers from further harm they might suffer as a result of 
substantial violations.
    The Department received comments both in favor of and opposed to 
this proposal. The comments supporting the proposal expressed general 
agreement with the provision to enhance integrity measures in the H-2A 
program but did not offer any specific explanation for their support of 
this proposal.
    The Department received several comments from agricultural 
employers, agricultural associations, agents, think tanks, and others 
opposing this proposal. Commenters in opposition expressed concern that 
this shortened appeals period would not allow adequate time for 
employers to secure counsel and gather rebuttal evidence. Many of these 
same commenters stated that during busier times of the year, some 
agricultural employers may not be available to receive or respond to a 
notice in a timely fashion. Some commenters raised concerns that 
shortening the timeline may impact employers' due process rights. In 
light of these challenges and the severe implications of debarment, 
commenters urged the Department to abandon this proposal. Other 
commenters recommended that the Department consider implementing a 
staggered approach, whereby employers would be required to request a 
hearing within 14 calendar days of receiving notice but, under 20 CFR 
655.182, would have a full 30 calendar days from the date of the notice 
to gather evidence and present a rebuttal. Additionally, one commenter 
suggested that, as an alternative to a reduction in appeal times for 
all of WHD's determinations seeking debarment, the Department consider 
reducing the amount of time an employer has to respond to a notice only 
for certain egregious cases, such as those involving forced labor, 
trafficking, or other criminal violations.
    After consideration of the comments received, the Department will 
not make this change to the appeals process at this time and will not 
finalize the proposal. As discussed in the preamble to 20 CFR 655.182, 
the Department is sensitive to commenters' assertions that some 
agricultural employers may face challenges in receiving and responding 
to notices of debarment within the proposed expedited timeline. The 
Department is committed to ensuring that respondents have an adequate 
opportunity to prepare and present appeals and is mindful of the need 
to balance this commitment with its interest in streamlining the 
debarment process. Therefore, this final rule retains the 30-day 
appeals period for all WHD determinations, including those 
determinations that include a notice of debarment.
2. Passport Withholding
    The Department proposed adding a new paragraph (o) to Sec.  655.135 
to better protect workers from potential labor trafficking by directly 
prohibiting an employer from confiscating a worker's passport, visa, or 
other immigration or government identification documents. The 
Department also proposed to include the failure to comply with this 
prohibition among the violations that may subject an employer to 
debarment under Sec.  655.182 and 29 CFR 501.20. As explained fully in 
the preamble discussion of new 20 CFR 655.135(o), the Department 
received numerous comments in response to its proposal to directly 
prohibit an employer from confiscating a worker's passport, the vast 
majority of which were in support of the proposal. For the reasons set 
forth in the preamble discussion of new 20 CFR 655.135(o), the 
Department adopts this provision as proposed, and includes a violation 
of the new Sec.  655.135(o) as a violation for which the Department may 
seek debarment under Sec.  655.182 and 29 CFR 501.20.
3. Successors in Interest
    The Department proposed revisions to existing Sec.  501.20(a) and 
(b) to conform to proposed 20 CFR 655.104 and 655.182 regarding the 
effect of debarment on successors in interest. The Department also 
proposed a new Sec.  501.20(j). As explained fully in the preamble 
discussion of new 20 CFR 655.104, the Department received several 
comments both for and against its proposals relating to successors in 
interest, including the proposed new Sec.  501.20(j). For the reasons 
set forth in the preamble discussion of new 20 CFR 655.104, the 
Department adopts the proposed revisions to 29 CFR 501.20(a) and (b), 
and new paragraph (j), as proposed. Under this final rule, a WHD 
debarment of an employer, agent, or attorney applies to any successor 
in interest to that debarred entity, and WHD need not issue a new 
notice of debarment to a successor in interest to a debarred employer, 
agent, or attorney. However, as reflected in new Sec.  501.20(j), WHD 
is permitted, but not required, to identify any known successor(s) in 
interest in a notice of debarment issued to an employer, agent, or 
attorney.

E. Section 501.33, Request for Hearing

    As the Department explained in the NPRM, the current regulations at 
29 CFR 501.33(b) provide that the party requesting a hearing before the 
OALJ must ``[s]pecify the issue or issues stated in the notice of 
determination giving rise to such request'' and ``[s]tate the specific 
reason or reasons the person requesting the hearing believes such 
determination is in error.'' 29 CFR 501.33(b)(2) and (3). Despite these 
provisions, parties frequently attempt to raise new issues at later 
stages of proceedings, whether before the OALJ, the ARB, or a Federal 
court, that were not raised in the party's request for a hearing. Under 
relevant case law, however, issue exhaustion requirements are 
applicable and appropriate under the H-2A administrative review 
procedures and, as a result, issues not raised in a request for hearing 
to the OALJ may be deemed waived. See 88 FR at 63809. Under the current 
regulatory framework, the Department and courts expend significant 
resources considering or defending against newly raised issues that are 
ultimately deemed to have been waived. Similarly, parties have asserted 
that they lacked notice that issues not raised in a request for hearing 
before the OALJ may be deemed waived.
    Accordingly, the Department proposed to revise Sec.  501.33(b)(2) 
to state that any issue not raised in a party's request for a hearing 
before the OALJ ``ordinarily will be deemed waived'' in any further 
proceedings. The proposed revisions were intended to clarify that issue 
exhaustion requirements apply to H-2A enforcement proceedings, to 
better inform parties of the potential consequences of failing to raise 
an issue in a request for review, and to better preserve agency and 
judicial resources. The proposed language was modeled on similar 
provisions in OSHA's whistleblower regulations governing the procedures 
for administrative review of OSHA's findings in those contexts. See, 
e.g., 29 CFR 1982.110(a).
    The Department received only one comment on this specific proposal, 
from an H-2A agent, m[aacute]sLabor. M[aacute]sLabor acknowledged that 
``[t]he Department may impose reasonable limitations to avoid expending 
significant issues or preserving judicial resources'' but ``urge[d] the 
Department to reconsider'' the proposal to allow for some mechanism by 
which parties may raise new issues after the filing of an initial 
request for hearing, consistent with

[[Page 34043]]

principles of due process, fairness, and equity.
    The Department adopts the proposed revisions to Sec.  501.33(b)(2) 
with one modification to clarify the appropriate standard for issue 
exhaustion under these regulations. As explained in the NPRM, issue 
exhaustion requirements already are applicable and appropriate under 
the H-2A administrative review procedures. See WHD v. Sun Valley 
Orchards, LLC, ARB No. 2020-018, 2021 WL 2407468, at *7 (ARB May 27, 
2021), aff'd sub nom. Sun Valley Orchards, LLC v. Dep't of Labor, No. 
1:21-cv-16625, 2023 WL 4784204 (D.N.J. July 27, 2023), appeal filed No. 
23-2608 (3d Cir. Sept. 5, 2023); In re Sandra Lee Bart, ARB No. 2018-
0004, 2020 WL 5902444, at *4 (ARB Sept. 22, 2020); see also Carr v. 
Saul, 141 S. Ct. 1352, 1358 (2021) (``Typically, issue-exhaustion rules 
are creatures of statute or regulation'' but where the ``regulations 
are silent, . . . courts decide whether to require issue exhaustion 
based on an analogy to the rule that appellate courts will not consider 
arguments not raised before trial courts.'') (quotation omitted). 
Absent a statutory or regulatory mandate that issues not exhausted will 
or must be deemed waived, however, reviewing tribunals regularly 
exercise discretion to determine whether ``exceptional'' or ``special'' 
circumstances permit consideration of a newly raised issue. See Ross v. 
Blake, 578 U.S. 632, 639 (2016) (comparing mandatory and discretionary 
issue exhaustion requirements). Likewise, under OSHA's whistleblower 
regulations governing issue exhaustion, the ARB regularly considers 
whether to permit consideration of newly raised issues under special 
circumstances. See, e.g., Williams v. QVC, Inc., ARB No. 2020-0019, 
2023 WL 1927097, at *4 n.43 (ARB Jan. 17, 2023) (construing pro se 
litigant's petition for review broadly to include issues not specified 
in petition despite issue exhaustion requirements under parallel 
provision at 29 CFR 1980.110); Furland v. Am. Airlines, Inc., ARB Nos. 
09-102, 10-130, 2011 WL 3413364, at *7 n.5 (ARB July 27, 2011) (ARB 
retained authority under parallel regulation at 29 CFR 1979.110(a) to 
hear issue on appeal not specifically listed in petition for review but 
consistently advanced before ALJ).
    In the NPRM, the Department intended to make explicit the existing 
application of discretionary issue exhaustion principles to H-2A 
enforcement proceedings. 88 FR at 63809. This revision was intended to 
better inform parties of the potential consequences of failing to 
include issues for review in a request for hearing, and thus ultimately 
to reduce the instances in which parties attempt to raise new issues in 
later stages of the proceedings. Id. By use of the language 
``ordinarily will be deemed waived'' in the NPRM, the Department 
intended to retain the discretion currently afforded reviewing 
tribunals in determining whether a particular issue may be raised at a 
later stage in the proceeding, consistent with the principles of due 
process and equity raised in the comment. The Department did not intend 
to propose a mandatory waiver rule. However, considering 
m[aacute]sLabor's comment, the Department recognizes it may have 
suggested otherwise in the NPRM and therefore replaces the phrase 
``ordinarily will'' with ``may'' in this final rule. The revised 
language better reflects the discretionary nature of issue exhaustion 
under these regulations, whereby waiver is the general rule, though 
tribunals, in their discretion, may consider whether ``special'' or 
``exceptional'' circumstances exist. Ross, 578 U.S. at 640. In 
addition, the Department notes that this revised language is more 
consistent with the language used in OSHA's more recently promulgated 
whistleblower regulations, which OSHA adopted to address similar 
concerns as raised here by m[aacute]sLabor. See, e.g., 89 FR. 69115 
(Nov. 9, 2015); 77 FR 40494 (July 10, 2012).

VIII. Administrative Information

A. Executive Order 12866: Regulatory Planning and Review, Executive 
Order 14094: Modernizing Regulatory Review, and Executive Order 13563: 
Improving Regulation and Regulatory Review

    Under Executive Order (E.O.) 12866, OMB's Office of Information and 
Regulatory Affairs (OIRA) determines whether a regulatory action is 
significant and, therefore, subject to the requirements of the 
Executive Order and review by OMB. Regulatory Planning and Review, 58 
FR 51735 (Oct. 4, 1993). Section 3(f) of E.O. 12866, as amended by E.O. 
14094, 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 $200 million or more, or adversely affects in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, Territorial, 
or Tribal governments or communities; (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 legal or policy issues for which 
centralized review would meaningfully further the President's 
priorities or the principles set forth in the Executive Order. 
Modernizing Regulatory Review, 88 FR 21879, 21879 (Apr. 11, 2023). OIRA 
has reviewed this rule and designated it a significant regulatory 
action under E.O. 12866. The Secretary of Homeland Security, in 
consultation with the Secretary of Labor and Secretary of Agriculture, 
has approved this rule consistent with section 301(e) of the 
Immigration Reform and Control Act of 1986, 8 U.S.C. 1188 note.\111\
---------------------------------------------------------------------------

    \111\ Although this provision vests approval authority in the 
``Attorney General,'' the Secretary of Homeland Security now may 
exercise this authority. See 6 U.S.C. 202(3)-(4), 251, 271(b), 291, 
551(d)(2), 557; 8 U.S.C. 1103(c) (2000).
---------------------------------------------------------------------------

    E.O. 13563 directs agencies to, among other things, 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. Improving 
Regulation and Regulatory Review, 76 FR 3821, 3821 (Jan. 21, 2011). 
E.O. 13563 recognizes that some costs and 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. Id.
Outline of the Analysis
    Section VIII.A.1 describes significant issues raised in the public 
comments. Section VIII.A.2 describes the need for the rule. Section 
VIII.A.3 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 VIII.A.4 explains how the provisions of the rule will 
result in quantified costs and transfer payments and presents the 
calculations the Department used to estimate them. In addition, Section 
VIII.A.4 describes the unquantified transfer payments and unquantified 
cost savings of the rule and a description of qualitative benefits. 
Section VIII.A.5 summarizes the estimated first-year and 10-year total 
and annualized costs and transfer payments of the rule. Section 
VIII.A.6 describes the regulatory alternatives that were considered 
during the development of the rule.

[[Page 34044]]

Summary of the Analysis
    The Department estimates that the rule will result in costs and 
transfer payments. As shown in Exhibit 1, the rule is expected to have 
an annualized quantifiable cost of $1.96 million and a total 10-year 
quantifiable cost of $13.74 million, each at a discount rate of 7 
percent.\112\ The rule is estimated to result in annualized 
quantifiable transfer payments from H-2A employers to H-2A employees of 
$12.66 million and total 10-year transfer payments of $88.92 million at 
a discount rate of 7 percent.\113\
---------------------------------------------------------------------------

    \112\ The rule will have an annualized quantifiable cost of 
$1.89 million and a total 10-year quantifiable cost of $16.08 
million at a discount rate of 3 percent in 2022 dollars.
    \113\ The rule will have annualized quantifiable transfer 
payments from H-2A employers to H-2A employees of $12.48 million and 
total 10-year transfer payments of $106.46 million at a discount 
rate of 3 percent in 2022 dollars.

 Exhibit 1--Estimated Monetized Costs and Transfer Payments of the Final
                                  Rule
                            [2022 $millions]
------------------------------------------------------------------------
                                                             Transfer
                                               Costs         payments
------------------------------------------------------------------------
Undiscounted 10-Year Total..............          $18.35         $123.42
10-Year Total with a Discount Rate of 3%           16.08          106.46
10-Year Total with a Discount Rate of 7%           13.74           88.92
10-Year Average.........................            1.84           12.34
Annualized at a Discount Rate of 3%.....            1.89           12.48
Annualized with at a Discount Rate of 7%            1.96           12.66
------------------------------------------------------------------------

    The total quantifiable cost of the rule is associated with rule 
familiarization and the provisions requiring additional information 
disclosure on the H-2A Applications. Transfer payments are the results 
of the elimination of the effective date delay for updated AEWRs. See 
the ``Costs'' and ``Transfer Payments'' subsections of Section VIII.A.4 
(Subject-by-Subject Analysis) below for a detailed explanation.
    The Department was unable to quantify some costs, transfer 
payments, cost savings, and benefits of the rule. Unquantified costs 
include costs to employers to reinstall or repair seat belts in 
vehicles used for worker transportation to comply with this final rule 
and costs to newly included entities whose ES services can be 
discontinued. Unquantified transfer payments include compensation to 
workers under Sec.  655.175(b)(2)(i)-(ii) in cases where the start of 
work is delayed without sufficient notice and clarifying that 
applicable prevailing piece rates and other non-hourly wage rates 
should be included in the job order where such rates have the potential 
to be the highest wage rate of those listed at Sec.  655.120(a), Sec.  
653.501(c), or Sec.  655.210(g). Unquantified cost savings include the 
Department's ability to deny labor certification applications filed by 
or on behalf of successors in interest to debarred employers, agents, 
or attorneys. Unquantified benefits include better protection from 
inappropriate termination, protection for worker advocacy, reduction in 
risk of injury during employer-sponsored transportation, and reduction 
in improper holding of passports or other immigration documents. The 
Department describes them qualitatively in Section VIII.A.4 (Subject-
by-Subject Analysis).
1. Significant Issues Raised in Public Comments
    Several commenters submitted feedback in response to the NPRM's 
regulatory impact analysis or otherwise addressing the potential impact 
of this rulemaking on affected entities. Commenters, including IFPA, 
GFVGA, and the Michigan Asparagus Advisory Board, contended that the 
Department did not quantify benefits. As explained in Section 
VIII.A.4.d, the Department considered various benefits of this rule, 
but due to data limitations, the Department was not able to 
quantitatively estimate the benefits. The commenters that requested 
additional robust benefit quantification did not provide any 
information or data that would help the Department quantitatively 
assess the benefits of this rule, either. As a result, the Department 
qualitatively discusses the benefits, but nonetheless believes that the 
benefits outweigh the costs of this rule.
    Several commenters, such as trade associations and individual 
employers, submitted feedback that the estimate of the time burden for 
rule familiarization was an underestimate. As explained in Section 
VIII.A.4.a, the Department considered these comments and has increased 
the time burden associated with rule familiarization cost to 4 hours on 
average. The Department used the words per minute (WPM) approach to 
estimate the time to read and understand the regulatory text by 
assuming a reading speed of 238 words per minute.\114\ Because the 
regulatory text contains over 12,500 words, the Department estimates 
that employers will need about 1 hour to read and understand this 
text.\115\ The Department assumes that not all employers will read the 
entire final rule preamble, although some may review portions of it in 
an effort to better understand particular provisions. As such, the 
Department quadrupled the time required to read the regulatory text to 
account for the fact that some employers will read some sections of the 
preamble, as relevant, in addition to the regulatory text, alongside 
compliance assistance materials provided by the Department.
---------------------------------------------------------------------------

    \114\ Marc Brysbaert, How Many Words Do We Read Per Minute? A 
Review and Meta-Analysis of Reading Rate, PsyArXiv (Apr. 12, 2019), 
https://doi.org/10.31234/osf.io/xynwg. We use the average speed for 
silent reading of English nonfiction by adults.
    \115\ 12,500 / 238 = 53 minutes, and the Department used 1 hour 
for employers to read and understand the regulatory text.
---------------------------------------------------------------------------

    Several commenters, including trade associations and individual 
employers, submitted feedback that the time burden costs of the rule 
were underestimated, including those related to wage costs, labor 
contractors, rule familiarization, and application additions. The 
Department notes that, while some H-2A employers may not directly 
employ an HR specialist to conduct these tasks, many use HR service 
providers for consulting on regulatory and HR matters and, therefore, 
using the wage rate for an HR specialist is appropriate. As explained 
in Section VIII.A.4.a, the Department considered all of the comments 
received on this cost component and, as discussed above, revised the 
time burden associated with rule familiarization cost.
    These commenters also stated that the time burden estimate of the 
provisions requiring additional information disclosure on the H-2A 
Applications

