Temporary Employment of H-2A Aliens in the United States, 11408-11440 [E9-5562]

Download as PDF 11408 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules DEPARTMENT OF LABOR Employment and Training Administration 20 CFR Part 655 Wage and Hour Division 29 CFR Parts 501, 780, and 788 RIN 1205–AB55 Temporary Employment of H–2A Aliens in the United States AGENCY: Employment and Training Administration and Wage and Hour Division, Employment Standards Administration, Labor. ACTION: Notice of proposed suspension of rule. rwilkins on PROD1PC63 with PROPOSALS2 SUMMARY: The Department of Labor (DOL or the Department) proposes to suspend for 9 months the H–2A regulations published on December 18, 2008, which became effective on January 17, 2009, that amended the rules governing the certification for temporary employment of nonimmigrant workers in agricultural occupations on a temporary or seasonal basis, and the enforcement of contractual obligations applicable to employers of such nonimmigrant workers. A suspension would provide the Department with an opportunity to review and reconsider the new requirements in light of issues that have arisen since the publication of the H–2A Final Rule, while minimizing the disruption to the Department, State Workforce Agencies (SWAs), employers, and workers. To avoid the regulatory vacuum that would result from a suspension, the Department proposes to reinstate on an interim basis the rules that were in place on January 16, 2009, the day before the revised rules became effective, by reprinting those previous regulations. DATES: Interested persons are invited to submit written comments on the proposed suspension on or before March 27, 2009. The Department will not necessarily consider any comments received after the above date in making its decisions on the final rule. ADDRESSES: You may submit comments, identified by Regulatory Information Number (RIN) 1205–AB55, by any one of the following methods: Federal e-Rulemaking Portal: https:// www.regulations.gov: Follow the Web site instructions for submitting comments. Mail: Please submit all written comments (including disk and CD–ROM VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 submissions) to Thomas Dowd, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N–5641, Washington, DC 20210. Hand Delivery/Courier: Please submit all comments to Thomas Dowd, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N–5641, Washington, DC 20210. Please submit your comments by only one method. The Department will post all comments received on https:// www.regulations.gov without making any change to the comments, including any personal information provided. The https://www.regulations.gov Web site is the Federal e-Rulemaking portal and all comments posted there are available and accessible to the public. The Department cautions commenters not to include their personal information such as Social Security numbers, personal addresses, telephone numbers, and email addresses in their comments as such submitted information will become viewable by the public via the https:// www.regulations.gov Web site. It is the responsibility of the commenter to safeguard his or her information. Comments submitted through https:// www.regulations.gov will not include the commenter’s e-mail address unless the commenter chooses to include that information as part of his or her comment. Please provide written comments only on whether the Department should suspend the December 18, 2008 final rule for further review and consideration of the issues that have arisen since the final rule’s publication. Comments concerning the substance or merits of the December 18, 2008 final rule or the prior rule will not be considered. Postal delivery in Washington, DC may be delayed due to security concerns. Therefore, the Department encourages the public to submit comments via the Web site indicated above. Docket: For access to the docket to read background documents or comments received, go to the Federal eRulemaking portal at https:// www.regulations.gov. The Department will also make all the comments it receives available for public inspection during normal business hours at the ETA Office of Policy Development and Research at the above address. If you need assistance to review the comments, the Department will provide you with PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 appropriate aids such as readers or print magnifiers. The Department will make copies of this notice available, upon request, in large print and as an electronic file on a computer disk. The Department will consider providing this notice in other formats upon request. To schedule an appointment to review the comments and/or obtain this notice in an alternate format, contact the Office of Policy Development and Research at (202) 693–3700 (VOICE) (this is not a toll-free number) or 1–877–889–5627 (TTY/TDD). FOR FURTHER INFORMATION CONTACT: For further information regarding 20 CFR part 655, contact William Carlson, PhD, Administrator, Office of Foreign Labor Certification, Employment and Training Administration (ETA), U.S. Department of Labor, 200 Constitution Avenue, NW., Room C–4312, Washington, DC 20210; Telephone (202) 693–3010 (this is not a toll-free number). For further information regarding 29 CFR parts 501, 780 and 788, contact James Kessler, Farm Labor Team Leader, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Room S–3510, Washington, DC 20210; Telephone (202) 693–0070 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone numbers above via TTY by calling the toll-free Federal