[[Page 34045]]

was underestimated but did not provide any information or data that 
would help the Department assess how to modify the time costs of the 
provisions. The Department did not change its estimate of time burden 
for these provisions because most of the information required should be 
readily available to employers and they should likely maintain and 
update them in their personnel records system or files. Given the data 
available and the lack of additional information from commenters, the 
Department did its best to quantify costs, transfers, and benefits. For 
costs, transfers, and benefits that were not quantifiable, the 
Department provided qualitative discussions and sought public comments 
and input. The Department believes that these time burden estimates are 
appropriate because they represent an average impact across all 
impacted employers.
    American Farm Bureau Federation submitted feedback that the 
estimated growth rates regarding the H-2A program were low, which 
reduced the estimated costs of the rule. The Department has updated the 
growth rate analyses with 2022 H-2A certification data, and the 
corresponding estimates of H-2A program growth metrics have increased. 
The Department believes that these growth rate estimates are 
appropriate because they utilize the most recently available data on 
the H-2A program.
    NHC submitted feedback that the estimated time burdens of the rule 
for employers were underestimated because they did not consider time 
costs of revising payroll systems, worker productivity tracking, 
productivity loss from third-party participation in disciplinary 
meetings, losses due to more injured workers, and costs of retrofitting 
employer transportation. The trade association stated that employee 
contract changes would cost a large grower more than 275 hours per 
year. The Department quantifies average costs, transfers, and benefits 
for all impacted entities, not just large employers. For costs and 
benefits that were not quantifiable, the Department provided 
qualitative discussions and sought public comments and input. Neither 
this commenter nor other commenters, however, provided any information 
or data that would help the Department better quantitatively assess the 
relevant costs.
    Wafla submitted feedback that the estimated time burden for 
application additions, specifically the additional disciplinary steps, 
was underestimated. However, it did not provide any information or data 
that would help the Department better quantitatively assess the average 
time costs for all impacted entities. The Department contends that the 
progressive disciplinary process to terminate H-2A workers for cause 
may not occur for every employer and, as a result, has sought to 
quantify the average time burden for application additions across all 
employers using available data.
2. Need for Regulation
    The Department adopts provisions in this final rule that will 
strengthen protections for agricultural workers and enhance the 
Department's enforcement capabilities against fraud and program 
violations. The Department has determined that these revisions will 
help prevent exploitation and abuse of agricultural workers and ensure 
that unscrupulous employers do not gain from their violations or 
contribute to economic and workforce instability by circumventing the 
law. It is the policy of the Department to maintain robust protections 
for workers and to vigorously enforce all laws within its jurisdiction 
governing the administration and enforcement of nonimmigrant visa 
programs. As set forth above in detail in sections V through VII, the 
Department has determined through program experience, recent 
litigation, comments on prior rulemaking, and reports from various 
workers' rights advocacy organizations that the provisions in this 
final rule are necessary to strengthen protections for agricultural 
workers; ensure that employers, agents, attorneys, and labor recruiters 
comply with the law; and enhance the Department's ability to monitor 
compliance and investigate and pursue remedies from program violators. 
For example, in 421 investigations of agricultural employers using the 
H-2A program in FY 2022, the Department assessed more than $3.6 million 
in back wages and more than $6.3 million in civil money penalties. 
Evidence revealed in recent Department investigations suggests that H-
2A workers continue to be vulnerable to human trafficking.\116\ H-2A 
workers also continue to be vulnerable to retaliation when asserting 
their rights or engaging in self-advocacy.\117\ Meanwhile, recent 
vehicle crashes involving agricultural workers demonstrate the need for 
transportation safety reform.\118\
---------------------------------------------------------------------------

    \116\ See, e.g., DOJ, Press Release, Owner of Farm Labor 
Contracting Company Pleads Guilty in Racketeering Conspiracy 
Involving the Forced Labor of Mexican Workers (Sept. 27, 2022), 
https://www.justice.gov/opa/pr/owner-farm-labor-contracting-company-pleads-guilty-racketeering-conspiracy-involving-forced; DOJ, Press 
Release, Three Defendants Sentenced in Multi-State Racketeering 
Conspiracy Involving Forced Labor of Mexican Agricultural H-2A 
Workers (Oct. 27, 2022), https://www.justice.gov/opa/pr/three-defendants-sentenced-multi-state-racketeering-conspiracy-involving-forced-labor-mexican.
    \117\ See, e.g., DOL, News Release, Federal Court Orders 
Louisiana Farm, Owners to Stop Retaliation After Operator Denied 
Workers' Request for Water, Screamed Obscenities, Fired Shots (Oct. 
28, 2021), https://www.dol.gov/newsroom/releases/whd/whd20211028-0; 
DOL, News Release, US Department of Labor Fines North Carolina 
Employers $139K After They Shortchanged Farmworkers; Seized 
Passports, Visas to Intimidate Them (Nov. 16, 2023), https://www.dol.gov/newsroom/releases/whd/whd20231116; DOL, News Release, 
Department of Labor Debars Labor Contractor Who Threatened, 
Intimidated Farmworkers; Assesses $62K in Penalties for Abuses of 
Agricultural Workers (Oct. 23, 2023), https://www.dol.gov/newsroom/releases/whd/whd20231023; DOL, News Release, US Department of Labor 
Investigation Results in Judge Debarring North Carolina Farm Labor 
Contractor for Numerous Guest Worker Visa Program Violations (Mar, 
16, 2021), https://www.dol.gov/newsroom/releases/whd/whd20210316; 
DOL, News Release, Corrected: US Department of Labor Investigations 
of Labor Contractors, Vineyard Yield $231K in Penalties, Recover 
$129K in Back Wages for 353 Agricultural Workers (Jun. 1, 2023), 
https://www.dol.gov/newsroom/releases/whd/whd20230601-0.
    \118\ See, e.g., DOL, News Release, U.S. Department of Labor 
Urges Greater Focus on Safety by Employers, Workers as Deaths, 
Injuries in Agricultural Transportation Incidents Rises Sharply 
(Sept. 20, 2022), https://www.dol.gov/newsroom/releases/whd/whd20220920-0.
---------------------------------------------------------------------------

    The rule aims to address some of the comments that were beyond the 
scope of the 2022 H-2A Proposed Rule and concerns expressed by workers' 
rights advocacy groups, labor unions, and organizations that combat 
human trafficking. It also seeks to respond to recent court decisions 
and program experience indicating a need to enhance the Department's 
ability to enforce regulations related to foreign labor recruitment, to 
improve accountability for successors in interest and employers who use 
various methods to attempt to evade the law and regulatory 
requirements, and to enhance worker protections for a vulnerable 
workforce, as explained further in the section-by-section discussion 
above. The Department has also made adjustments to the proposed 
regulations after consideration of the comments received, including 
declining to adopt the proposals to reduce submission periods for 
appeal requests for OFLC and WHD debarment matters and submittal of 
rebuttal evidence to OFLC, to require employers to provide labor 
organizations with employee contact information and access to employer-
furnished housing, and to require employers to attest to whether they 
will bargain in good faith over the terms of a proposed labor 
neutrality agreement.
    The Department intends for this rulemaking to better protect the 
rights,

[[Page 34046]]

health, and safety of agricultural workers as well as to prevent 
adverse effect on workers similarly employed in the United States and 
to safeguard the integrity of the H-2A program, while continuing to 
ensure that responsible employers have access to willing and available 
agricultural workers and are not unfairly disadvantaged by employers 
that exploit workers and attempt to evade the law.
3. Analysis Considerations
    The Department estimated the costs and transfer payments of this 
final rule relative to the existing baseline (i.e., the current 
practices for complying, at a minimum, with the H-2A program as 
currently codified at 20 CFR part 655, subpart B, and 29 CFR part 501).
    In accordance with the regulatory analysis guidance articulated in 
OMB's Circular A-4 \119\ and consistent with the Department's practices 
in previous rulemakings, this regulatory analysis focuses on the likely 
consequences of the rule (i.e., costs, benefits, and transfer payments 
that accrue to entities affected). The analysis covers 10 years (from 
2025 through 2034) to ensure it captures major costs, benefits, and 
transfer payments that accrue over time. The Department expresses all 
quantifiable impacts in 2022 dollars and uses discount rates of 3 and 7 
percent, pursuant to Circular A-4 published on October 9, 2003.
---------------------------------------------------------------------------

    \119\ OMB Circular No. A-4, Regulatory Analysis (2023).
---------------------------------------------------------------------------

    Exhibit 2 presents the number of affected entities that are 
expected to be impacted by this final rule.\120\ The average number of 
affected entities is calculated using OFLC H-2A certification data from 
FY 2016 through FY 2022. Exhibit 3 presents the number of workers who 
are expected to be impacted by this final rule. The exhibit contains 
the number of certified H-2A workers from FY 2012 through FY 2022.
---------------------------------------------------------------------------

    \120\ OFLC, Performance Data, https://www.dol.gov/agencies/eta/foreign-labor/performance (last visited Feb. 8, 2024).

              Exhibit 2--Number of Unique Employers by Year
------------------------------------------------------------------------
                           FY                                 Number
------------------------------------------------------------------------
2016....................................................           6,713
2017....................................................           7,187
2018....................................................           7,902
2019....................................................           8,391
2020....................................................           7,785
2021....................................................           9,442
2022....................................................          10,571
Average.................................................           8,284
------------------------------------------------------------------------


                 Exhibit 3--Historical H-2A Program Data
------------------------------------------------------------------------
                                                              Workers
                           FY                                certified
------------------------------------------------------------------------
2012....................................................          85,248
2013....................................................          98,814
2014....................................................         116,689
2015....................................................         139,725
2016....................................................         165,741
2017....................................................         199,924
2018....................................................         242,853
2019....................................................         258,446
2020....................................................         275,430
2021....................................................         317,619
2022....................................................         371,619
------------------------------------------------------------------------

a. Growth Rate
    The Department estimated growth rates for certified H-2A workers 
based on program data presented in Exhibit 3 and estimated growth rates 
for unique H-2A employers based on program data presented in Exhibit 2.
    The compound annual growth rate (CAGR) for certified H-2A workers 
using the program data in Exhibit 3 is calculated as 15.9 percent. This 
growth rate, applied to the analysis timeframe of 2025 to 2034, would 
result in more H-2A certified workers than projected employment of 
workers in the relevant H-2A SOC codes by BLS.\121\ Therefore, to 
estimate realistic growth rates for the analysis, the Department 
applied the growth rate for unique employers, assuming the growth rate 
for unique employers and workers should be similar. The Department used 
FY 2016-2022 data on unique employers, where the use of FY 2016 as the 
first year is due to data availability on calculated unique employers. 
The Department calculated a CAGR based on FY 2016 unique employers 
(6,713) and the FY 2022 unique employers (10,571). The result is an 
estimate of 7.9 percent.\122\
---------------------------------------------------------------------------

    \121\ Comparing BLS 2032 projections for combined agricultural 
workers (SOC 45-2000) with a 14.8-percent growth rate of H-2A 
workers yields estimated H-2A workers about 178 percent greater than 
BLS 2032 projections. The projected workers for the agricultural 
sector were obtained from BLS's Occupational Projections and Worker 
Characteristics, https://www.bls.gov/emp/tables/occupational-projections-and-characteristics.htm.
    \122\ Calculation: 7.9% = (10,571 / 6,713)(\1\ 
/ \6\) - 1.
---------------------------------------------------------------------------

    The estimated annual growth rates for unique employers (7.9 
percent) and workers (7.9 percent) were applied to the estimated costs 
and transfers of this final rule to forecast participation in the H-2A 
program.\123\
---------------------------------------------------------------------------

    \123\ Proposed forecasted estimates of H-2A employer 
participation: 11,419 in 2023; 12,335 in 2024; 13,325 in 2025; 
14,394 in 2026; 15,548 in 2027; 16,796 in 2028; 18,143 in 2029; 
19,599 in 2030; 21,171 in 2031; and 22,869 in 2032.
---------------------------------------------------------------------------

b. Compensation Rates
    In Section VIII.A.4 (Subject-by-Subject Analysis), the Department 
presents the costs, including labor, associated with the implementation 
of the provisions of the rule. Exhibit 4 presents the hourly 
compensation rates for the occupational categories expected to 
experience a change in the number of hours necessary to comply with the 
rule. The Department used the mean hourly wage rate for a private 
sector HR Specialist (SOC code 13-1701).\124\ Wage rates are adjusted 
to reflect total compensation, which includes nonwage factors such as 
overhead and fringe benefits (e.g., health and retirement benefits). We 
use an overhead rate of 17 percent \125\ and a fringe benefits rate 
based on the ratio of average total compensation to average wages and 
salaries in 2022.\126\ We then multiply the loaded wage factor by the 
wage rate to calculate an hourly compensation rate. The Department used 
the hourly compensation rates presented in Exhibit 4 throughout this 
analysis to estimate the labor costs for each provision.
---------------------------------------------------------------------------

    \124\ BLS, National Occupational Employment and Wage Estimates: 
13-1701 (May 2021), https://www.bls.gov/oes/current/oes131701.htm 
(last visited Feb. 8, 2024).
    \125\ Cody Rice, U.S. Envtl. Prot. Agency, Wage Rates for 
Economic Analyses of the Toxics Release Inventory Program 7 (June 
10, 2002), https://www.regulations.gov/document?D=EPA-HQ-OPPT-2014-0650-0005.
    \126\ BLS, News Release, Employer Costs for Employee 
Compensation--December 2022 (Mar. 17, 2023), https://www.bls.gov/news.release/archives/ecec_03172023.pdf. Ratio of total compensation 
to wages and salaries for all private industry workers: 40.23 / 
28.37 = 1.418.

[[Page 34047]]



                                                              Exhibit 4--Compensation Rates
                                                                     [2022 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                              Hourly
              Position                      Grade level         Base hourly        Loaded wage factor              Overhead costs          compensation
                                                                 wage rate                                                                     rate
                                      (a)...................             (b)                           (c)                           (d)    (d = a + b +
                                                                                                                                                      c)
--------------------------------------------------------------------------------------------------------------------------------------------------------
HR Specialist.......................  N/A...................          $35.13        $14.75 ($35.13 x 0.42)         $5.97 ($35.13 x 0.17)          $55.79
--------------------------------------------------------------------------------------------------------------------------------------------------------

4. Subject-by-Subject Analysis
    The Department's analysis below covers the estimated costs, 
transfer payments, and qualitative benefits of this final 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. This final rule estimated the cost of 
rule familiarization and application additions and transfer payments 
associated with the elimination of the delayed effective date for 
updated AEWRs.
a. Costs
    The following section describes the quantified and unquantified 
costs of this final rule.
i. Quantified Costs
    The following sections describe the quantified costs of rule 
familiarization and the provisions requiring additional information 
disclosure on the H-2A Application.
A. Rule Familiarization
    When the 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. New employers in each subsequent year 
will need to familiarize themselves with current regulations regardless 
of this final rule.
    To estimate the cost of rule familiarization, the Department 
applied the growth rate of H-2A employers (7.9 percent) to the number 
of unique H-2A employers (8,284) to determine the number of unique H-2A 
applicants impacted in the first year. For subsequent years, the number 
of new employers was estimated by multiplying the previous year's 
employer count by the growth rate of H-2A employers (7.9 percent) and 
then subtracting that value from the previous year's total employer 
count. Exhibit 5 details the number of new employers for each year of 
the analysis.

               Exhibit 5--Number of New Employers by Year
------------------------------------------------------------------------
                                               Total
                   FY                        employers     New employers
------------------------------------------------------------------------
2025....................................           8,938             N/A
2026....................................           9,645             706
2027....................................          10,406             762
2028....................................          11,229             822
2029....................................          12,116             887
2030....................................          13,073             957
2031....................................          14,106           1,033
2032....................................          15,220           1,114
2033....................................          16,422           1,202
2034....................................          17,720           1,297
------------------------------------------------------------------------

    The number of unique H-2A employers in the first year (8,947), and 
the new H-2A employers in subsequent years (see Exhibit 5), was 
multiplied by the estimated amount of time required to review the rule 
(4 hours). This number was then multiplied by the hourly compensation 
rate of an HR specialist ($35.13 per hour) and the loaded wage factor 
and the overhead rate for the private sector (1.59). This calculation 
results in a total undiscounted cost of $3,954,528 over the 10 years 
after the rule takes effect. The annualized cost over the 10-year 
period is $429,662 and $479,217 at discount rates of 3 and 7 percent, 
respectively.
B. Additional Information Disclosure on the H-2A Application
    Once the rule takes effect, H-2A employers will need to submit 
additional information on the H-2A Application, which will impose a 
yearly cost as the time associated with filling out this information is 
required for every application for certification. The additional 
information includes the names, addresses, business phone numbers, and 
dates of birth for the owner(s) of each employer, each operator of the 
place(s) of employment, and all managers and supervisors of workers 
employed under the H-2A Application; DBA information; and information 
about the identity and location of any foreign labor recruiter the 
employer engaged, directly or indirectly, in international recruitment, 
as well as all persons and entities hired by or working for the 
recruiter or agent, and any of the agents or employees of those persons 
and entities.
    To estimate the yearly cost of the application additions, the 
Department applied the growth rate of H-2A employers (7.9 percent) to 
the current number of unique certified H-2A employers (8,284) to 
determine the number of unique H-2A employers in the first year 
(8,938). The number of unique certified H-2A employers in the first 
year is then multiplied by the growth rate again to determine the 
number of unique certified H-2A employers in the second year. This 
process is repeated each year to determine the total number of unique 
certified H-2A employers every year during the study period. Since it 
is assumed that only a single HR specialist per employer will incur the 
additional time investment, the estimated total yearly cost can be 
calculated by multiplying the total number of unique certified H-2A 
employers (8,938) by the HR specialist hourly wage rate ($35.13 per 
hour), the loaded wage factor and the overhead rate for the private 
sector (1.59), and the estimated additional time taken to gather and 
enter the information on a yearly basis (2 hours on average). Lastly, 
this value is multiplied by the growth rate of unique employers (7.9 
percent) to the nth power, with n being equal to the period year. The 
result is $999,543 in the first year, an undiscounted average cost over 
a 10-year period of $1,439,694, and discounted annualized costs of 
$1,455,791, and $1,476,738 at rates of 3 and 7 percent, respectively.
ii. Unquantified Costs
A. Transportation: Seat Belts for Drivers and Passengers
    As part of this final rule, employers will have to ensure seat 
belts are provided for drivers and passengers in transportation 
vehicles used to transport H-2A and corresponding workers that were 
required by U.S. DOT's FMVSS to be manufactured with seat belts. This 
could impose both a one-time and annual cost to those employers who had 
previously lawfully modified or removed seat belts in such vehicles and

[[Page 34048]]

would be required to reinstall or repair seat belts to comply with this 
final rule through the cost of reinstalling or repairing the necessary 
seat belts and the decreased fuel efficiency of transportation vehicles 
caused by the additional weight of the seat belts. The Department 
estimates the cost of installing a driver's seat belt to be $26.60 per 
seat belt and the cost of installing a passenger seat belt to be $17.44 
per seat belt.\127\ The Department does not have data to estimate the 
number of seat belts to be reinstalled or repaired, or (in the 
alternative) vehicles that would need to be purchased, to provide seat 
belts for drivers and passengers in the above scenario. The Department 
requested public comments on data and information that would support 
estimating the cost of reinstalling or repairing seat belts but 
received no responses.
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    \127\ These costs were calculated by inflation-adjusting the 
2008 cost of types of seat belts listed in NHTSA, Final Regulatory 
Impact Analysis: FMVSS No. 208, Lap/Shoulder Belts for All Over-The-
Road Buses, and Other Buses with GVWRs Greater Than 11,793 kg 
(26,000 lb) (Sept. 2013), https://www.regulations.gov/document/NHTSA-2013-0121-0002.
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B. Discontinuation of Services to Employers by the ES System
    The final rule clarifies and expands the scope of entities whose ES 
services can be discontinued to include agents, farm labor contractors, 
joint employers, and successors in interest. Because the final rule 
expands the scope of applicable entities that may experience 
discontinuation of services, the Department does not have preexisting 
data available on costs to those entities, and the Department is not 
able to quantify potential increased costs for them. However, the 
Department recognizes that some commenters contend that employers might 
incur costs related to delays in processing clearance orders, including 
administrative costs, legal fees, and productivity losses. The 
Department cannot quantify these specific costs because each employer's 
circumstances will be unique. Additionally, it is possible that the 
number of discontinuation-of-services actions SWAs initiate might 
increase due to the changes in the final rule that clarify when and how 
the procedures apply. However, because the procedures were not 
frequently used previously and because the number of actions will 
depend on actual employer compliance, it is not possible to estimate 
the related potential burden.
b. Unquantified Cost Savings
    The following section describes the unquantified cost savings of 
this final rule.
i. Successors in Interest
    Once this final rule takes effect, the Department will be able to 
deny labor certification applications filed by or on behalf of 
successors in interest to debarred employers, agents, or attorneys. 
Currently, the Department must first issue a separate notice of 
debarment to the successor in interest, and go through a lengthy 
administrative hearing and review process, before it may deny an 
application filed by or on behalf of a successor. The rule will, 
therefore, result in cost savings to the Department from not having to 
go through the process to debar successors in interest but instead 
applying the predecessor's debarment to the successor. The Department 
lacks detailed data on the length of time necessary to enter a proposed 
order of debarment against successors under the current regulations, as 
well as the annual number of successor debarments, and as a result is 
unable to accurately quantify this cost savings.\128\
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    \128\ The Department lacks such information because each 
debarment action is unique and the facts of each situation dictate 
how long a debarment action will take. At the time of drafting this 
final rule, there are currently 35 debarred H-2A entities and 59 
debarred H-2B entities, which, as a result of the cross-program 
debarment provisions at 20 CFR 655.73(i), also debar those entities 
from filing applications in any other DOL-administered immigration 
programs such as the H-2A program. Any of those entities could 
potentially file one or more applications each year for one or more 
successor in interest employers or as successor in interest agents 
or attorneys or both. Due to the variables mentioned above, the 
Department is unable to estimate how many such filings may be 
submitted in any given period of time nor to estimate how complex 
each debarment action would be if the Department were to seek 
debarment against the successor.
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c. Transfer Payments
    The following section describes the transfer payments of this final 
rule.
i. Quantified Transfer Payments
    This section discusses the quantifiable transfer payments related 
to the elimination of the 2-week effective date delay for AEWR 
publication. The Department considers transfers as payments from one 
group to another that do not affect total resources available to 
society. The transfers measured in this analysis are wage transfers 
from U.S. employers to H-2A workers. H-2A workers are migrant workers 
who will spend some of their earnings on consumption goods in the U.S. 
economy but likely send a large fraction of their earnings to their 
home countries.\129\ Therefore, the Department considers the wage 
transfers in the analysis as transfer payments within the global 
economic system.
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    \129\ Elimination of the effective date delay for updated AEWRs 
will also result in wage transfers from U.S. employers to workers in 
corresponding employment, but the Department is not able to quantify 
this transfer due to the lack of data for workers in corresponding 
employment and their wages. In particular, the Department does not 
collect or possess sufficient information about the number of 
corresponding workers affected and their wage payment structures to 
reasonably measure the transfers to corresponding workers. Employers 
are not required to provide the Department, on any application or 
report, the estimated or actual total number of workers in 
corresponding employment. Although each employer, as a condition of 
being granted a temporary agricultural labor certification, must 
provide the Department with a report of its initial recruitment 
efforts for U.S. workers, including the name and contact information 
of each U.S. worker who applied or was referred to the job, such 
information typically reflects only a very small portion of the 
total recruitment period, which runs through 50 percent of the 
certified work contract period, and does not account for any other 
workers who may be considered in corresponding employment and 
already working for the employer. Because the report of initial 
recruitment efforts for U.S. workers only captures information from 
a limited portion of the recruitment period and does not account for 
workers already employed by the employer who may be in corresponding 
employment, the Department is not able to draw on this information 
to meaningfully assess the total number of corresponding workers 
affected or their wage payment structures, without which the 
Department is unable to reasonably measure the transfers to 
corresponding workers. The Department sought public comment on how 
these wage transfer impacts can be calculated but received no 
comments.
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A. Elimination of the effective date delay for updated AEWRs
    Currently, the Department publishes the AEWR as soon as data are 
available, typically in the middle of December for AEWRs based on FLS 
data.\130\ There is then a 2-week delay until the AEWR is effective, 
typically January 1st of the following year. Once the rule takes 
effect, the 2-week delay until the AEWR is effective will be removed 
and the AEWR will be effective immediately upon publication in the 
Federal Register. Therefore, employers that employ workers during the 
2-week period from mid-December to early January will see a transfer to 
employees

[[Page 34049]]

due to the elimination of the 2-week delay of wage increases from the 
publication date of updated AEWRs.
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    \130\ New AEWRs based on OEWS data currently become effective on 
or around July 1st for the small percentage of job opportunities 
that cannot be encompassed within the SOC codes for AEWRs that are 
based on the FLS field and livestock workers (combined) data. The 
use of OEWS data to calculate AEWRs in limited circumstances was the 
result of a change made under the Department's 2023 AEWR Final Rule. 
See 88 FR 12760, 12764-65 (Feb. 28, 2023). The analysis here is 
limited to FY 2020 and FY 2021 H-2A certification data, during which 
period the AEWR was calculated based only on FLS data, and thus, the 
analysis focuses on the 2-week period from mid-December to early 
January that is associated with the publication and effective dates 
of FLS-based AEWRs under current practice.
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    To estimate the transfer, the Department first uses FY 2020 and FY 
2021 H-2A certification data to calculate the weighted average increase 
in AEWR from one year to the next.\131\ The Department weights the 
average by the number of workers in each State with employment between 
December 14th and the end of the year to account for regional 
differences in employment during December. The result is an average 
increase in the AEWR by $1.09.\132\ The Department then calculates the 
average number of days worked between December 14th and the end of the 
year (11.87) using the FY 2020 and FY 2021 H-2A certification data. The 
Department estimates the average annual number of workers with work 
during this period using the H-2A certification data (89,208).\133\
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    \131\ OFLC, Performance Data, https://www.dol.gov/agencies/eta/foreign-labor/performance (last visited Feb. 8, 2024).
    \132\ Because FY 2020 and FY 2021 H-2A certification data do not 
reflect the wage increases due to the 2023 AEWR Final Rule, as 
explained in a previous footnote, the transfer payments estimated in 
the analysis are likely understated in that they may not account for 
the main change under that rule, namely the limited job 
opportunities that would be subject to updated AEWRs based on the 
OEWS data. See 88 FR at 12764-65. The 2023 AEWR Final Rule became 
effective on March 30, 2023, and, therefore, the Department does not 
have any readily available FY H-2A certification data to estimate 
wage transfer payments after the publication of the 2023 AEWR Final 
Rule. The Department, moreover, sought public comment on how these 
wage transfer impacts can be calculated but received no comments. 
However, the 2023 AEWR Final Rule explained that the Department 
anticipates a very limited number of H-2A job opportunities would be 
subject to the OEWS-based AEWR, as the majority of H-2A job 
opportunities are and will continue to remain subject to FLS-based 
AEWRs. See 88 FR at 12766, 12799. As such, the Department considers 
the impacts of the potential underestimation here to be de minimis 
because of the low incidence of job opportunities assigned the OEWS 
AEWR pursuant to the 2023 AEWR Final Rule.
    \133\ The Department uses the growth rate of H-2A workers (7.9 
percent) to produce proposed forecasted estimates of H-2A workers: 
96,247 in 2023; 103,840 in 2024; 112,033 in 2025; 120,873 in 2026; 
130,410 in 2027; 140,699 in 2028; 151,800 in 2029; 163,777 in 2030; 
176,699 in 2031; and 190,641 in 2032.
---------------------------------------------------------------------------

    The Department determines the total amount of the transfers by 
multiplying the 2-year weighted AEWR difference for end-of-year 
employment (1.09), the 2-year average number of days worked between 
December 14th and the end of year (11.87), the average number of work 
hours in a day (7.4),\134\ and the number of H-2A workers during this 
period (89,208). To determine the transfers for every year in the 10-
year period, the total number of H-2A workers during the period is 
multiplied by the growth rate of H-2A workers (7.9 percent). The same 
process is repeated for every year in the period. The total 
undiscounted average annual transfers associated with this provision is 
$12,342,109 and the discounted annualized transfers are $12,480,377 and 
$12,660,319 at discount rates of 3 and 7 percent, respectively. The 
Department also conducted a sensitivity analysis using the CAGR of 15.9 
percent for H-2A workers. The resulting total undiscounted average 
annual transfers is $18,135,595, and the discounted annualized 
transfers are $18,037,709 and $17,901,328 at discount rates of 3 and 7 
percent, respectively.
---------------------------------------------------------------------------

    \134\ The Department analyzed FY 2020 and FY 2021 certification 
data for end-of-year employers that reported anticipated hours per 
day, resulting in an average of 7.4 hours per day.
---------------------------------------------------------------------------

ii. Unquantified Transfer Payments
    This section discusses the unquantifiable transfer payments related 
to compensation during a minor delay in the start of work and piece 
rates.
A. Compensation During a Minor Delay in the Start of Work Under 
Sec. Sec.  655.175(b)(2)(ii) and 653.501(c)(5)
    Currently, if an employer fails to notify the SWA of a start date 
change at least 10 days ahead of the originally anticipated date of 
need, it must offer work hours and pay the first week's wages to each 
farmworker referred through the ARS who followed the procedure to 
contact the SWA for updated start date information. If an H-2A employer 
delays the start of work after workers have departed for the place of 
employment, the employer must provide housing and subsistence to these 
workers until work commences. After this final rule takes effect, 
employers that do not notify both the SWA and the workers at least 10 
business days before the anticipated start date will also be required 
to pay workers the hourly rate for the hours listed on the job order 
for each day work is delayed for a period of up to 14 calendar days, 
and, for workers placed on clearance orders via the ARS, will be 
required to provide housing to placed migrant workers until work 
commences, and to provide or pay workers all other benefits and 
expenses described on the clearance order, in addition to wages at the 
applicable rate, for up to 14 days, or provide alternative work 
approved on the clearance order, resulting in a transfer from employers 
to employees. The Department is unable to quantify this transfer 
because it lacks detailed data on the prevalence of job delays, the 
number of employees impacted by these delays, and the number of hours 
impacted by the delays on average, or the number of hours employers 
must spend contacting employees, and as a result is unable to 
accurately quantify this transfer.
B. Piece Rates
    This final rule clarifies language within 20 CFR 655.120(a) and 
655.122(l) to make clear that the employer is required to advertise and 
pay the highest of the AEWR, prevailing hourly wage or piece rate, CBA 
rate, Federal or State minimum wage, or any other wage rate the 
employer intends to pay. The final rule makes analogous changes to 20 
CFR 653.501(c) and 655.210-655.211, which govern the required wage 
rates for non-H-2A (non-criteria) clearance orders and clearance orders 
for herding and range livestock production occupations, respectively. 
The Department is unable to quantify these transfers because it lacks 
data on the frequency of instances when employers will have to pay 
higher wages as a result of including and considering applicable piece 
rates or other non-hourly wage rates in job offers. Specifically, from 
the comments received in response to the substantive proposal, it 
appears that some employers are already paying the applicable 
prevailing piece rates to be in compliance with the requirements of 20 
CFR 655.120(a) and 655.122(l); in such cases, there would be no 
transfer. The Department sought public comment on how these wage 
transfer impacts can be calculated but did not receive comments on this 
issue.
d. Unquantified Benefits
i. Termination for Cause
    This final rule requires that workers only be terminated for cause 
for failure to comply with employer policies or rules or to 
satisfactorily perform job duties in accordance with reasonable 
expectations based on criteria listed in the job offer, and only if the 
termination was justified and reasonable. The designation of a 
termination as being for cause strips workers of essential rights to 
which they would otherwise be entitled--specifically, the three-fourths 
guarantee, payment for outbound transportation, and, if a U.S. worker, 
the right to be contacted for re-hire in the following season--and, 
therefore, it is essential that workers not be deprived of these rights 
using inconsistent or unfair procedures. This final rule will require 
fairness in disciplinary and termination proceedings if the termination 
were to be designated as being for cause, which will prevent workers 
from being unjustly stripped of certain rights under the H-2A program. 
The Department

[[Page 34050]]

lacks data on the numbers of terminations for cause each year and 
whether those terminations were justified and reasonable, and the 
number of hours required by employers to document termination 
proceedings as defined by this rule.
ii. Protections for Worker Advocacy and Self-Organization
    The Department's final rule will provide stronger protections for 
workers covered by the H-2A program to advocate regarding their working 
conditions on behalf of themselves and their coworkers and will prevent 
employers from suppressing this activity. These protections will help 
prevent adverse effect on the working conditions of similarly employed 
agricultural workers in the United States and will increase the 
likelihood of worker advocacy and organizing while protecting those 
workers from intimidation and retaliation by employers. Worker advocacy 
organizations may also complement the Department's enforcement efforts 
in preventing wage-related violations and in ensuring workplace safety 
and health. In sum, protection for worker advocacy and self-
organization provides unquantifiable benefits to workers under the H-2A 
program.
    Although the Department lacks data on how to quantify the benefits 
of such improved compliance with existing worker protections, the final 
regulations should increase workers' dignity and safety and should help 
ensure that workers under the H-2A program can assert their rights 
without the unique risks associated with retaliation, thus helping to 
avoid an adverse effect from the H-2A program on similarly employed 
workers in the United States.
iii. Transportation: Seat Belts for Drivers and Passengers
    Once this final rule takes effect, employer-provided transportation 
will be required to have seat belts available for all workers 
transported, if those vehicles were required by U.S. DOT's FMVSS to be 
manufactured with seat belts. Seat belt use reduces the severity of 
crash-related injuries and deaths. The Department lacks data on the 
baseline number of crashes, whether those vehicles involved in crashes 
were equipped with seat belts and the occupants were using seat belts, 
and subsequent injuries or fatalities involving vehicles transporting 
H-2A workers, and, therefore, is not able to estimate the benefit from 
reduced fatalities or injuries.\135\ The benefit from reducing even a 
single fatality or serious injury is significant. The value of a 
statistical life (VSL) that would measure the benefit of avoiding a 
fatality is estimated to be $11.8 million.\136\ Recent NHTSA reports 
suggest avoiding injury crashes can be highly beneficial, with 
estimates that avoiding a critical injury crash is worth $3.8 million 
(32 percent of a fatality) and avoiding minor injuries is worth $63,000 
(0.5 percent of a fatality), respectively.\137\
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    \135\ BLS reported that 271 of 589 fatal workplace injuries 
suffered by agricultural workers in 2022 were caused by 
transportation-related incidents. However, the Department lacks data 
on the number of fatal workplace injuries that were caused by not 
wearing a seat belt or the number of vehicles involved in 
transportation-related incidents that were not equipped with seat 
belts.
    \136\ The VSL is used by U.S. DOT to value fatalities associated 
with vehicle crashes. The VSL is based upon the base year's VSL 
adjusted for the annual change in the Consumer Price Index. U.S. 
DOT, Departmental Guidance on Valuation of a Statistical Life in 
Economic Analysis (2021), https://www.transportation.gov/office-policy/transportation-policy/revised-departmental-guidance-on-valuation-of-a-statistical-life-in-economic-analysis (last visited 
Feb. 8, 2024).
    \137\ These figures are based on MAIS4 (severe) and MAIS1 
(minor) injury-per-crash costs estimated by NHTSA in Table 1-9 
Summary of Comprehensive Unit Costs. NHTSA, The Economic and 
Societal Impact of Motor Vehicle Crashes, 2019 (Revised) (Feb. 
2023), https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813403.
---------------------------------------------------------------------------

iv. Protection Against Passport and Other Immigration Document 
Withholding
    To better protect this vulnerable workforce from potential labor 
trafficking, the Department adopts revisions to flatly prohibit an 
employer, including through its agents or attorneys, from taking or 
withholding a worker's passport, visa, or other immigration or 
identification documents against the worker's wishes, independent of 
any other requirements under other Federal, State, or local laws, in a 
new provision at 20 CFR 655.135(o). This new provision will help ensure 
that H-2A workers are less likely to be subject to labor exploitation 
and, thus, it safeguards the health, safety, and dignity of those 
workers and also prevents the depression of working conditions for the 
local agricultural workforce.
5. Summary of the Analysis
    Exhibit 6 summarizes the estimated total costs and transfer 
payments of this final rule over the 10-year analysis period. The 
Department estimates the annualized costs of the rule at $1.96 million 
and the annualized transfer payments (from H-2A employers to employees) 
at $12.66 million, each at a discount rate of 7 percent. Unquantified 
transfer payments include the clarified employer obligation to include 
in the job order applicable prevailing piece rates and other non-hourly 
wage rates where such rates have the potential to be the highest wage 
rate of those listed at Sec.  655.120(a), as well as the employer's 
obligation to compensate workers for a period of up to 14 calendar days 
where the employer delays the start date and fails to provide at least 
10 business days' notice, as required under Sec. Sec.  
655.175(b)(2)(i)-(ii) and 653.501(c)(5). Unquantified cost savings 
include the Department's ability to deny labor certification 
applications filed by or on behalf of successors in interest to 
debarred employers, agents, or attorneys. Unquantified benefits include 
better protection from inappropriate termination, protection for worker 
advocacy, reduction in risk of injury during employer-sponsored 
transportation, reduction in improper holding of passports or 
immigration documents, and enhanced integrity and enforcement.

[[Page 34051]]



 Exhibit 6--Estimated Monetized Costs and Transfer Payments of the Final
                                  Rule
                            [2022 $millions]
------------------------------------------------------------------------
                                                             Transfer
                                               Costs         payments
------------------------------------------------------------------------
2024....................................           $2.99           $8.56
2025....................................            1.24            9.24
2026....................................            1.33            9.97
2027....................................            1.44           10.76
2028....................................            1.55           11.60
2029....................................            1.67           12.52
2030....................................            1.81           13.51
2031....................................            1.95           14.57
2032....................................            2.10           15.72
2033....................................            2.27           16.96
Undiscounted 10-Year Total..............           18.35          123.42
10-Year Total with a Discount Rate of 3%           16.08          106.46
10-Year Total with a Discount Rate of 7%           13.74           88.92
10-Year Average.........................            1.84           12.34
Annualized with a Discount Rate of 3%...            1.89           12.48
Annualized with a Discount Rate of 7%...            1.96           12.66
------------------------------------------------------------------------

6. Regulatory Alternatives
    The Department considered two regulatory alternatives to provisions 
adopted in this final rule. The Department discusses below the 
advantages and disadvantages of these regulatory alternatives.
    First, the Department considered a regulatory alternative to this 
final rule's provision in 20 CFR 655.120(b) to make updated AEWRs 
effective on the date of publication in the Federal Register. Under the 
alternative proposal, the AEWRs would become effective 7 calendar days 
after publication in the Federal Register. This proposal would have 
been a compromise between the immediate effective date finalized in 
this rule and the current effective date, which can be as many as 14 
calendar days after the Department publishes the updated AEWR in the 
Federal Register. The benefit of the alternative proposal is that it 
would continue to provide employers a short window of time to adjust 
payroll or recordkeeping systems or make any other adjustments that may 
be necessary after the Department's announcement of updated AEWRs, 
while providing a shorter adjustment window than under the current 
rule.
    However, the Department has determined the disadvantages of a 7-
calendar-day implementation period for updated AEWRs outweighed any 
potential benefits. Although this alternative would require employers 
to begin paying agricultural workers at least the newly required higher 
wage within a calendar week of the date the updated AEWRs are published 
in the Federal Register, it would not require the employer to pay the 
updated AEWR for work performed during the 7-calendar-day delayed 
implementation period. Further, unlike the up to 14-day period in the 
current rule, the 7-calendar-day period would not correspond with a 
typical 2-week pay period; potentially creating more logistical 
challenges than it avoids. As the Department has explained in prior 
rulemaking, the duty to pay an updated AEWR during the employment 
period if it is higher than other required wage sources is not a new 
employer obligation. The Department recognizes that AEWR adjustments 
may alter employer budgets, but the Department believes the difference 
in the impact \138\ on budget and payroll planning between the 
immediate effective date and a 7-day period after publication is 
outweighed by the benefits to agricultural workers noted above. 
Moreover, as the Department noted in the 2010 H-2A Rule, employers are 
aware of the annual AEWR adjustment, and the Department encourages 
employers to continue to include the annual adjustment in their 
contingency planning to allow flexibility to account for any possible 
wage adjustments.\139\
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    \138\ The wage transfer under this alternative would be 
approximately up to half of the impact of this final rule's 
provision to make updated AEWRs effective on the date of publication 
in the Federal Register ($13.69 million at a discount rate of 7 
percent).
    \139\ See 2022 H-2A Final Rule, 87 FR at 61688 (quoting 2010 H-
2A Final Rule, 75 FR at 6901).
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    Second, the Department considered a regulatory alternative to the 
application filing requirements. Under this regulatory alternative, H-
2A employers would not be required to fill out additional information 
about owners, operators, managers, and supervisors on the H-2A 
Application. Instead, this alternative would have required the employer 
to attest that it will collect this information and retain it for a 
period of 3 years from the date of certification or final determination 
and would provide the information upon request by the Department. This 
alternative would have been slightly less burdensome to H-2A employers 
because the employer would not need to provide this information at the 
time of filing each H-2A Application; rather, they would need to retain 
the information and produce it if requested during an audit or 
investigation.
    However, the Department has determined the application filing and 
information disclosure requirements in this final rule, combined with 
the existing requirement to disclose information like the identity of 
the agent and point of contact, address(es), occupation, and period of 
need, will be necessary to assist the Department for reasons explained 
in the preamble discussion of Sec.  655.130 above. This information 
will also assist the Department in ensuring employers do not evade 
penalties or regulatory requirements and will permit the Department to 
more effectively hold employers accountable for failures to comply with 
the law.