Information Relay Service at 1–800– 877–8339. SUPPLEMENTARY INFORMATION: I. Background and Proposed Action On December 18, 2008, the Department published final regulations revising title 20 of the Code of Federal Regulations (20 CFR) part 655 and title 29 of the Code of Federal Regulations (29 CFR) parts 501, 780, and 788 (the ‘‘H–2A Final Rule’’). See 73 FR 77110, Dec. 18, 2008. The H–2A Final Rule replaced the previous versions of 20 CFR part 655 (2008) and 29 CFR part 501 (2008) that, for the most part, were published at 52 FR 20507, Jun. 1, 1987. With respect to the provisions under 29 CFR parts 780 and 788 that were amended by the H–2A Final Rule, the previous versions of 29 CFR 780.115, 780.201, 780.205, and 780.208 were published at 37 FR 12084, Jun. 17, 1972, and the previous version of 29 CFR 788.10 was published at 34 FR 15784, Oct. 14, 1969. Following the issuance of the H–2A Final Rule, a lawsuit was filed in the U.S. District Court for the District of Columbia on January 12, 2009 (brought by the United Farm Workers and others) challenging the H–2A Final Rule. E:\FR\FM\17MRP2.SGM 17MRP2 rwilkins on PROD1PC63 with PROPOSALS2 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules United Farm Workers, et al. v. Chao, et al., Civil No. 09–00062 RMU (D.D.C.). The plaintiffs asserted that in promulgating the H–2A Final Rule, the Department violated section 218 of the Immigration and Nationality Act as well as the Administrative Procedure Act. The plaintiffs requested a temporary restraining order and preliminary injunction, along with a permanent injunction that would prohibit DOL from implementing the H–2A Final Rule. On January 15, 2009, Judge Ricardo M. Urbina denied the plaintiffs’ request for a temporary restraining order and preliminary injunction on the basis that the plaintiffs failed to show ‘‘likely, imminent and irreparable harm’’; the court did not address the merits of the case or whether the plaintiffs demonstrated the substantial likelihood of success on the merits. Accordingly, the H–2A Final Rule went into effect as scheduled on January 17, 2009. Although the court concluded that the plaintiffs were not entitled to a temporary restraining order and preliminary injunction, plaintiffs’ challenges to the H–2A Final Rule are still pending before the district court. The Department’s Answer is due in district court on March 13, 2009. As we move forward with implementing the Final Rule, however, it is rapidly becoming evident that the Department and the SWAs may lack sufficient resources to effectively and efficiently implement the H–2A Final Rule. This has already resulted in processing delays; the delays will become even greater as applications for the upcoming growing season are now being filed with the Department. The Department has been unable to implement the sequence of operational events required to avoid confusion and application processing delays. These include developing an automated review system before the H–2A Final Rule went into effect, and training program users, State Workforce Agency staff, and Federal agency staff. Without such an automated system the Department must process each application manually, which already is causing a significant strain on the timely review and approval of H–2A applications. The Department believes that it has a responsibility to employers, workers, SWAs, and the public to ensure that a new regulatory regime has a sound basis and is capable of effective implementation. Suspending the new H–2A Final Rule and reinstating the prior rule on an interim basis will allow this examination to occur while maintaining the previous status quo. In addition, DOL has increasing evidence that undertaking VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 implementation of a complex new regulatory program applicable to the temporary employment of nonimmigrant workers in agricultural occupations before additional examination of the relevant legal and economic concerns is proving unnecessarily disruptive and confusing to the Department’s administration of the H–2A program, SWAs, agricultural employers, and domestic and foreign workers. It is particularly important to avoid such disruption, if possible, in light of the severe economic conditions the country is now facing. Furthermore, development of the H– 2A Final Rule was based in part on policy positions of the prior Administration with which the current Administration may differ. Relatedly, the Department may wish to reconsider these policy positions in light of the rising unemployment among U.S. workers and their availability for these jobs, and continuing economic problems in this country. It would not be an efficient use of limited agency resources and it would be confusing and disruptive to program users to engage in the steps necessary to make the current rule operational if the Department were then to soon after issue a different rule. Suspending the H–2A Final Rule would prevent all parties from having to incur the costs of learning, filing, implementing, and operating under a new program that will likely be subject to further changes. The 10 day comment period on whether to suspend the new H–2A Final Rule and reinstate on an interim basis the prior rules is necessary due to the time constraints and concerns inherent in the Department’s administration of the H–2A program, and in the use of the H–2A program by the agricultural community. Growers require clear and consistent guidance on the rules governing the processing of their applications so that they can plan and staff their operations appropriately for