B. Regulatory Flexibility Analysis, Small Business Regulatory 
Enforcement Fairness Act, 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 SBREFA, Public Law 104-121, requires agencies to 
determine whether regulations will have a significant economic impact 
on a substantial number of small entities. The Department certifies 
that this final rule does not have a significant economic

[[Page 34052]]

impact on a substantial number of small entities. Therefore, a final 
regulatory flexibility analysis is not required. The factual basis for 
this certification is set forth below.
1. Significant Issues Raised in Public Comments, Including by the Small 
Business Administration Office of Advocacy
    Several commenters, like Willoway Nurseries, Michigan Farm Bureau, 
and American Farm Bureau Federation, submitted feedback that the 
estimate of time burden for rule familiarization for small businesses 
was an underestimate, suggesting that small businesses lack HR 
specialists and that the time burdens were underestimated. The 
Department notes that while some H-2A small business employers may not 
directly employ an HR specialist to conduct these tasks, many use HR 
service providers for consulting on regulatory and HR matters and, 
therefore, the wage rate for an HR specialist is appropriate for H-2A 
small business employers. As explained in Section VIII.A.4.a, the 
Department has increased the time burden associated with rule 
familiarization to 4 hours. The Department believes these changes to 
the time estimate are appropriate because they represent more 
accurately the costs incurred by small businesses.
    American Farm Bureau Federation submitted feedback that the number 
of small businesses and impacted industries was not accurately captured 
in the NPRM's RFA analysis. As explained in Section VIII.B.2 below, the 
Department has revised its RFA analysis methodology to include data 
from the Census Bureau's Statistics of U.S. Businesses (SUSB) \140\ to 
add additional evidence on the scope of impact to small businesses in 
agriculture industries. The Department notes that a broader industry 
level (2-digit North American Industry Classification System (NAICS)) 
was used due to limitations in the publicly available data of 4-digit 
NAICS industries cited by the commenter (1112, 1113, 1114, 1121, 1122, 
1123, 1125, and 1129).\141\
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    \140\ See U.S. Census Bureau, Statistics of U.S. Businesses 
(Sept. 19, 2023). https://www.census.gov/programs-surveys/susb/data.html.
    \141\ See U.S. Census Bureau, Economic Census: NAICS Codes & 
Understanding Industry Classification Systems (Sept. 28, 2023), 
https://www.census.gov/programs-surveys/economic-census/year/2022/guidance/understanding-naics.html.
---------------------------------------------------------------------------

2. Description of the Number of Small Entities to Which This Final Rule 
Will Apply
a. Definition of Small Entity
    The RFA defines a ``small entity'' as a: (1) small not-for-profit 
organization; (2) small governmental jurisdiction; or (3) small 
business.\142\ The Department used the entity size standards defined by 
the Small Business Administration (SBA), in effect as of December 19, 
2022, to classify entities as small.\143\ SBA establishes separate 
standards for individual 6-digit NAICS industry codes, and standard 
cutoffs are typically based on either the average number of employees 
or the average annual receipts. Small governmental jurisdictions are 
defined as the governments of cities, counties, towns, townships, 
villages, school districts, or special districts with populations of 
less than 50,000 people.\144\
---------------------------------------------------------------------------

    \142\ 5 U.S.C. 601(6).
    \143\ SBA, Table of Small Business Size Standards Matched to 
North American Industry Classification System Codes (Dec. 19, 2022), 
https://www.sba.gov/document/support--table-size-standards.
    \144\ 5 U.S.C. 601(5).
---------------------------------------------------------------------------

b. Number of Small Entities
    The Department collected employment and annual revenue data from 
the business information provider Data Axle \145\ and merged those data 
into the estimated costs for small businesses from the H-2A 
certification data for FY 2020 and FY 2021. This process allowed the 
Department to identify the number and type of small entities in the H-
2A certification data as well as their annual revenues. The Department 
determined the number of unique employers in the FY 2020 and FY 2021 
certification data based on the employer name and city. Using these 
data allows the Department to estimate the per-provision cost of this 
final rule as a percent of revenue by firm size. The Department 
identified 9,927 unique employers (excluding labor contractors). Of 
those 9,927 employers, the Department was able to obtain data matches 
of revenue and employees for 2,615 H-2A employers in the FY 2020 and FY 
2021 certification data. Of those 2,615 employers, the Department 
determined that 2,159 were small (82.5 percent). These unique small 
entities had an average of 11 employees and average annual revenue of 
approximately $3.6 million. Of these small unique entities, 2,139 of 
them had revenue data available from Data Axle. The Department's 
analysis of the impact of this proposed rule on small entities is based 
on the number of small unique entities (2,139 with revenue data).
---------------------------------------------------------------------------

    \145\ See Data Axle, Business Data, https://www.data-axle.com/our-data/business-data (last visited Apr. 4, 2024).
---------------------------------------------------------------------------

    To provide clarity on the agricultural industries impacted by this 
regulation, Exhibit 7 shows the number of unique H-2A small employers 
with certifications in the FY 2020 and FY 2021 certification data 
within each NAICS code at the 6-digit level.

                             Exhibit 7--Number of H-2A Small Employers by NAICS Code
----------------------------------------------------------------------------------------------------------------
                                                               Number of
    6-Digit NAICS                  Description                 employers        Percent         Size standard
----------------------------------------------------------------------------------------------------------------
111998...............  All Other Miscellaneous Crop                    611              29  $2.5 million.
                        Farming.
444240...............  Nursery, Garden Center, and Farm                162               8  $21.5 million.
                        Supply Stores.
561730...............  Landscaping Services...............             135               6  $9.5 million.
445230...............  Fruit and Vegetable Markets........             127               6  $9.0 million.
424480...............  Fresh Fruit and Vegetable Merchant               78               4  100 employees.
                        Wholesalers.
111339...............  Other Noncitrus Fruit Farming......              78               4  $3.5 million.
112990...............  All Other Animal Production........              57               3  $2.75 million.
424930...............  Flower, Nursery Stock, and                       47               2  100 employees.
                        Florists' Supplies Merchant
                        Wholesalers.
424910...............  Farm Supplies Merchant Wholesalers.              39               2  200 employees.
484230...............  Specialized Freight (except Used                 37               2  $34.0 million.
                        Goods) Trucking, Long-Distance.
                                                           --------------------------------
                       All Other..........................             768              36
                       Total..............................           2,139             100
----------------------------------------------------------------------------------------------------------------


[[Page 34053]]

    The Department also collected employment and annual revenue data 
for the NAICS Agricultural major industry \146\ from SUSB \147\ and 
merged those data into the estimated costs for small businesses from 
the H-2A certification data for FY 2020 and FY 2021. The Department 
assumes that NAICS sectors related to H-2A employment (1112, 1113, 
1114, 1121, 1122, 1123, 1124, 1125, and 1129) have similar 
representation in size distribution as the broader 2-digit industry. 
The Department believes it is a reasonable assumption for the analysis 
because the broader 2-digit industry completely covers the 4-digit 
NAICS industries (1112, 1113, 1114, 1121, 1122, 1123, and 1129). The 
size distribution in the broader 2-digit industry mirrors the average 
size distribution in the 4-digit NAICS industries (1112, 1113, 1114, 
1121, 1122, 1123 and 1129). No small businesses are left out for 
estimating impact on small entities in the affected NAICS industries. 
This assumption allows the Department to conduct a robust analysis of 
the most inclusive set of small businesses, which includes the number 
of firms, number of employees, and annual revenue by firm size. Using 
these data allows the Department to estimate the per-provision cost of 
this final rule as a percent of revenue by firm size.
---------------------------------------------------------------------------

    \146\ Due to omissions in collected data, 6-digit and 4-digit 
NAICS code data were not available. See U.S. Census Bureau, Economic 
Census: NAICS Codes & Understanding Industry Classification Systems 
(Sept. 28, 2023). https://www.census.gov/programs-surveys/economic-census/year/2022/guidance/understanding-naics.html.
    \147\ See U.S. Census Bureau, Statistics of U.S. Businesses 
(Sept. 19, 2023). https://www.census.gov/programs-surveys/susb/data.html.
---------------------------------------------------------------------------

3. Projected Impacts to Affected Small Entities
    The Department has estimated the incremental costs for small 
entities from the baseline (i.e., the current practices for complying, 
at a minimum, with the H-2A program as currently codified at 20 CFR 
part 655, subpart B, and 29 CFR part 501) to this final rule. As 
discussed in previous sections, the Department estimates impacts using 
historical certification data and, therefore, simulates the impacts of 
this final rule to each actual employer in the H-2A program rather than 
using representative data for employers within a given sector. The 
Department estimated the costs of (a) time to read and review this 
final rule, (b) time required to collect and maintain additional 
information for the application additions provision and add that 
information to H-2A applications, and (c) wage transfers due to the 
removal of the 2-week effective date delay from the AEWR publication. 
The estimates included in this analysis are consistent with those 
presented in the E.O. 12866 section.
    The Department estimates that 2,139 unique small entities will 
incur a one-time cost of $223.43 to familiarize themselves with the 
rule and an annual cost of $111.71 to collect and maintain information 
due to the additional disclosure requirements associated with this 
final rule.\148\
---------------------------------------------------------------------------

    \148\ Calculation: ($35.13 + $35.13(0.42) + $35.13(0.17)) x 4 = 
$223.43. $35.13 (1.59) x 1 = $55.86. $35.13 (1.59) x 2 = $111.71.
---------------------------------------------------------------------------

    In addition to the cost of rule familiarization and the cost of 
information and record keeping due to application additions, each small 
entity may have an increase in wage costs due to the revisions to the 
effective date of the AEWR. To estimate the wage impact for each small 
entity, we followed the methodology presented in the E.O. 12866 
section. For each certification of a small entity, the Department 
calculated total wage impacts of this final rule in calendar year (CY) 
2020 and CY 2021 based on each certification for employment between 
December 14th and the end of the year and the annual increase in the 
AEWR. The Department estimates the wage impact to all small entities is 
$826 on average in the first year.\149\ Many of the small entities have 
no wage impact from this final rule because they do not have workers 
employed at the end of December.
---------------------------------------------------------------------------

    \149\ In CY 2020 the average wage impact to all small entities 
is $620, and in CY 2021 it is $1,032. Because CY 2020 and CY 2021 H-
2A certification data do not reflect the wage increases due to the 
2023 AEWR Final Rule, the transfer payments estimated in the 
analysis are likely understated. As explained in a previous 
footnote, the transfer payments are likely understated in that they 
may not account for the main change under the 2023 AEWR Final Rule, 
namely the limited job opportunities that would be subject to 
updated AEWRs based on OEWS data. See 88 FR at 12764-12765. Because 
the 2023 AEWR Final Rule became effective on March 30, 2023, the 
Department does not have readily available calendar year H-2A 
certification data to estimate wage transfer payments after the 
publication of that rule. While the Department sought public comment 
on how these wage transfer impacts can be calculated, it received no 
comments. However, the 2023 AEWR Final Rule explained that the 
Department anticipates a very limited number of H-2A job 
opportunities would be subject to the OEWS-based AEWR, as the 
majority of H-2A job opportunities are and are estimated to continue 
to remain subject to FLS-based AEWRs. See 88 FR at 12766, 12799. The 
Department therefore considers the impacts of the potential 
underestimation to be de minimis because of the low incidence of job 
opportunities assigned the OEWS AEWR under the 2023 AEWR Final Rule.
---------------------------------------------------------------------------

    Exhibit 8 shows the estimated cost per small entity for each year 
of the analysis. The first-year cost per small entity is estimated at 
$1,143 at a discount rate of 7 percent. The annualized cost per small 
entity is estimated at $1,553 at a discount rate of 7 percent. These 
estimates are average costs, meaning that some small entities will have 
higher costs while other small entities will have lower costs, 
regardless of firm size.

                                   Exhibit 8--Estimated Cost to Small Entities
----------------------------------------------------------------------------------------------------------------
                                                                                                   Average total
                      Year                             Rule         Application     End of year      cost per
                                                 familiarization     additions      wage impact      employer
----------------------------------------------------------------------------------------------------------------
1..............................................          $223.43         $111.71            $808          $1,143
2..............................................           223.43          111.71             872           1,207
3..............................................           223.43          111.71             941           1,276
4..............................................           223.43          111.71           1,015           1,350
5..............................................           223.43          111.71           1,095           1,430
6..............................................           223.43          111.71           1,181           1,516
7..............................................           223.43          111.71           1,264           1,610
8..............................................           223.43          111.71           1,375           1,710
9..............................................           223.43          111.71           1,483           1,819
10.............................................           223.43          111.71           1,600           1,936
                                                ----------------------------------------------------------------
                                                      First-year cost ($), 7% discount rate                1,143

[[Page 34054]]

 
                                                      Annualized cost ($), 7% discount rate                1,553
----------------------------------------------------------------------------------------------------------------

    The Department used the following steps to estimate the cost of 
this final rule per small entity as a percentage of annual receipts. 
First, the Department used SBA's Table of Small Business Size Standards 
to determine the size thresholds for small entities within the 
agricultural industry.\150\ Next the Department obtained data on the 
number of firms, number of employees, and annual revenue by industry 
and firm size category from SUSB.\151\ The Department used the Gross 
Domestic Product deflator to convert revenue data from 2017 dollars to 
2022 dollars.\152\ Then, the Department divided the estimated first-
year cost and the annualized cost per small business (discounted at a 
7-percent rate) by the average annual receipts per firm to determine 
whether this final rule will have a significant or substantial economic 
impact on small businesses in each size category. 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 20 percent of small 
entities incurring a significant impact as the threshold for a 
substantial impact on small entities. A threshold of 3 percent of 
revenues has been used in prior rulemakings for the definition of 
significant economic impact.\153\ This threshold is also consistent 
with that sometimes used by other agencies.\154\
---------------------------------------------------------------------------

    \150\ SBA, Table of Small Business Size Standards Matched to 
North American Industry Classification System Codes, (Mar. 17, 
2023), https://www.sba.gov/document/support-table-size-standards. 
The size standards, which are expressed in either average annual 
receipts or number of employees, indicate the maximum allowed for a 
business in each subsector to be considered small.
    \151\ U.S. Census Bureau, Statistics of U.S. Businesses (May 10, 
2022), https://www.census.gov/programs-surveys/susb/data.html.
    \152\ U.S. Bureau of Economic Analysis, Table 1.1.9. Implicit 
Price Deflators for Gross Domestic Product, https://apps.bea.gov/iTable/?reqid=19&step=2&isuri=1&categories=survey (last visited May 
30, 2023).
    \153\ See, e.g., Final Rule, Increasing the Minimum Wage for 
Federal Contractors, 79 FR 60634, 60706 (Oct. 7, 2014); Final Rule, 
Discrimination on the Basis of Sex, 81 FR 39108, 39151 (June 15, 
2016); NPRM, National Apprenticeship System Enhancements, 89 FR 
3118, 3252 (Jan. 17, 2024).
    \154\ See, e.g., Final Rule, Medicare and Medicaid Programs; 
Regulatory Provisions to Promote Program Efficiency, Transparency, 
and Burden Reduction; Part II, 79 FR 27106, 27151 (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 
3 percent annually are not economically significant).
---------------------------------------------------------------------------

    Exhibit 9 provides a breakdown of small entities by the proportion 
of revenue affected by the costs of this final rule. Of the 2,139 
unique small entities with revenue data in the FY 2020 and FY 2021 
certification data, only 0.7 percent of employers are estimated to have 
more than 3 percent of their total revenue impacted in the first year 
based on 2020 data and only 2.0 percent of employers are estimated to 
have more than 3 percent of their total revenue impacted in the first 
year based on 2021 data. In addition, no individual NAICS code sector 
has 20 percent or more of entities with an impact greater than 3 
percent of revenue.

                                       Exhibit 9--Cost Impacts as a Proportion of Total Revenue for Small Entities
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Proportion of revenue impacted                   111998          444240          561730          445230         All Other         Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   2020, by NAICS Code
--------------------------------------------------------------------------------------------------------------------------------------------------------
<1%.....................................................     593 (97.1%)    162 (100.0%)     132 (98.5%)    127 (100.0%)   1,078 (97.6%)   2,093 (97.8%)
1%-2%...................................................       13 (2.1%)        0 (0.0%)        2 (1.5%)        0 (0.0%)       13 (1.2%)       28 (1.3%)
2%-3%...................................................        2 (0.3%)        0 (0.0%)        0 (0.0%)        0 (0.0%)        2 (0.2%)        4 (0.2%)
3%-4%...................................................        1 (0.2%)        0 (0.0%)        0 (0.0%)        0 (0.0%)        1 (0.1%)        2 (0.1%)
4%-5%...................................................        1 (0.2%)        0 (0.0%)        0 (0.0%)        0 (0.0%)        4 (0.4%)        5 (0.2%)
>5%.....................................................        1 (0.2%)        0 (0.0%)        0 (0.0%)        0 (0.0%)        6 (0.5%)        7 (0.3%)
Total >3%...............................................        3 (0.5%)        0 (0.0%)        0 (0.0%)        0 (0.0%)       11 (1.0%)       14 (0.7%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   2021, by NAICS Code
--------------------------------------------------------------------------------------------------------------------------------------------------------
<1%.....................................................     561 (91.8%)     161 (99.4%)     129 (96.3%)    127 (100.0%)   1,059 (95.9%)   2,038 (95.3%)
1%-2%...................................................       23 (3.8%)        1 (0.6%)        4 (3.0%)        0 (0.0%)       18 (1.6%)       46 (2.2%)
2%-3%...................................................        7 (1.1%)        0 (0.0%)        0 (0.0%)        0 (0.0%)        5 (0.5%)       12 (0.6%)
3%-4%...................................................        4 (0.7%)        0 (0.0%)        1 (0.7%)        0 (0.0%)        4 (0.4%)        9 (0.4%)
4%-5%...................................................        5 (0.8%)        0 (0.0%)        0 (0.0%)        0 (0.0%)        3 (0.3%)        8 (0.4%)
>5%.....................................................       11 (1.8%)        0 (0.0%)        0 (0.0%)        0 (0.0%)       15 (1.4%)       26 (1.2%)
Total >3%...............................................       20 (3.3%)        0 (0.0%)        1 (0.7%)        0 (0.0%)       22 (2.0%)       43 (2.0%)
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Exhibit 10, below, presents results of the analysis using the SUSB 
data, which show that for the first-year and annualized costs, small 
businesses in the agriculture industry are not estimated to have a 
significant economic impact (3 percent or more) for any entities. The 
largest proportion of revenue from first-year costs is estimated to be 
1.91 percent of the average receipts per firm and the annualized costs 
are estimated to be 2.60 percent of the average receipts per firm for 
the smallest firms with revenue below $100,000. Furthermore, it is very 
unlikely that agricultural employers with revenue below $100,000 will 
request H-2A workers as their small revenue will not be sufficient to 
pay the H-2A worker(s) and cover other operating costs.

[[Page 34055]]



                                                                Exhibit 10--Agriculture, Forestry, Fishing, and Hunting Industry
                                                                   [Small business size standard: $2.25 million-$34.0 million]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                                                                                     firms as         Annual          Average       First-year      First-year      Annualized      Annualized
                                                                     Number of      percent of      receipts ($    receipts per    cost per firm   cost per firm   cost per firm   cost per firm
                                                                     firms \1\    small firms in   million) \3\    firm ($) \4\       with 7%      as percent of      with 7%      as percent of
                                                                                   industry \2\                                     discounting    receipts \5\     discounting    receipts \6\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Enterprises with receipts below $100,000........................           4,042           18.03            $242         $59,803          $1,143            1.91       $1,553.04            2.60
Enterprises with receipts of $100,000 to $499,999...............           8,582           38.27           2,592         302,003           1,143            0.38           1,553            0.51
Enterprises with receipts of $500,000 to $999,999...............           3,703           16.51           3,127         844,419           1,143            0.14           1,553            0.18
Enterprises with receipts of $1,000,000 to $2,499,999...........           3,686           16.44           6,781       1,839,700           1,143            0.06           1,553            0.08
Enterprises with receipts of $2,500,000 to $4,999,999...........           1,370            6.11           5,634       4,112,289           1,143            0.03           1,553            0.04
Enterprises with receipts of $5,000,000 to $7,499,999...........             455            2.03           3,153       6,929,380           1,143            0.02           1,553            0.02
Enterprises with receipts of $7,500,000 to $9,999,999...........             208            0.93           2,101      10,101,550           1,143            0.01           1,553            0.02
Enterprises with receipts of $10,000,000 to $14,999,999.........             193            0.86           2,545      13,188,869           1,143            0.01           1,553            0.01
Enterprises with receipts of $15,000,000 to $19,999,999.........              79            0.35           1,520      19,242,856           1,143            0.01           1,553            0.01
Enterprises with receipts of $20,000,000 to $24,999,999.........              60            0.27           1,357      22,619,811           1,143            0.01           1,553            0.01
Enterprises with receipts of $25,000,000 to $29,999,999.........              28            0.12             710      25,343,408           1,143            0.00           1,553            0.01
Enterprises with receipts of $30,000,000 to $34,999,999.........              17            0.08             475      27,948,978           1,143            0.00           1,553            0.01
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Source: U.S. Census Bureau, Statistics of U.S. Businesses.
\2\ Number of firms / Small firms in industry.
\3\ Source: U.S. Census Bureau, Statistics of U.S. Businesses.
\4\ Annual receipts / Number of firms.
\5\ First-year cost per firm with 7% discounting / Average receipts per firm.
\6\ Annualized cost per firm with 7% discounting / Average receipts per firm.

    Based on the above analysis and results provided in both Exhibit 9 
and Exhibit 10, the Department certifies that this final rule will not 
have a significant economic impact on a substantial number of small 
entities.

C. Paperwork Reduction Act

    In order to meet its statutory responsibilities under the INA, the 
Department collects information necessary to render determinations on 
requests for temporary agricultural labor certification that allow 
employers to bring foreign labor into the United States on a seasonal 
or other temporary basis under the H-2A program. The Department uses 
the collected information to determine if employers satisfy their 
statutory and regulatory obligations. This information is subject to 
the PRA, 44 U.S.C. 3501 et seq. A Federal agency generally cannot 
conduct or sponsor a collection of information, and the public is 
generally not required to respond to an information collection, unless 
it is approved by OMB under the PRA and displays a currently valid OMB 
Control Number. In addition, notwithstanding any other provisions of 
law, no person shall generally be subject to penalty for failing to 
comply with a collection of information that does not display a valid 
Control Number. See 5 CFR 1320.5(a) and 1320.6. The Department has OMB 
approval for its H-2A program information collection under Control 
Number 1205-0466.
    In accordance with the PRA, the information collection requirements 
that must be implemented as a result of this regulation must receive 
approval from OMB. Therefore, the Department submitted a clearance 
package in connection with the NPRM that contained proposed revisions 
to the information collection pending OMB approval under 1205-0466.
    In this package, the Department proposed changes to the forms used 
to collect required information (i.e., Form ETA-9142A and appendices; 
Form ETA-790/790A and addenda) to conform to proposed revisions to the 
Department's H-2A regulations. The Department also introduced new 
appendices to the Application for Temporary Labor Certification, Form 
ETA-9142A. Appendix C will facilitate satisfaction of additional filing 
requirements by identifying information, such as name, location, and 
contact information, for owners and operators of places where work is 
performed and the people who manage and supervise workers under the H-
2A Application, as discussed above. Additionally, employers must 
continue to keep this information updated throughout the work contract 
period, and in the event of audit will provide the updated information 
to the Department. Appendix D will satisfy new filing requirements for 
foreign labor recruiters. Specifically, the Department now requires the 
employer to disclose the identity (i.e., name and, if applicable, 
identification/registration number) and geographic location of persons 
and entities hired by or working for the foreign labor recruiter that 
the employer engages or plans to engage in the recruitment of 
prospective H-2A

[[Page 34056]]

workers, regardless of whether the agent or recruiter is located in the 
United States or abroad. Additionally, the Department has revised Form 
ETA-790A, Addendum B, to collect more detailed information about 
employers and the places of employment at which workers will provide 
the agricultural labor or services described in the job order. More 
information about the Department's changes to the H-2A information 
collection instruments and the Department's collection and use of this 
information is available in supporting documentation in the PRA package 
the Department has prepared for this rulemaking.
    These modifications reflect the regulatory changes proposed in the 
NPRM and adopted in this final rule, such as consistent use and 
clarification of defined terms and revised assurances.\155\ The public 
was given 60 days to comment on the information collection and the 
comment period closed on November 14, 2023.\156\
---------------------------------------------------------------------------

    \155\ See 2023 NPRM, 88 FR 63750.
    \156\ On October 26, 2023, in response to several requests, the 
Department published a letter on regulations.gov declining to extend 
the 60-day comment period for the NPRM that expired on November 14, 
2023. The Department found that 60 days would be a reasonable and 
adequate amount of time to provide notice and an opportunity to 
comment on the NPRM to this rule. As a result, the Department 
encouraged all interested parties to submit comments electronically 
on https://www.regulations.gov (RIN 1205-AC12) by 11:59 p.m. ET on 
November 14, 2023. Letter from Rajesh D. Nayak, Asst. Sec'y for 
Pol'y, DOL (Oct. 16, 2023), https://www.regulations.gov/document/ETA-2023-0003-0040.
---------------------------------------------------------------------------

    During the 60-day comment period, the Department received some 
comments on the proposed form revisions. A farm owner and many trade 
associations, including Michigan Farm Bureau and NCFC, indicated that 
the burden numbers presented by the Department were low; however, none 
of those commenters provided an alternative burden number or a 
justification as to why the Department's burden numbers were 
inaccurate. Therefore, in this final rule, the Department's estimates 
of the time burden to complete the information collection will remain 
the same as estimated in the NPRM. Commenters primarily addressed 
aspects of the information collection while discussing the proposed 
regulations. After considering public comments submitted in response to 
the NPRM, the Department has adopted certain proposals, with some 
changes, as discussed in the preamble above, but has retained the 
proposed changes for the information collection in this final rule.
    In response to comments, as described below, the Department has 
made additional modifications to the forms implemented with this final 
rule to clarify certain requirements, reflect the provisions of this 
final rule (e.g., collection of additional employer information), and 
conform to similar collections (e.g., manner of collecting name 
information). In addition to editing language on the forms, the 
Department has modified some data collection fields after considering 
public comments. Many commenters addressed the Department's proposal to 
collect information about owners, operators, managers, and supervisors, 
which is now reflected in this final rule and will be implemented using 
Appendix C, and will require an employer to submit contact information 
(address, phone, and email, if applicable) about owners, operators, 
managers, and supervisors. Although many commenters questioned the 
necessity of this requirement at the filing stage, the Department will 
retain this requirement because, as noted in the preamble to Sec.  
655.130 above, gathering this information at the time of filing, rather 
than only in the event of an investigation or audit, will assist the 
Department to gain a more accurate and detailed understanding of the 
scope and structure of the employer's agricultural operation, which is 
essential to the Department's fulfillment of various obligations in the 
administration and enforcement of the H-2A program. The information 
will assist the Department in determining whether two ostensibly 
separate employers are in fact one entity filing multiple applications, 
and whether they have demonstrated a bona fide temporary or seasonal 
need as required by the INA, 8 U.S.C. 1101(a)(15)(H)(ii)(a). Collection 
at the time of filing also will assist the Department in determining 
whether an employer has filed as a single employer with a debarred 
entity, as the Department will already have the debarred entity's data 
on record. Obtaining this information at the time of filing also 
enables OFLC and WHD to search across applications within a filing 
system database to identify instances in which employers have changed 
names, or roles, to avoid complying with program regulations or avoid 
monetary penalties or program debarment. Furthermore, the information 
collected about owners, operators, and supervisors at the application 
stage may assist the Department to identify whether an individual or 
successor in interest should be named on any determination and, 
therefore, subject to any sanctions or remedies assessed. Finally, as 
noted above, collecting this information from all applicants at the 
time of filing, rather than only collecting the information during an 
audit or investigation, can be useful for other similar purposes as 
well, such as identifying instances when an H-2ALC Application 
indicates that an applicant intends to supply an H-2A workforce to a 
debarred employer during the debarment period.
    Additionally, commenters expressed concerns about publication of 
the required contact information of an owner, operator, manager, or 
supervisor. The Department, as discussed in the above preamble, will 
only collect, store, and disseminate all information and records in 
accordance with the Department's information sharing agreements and 
SORN, principles set forth by OMB, and applicable laws, including the 
Privacy Act of 1974 (Pub. L. 93-579, 7, 88 Stat. 1896, 1909), Federal 
Records Act of 1950 (Pub. L. 81-754, 64 Stat. 583, 585 [codified as 
amended in scattered sections of 44 U.S.C.]), the PRA (44 U.S.C. 3501 
et seq.), and the E-Government Act of 2002 (Pub. L. 107-347 (2002)).
    As a result, the forms implemented with this final rule align 
information collection requirements with the Department's regulation 
and continue its ongoing efforts to provide greater clarity to 
employers on regulatory requirements, and to standardize information 
collection to reduce employer time and burden preparing applications. 
Overall, the revisions discussed above place no undue public burden to 
respond to the information collection required under this final rule 
from that proposed in connection with the NPRM.
    The information collection change in requirements associated with 
this final rule are summarized as follows:
    Title: H-2A Temporary Agricultural Employment Certification 
Program.
    Agency: DOL-ETA.
    Type of Information Collection: OMB Control 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; Appendix C, ETA-9142A; Appendix D, ETA-9142A; 
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--

[[Page 34057]]

Addendum B; ETA-790/790A--Addendum C; ETA-232, Domestic Agricultural 
In-Season Wage Report.
    Obligation to Respond: Required to Obtain or Retain Benefits.
    Total Annual Respondents: 467,843.
    Annual Frequency: On Occasion.
    Total Annual Responses: 14,586.
    Estimated Time per Response (averages):

--Forms ETA-9142A, Appendix A, Appendix B, Appendix C, and Appendix D--
3.63 hours per response.
--Forms ETA-790/790A--.70 hours per response.
--Form ETA-232--3.30 hours per response.

    Estimated Total Annual Burden Hours: 102,864.74.
    Total Annual Burden Cost for Respondents: $0.
    Title of Collection: Agricultural Recruitment System Forms 
Affecting Migrant and Seasonal Farmworkers.
    Type of Review: Revision of a Currently Approved Information 
Collection.
    OMB Control Number: 1205-0134.
    Description: The NPRM proposed to revise Agricultural Clearance 
Order Form, Form ETA-790B, which will be attached to the Agricultural 
Clearance Order Form, Form ETA-790 (see OMB Control Number 1205-0466). 
Form ETA-790B is only used for employers who submit clearance orders 
requesting U.S. workers for temporary agricultural jobs that are not 
attached to requests for foreign workers through the H-2A visa program 
(non-criteria clearance orders). ETA included the estimated burden to 
the public for the completion of Form ETA-790 as it relates to those 
employers seeking to place non-criteria job orders through the ARS in 
addition to the estimated burden for Form ETA-790B because employers 
would fill out both forms. The Department must update Form ETA-790B to 
implement changes at Sec.  653.501(c)(3)(iv) regarding assurances that 
employers must make on clearance orders. The Department has also made 
changes to align Form ETA-790B with the structure of Form ETA-790A. 
Affected Public: State Governments, Private Sector: Business or other 
for-profits, not-for-profit institutions, and farms.
    Obligation to Respond: Required to Obtain or Retain Benefits.
    Estimated Total Annual Respondents: 7,568.
    Estimated Total Annual Responses: 7,568.
    Estimated Total Annual Burden Hours: 6,622.
    Estimated Total Annual Other Burden Costs: $0.
    Regulations Sections: Subpart F of part 653.
    Agency: DOL-ETA.
    Interested parties may obtain a copy of the information collection 
revisions submitted to OMB on the OIRA website at https://www.reginfo.gov/public/do/PRAMain. From that page, select Department of 
Labor from the ``Currently under Review'' dropdown menu, click the 
``Submit'' button, and find the applicable control number among the 
ICRs displayed, or use the search bar at the top right of the page and 
type in the OMB Control Number (1205-0134).

D. Small Business Regulatory Enforcement Fairness Act of 1996 
(Congressional Review Act)

    The Congressional Review Act (CRA) was included as part of SBREFA, 
Public Law 104-121, 110 Stat. 847, 868 (codified at 5 U.S.C. 801 et 
seq.). OIRA has determined that this final rule does not meet the 
criteria set forth in 5 U.S.C. 804(2). DOL has complied with the CRA's 
reporting requirements and has sent this rule to Congress and to the 
Comptroller General as required by 5 U.S.C. 801(a)(1).

E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4, 
codified at 2 U.S.C. 1501 et seq.) is intended, among other things, to 
curb the practice of imposing unfunded Federal mandates on State, 
local, and Tribal governments. UMRA requires Federal agencies to assess 
a regulation's effects on State, local, and Tribal governments, as well 
as on the private sector, except to the extent the regulation 
incorporates requirements specifically set forth in law. Title II of 
the UMRA requires each Federal agency to prepare a written statement 
assessing the effects of any regulation that includes any Federal 
mandate in a proposed or final agency rule that may result in $100 
million or more expenditure (adjusted annually for inflation) in any 
one year by State, local, and Tribal governments, in the aggregate, or 
by the private sector. A Federal mandate is any provision in a 
regulation that imposes an enforceable duty upon State, local, or 
Tribal governments, or upon the private sector, except as a condition 
of Federal assistance or a duty arising from participation in a 
voluntary Federal program.
    This final rule does not result in unfunded mandates for the public 
or private sector because private employers' participation in the 
program is voluntary, and State governments are reimbursed for 
performing activities required under the program. The requirements of 
title II of the UMRA, therefore, do not apply, and the Department has 
not prepared a statement under the UMRA.

F. Executive Order 13132 (Federalism)

    This final rule would not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with sec. 6 of 
E.O. 13132,\157\ it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.
---------------------------------------------------------------------------

    \157\ E.O. 13132, Federalism, 64 FR 43255 (Aug. 10, 1999).
---------------------------------------------------------------------------

G. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    The Department has reviewed this final rule in accordance with E.O. 
13175 \158\ and has determined that it does not have Tribal 
implications. This rule does not have substantial direct effects on one 
or more Indian Tribes, on the relationship between the Federal 
Government and Indian Tribes, or on the distribution of power and 
responsibilities between the Federal Government and Tribal governments.
---------------------------------------------------------------------------

    \158\ E.O. 13175, Consultation and Coordination with Indian 
Tribal Governments, 65 FR 67249 (Nov. 9, 2000).
---------------------------------------------------------------------------

List of Subjects

20 CFR Part 651

    Employment, Grant programs--labor.

20 CFR Part 653

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

20 CFR Part 655

    Administrative practice and procedure, Foreign workers, Employment, 
Employment and training, Enforcement, Forest and forest products, 
Fraud, Health professions, Immigration, Labor, Passports and visas, 
Penalties, Reporting and recordkeeping requirements, Unemployment, 
Wages, Working conditions.

20 CFR Part 658

    Administrative practice and procedure, Employment, Grant programs--
labor, Reporting and recordkeeping requirements.

[[Page 34058]]

29 CFR Part 501

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

    For the reasons stated in the preamble, the Department of Labor 
amends 20 CFR parts 651, 653, 655, and 658 and 29 CFR part 501 as 
follows:

Title 20: Employees' Benefits

Employment and Training Administration

PART 651--GENERAL PROVISIONS GOVERNING THE WAGNER-PEYSER ACT 
EMPLOYMENT SERVICE

0
1. The authority citation for part 651 continues to read as follows:

    Authority:  29 U.S.C. 49a; 38 U.S.C. part III, 4101, 4211; Secs. 
503, 3, 189, Pub. L. 113-128, 128 Stat. 1425 (Jul. 22, 2014).


0
2. Amend Sec.  651.10 by:
0
a. Adding definitions of ``Agent'', ``Criteria clearance order'', and 
``Discontinuation of services'', in alphabetical order;
0
b. Revising the definition for ``Employment-related laws''; and
0
c. Adding definitions for ``Farm labor contractor'', ``Joint 
employer'', ``Non-criteria clearance order'', ``Successor in 
interest'', and ``Week'' in alphabetical order.
    The additions and revision read as follows:


Sec.  651.10  Definitions of terms used in this part and parts 652, 
653, 654, and 658 of this chapter.