the impending growing season. The statute requires the Department to process H–2A applications within a strict timeframe, and the Department’s ability to meet the statutory mandate has been undermined by the uncertainties and technical deficiencies in the administration of the program. A longer comment period would stretch the uncertainty over the applicable rules further into the upcoming growing season. Confusion or delay in the administration of the program will result in the disruption of agricultural production, sales and market conditions in areas traditionally served by H–2A workers, which could have further deleterious effects on an already PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 11409 unstable economic environment. Given that the H–2A Final Rule has already been in effect for more than 6 weeks, time is of the essence, especially since H–2A applications for the upcoming growing season are now being filed with the Department under the new regulations. It is imperative that the regulations and positions taken in the preamble of the H–2A Final Rule be reviewed to ensure that they effectively carry out the statutory objectives and requirements of the program; there is a compelling need to undertake that review as soon as possible so that any changes in the H–2A Final Rule can be implemented in time to avoid jeopardizing the program’s use by its stakeholders and workers. It is also imperative that during the time such a review is undertaken, the Department, SWAs, employers, and workers experience minimal disruption as to how applications are processed and the terms and conditions that apply. To avoid confusion for the readers of the Code of Federal Regulations (CFR), if the suspension continues on April 1, 2009, the previous regulations that were in effect on April 1, 2008 would appear in the next published version of the CFR as 20 CFR 655.1 and 20 CFR part 655, subpart B. Additionally, if the suspension continues on July 1, 2009, the previous regulations that were in effect on July 8, 2008 would appear in the next published version of the CFR as 29 CFR part 501, 29 CFR 780.115, 780.201, 780.205, 780.208, and 788.10. The suspended regulations also would appear in the CFR and would be designated as 20 CFR 655.5, 20 CFR part 655, subpart C, 20 CFR part 655, subpart N, 29 CFR part 502, and 29 CFR 780.159, 780.216, 780.217, and 788.217 for clarity of citation purposes and because two distinct regulations cannot use the same regulation number. If a final decision is reached to suspend the H–2A Final Rule, DOL would reinstate the previous rules verbatim on an interim basis to avoid a regulatory vacuum while judicial and administrative review of the H–2A Final Rule proceed. The rulemaking document would thus include provisions identifying the suspended provisions and interim regulatory text identical to the previous H–2A rule. Although the Department cannot predict the outcome of its review of the issues that have been raised or the outcome of the legal challenge to the H–2A Final Rule, either DOL will engage in further rulemaking or the suspension will be lifted after 9 months. If a final decision is reached to suspend the H–2A Final Rule, any H–2A application for which pre-filing positive recruitment was E:\FR\FM\17MRP2.SGM 17MRP2 11410 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules initiated in accordance with the H–2A Final Rule prior to the date of suspension will continue to be governed by the H–2A Final Rule. List of Subjects 20 CFR Part 655 Administrative practice and procedure, Foreign workers, Employment, Employment and training, Enforcement, Forest and forest products, Fraud, Health professions, Immigration, Labor, Passports and visas, Penalties, Reporting and recordkeeping requirements, Unemployment, Wages, Working conditions. 29 CFR Part 501 Administrative practice and procedure, Agriculture, Aliens, Employment, Housing, Housing standards, Immigration, Labor, Migrant labor, Penalties, Transportation, Wages. 29 CFR Part 780 Agricultural commodities, Agriculture, Employment, Forests and forest products, Labor, Minimum wages, Nursery stock, Overtime pay, Wages. 29 CFR Part 788 Employment, Forests and forest products, Labor, Overtime pay, Wages. Accordingly, the Department of Labor proposes that 20 CFR part 655 and 29 CFR parts 501, 780, and 788 be amended as follows: Title 20—Employees’ Benefits PART 655—TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES rwilkins on PROD1PC63 with PROPOSALS2 1. The authority citation for part 655 is revised to read as follows: Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i) and (ii), 1182(m), (n), and (t), 1184, 1188, and 1288(c) and (d); 29 U.S.C. 49 et seq.; 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. 323, Pub. L. 103–206, 107 Stat. 2149; Title IV, Pub. L. 105–277, 112 Stat. 2681; Pub. L. 106– 95, 113 Stat. 1312 (8 U.S.C. 1182 note); and 8 CFR 213.2(h)(4)(i). Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184, and 1188; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i). Subparts A and C issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b) and 1184; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i). Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and 1188; and 29 U.S.C. 49 et seq. Subparts D and E issued under 8 U.S.C. 1101(a)(15)(H)(i)(a), 1182(m), and 1184; 29 U.S.C. 49 et seq. ; and sec. 3(c)(1), Pub. L. 101–238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note). VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 Subparts F and G issued under 8 U.S.C. 1184 and 1288(c); and 29 U.S.C. 49 et seq. Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and (b1), 1182(n), 1182(t), and 1184; 29 U.S.C. 49 et seq.; sec 303(a)(8), Pub. L. 102–232, 105 Stat. 1733, 1748 (8 U.S.C. 1182 note); and Title IV, Pub. L. 105– 277, 112 Stat. 2681. Subparts J and K issued under 29 U.S.C. 49 et seq.; and sec. 221(a), Pub. L. 101–649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note). Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c), 1182(m), and 1184; and 29 U.S.C. 49 et seq. 2. Revise the heading to part 655 to read as set forth above. 3. Redesignate § 655.1 as § 655.5 and suspend newly designated § 655.5. 4. Add § 655.1 to read as follows: § 655.1 Scope and purpose of subpart A. This subpart sets forth the procedures governing the labor certification process for the temporary employment of nonimmigrant aliens in the United States in occupations other than agriculture, logging, or registered nursing. 5. Redesignate subpart B, consisting of §§ 655.90, 655.92, 655.93, and 655.100 through 655.119, as subpart N, consisting of §§ 655.1290, 655.1292, 655.1293, and 655.1300 through 655.1319, and suspend newly designated subpart N. 6. Add subpart B to read as follows: Subpart B—Labor Certification Process for Temporary Agricultural Employment in the United States (H–2A Workers) Sec. 655.90 Scope and purpose of subpart B. 655.92 Authority of the Office of Foreign Labor Certification (OFLC) Administrator. 655.93 Special circumstances. 655.100 Overview of this subpart and definition of terms. 655.101 Temporary alien agricultural labor certification applications. 655.102 Contents of job offers. 655.103 Assurances. 655.104 Determinations based on acceptability of H–2A applications. 655.105 Recruitment period. 655.106 Referral of U.S. workers; determinations based on U.S. worker availability and adverse effect; activities after receipt of the temporary alien agricultural labor certification. 655.107 Adverse effect wage rates (AEWRs). 655.108 H–2A applications involving fraud or willful misrepresentation. 655.110 Employer penalties for noncompliance with terms and conditions of temporary alien agricultural labor certifications. 655.111 Petition for higher meal charges. 655.112 Administrative review and de novo hearing before an administrative law judge. 655.113 Job Service Complaint System; enforcement of work contracts. PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 Subpart B—Labor Certification Process for Temporary Agricultural Employment in the United States (H– 2A Workers) § 655.90 Scope and purpose of subpart B. (a) General. This subpart sets out the procedures established by the Secretary of Labor to acquire information sufficient to make factual determinations of: (1) Whether there are sufficient able, willing, and qualified U.S. workers available to perform the temporary and seasonal agricultural employment for which an employer desires to import nonimmigrant foreign workers (H–2A workers); and (2) whether the employment of H–2A workers will adversely effect the wages and working conditions of workers in the U.S. similarly employed. Under the authority of the INA, the Secretary of Labor has promulgated the regulations in this subpart. This subpart sets forth the requirements and procedures applicable to requests for certification by employers seeking the services of temporary foreign workers in agriculture. This subpart provides the Secretary’s methodology for the twofold determination of availability of domestic workers and of any adverse effect which would be occasioned by the use of foreign workers, for particular temporary and seasonal agricultural jobs in the United States. (b) The statutory standard. (1) A petitioner for H–2A workers must apply to the Secretary of Labor for a certification that, as stated in the INA: (A) 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 (B) The employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed. (2) Section 216(b) of the INA further requires that the Secretary may not issue a certification if the conditions regarding U.S. worker availability and adverse effect are not met, and may not issue a certification if, as stated in the INA: (1) There is a strike or lockout in the course of a labor dispute which, under the regulations, precludes such certification. (2)(A) The employer during the previous two-year period employed H–2A workers and the Secretary has determined, after notice and opportunity for a hearing, that the employer at any time during that period substantially violated a material term or condition of the labor certification with respect to the employment of domestic or non-immigrant workers. (B) No employer may be denied certification under subparagraph (A) for more E:\FR\FM\17MRP2.SGM 17MRP2 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules than three years for any violation described in such subparagraph. (3) The employer has not provided the Secretary with satisfactory assurances that if the employment for which the certification is sought is not covered by State workers’ compensation law, the employer will provide, at no cost to the worker, insurance covering injury and disease arising out of and in the course of the worker’s employment which will provide benefits at least equal to those provided under the State workers’ compensation law for comparable employment. (4) The Secretary determines that the employer has not made positive recruitment efforts within a multistate region of traditional or expected labor supply where the Secretary finds that there are a significant number of qualified United States workers who, if recruited, would