* * * * *
    Agent means a legal entity or person, such as an association of 
employers, or an attorney for an association, that is authorized to act 
on behalf of the employer for purposes of recruitment of workers 
through the clearance system and is not itself an employer or joint 
employer, as defined in this section, with respect to a specific job 
order.
* * * * *
    Criteria clearance order means a clearance order that is attached 
to an application for foreign temporary agricultural workers pursuant 
to part 655, subpart B, of this chapter.
* * * * *
    Discontinuation of services means that an employer, agent, farm 
labor contractor, joint employer, or successor in interest, as defined 
in this section, cannot participate in or receive any Wagner-Peyser Act 
employment service provided by the ES to employers pursuant to parts 
652 and 653 of this chapter.
* * * * *
    Employment-related laws means those laws and implementing rules, 
regulations, and standards that relate to the employment relationship, 
such as those enforced by the Department's WHD, OSHA, or by other 
Federal, State, or local agencies.
* * * * *
    Farm labor contractor means any person or entity, other than an 
agricultural employer, an agricultural association, or an employee of 
an agricultural employer or agricultural association, who, for any 
money or other valuable consideration paid or promised to be paid, 
recruits, solicits, hires, employs, furnishes, or transports any 
migrant or seasonal farmworker (MSFW).
* * * * *
    Joint employer means where two or more employers each have 
sufficient definitional indicia of being an employer of a worker as 
defined in this section, they are, at all times, joint employers of 
that worker. An employer that submits a job order to the ES clearance 
system as a joint employer, is a joint employer of any worker placed 
and employed on the job order during the period of employment 
anticipated, amended, or otherwise extended in accordance with the 
order.
* * * * *
    Non-criteria clearance order means a clearance order that is not 
attached to an application for foreign temporary agricultural workers 
pursuant to part 655, subpart B, of this chapter.
* * * * *
    Successor in interest--The following factors, including those 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 farm labor contractor is a successor in 
interest; however, these factors are not exhaustive, and no one factor 
is dispositive, but all of the circumstances will be considered as a 
whole:
    (1) Substantial continuity of the same business operations;
    (2) Use of the same facilities;
    (3) Continuity of the work force;
    (4) Similarity of jobs and working conditions;
    (5) Similarity of supervisory personnel;
    (6) Whether the former management or owner retains a direct or 
indirect interest in the new enterprise;
    (7) Similarity in machinery, equipment, and production methods;
    (8) Similarity of products and services;
    (9) The ability of the predecessor to provide relief; and
    (10) For purposes of discontinuation of services, the involvement 
of the firm's ownership, management, supervisors, and others associated 
with the firm in the violation(s) at issue.
* * * * *
    Week means 7 consecutive calendar days.
* * * * *

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

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

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


0
4. Amend Sec.  653.501 by:
0
a. Adding paragraph (b)(4);
0
b. Revising paragraph (c)(1)(iv)(E);
0
c. Revising paragraphs (c)(3) introductory text, (c)(3)(i) and (iv), 
and (c)(5); and
0
d. Removing and reserving paragraphs (d)(4), (7), and (8).
    The additions and revisions read as follows:


Sec.  653.501  Requirements for processing clearance orders.

* * * * *
    (b) * * *
    (4) Prior to placing a job order into intrastate or interstate 
clearance, ES staff must consult the Department's Office of Foreign 
Labor Certification and Wage and Hour Division debarment lists, and the 
Department's Office of Workforce Investment discontinuation of services 
list.
    (i) If the employer requesting access to the clearance system is 
currently debarred from participating in the H-2A or H-2B foreign labor 
certification programs, the SWA must initiate discontinuation of 
services pursuant to part 658, subpart F, of this chapter.
    (ii) If the employer requesting access to the clearance system is 
currently discontinued from receiving ES services under Sec.  658.503 
of this chapter by any State, the SWA must not approve the clearance 
order for placement into intrastate or interstate clearance. Employers 
may submit written requests to the OWI Administrator to determine 
whether they are on the OWI discontinuation of services list. If the 
OWI Administrator indicates that the employer is not on the 
discontinuation of services list then the SWA must

[[Page 34059]]

approve the clearance order, as long as all other requirements have 
been met.
    (iii) For purposes of this paragraph (b)(4), ``employer'' has the 
meaning given in Sec.  658.500(b) of this chapter.
    (c) * * *
    (1) * * *
    (iv) * * *
    (E) The hourly wage rate, if applicable, and any non-hourly wage 
rate offered, including a piece rate or base rate and bonuses and, for 
any non-hourly wage rate, an estimate of its hourly wage rate 
equivalent for each activity and unit size;
* * * * *
    (3) SWAs must ensure that the employer makes the following 
assurances in the clearance order:
    (i) The employer will provide to workers placed through the 
clearance system the number of hours of work cited in paragraph 
(c)(1)(iv)(D) of this section for the 14 calendar days beginning with 
the anticipated date of need, unless the employer has amended the date 
of need at least 10 business days prior to the original date of need 
(pursuant to paragraph (c)(3)(iv) of this section).
* * * * *
    (iv) The employer will notify the order-holding office or SWA 
immediately upon learning that a crop is maturing earlier or later, or 
that weather conditions, over-recruitment, or other factors have 
changed the terms and conditions of employment. If there is a change to 
the date of need, the employer will notify the order-holding office or 
SWA, and each worker who has been placed on the clearance order using 
the contact information the worker provided to the employer, in writing 
(email and other forms of electronic written notification are 
acceptable) at least 10 business days prior to the original date of 
need. Notification to workers must be made in accordance with the 
language access requirements of 29 CFR 38.9 for workers with limited 
English proficiency. If a worker provides electronic contact 
information, such as an email address or telephone number, the employer 
will send notice using one of the electronic contact methods provided. 
If the employer provides non-written telephonic notice, such as a phone 
call, voice message, or an equivalent, the employer will also send 
written notice using the email or postal address provided by the worker 
at least 10 business days prior to the original date of need. The 
employer will maintain records of the notification and the date 
notification was sent to the order-holding office or SWA and workers 
for 3 years. Consistent with paragraph (c)(5) of this section, if the 
employer does not properly send notification to the order-holding 
office or SWA and workers at least 10 business days prior to the 
original date of need, the employer will provide the housing described 
on the clearance order to all migrant workers placed on the clearance 
order who are already traveling to the place of employment, without 
cost to the workers, until work commences. The employer will pay all 
placed workers for the hours listed on the clearance order and will 
provide or pay all other benefits and expenses described on the 
clearance order for each day work is delayed up to 14 calendar days or 
provide alternative work.
* * * * *
    (5) If there is a change to the anticipated date of need and the 
employer fails to notify the order-holding office or SWA and all 
workers placed on the clearance order at least 10 business days prior 
to the original date of need, as assured in paragraph (c)(3)(iv) of 
this section, the employer must provide housing to all migrant workers 
placed on the clearance order who are already traveling to the place of 
employment, without cost to the workers, until work commences, and must 
pay all placed workers the specified hourly rate of pay, or if the pay 
is piece-rate, the higher of the Federal or State minimum wage, or an 
applicable prevailing wage, or for criteria orders the rate of pay 
required under part 655, subpart B, of this chapter, and must provide 
or pay all other benefits and expenses described on the clearance order 
for each day work is delayed up to 14 calendar days starting with the 
originally anticipated date of need or provide alternative work if such 
alternative work is stated on the approved clearance order. If an 
employer fails to comply under this paragraph (c)(5) the order-holding 
office must process the information as an apparent violation pursuant 
to Sec.  658.419 of this chapter and may refer an apparent violation of 
the employer's payment obligation under this paragraph (c)(5) to the 
Department's Wage and Hour Division.
* * * * *

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

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

    Authority:  Section 655.0 issued under 8 U.S.C. 
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 
1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (j), 1188, and 
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102 
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105 
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206, 
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8 
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat. 
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR 
214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218, 
132 Stat. 1547 (48 U.S.C. 1806).
    Subpart A issued under 8 CFR 214.2(h).
    Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), 
and 1188; and 8 CFR 214.2(h).
    Subpart E issued under 48 U.S.C. 1806.
    Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec. 
323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note, 
Pub. L. 114-74 at section 701.
    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and 
(b)(1), 1182(n), and (t), and 1184(g) and (j); sec. 303(a)(8), Pub. 
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), 
Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 
note, Pub. L. 114-74 at section 701.
    Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).


0
6. Amend Sec.  655.103 by:
0
a. In paragraph (b), adding the definitions of ``Key service provider'' 
and ``Labor organization'' in alphabetical order and removing the 
definition of ``Successor in interest''; and
0
b. Adding paragraph (e).
    The additions read as follows:


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

* * * * *
    (b) * * *
    Key service provider. A health-care provider; a community health 
worker; an education provider; a translator or interpreter; an 
attorney, legal advocate, or other legal service provider; a government 
official, including a consular representative; a member of the clergy; 
an emergency services provider; a law enforcement officer; and any 
other provider of similar services.
    Labor organization. Any organization of any kind, or any agency or 
employee representation committee or plan, in which workers participate 
and which exists for the purpose, in whole or in part, of dealing with 
employers concerning grievances, labor disputes, wages, rates of pay, 
hours of employment, or conditions of work.
* * * * *
    (e) Definition of single employer for purposes of temporary or 
seasonal need and contractual obligations. Separate

[[Page 34060]]

entities will be deemed a single employer (sometimes referred to as an 
``integrated employer'') for purposes of assessing temporary or 
seasonal need and for enforcement of contractual obligations if they 
meet the definition of single employer in this paragraph (e). Under the 
definition of single employer, a determination of whether separate 
entities are a single employer is not determined by a single factor, 
but rather the entire relationship is viewed in its totality. Factors 
considered in determining whether two or more entities consist of a 
single employer include:
    (1) Common management;
    (2) Interrelation between operations;
    (3) Centralized control of labor relations; and
    (4) Degree of common ownership/financial control.


0
7. Add Sec.  655.104 to read as follows:


Sec.  655.104  Successors in interest.

    (a) Liability of successors in interest. Where an employer, agent, 
or attorney has violated 8 U.S.C. 1188, 29 CFR part 501, or this 
subpart, 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, regardless of 
whether such successor in interest has succeeded to all the rights and 
liabilities of the predecessor employer, agent, or attorney.
    (b) Definition of successors in interest. The following factors, 
including those 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; however, these factors are not exhaustive, and no one factor 
is dispositive, but all of the circumstances will be considered as a 
whole:
    (1) Substantial continuity of the same business operations;
    (2) Use of the same facilities;
    (3) Continuity of the work force;
    (4) Similarity of jobs and working conditions;
    (5) Similarity of supervisory personnel;
    (6) Whether the former management or owner retains a direct or 
indirect interest in the new enterprise;
    (7) Similarity in machinery, equipment, and production methods;
    (8) Similarity of products and services;
    (9) The ability of the predecessor to provide relief; and
    (10) For purposes of debarment, the personal involvement of the 
firm's ownership, management, supervisors, and others associated with 
the firm in the violation(s) at issue.
    (c) Effect of debarment on successors in interest. When an 
employer, agent, or attorney is debarred under Sec.  655.182 or 29 CFR 
501.20, any successor in interest to the debarred employer, agent, or 
attorney is also debarred. No application for H-2A workers may be filed 
by or on behalf of a successor in interest to a debarred employer, 
agent, or attorney, subject to the term limits set forth in Sec.  
655.182(c)(2). If the CO determines that an application for H-2A 
workers was filed by or on behalf of a successor in interest to a 
debarred employer, agent, or attorney during the period of debarment as 
set forth in Sec.  655.182(c)(2), the CO will issue a Notice of 
Deficiency (NOD) pursuant to Sec.  655.141 or deny the application 
pursuant to Sec.  655.164, as appropriate depending upon the status of 
the H-2A application, solely on the basis that the entity is a 
successor in interest to a debarred employer, agent, or attorney. If 
the OFLC Administrator determines that a certification for H-2A workers 
was issued to a successor in interest to a debarred employer, the OFLC 
Administrator may revoke the certification pursuant to Sec.  
655.181(a). The employer, agent, or attorney may appeal its status as a 
successor in interest to the debarred entity, pursuant to the 
procedures for appeals of CO determinations at Sec.  655.171.


0
8. Amend Sec.  655.120 by revising paragraphs (a) and (b)(2) and (3) to 
read as follows:


Sec.  655.120  Offered wage rate.

    (a) Employer obligation. (1) Except for occupations covered by 
Sec. Sec.  655.200 through 655.235, to comply with its obligation under 
Sec.  655.122(l), an employer must offer, advertise in its recruitment, 
and pay a wage that is at least the highest of:
    (i) The AEWR;
    (ii) A prevailing wage rate, whether expressed as a piece rate or 
other unit of pay, if the OFLC Administrator has approved a prevailing 
wage survey for the applicable crop activity or agricultural activity 
and, if applicable, a distinct work task or tasks performed in that 
activity, meeting the requirements of paragraph (c) of this section;
    (iii) The agreed-upon collective bargaining wage;
    (iv) The Federal minimum wage;
    (v) The State minimum wage; or
    (vi) Any other wage rate the employer intends to pay.
    (2) Where the wage rates set forth in paragraph (a)(1) of this 
section are expressed in different units of pay (including piece rates 
or other pay structures), the employer must list the highest applicable 
wage rate for each unit of pay in its job order and must offer and 
advertise all of these wage rates in its recruitment. The employer's 
obligation to pay the highest of these wage rates is set forth at Sec.  
655.122(l)(2).
    (b) * * *
    (2) The OFLC Administrator will publish a notice in the Federal 
Register, at least once in each calendar year, on a date to be 
determined by the OFLC Administrator, establishing each AEWR. The 
updated AEWR will be effective as of the date of publication of the 
notice in the Federal Register.
    (3) If an updated AEWR for the occupational classification and 
geographic area is published in the Federal Register during the work 
contract, and the updated AEWR is higher than the highest of the 
previous AEWR; a prevailing wage for the crop activity or agricultural 
activity and, if applicable, a distinct work task or tasks performed in 
that activity and geographic area; the agreed-upon collective 
bargaining wage; the Federal minimum wage; or the State minimum wage, 
the employer must pay at least the updated AEWR beginning on the date 
the updated AEWR is published in the Federal Register.
* * * * *


0
9. Amend Sec.  655.122 by revising paragraphs (h)(4), (i)(1)(i) and 
(ii), (l), and (n) to read as follows:


Sec.  655.122  Contents of job offers.

* * * * *
    (h) * * *
    (4) Employer-provided transportation. (i) All employer-provided 
transportation must comply with all applicable local, State, or Federal 
laws and regulations, and must provide, at a minimum, the same 
transportation safety standards, driver's licensure, and vehicle 
insurance required under 29 U.S.C. 1841, 29 CFR 500.104 or 500.105, and 
29 CFR 500.120 through 500.128.
    (ii) The employer must not operate, or allow any other person to 
operate, any employer-provided transportation that is required by the 
U.S. Department of Transportation's Federal Motor Vehicle Safety 
Standards, including 49 CFR 571.208, to be manufactured with seat 
belts, unless all passengers and the driver are properly restrained by 
seat belts meeting standards established by the U.S. Department of 
Transportation, including 49 CFR 571.209 and 571.210.
    (iii) The job offer must include a description of the modes of 
transportation (e.g., type of vehicle) that will be used for inbound, 
outbound, daily, and any other transportation.

[[Page 34061]]

    (iv) 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) * * *
    (1) * * *
    (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.
    (ii) 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.
* * * * *
    (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 
highest wage rate set forth in Sec.  655.120(a)(1).
    (1) The employer must calculate workers' wages using the wage rate 
that will result in the highest wages for each worker in each pay 
period. When calculating wages based on an hourly wage rate, the 
calculation must reflect every hour or portion thereof worked during a 
pay period. The wages actually paid cannot be lower than the wages that 
would result from the wage rate(s) guaranteed in the job order.
    (2) Where the wage rates set forth in Sec.  655.120(a)(1) include 
both hourly and non-hourly wage rates, the employer must calculate each 
worker's wages, in each pay period, using the highest wage rate for 
each unit of pay, and pay the worker the highest of these wages for 
that pay period. The wage actually paid cannot be lower than the wages 
that would result from the wage rate(s) guaranteed in the job offer.
    (3) If the employer 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.
    (4) If applicable, the employer must state in the job order:
    (i) That overtime hours may be available;
    (ii) The wage rate(s) to be paid for any such overtime hours;
    (iii) The circumstances under which the wage rate(s) for overtime 
hours will be paid, including, but not limited to, after how many hours 
in a day or workweek the overtime wage rate will be paid, and whether 
overtime wage rates will vary between places of employment; and
    (iv) Where the overtime pay is required by law, the applicable 
Federal, State, or local law requiring the overtime pay.
* * * * *
    (n) Termination for cause or abandonment of employment. (1) If a 
worker is terminated for cause or voluntarily abandons employment 
before the end of the contract period, and the employer notifies the 
NPC, and DHS in the case of an H-2A worker, in writing or by any other 
method specified by the Department in a notice published in the Federal 
Register or specified by DHS not later than 2 working days after such 
termination for cause or abandonment occurs, the employer will not be 
responsible for providing or paying for the subsequent transportation 
and subsistence expenses of that worker under this section, and that 
worker is not entitled to the three-fourths guarantee described in 
paragraph (i) of this section, and, in the case of a U.S. worker, the 
employer will not be obligated to contact that worker under Sec.  
655.153.
    (2) A worker is terminated for cause when the employer terminates 
the worker for failure to comply with employer policies or rules or to 
satisfactorily perform job duties in accordance with reasonable 
expectations based on criteria listed in the job offer.
    (i) An employer may terminate a worker for cause only if all of the 
following conditions are satisfied:
    (A) The employee has been informed (in a language understood by the 
worker), or reasonably should have known, of the policy, rule, or 
performance expectation;
    (B) Compliance with the policy, rule, or performance expectation is 
within the worker's control;
    (C) The policy, rule, or performance expectation is reasonable and 
applied consistently to the employer's H-2A workers and workers in 
corresponding employment;
    (D) The employer undertakes a fair and objective investigation into 
the job performance or misconduct; and
    (E) The employer corrects the worker's performance or behavior 
using progressive discipline, which is a system of graduated and 
reasonable responses to an employee's failure to satisfactorily perform 
job duties or comply with employer policies or rules. Disciplinary 
measures should be proportional to the misconduct or failure to meet 
performance expectations but may increase in severity if misconduct or 
failure to meet performance expectations is repeated, and may include 
immediate termination for egregious misconduct, meaning intentional or 
reckless conduct that is plainly illegal, poses imminent danger to 
physical safety, or that a reasonable person would understand as being 
outrageous. Prior to each disciplinary measure, the employer must 
notify the worker of the infraction and allow the worker to present 
evidence in their defense. Following each disciplinary measure, except 
where the appropriate disciplinary measure is termination, the employer 
must provide relevant and adequate instruction to the worker, and must 
afford the worker reasonable time to correct the behavior or to meet 
the performance expectation following such instruction. The employer 
must document each infraction and corresponding disciplinary measure, 
evidence the worker presented in their defense, and resulting 
instruction, and provide a copy of this documentation to the worker (in 
a language understood by the worker) within 1 week of the 
implementation of the disciplinary measure.
    (ii) A worker is not terminated for cause where the termination is: 
contrary to a Federal, State, or local law; for an employee's refusal 
to work under conditions that the employee reasonably believes will 
expose them or other employees to an unreasonable health or safety 
risk; because of discrimination on the basis of race, color, national 
origin, age, sex (including sexual orientation or gender identity), 
religion, disability, familial status or citizenship status; or, where 
applicable, where the employer failed to comply with its obligations 
under Sec.  655.135(m) in an investigatory interview that contributed 
to the termination.
    (iii) The employer bears the burden of demonstrating that any 
termination for

[[Page 34062]]

cause meets the requirements in paragraph (n)(2).
    (3) 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.
    (4) The employer is required to maintain records described in this 
section for not less than 3 years from the date of the certification.
    (i) Records of notification to the NPC, and to DHS in the case of 
an H-2A worker, of termination for cause or abandonment.
    (ii) Disciplinary records, including the infraction and each step 
of progressive discipline, any evidence the worker presented in their 
defense, any investigation related to the termination, and any 
subsequent instruction afforded the worker.
    (iii) Records indicating the reason(s) for termination of any 
worker, including disciplinary records as described in paragraph 
(n)(4)(ii) of this section and Sec.  655.167.
* * * * *


0
10. Amend Sec.  655.130 by revising paragraph (a) to read as follows:


Sec.  655.130  Application filing requirements.