be willing to make themselves available for work at the time and place needed. Positive recruitment under this paragraph is in addition to, and shall be conducted within the same time period as, the circulation through the interstate employment service system of the employer’s job offer. The obligation to engage in positive recruitment * * * shall terminate on the date the H–2A workers depart for the employer’s place of employment. (3) Regarding the labor certification determination itself, section 216(c)(3) of the INA, as quoted in the following, specifically directs the Secretary to make the certification if: rwilkins on PROD1PC63 with PROPOSALS2 (i) The employer has complied with the criteria for certification (including criteria for the recruitment of eligible individuals as prescribed by the Secretary), and (ii) The employer does not actually have, or has not been provided with referrals of, qualified 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. (c) The Secretary’s determinations. Before any factual determination can be made concerning the availability of U.S. workers to perform particular job opportunities, two steps must be taken. First, the minimum level of wages, terms, benefits, and conditions for the particular job opportunities below which similarly employed U.S. workers would be adversely affected must be established. (The regulations in this subpart establish such minimum levels for wages, terms, benefits, and conditions of employment). Second, the wages, terms, benefits, and conditions offered and afforded to the aliens must be compared to the established minimum levels. If it is concluded that adverse effect would result, the ultimate determination of availability within the meaning of the INA cannot be made since U.S. workers cannot be expected to accept employment under conditions below the established minimum levels. Florida Sugar Cane League, Inc. v. VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 Usery, 531 F. 2d 299 (5th Cir. 1976). Once a determination of no adverse effect has been made, the availability of U.S. workers can be tested only if U.S. workers are actively recruited through the offer of wages, terms, benefits, and conditions at least at the minimum level or the level offered to the aliens, whichever is higher. The regulations in this subpart set forth requirements for recruiting U.S. workers in accordance with this principle. (d) Construction. This subpart shall be construed to effectuate the purpose of the INA that U.S. workers rather than aliens be employed wherever possible. Elton Orchards, Inc. v. Brennan, 508 F. 2d 493, 500 (1st Cir. 1974); Flecha v. Quiros, 567 F.2d 1154, 1156 (1st Cir. 1977). Where temporary alien workers are admitted, the terms and conditions of their employment must not result in a lowering of the wages, terms, and conditions of domestic workers similarly employed. Williams v. Usery, 531 F. 2d 305, 306 (5th Cir. 1976), cert. denied, 429 U.S. 1000, and the job benefits extended to any U.S. workers shall be at least those extended to the alien workers. § 655.92 Authority of the Office of Foreign Labor Certification (OFLC) Administrator. Under this subpart, the accepting for consideration and the making of temporary alien agricultural labor certification determinations are ordinarily performed by the Office of Foreign Labor Certification (OFLC) Administrator (OFLC Administrator), who, in turn, may delegate this responsibility to a designated staff member. The OFLC Administrator will informally advise the employer or agent of the name of the official who will make determinations with respect to the application. § 655.93 Special circumstances. (a) Systematic process. The regulations under this subpart are designed to provide a systematic process for handling applications from the kinds of employers who have historically utilized nonimmigrant alien workers in agriculture, usually in relation to the production or harvesting of a particular agricultural crop for market, and which normally share such characteristics as: (1) A fixed-site farm, ranch, or similar establishment; (2) A need for workers to come to their establishment from other areas to perform services or labor in and around their establishment; (3) Labor needs which will normally be controlled by environmental PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 11411 conditions, particularly weather and sunshine; and (4) A reasonably regular workday or workweek. (b) Establishment of special procedures. In order to provide for a limited degree of flexibility in carrying out the Secretary’s responsibilities under the INA, while not deviating from the statutory requirements to determine U.S. worker availability and make a determination as to adverse effect, the OFLC Administrator has the authority to establish special procedures for processing H–2A applications when employers can demonstrate upon written application to and consultation with the OFLC Administrator that special procedures are necessary. In a like manner, for work in occupations characterized by other than a reasonably regular workday or workweek, such as the range production of sheep or other livestock, the OFLC Administrator has the authority to establish monthly, weekly, or bi-weekly adverse effect wage rates for those occupations, for a Statewide or other geographical area, other than the rates established pursuant to § 655.107 of this part, provided that the OFLC Administrator uses a methodology to establish such adverse effect wage rates which is consistent with the methodology in § 655.107(a). Prior to