* * * * *
    (a) What to file. (1) 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 655.137, and, 
unless a specific exemption applies, a copy of Form ETA-790/790A, 
submitted as set forth in Sec.  655.121(a).
    (2) The Application for Temporary Employment Certification must 
include the employer's legal name, trade name(s), and 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 by prospective U.S. 
applicants for employment. For each employer of any H-2A worker 
sponsored under the Application for Temporary Employment Certification 
or any worker in corresponding employment, the Application for 
Temporary Employment Certification must include the identity, location, 
and contact information of all persons who are the owners of that 
entity.
    (3) For each place of employment identified in the job order, the 
Application for Temporary Employment Certification must include the 
identity, location, and contact information of all persons and 
entities, if different than the employer(s), who are the operators of 
the place of employment, and of all persons who manage or supervise any 
H-2A worker sponsored under the Application for Temporary Employment 
Certification or any worker in corresponding employment, regardless of 
whether those managers or supervisors are employed by the employer or 
another entity.
    (4) If the information specified in paragraphs (a)(2) and (3) of 
this section changes during the work contract period, the employer must 
update its records to reflect the change. The employer must continue to 
keep this information up to date until the end of the work contract 
period, including any extensions. The employer must retain the updated 
information in accordance with Sec.  655.167(c)(9) and must make this 
updated information available in the event of a post-certification 
audit or upon request by the Department. The Department may share the 
information it receives from employers with any other Federal agency, 
as appropriate for investigative or enforcement purpose, as set forth 
in paragraph (f) of this section.
* * * * *


0
11. Amend Sec.  655.132 by revising paragraph (e)(1) to read as 
follows:


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

* * * * *
    (e) * * *
    (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 
that the fixed-site agricultural business has agreed to comply with the 
requirements at Sec.  655.135(n); and
* * * * *


0
12. Amend Sec.  655.135 by revising the introductory text and paragraph 
(h) and adding paragraphs (m) through (p) to read as follows:


Sec.  655.135  Assurance 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 of 29 CFR 
part 501 and must make each of the following additional assurances:
* * * * *
    (h) No unfair treatment. (1) 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:
    (i) Filed a complaint under or related to 8 U.S.C. 1188 or this 
subpart or any Department regulation in this chapter or 29 CFR part 501 
promulgated under 8 U.S.C. 1188;
    (ii) Instituted or caused to be instituted any proceeding under or 
related to 8 U.S.C. 1188 or this subpart or any Department regulation 
in this chapter or 29 CFR part 501 promulgated under 8 U.S.C. 1188;
    (iii) Testified or is about to testify in any proceeding under or 
related to 8 U.S.C. 1188 or this subpart or any Department regulation 
in this chapter or 29 CFR part 501 promulgated under 8 U.S.C. 1188;
    (iv) Consulted with an employee of a legal assistance program or an 
attorney on matters related to 8 U.S.C. 1188 or this subpart or any 
Department regulation in this chapter or 29 CFR part 501 promulgated 
under 8 U.S.C. 1188;
    (v) Consulted with a key service provider on matters related to 8 
U.S.C. 1188 or this subpart or any Department regulation in this 
chapter or 29 CFR part 501 promulgated under 8 U.S.C. 1188;
    (vi) Exercised or asserted on behalf of themself or others any 
right or protection afforded by 8 U.S.C. 1188 or this subpart or any 
Department regulation in this chapter or 29 CFR part 501 promulgated 
under 8 U.S.C. 1188; or
    (vii) Filed a complaint, instituted, or caused to be instituted any 
proceeding; or testified, assisted, or participated (or is about to 
testify, assist, or participate) in any investigation, proceeding, or 
hearing under or related to any applicable Federal, State, or local 
laws or regulations, including safety and health, employment, and labor 
laws.
    (2) With respect to any person engaged in agriculture as defined 
and applied in 29 U.S.C. 203(f), 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 because such person:
    (i) Has engaged in activities related to self-organization, 
including any effort to form, join, or assist a labor organization; or 
has engaged in other concerted activities for the purpose of mutual aid 
or protection relating to wages or working conditions; or has refused 
to engage in any or all of such activities; or

[[Page 34063]]

    (ii) Has refused to attend an employer-sponsored meeting with the 
employer or its agent, representative or designee, if the primary 
purpose of the meeting is to communicate the employer's opinion 
concerning any activity protected by this subpart; or has refused to 
listen to employer-sponsored speech or view employer-sponsored 
communications, the primary purpose of which is to communicate the 
employer's opinion concerning any activity protected by this subpart.
* * * * *
    (m) Designation of representative. With respect to any H-2A worker 
or worker in corresponding employment engaged in agriculture as defined 
and applied in 29 U.S.C. 203(f), employed at the place(s) of employment 
included in the Application for Temporary Employment Certification, the 
employer must permit a worker to designate a representative to attend 
any investigatory interview that the worker reasonably believes might 
result in disciplinary action and must permit the worker to receive 
advice and active assistance from the designated representative during 
any such investigatory interview. Where the designated representative 
is present at the worksite at the time of the investigatory interview, 
the employer must permit the representative to attend the investigatory 
interview in person. Where the designated representative is not present 
at the time and place of the investigatory interview, the employer must 
permit the representative to attend the investigatory interview 
remotely, including by telephone, videoconference, or other means.
    (n) Access to worker housing. Workers residing in employer-
furnished housing must be permitted to invite, or accept at their 
discretion, guests to their living quarters and/or the common areas or 
outdoor spaces near such housing during time that is outside of the 
workers' workday subject only to reasonable restrictions designed to 
protect worker safety or prevent interference with other workers' 
enjoyment of these areas. Because workers' ability to accept guests at 
their discretion depends on the ability of potential guests to contact 
and seek an invitation from those workers, restrictions impeding this 
ability to contact and seek an invitation will be evaluated as 
restrictions on the workers' ability to accept guests.
    (o) Passport withholding. During the period of employment that is 
the subject of the Application for Temporary Labor Certification, the 
employer may not hold or confiscate a worker's passport, visa, or other 
immigration or government identification document except where the 
worker states in writing that: the worker voluntarily requested that 
the employer keep these documents safe, the employer did not direct the 
worker to submit such a request, and the worker understands that the 
passport, visa, or other immigration or government identification 
document will be returned to the worker immediately upon the worker's 
request.
    (p) Foreign worker recruitment. The employer, and its attorney or 
agent, as applicable, must comply with Sec.  655.137(a) by providing a 
copy of all agreements with any agent or recruiter whom it engages or 
plans to engage in the recruitment of H-2A workers, and the identity 
and location of the persons and entities hired by or working for the 
agent or recruiter and any of the agents and employees of those persons 
and entities, to recruit foreign workers. Pursuant to Sec.  655.130(a), 
the agreements and information must be filed with the Application for 
Temporary Employment Certification. The employer must update this 
documentation in accordance with Sec.  655.137(c).

0
13. Add Sec.  655.137 to read as follows:


Sec.  655.137  Disclosure of foreign worker recruitment.

    (a) If the employer engages or plans to engage an agent or foreign 
labor recruiter, directly or indirectly, in international recruitment, 
the employer, and its attorney or agent, as applicable, must provide 
copies of all contracts and agreements with any agent and/or recruiter, 
executed in connection with the job opportunity, as specified in Sec.  
655.135(p). These agreements must contain the contractual prohibition 
against charging fees as set forth in Sec.  655.135(k).
    (b) The employer, and its attorney or agent, as applicable, must 
provide all recruitment-related information required in the Application 
for Temporary Employment Certification, as defined in Sec.  655.103(b), 
which includes the identity and location of all persons and entities 
hired by or working for the recruiter or agent, and any of the agents 
or employees of those persons and entities, to recruit prospective 
foreign workers for the H-2A job opportunity.
    (c) The employer must continue to keep the foreign labor recruiter 
information referenced in paragraphs (a) and (b) of this section up to 
date until the end of the work contract period. The employer must 
retain the updated information in accordance with Sec.  655.167(c)(8) 
and must make this updated information available in the event of a 
post-certification audit or upon request by the Department. The 
Department may share the foreign worker recruitment information it 
receives from employers with any other Federal agency, as appropriate 
for investigative or enforcement purpose, as set forth in Sec.  
655.130(f).
    (d) The Department of Labor will maintain a publicly available list 
of agents and recruiters (including government registration numbers, if 
any) who are party to the agreements employers submit, as well as the 
persons and entities the employer identified as hired by or working for 
the recruiter and the locations in which they are operating.

0
14. Amend Sec.  655.145 by revising the section heading and paragraph 
(b) to read as follows:


Sec.  655.145  Pre-determination amendments to applications for 
temporary employment certification.

* * * * *
    (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 before the CO issues a final 
determination. 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. Upon acceptance 
of an amendment, the CO will submit to the SWA any necessary 
modification to the job order.

0
15. Amend Sec.  655.167 by revising paragraphs (c)(6) and (7) and 
adding paragraphs (c)(8) through (12) to read as follows:


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

* * * * *
    (c) * * *
    (6) The work contract or a copy of the Application for Temporary 
Employment Certification as defined in Sec.  655.103(b) and specified 
in Sec.  655.122(q).
    (7) If applicable, records of notice to the NPC and to DHS of the 
abandonment of employment or

[[Page 34064]]

termination for cause of a worker as set forth in Sec.  655.122(n).
    (8) Written contracts with agents or recruiters as specified in 
Sec.  655.137(a) and the identities and locations of persons hired by 
or working for the agent or recruiter and the agents and employees of 
these agents and recruiters, as specified in Sec.  655.137(b).
    (9) The identity, location, and contact information of all persons 
who are the owners of each employer, as specified in Sec.  
655.130(a)(2), and the identity, location, and contact information of 
all persons and entities who are the operators of the place of 
employment (if different than the employers) and of all persons who 
manage or supervise any H-2A worker sponsored under the Application for 
Temporary Employment Certification or any worker in corresponding 
employment, as specified in Sec.  655.130(a)(3).
    (10) If applicable, disciplinary records, including each step of 
progressive discipline, any evidence the worker presented in their 
defense, any investigation related to the termination, and any 
subsequent instruction afforded the worker.
    (11) If applicable, records indicating the reason(s) for 
termination of any worker, including disciplinary records described in 
Sec.  655.122(n)(4)(ii) and this section, relating to the termination 
as set forth in Sec.  655.122(n).
    (12) If applicable, evidence demonstrating the employer notified 
the SWA and each worker of an unforeseen minor delay in the start date 
of need, as specified in Sec.  655.175(b)(2)(i).
* * * * *

0
16. Add Sec.  655.175 to read as follows:


Sec.  655.175  Post-certification changes to applications for temporary 
employment certification.

    (a) No post-certification changes. The Application for Temporary 
Employment Certification may not be changed after certification, except 
where authorized in this subpart. The employer is 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 its certification.
    (b) Post-certification changes to the first date of work. Where the 
work under the approved Application for Temporary Employment 
Certification will not begin on the first date of need certified and 
will be delayed for a period of no more than 14 calendar days, due to 
circumstances that could not have been foreseen, and the crops or 
commodities will be in jeopardy prior to the expiration of an 
additional recruitment period, the employer need not withdraw an 
approved Application for Temporary Employment Certification, provided 
the employer complies with the obligations at paragraphs (b)(1) and (2) 
of this section.
    (1) In the event of a delay, the employer must provide to all 
workers who are already traveling to the place of employment, upon 
their arrival and without cost to the workers until work commences, 
daily subsistence in the same amount required during travel under Sec.  
655.122(h)(1), except for days for which the worker receives 
compensation under paragraph (b)(2)(ii) of this section. The employer 
must fulfill this subsistence obligation to the worker no later than 
the first date the worker would have been paid had they begun 
employment on time. Employers must comply with all other requirements 
of the certified Application for Temporary Employment Certification 
beginning on the first date of need certified, including but not 
limited to housing under Sec.  655.122(d).
    (2)(i) In the event of a delay, the employer must notify the SWA 
and each worker to be employed under the job order associated with the 
approved Application for Temporary Employment Certification of the 
delay at least 10 business days before the certified start date of 
need. The employer must notify the worker in writing, in a language 
understood by the worker, as necessary or reasonable, using the contact 
information the worker provided to the employer. If the worker provides 
electronic contact information, such as an email address or telephone 
number, the employer must send notice using that email address and 
telephone number. The employer may provide telephonic notice, provided 
the employer also sends written notice using the email or postal 
address provided by the worker. The employer must retain evidence of 
such notification under Sec.  655.167(c)(12).
    (ii) If the employer fails to provide timely notification required 
under paragraph (b)(2)(i) of this section to any worker(s), the 
employer must pay such worker(s) the highest of the hourly rates of pay 
at Sec.  655.120(a), or, if applicable, the rate required under Sec.  
655.211(a)(1), for each hour of the offered work schedule in the job 
order, for each day that work is delayed, for a period up to 14 
calendar days. The employer must fulfill this obligation to the worker 
no later than the first date the worker would have been paid had they 
begun employment on time.
    (iii) For purposes of an employer's compliance with the three-
fourths guarantee under Sec.  655.122(i), any compensation paid to a 
worker under paragraph (b)(2)(ii) of this section for any workday 
included within the time period described in Sec.  655.122(i) will be 
considered hours offered to the worker.

0
17. Amend Sec.  655.181 by revising paragraph (a)(1) to read as 
follows:


Sec.  655.181  Revocation.

    (a) * * *
    (1) The issuance of the temporary agricultural labor certification 
was not justified due to fraud or misrepresentation in the application 
process, including because the certification was issued in error to a 
debarred employer, including a successor in interest, during the period 
of debarment as set forth in Sec.  655.182(c)(2);
* * * * *

0
18. Amend Sec.  655.182 by revising paragraphs (a), (b), and 
(d)(1)(viii) to read as follows:


Sec.  655.182  Debarment.

    (a) Debarment of an employer, agent, or attorney. The OFLC 
Administrator may debar an 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. (1) No application for H-2A 
workers may be filed by or on behalf of a debarred employer, or by an 
employer represented by a debarred agent or attorney, subject to the 
term limits set forth in paragraph (c)(2) of this section. If such an 
application is filed, it will be denied without review.
    (2) No application for H-2A workers may be filed by or on behalf of 
a successor in interest to a debarred employer, agent, or attorney, 
subject to the term limits set forth in paragraph (c)(2) of this 
section. If the CO determines that such an application is filed, the CO 
will issue a NOD pursuant to Sec.  655.141 or deny the application 
pursuant to Sec.  655.164, as appropriate depending upon the status of 
the Application for Temporary Employment Certification, solely on the 
basis that the entity is a successor in interest to a debarred 
employer, agent, or attorney. The employer, agent, or attorney may 
appeal its status as a successor in

[[Page 34065]]

interest to the debarred entity, pursuant to the procedures for appeals 
of CO determinations at Sec.  655.171.
* * * * *
    (d) * * *
    (1) * * *
    (viii) A violation of the requirements of Sec.  655.135(j), (k), or 
(o);
* * * * *

0
19. Add Sec.  655.190 to read as follows:


Sec.  655.190  Severability.

    If any provision of this subpart is held to be invalid or 
unenforceable by its terms, or as applied to any person or 
circumstance, or stayed pending further agency action, the provision 
will be construed so as to continue to give the maximum effect to the 
provision permitted by law, unless such holding is one of total 
invalidity or unenforceability, in which event the provision will be 
severable from this part and shall not affect the remainder thereof.

0
20. Amend Sec.  655.210 by revising paragraph (g) to read as follows:


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

* * * * *
    (g) Rates of pay. (1) The employer must offer, advertise in its 
recruitment, and pay a wage that is at least the highest of the 
following rates in effect at the time work is performed, whichever is 
highest, for every month of the job order period or portion thereof:
    (i) The monthly AEWR, as specified in Sec.  655.211;
    (ii) The agreed-upon collective bargaining wage;
    (iii) The applicable minimum wage imposed by Federal or State law 
or judicial action; or
    (iv) Any other wage rate the employer intends to pay.
    (2) 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, 
the applicable minimum wage imposed by Federal or State law or judicial 
action, any agreed-upon collective bargaining rate, or any other wage 
rate the employer intends to pay, whichever is highest, and must be 
paid to each worker free and clear without any unauthorized deductions.
    (3) 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.
    (4) If applicable, the employer must state in the job order:
    (i) That overtime hours may be available;
    (ii) The wage rate(s) to be paid for any such overtime hours;
    (iii) The circumstances under which the wage rate(s) for overtime 
hours will be paid, including, but not limited to, after how many hours 
in a day or workweek the overtime wage rate will be paid, and whether 
overtime wage rates will vary between-place(s) of employment; and
    (iv) Where the overtime pay is required by law, the applicable 
Federal, State, or local law requiring the overtime pay.
* * * * *

0
21. Amend Sec.  655.211 by revising paragraph (a) to read as follows:


Sec.  655.211  Herding and range livestock wage rate.

    (a) Compliance with rates of pay. (1) To comply with its obligation 
under Sec.  655.210(g), an employer must offer, advertise in its 
recruitment, and pay each worker employed under Sec. Sec.  655.200 
through 655.235 a wage that is at least the highest of the monthly AEWR 
established under this section, the agreed-upon collective bargaining 
wage, the applicable minimum wage imposed by Federal or State law or 
judicial action, or any other wage rate the employer intends to pay. 
The employer must list all potentially applicable wage rates in the job 
order and must offer and advertise all of these wage rates in its 
recruitment.
    (2) If the monthly AEWR established under this section is adjusted 
during a work contract, and is higher than the agreed-upon collective 
bargaining wage, the applicable minimum wage imposed by Federal or 
State law or judicial action in effect at the time the work is 
performed, and any other wage rate the employer offered to pay, the 
employer must pay at least that adjusted monthly AEWR upon the 
effective date of the updated monthly AEWR published by the Department 
in the Federal Register.
* * * * *

PART 658--ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT 
EMPLOYMENT SERVICE

0
22. The authority citation for part 658 continues to read as follows:

    Authority: Secs. 189, 503, Pub. L. 113-128, 128 Stat. 1425 (Jul. 
22, 2014); 29 U.S.C. chapter 4B.


0
23. Revise Sec.  658.500 to read as follows:


Sec.  658.500  Scope and purpose of subpart.

    (a) This subpart contains the regulations governing the 
discontinuation of services provided by the ES to employers pursuant to 
parts 652 and 653 of this chapter.
    (b) For purposes of this subpart only, where the term ``employer'' 
is used, it refers to employers, agents, farm labor contractors, joint 
employers, and successors in interest to any employer, agent, farm 
labor contractor, or joint employer, as defined at Sec.  651.10 of this 
chapter. A successor in interest to an employer, agent, or farm labor 
contractor may be held liable for the duties and obligations of that 
employer, agent, or farm labor contractor for purposes of recruitment 
of workers through the ES clearance system or enforcement of ES 
regulations, regardless of whether such successor in interest has 
succeeded to all the rights and liabilities of the predecessor entity.

0
24. Revise and republish Sec.  658.501 to read as follows:


Sec.  658.501  Basis for discontinuation of services.

    (a) SWA officials must initiate procedures for discontinuation of 
services to employers who:
    (1) Submit and refuse to correct or withdraw job orders containing 
terms and conditions that are contrary to employment-related laws;
    (2) Submit job orders and refuse to provide assurances, or refuse 
to withdraw job orders that do not contain assurances, required 
pursuant to the Agricultural Recruitment System for U.S. Workers at 
part 653, subpart F, of this chapter;
    (3) Are found through field checks or otherwise to have either 
misrepresented the terms or conditions of employment specified on job 
orders or failed to comply fully with assurances made on job orders;
    (4) Are found by a final determination by an appropriate 
enforcement agency to have violated any employment-related laws and 
notification of this final determination has been provided to the 
Department or the SWA by that enforcement agency, including those who 
are currently debarred from participating in the H-2A or H-2B foreign 
labor certification programs pursuant to Sec.  655.73 or Sec.  655.182 
of this chapter or 29 CFR 501.20 or 503.24;
    (5) Are found to have violated ES regulations pursuant to Sec.  
658.411 or Sec.  658.419;
    (6) Refuse to accept qualified workers referred through the 
clearance system for criteria clearance orders filed pursuant to part 
655, subpart B, of this chapter;

[[Page 34066]]

    (7) Refuse to cooperate in field checks conducted pursuant to Sec.  
653.503 of this chapter; or
    (8) Repeatedly cause the initiation of the procedures for 
discontinuation of services pursuant to paragraphs (a)(1) through (7) 
of this section.
    (b) If an ES office or SWA has information that an employer 
participating in the ES may have committed fraud or misrepresentation 
in connection with its current or prior temporary labor certification 
or may not have complied with the terms of such certification, under, 
for example the H-2A and H-2B visa programs, SWA officials must notify 
the OFLC National Processing Center and the Wage and Hour Division of 
the alleged noncompliance as applicable under Sec.  655.185 and 29 CFR 
501.2, 501.6, 503.3, and 503.7. If the circumstances occurred within 
the previous 3 years, SWA officials must determine whether there is a 
basis under paragraph (a) of this section for which the SWA must 
initiate procedures for discontinuation of services.
    (c) [Reserved]

0
25. Revise Sec.  658.502 to read as follows:


Sec.  658.502  Notification to employers of intent to discontinue 
services.

    (a) Except as provided in paragraph (b) of this section, where the 
SWA determines that there is an applicable basis for discontinuation of 
services under Sec.  658.501(a)(1) through (8), the SWA must notify the 
employer in writing that it intends to discontinue the provision of ES 
services in accordance with this section and must provide the reasons 
for proposing discontinuation of services.
    (1) Where the decision is based on Sec.  658.501(a)(1), the SWA 
must specify the date the order was submitted, the job order involved, 
and the terms and conditions contrary to employment-related laws and 
the laws involved. The SWA must notify the employer in writing that all 
ES services will be terminated unless the employer within 20 working 
days:
    (i) Provides adequate evidence that the terms and conditions are 
not contrary to employment-related laws;
    (ii) Withdraws the terms and conditions and resubmits the job order 
in compliance with all employment-related laws; or
    (iii) If the job is no longer available, makes assurances that all 
future job orders submitted will be in compliance with all employment-
related laws.
    (2) Where the decision is based on Sec.  658.501(a)(2), the SWA 
must specify the date the order was submitted, the job order involved, 
the assurances involved, and explain how the employer refused to 
provide the assurances. The SWA must notify the employer that all ES 
services will be terminated unless the employer within 20 working days:
    (i) Resubmits the order with the required assurances; or
    (ii) If the job is no longer available, makes assurances that all 
future job orders submitted will contain all assurances required 
pursuant to the Agricultural Recruitment System for U.S. Workers at 
part 653, subpart F, of this chapter.
    (3) Where the decision is based on Sec.  658.501(a)(3), the SWA 
must specify the terms and conditions the employer misrepresented or 
the assurances with which the employer did not fully comply, and 
explain how the employer misrepresented the terms or conditions or 
failed to comply with assurances on the job order. The SWA must notify 
the employer that all ES services will be terminated unless the 
employer within 20 working days:
    (i) Provides adequate evidence that terms and conditions of 
employment were not misrepresented;
    (ii) Provides adequate evidence that there was full compliance with 
the assurances made on the job orders; or
    (iii) Provides adequate evidence that it has resolved the 
misrepresentation of terms and conditions of employment or 
noncompliance with assurances and provides adequate assurance that 
specifications on future orders will accurately represent the terms and 
conditions of employment and that there will be full compliance with 
all job order assurances.
    (4) Where the decision is based on Sec.  658.501(a)(4), the SWA 
must provide evidence of the final determination, including debarment. 
For final determinations, the SWA must specify the enforcement agency's 
findings of facts and conclusions of law as to the employment-related 
law violation(s). For final debarment orders, the SWA must specify the 
time period for which the employer is debarred from participating in 
one of the Department's foreign labor certification programs. The SWA 
must notify the employer that all ES services will be terminated unless 
the employer within 20 working days:
    (i) Provides adequate evidence that the enforcement agency's 
determination is not final because, for example, it has been stayed 
pending appeal, overturned, or reversed; or
    (ii) Provides adequate evidence that, as applicable:
    (A) The Department's debarment is no longer in effect; and
    (B) The employer has completed all required actions imposed by the 
enforcement agency as a consequence of the violation, including payment 
of any fines or restitution to remediate the violation; and
    (iii) Provides assurances that any policies, procedures, or 
conditions responsible for the violation have been corrected and the 
same or similar violations are not likely to occur in the future.
    (5) Where the decision is based on Sec.  658.501(a)(5), the SWA 
must specify which ES regulation, as defined in Sec.  651.10, the 
employer has violated and must provide basic facts to explain the 
violation. The SWA must notify the employer that all ES services will 
be terminated unless the employer within 20 working days:
    (i) Provides adequate evidence that the employer did not violate ES 
regulations; or
    (ii) Provides adequate evidence that appropriate restitution has 
been made or remedial action taken; and
    (iii) Provides assurances that any policies, procedures, or 
conditions responsible for the violation have been corrected and the 
same or similar violations are not likely to occur in the future.
    (6) Where the decision is based on Sec.  658.501(a)(6), the SWA 
must indicate that the employer filed the job order pursuant to part 
655, subpart B, of this chapter, and specify the name of each worker 
the SWA referred and the employer did not accept. The SWA must notify 
the employer that all ES services will be terminated unless the 
employer within 20 working days:
    (i) Provides adequate evidence that the workers were accepted; or
    (ii) Provides adequate evidence that the workers were not available 
to accept the job; or
    (iii) Provides adequate evidence that the workers were not 
qualified; or
    (iv) Provides adequate evidence that the workers were referred 
after the time period described in Sec.  655.135(d) of this chapter 
elapsed; or
    (v) Provides adequate evidence that:
    (A) After refusal, the employer accepted the qualified workers 
referred; or
    (B) Appropriate restitution has been made or other remedial action 
taken; and
    (vi) Provides assurances that qualified workers referred in the 
future will be accepted or, if the time period described in Sec.  
655.135(d) of this chapter has lapsed, provides assurances that 
qualified workers referred on all future criteria clearance orders will 
be accepted.

[[Page 34067]]

    (7) Where the decision is based on Sec.  658.501(a)(7), the SWA 
must explain how the employer did not cooperate in the field check. The 
SWA must notify the employer that all ES services will be terminated 
unless the employer within 20 working days:
    (i) Provides adequate evidence that it did cooperate; or
    (ii) Immediately cooperates in the conduct of field checks; and
    (iii) Provides assurances that it will cooperate in future field 
checks.
    (8) Where the decision is based on Sec.  658.501(a)(8), the SWA 
must list and provide basic facts explaining the prior instances where 
the employer has repeatedly caused initiation of discontinuation 
proceedings. The SWA must notify the employer that all ES services will 
be terminated unless the employer within 20 working days provides 
adequate evidence that the SWA's initiation of discontinuation in prior 
proceedings was unfounded.
    (b) SWA officials must discontinue services immediately in 
accordance with Sec.  658.503, without providing the notice described 
in this section, if an employer has met any of the bases for 
discontinuation of services under Sec.  658.501(a) and, in the judgment 
of the State Administrator, exhaustion of the administrative procedures 
set forth in this section would cause substantial harm to workers.

0
26. Revise Sec.  658.503 to read as follows:


Sec.  658.503  Discontinuation of services.

    (a) Within 20 working days of receipt of the employer's response to 
the SWA's notification under Sec.  658.502(a), or at least 20 working 
days after the SWA's notification has been received by the employer if 
the SWA does not receive a response, the SWA must notify the employer 
in writing of its final determination. If the SWA determines that the 
employer did not provide a satisfactory response in accordance with 
Sec.  658.502(a), the SWA's notification must specify the reasons for 
its determination and state that the discontinuation of services is 
effective 20 working days from the date of the notification. The 
notification must also state that the employer may request 
reinstatement or appeal the determination by requesting a hearing 
pursuant to Sec.  658.504, and that a request for a hearing stays the 
discontinuation pending the outcome of the hearing. If the employer 
does not request a hearing, the SWA must also notify the ETA Office of 
Workforce Investment of any final determination to discontinue ES 
services within 10 working days of the date the determination becomes 
effective.
    (b) Where the SWA discontinues services immediately under Sec.  
658.502(b), the SWA's written notification must specify the facts 
supporting the applicable basis for discontinuation under Sec.  
658.501(a), the reasons that exhaustion of the administrative 
procedures would cause substantial harm to workers, and that services 
are discontinued as of the date of the notification. The notification 
must also state that the employer may request reinstatement or appeal 
the determination by requesting a hearing pursuant to Sec.  658.504, 
and that a request for a hearing relating to immediate discontinuation 
does not stay the discontinuation pending the outcome of the hearing. 
Within 10 working days of the date of issuance, the SWA must also 
notify the ETA Office of Workforce Investment of any determination to 
immediately discontinue ES services.
    (c) If the SWA discontinues services to an employer that is subject 
to Federal Contractor Job Listing Requirements, the SWA must notify the 
ETA regional office immediately.
    (d) If the SWA discontinues services to an employer based on a 
complaint filed pursuant to Sec.  658.411, the SWA must notify the 
complainant of the employer's discontinuation of services.
    (e) If the SWA discontinues services to an employer, the employer 
cannot participate in or receive Wagner-Peyser Act ES Services provided 
by the ES, including by any SWA, to employers pursuant to parts 652 and 
653 of this chapter. From the date of discontinuance, the SWA that 
issued the determination must remove the employer's active job orders 
from the clearance system. No SWA may process any future job orders 
from the employer or provide any other services pursuant to parts 652 
and 653 of this chapter to the employer unless services have been 
reinstated under Sec.  658.504.
    (f) SWAs must continue to provide the full range of ES and other 
appropriate services to workers whose employers experience 
discontinuation of services under this subpart.

0
27. Revise Sec.  658.504 to read as follows:


Sec.  658.504  Reinstatement of services.

    (a) Where the SWA discontinues services to an employer under Sec.  
658.502(b) or Sec.  658.503, the employer may submit a written request 
for reinstatement of services to the SWA or may, within 20 working days 
of receiving notice of the SWA's final determination, appeal the 
discontinuation by submitting a written request for a hearing.
    (b) If the employer submits a written request for reinstatement of 
services to the SWA:
    (1) Within 20 working days of receipt of the employer's request for 
reinstatement, the SWA must notify the employer of its decision to 
grant or deny the request. If the SWA denies the request for 
reinstatement, it must specify the reasons for the denial and notify 
the employer that it may request a hearing, in accordance with 
paragraph (c) of this section, within 20 working days.
    (2) The SWA must reinstate services if:
    (i) The employer provides adequate evidence that the policies, 
procedures, or conditions responsible for the previous discontinuation 
of services have been corrected and that the same or similar 
circumstances are not likely to occur in the future; and
    (ii) The employer provides adequate evidence that it has responded 
to all findings of an enforcement agency, SWA, or ETA, including 
payment of any fines or restitution to remediate the violation, that 
were the basis of the discontinuation of services, if applicable.
    (c) If the employer submits a timely request for a hearing:
    (1) The SWA must follow the procedures set forth in Sec.  658.417; 
and
    (2) The SWA must reinstate services to the employer if ordered to 
do so by a State hearing official, Regional Administrator, or Federal 
Administrative Law Judge as a result of a hearing offered pursuant to 
paragraph (c)(1) of this section.
    (d) Within 10 working days of the date of issuance, the SWA must 
notify the ETA Office of Workforce Investment of any determination to 
reinstate ES services, or any decision on appeal upholding a SWA's 
determination to discontinue services.

Title 29: Labor

Wage and Hour Division

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

0
28. The authority citation for part 501 continues to read as follows:

    Authority:  8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188; 
28 U.S.C. 2461 note; and sec. 701, Pub. L. 114-74, 129 Stat. 584.


0
29. Amend Sec.  501.3 by:

[[Page 34068]]

0
a. In paragraph (a), adding the definitions of ``Key service provider'' 
and ``Labor organization'' in alphabetical order and removing the 
definition of ``Successor in interest''; and
0
b. Adding paragraph (d).
    The additions read as follows:


Sec.  501.3  Definitions.

    (a) * * *
    Key service provider. A health-care provider; a community health 
worker; an education provider; a translator or interpreter; an 
attorney, legal advocate, or other legal service provider; a government 
official, including a consular representative; a member of the clergy; 
an emergency services provider; a law enforcement officer; and any 
other provider of similar services.
    Labor organization. Any organization of any kind, or any agency or 
employee representation committee or plan, in which workers participate 
and which exists for the purpose, in whole or in part, of dealing with 
employers concerning grievances, labor disputes, wages, rates of pay, 
hours of employment, or conditions of work.
* * * * *
    (d) Definition of single employer for purposes of temporary or 
seasonal need and contractual obligations. Separate entities will be 
deemed a single employer (sometimes referred to as an ``integrated 
employer'') for purposes of assessing temporary or seasonal need and 
for enforcement of contractual obligations if they meet the definition 
of single employer in this paragraph (e). Under the definition of 
single employer, a determination of whether separate entities are a 
single employer is not determined by a single factor, but rather the 
entire relationship is viewed in its totality. Factors considered in 
determining whether two or more entities consist of a single employer 
include:
    (1) Common management;
    (2) Interrelation between operations;
    (3) Centralized control of labor relations; and
    (4) Degree of common ownership/financial control.

0
30. Amend Sec.  501.4 by revising paragraph (a) to read as follows:


Sec.  501.4  Discrimination prohibited.

    (a)(1) A person may not intimidate, threaten, restrain, coerce, 
blacklist, discharge, or in any manner discriminate against any person 
who has:
    (i) Filed a complaint under or related to 8 U.S.C. 1188 or this 
part;
    (ii) Instituted or causes to be instituted any proceedings related 
to 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part;
    (iii) 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;
    (iv) 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;
    (v) Consulted with a key service provider on matters related to 8 
U.S.C. 1188, 20 CFR part 655, subpart B, or this part;
    (vi) Exercised or asserted on behalf of themselves or others any 
right or protection afforded by 8 U.S.C. 1188, 20 CFR part 655, subpart 
B, or this part; or
    (vii) Filed a complaint, instituted, or caused to be instituted any 
proceeding, or testified, assisted, or participated (or is about to 
testify, assist or participate) in any investigation, proceeding or 
hearing under or related to any applicable Federal, State, or local 
laws or regulations, including safety and health, employment, and labor 
laws.
    (2) With respect to any person engaged in agriculture as defined 
and applied in 29 U.S.C. 203(f), a person may not intimidate, threaten, 
restrain, coerce, blacklist, discharge or in any manner discriminate 
against, and may not cause any person to intimidate, threaten, 
restrain, coerce, blacklist, or in any manner discriminate against, any 
person because such person:
    (i) Has engaged in activities related to self-organization, 
including any effort to form, join, or assist a labor organization; has 
engaged in other concerted activities for the purpose of mutual aid or 
protection relating to wages or working conditions; or has refused to 
engage in any or all of such activities; or
    (ii) Has refused to attend an employer-sponsored meeting with the 
employer or its agent, representative or designee, the primary purpose 
of which is to communicate the employer's opinion concerning any 
activity protected by this subpart; or listen to speech or view 
communications, the primary purpose of which is to communicate the 
employer's opinion concerning any activity protected by this subpart.
* * * * *

0
31. Add Sec.  501.10 to subpart A to read as follows:


Sec.  501.10  Severability.

    If any provision of this part is held to be invalid or 
unenforceable by its terms, or as applied to any person or 
circumstance, or stayed pending further agency action, the provision 
will be construed so as to continue to give the maximum effect to the 
provision permitted by law, unless such holding is one of total 
invalidity or unenforceability, in which event the provision will be 
severable from this part and will not affect the remainder thereof.

0
32. Amend Sec.  501.20 by revising paragraphs (a), (b), (d)(1)(viii), 
and adding paragraph (j) to read as follows:


Sec.  501.20  Debarment and revocation.

    (a) Debarment of an employer, agent, or attorney. The WHD 
Administrator may debar an 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. (1) No application for H-2A 
workers may be filed by or on behalf of a debarred employer, or by an 
employer represented by a debarred agent or attorney, subject to the 
time limits set forth in paragraph (c)(2) of this section. If such an 
application is filed, it will be denied without review.
    (2) No application for H-2A workers may be filed by or on behalf of 
a successor in interest, as defined in 20 CFR 655.104, to a debarred 
employer, agent, or attorney, subject to the term limits set forth in 
paragraph (c)(2) of this section. If the CO determines that such an 
application is filed, the CO will issue a Notice of Deficiency (NOD) 
pursuant to 20 CFR 655.141 or deny the application pursuant to 20 CFR 
655.164, as appropriate depending upon the status of the Application 
for Temporary Employment Certification, solely on the basis that the 
entity is a successor in interest to a debarred employer, agent, or 
attorney. The employer, agent, or attorney may appeal its status as a 
successor in interest to the debarred entity, pursuant to the 
procedures for appeals of CO determinations at 20 CFR 655.171.
* * * * *
    (d) * * *
    (1) * * *
    (viii) A violation of the requirements of 20 CFR 655.135(j), (k), 
or (o);
* * * * *
    (j) Successors in interest. When an employer, agent, or attorney is 
debarred

[[Page 34069]]

under this section, any successor in interest to the debarred employer, 
agent, or attorney is also debarred, regardless of whether the 
successor is named or not named in the notice of debarment issued under 
paragraph (a) of this section.

0
33. Amend Sec.  501.33 by revising paragraph (b)(2) to read as follows:


Sec.  501.33  Request for hearing.

* * * * *
    (b) * * *
    (2) Specify the issue or issues stated in the notice of 
determination giving rise to such request (any issues not raised in the 
request may be deemed waived);
* * * * *

Jos[eacute] Javier Rodr[iacute]guez,
Assistant Secretary for Employment and Training, Labor.
Jessica Looman,
Administrator, Wage and Hour Division.
[FR Doc. 2024-08333 Filed 4-26-24; 8:45 am]
BILLING CODE 4510-FP-P; 4510-FR-P; 4510-27-P