making determinations under this paragraph (b), the OFLC Administrator may consult with employer representatives and worker representatives. (c) Construction. This subpart shall be construed to permit the OFLC Administrator to continue and, where the OFLC Administrator deems appropriate, to revise the special procedures previously in effect for the handling of applications for sheepherders in the Western States (and to adapt such procedures to occupations in the range production of other livestock) and for custom combine crews. § 655.100 Overview of this subpart and definition of terms. (a) Overview—(1) Filing applications. This subpart provides guidance to an employer who desires to apply for temporary alien agricultural labor certification for the employment of H– 2A workers to perform agricultural employment of a temporary or seasonal nature. The regulations in this subpart provide that such employer shall file an H–2A application, including a job offer, on forms prescribed by the Employment and Training Administration (ETA), which describes the material terms and conditions of employment to be offered and afforded to U.S. workers and H–2A E:\FR\FM\17MRP2.SGM 17MRP2 rwilkins on PROD1PC63 with PROPOSALS2 11412 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules workers, with the OFLC Administrator. The entire application shall be filed with the OFLC Administrator no less than 45 calendar days before the first date of need for workers, and a copy of the job offer shall be submitted at the same time to the local office of the State employment service agency which serves the area of intended employment. Under the regulations, the OFLC Administrator will promptly review the application and notify the applicant in writing if there are deficiencies which render the application not acceptable for consideration, and afford the applicant a five-calendar-day period for resubmittal of an amended application or an appeal of the OFLC Administrator’s refusal to approve the application as acceptable for consideration. Employers are encouraged to file their applications in advance of the 45-calendar-day period mentioned above in this paragraph (a)(1). Sufficient time should be allowed for delays that might arise due to the need for amendments in order to make the application acceptable for consideration. (2) Amendment of applications. This subpart provides for the amendment of applications, at any time prior to the OFLC Administrator’s certification determination, to increase the number of workers requested in the initial application; without requiring, under certain circumstances, an additional recruitment period for U.S. workers. (3) Untimely applications. If an H–2A application does not satisfy the specified time requirements, this subpart provides for the OFLC Administrator’s advice to the employer in writing that the certification cannot be granted because there is not sufficient time to test the availability of U.S. workers; and provides for the employer’s right to an administrative review or a de novo hearing before an administrative law judge. Emergency situations are provided for, wherein the OFLC Administrator may waive the specified time periods. (4) Recruitment of U.S. workers; determinations—(i) Recruitment. This subpart provides that, where the application is accepted for consideration and meets the regulatory standards, the State agency and the employer begin to recruit U.S. workers. If the employer has complied with the criteria for certification, including recruitment of U.S. workers, by 20 calendar days before the date of need specified in the application (except as provided in certain cases), the OFLC Administrator makes a determination to grant or deny, in whole or in part, the application for certification. VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 (ii) Granted applications. This subpart provides that the application for temporary alien agricultural labor certification is granted if the OFLC Administrator finds that the employer has not offered foreign workers higher wages or better working conditions (or has imposed less restrictions on foreign workers) than those offered and afforded to U.S. workers; that sufficient U.S. workers who are able, willing, and qualified will not be available at the time and place needed to perform the work for which H–2A workers are being requested; and that the employment of such aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers. (iii) Fees—(A) Amount. This subpart provides that each employer (except joint employer associations) of H–2A workers shall pay to the OFLC Administrator fees for each temporary alien agricultural labor certification received. The fee for each employer receiving a temporary alien agricultural labor certification is $100 plus $10 for each job opportunity for H–2A workers certified, provided that the fee to an employer for each temporary alien agricultural labor certification received shall be no greater than $1,000. In the case of a joint employer association receiving a temporary alien agricultural labor certification, each employermember receiving a temporary alien agricultural labor certification shall pay a fee of $100 plus $10 for each job opportunity for H–2A workers certified, provided that the fee to an employer for each temporary alien agricultural labor certification received shall be no greater than $1,000. The joint employer association will not be charged a separate fee. (B) Timeliness of payment. The fee must be received by the OFLC Administrator no later than 30 calendar days after the granting of each temporary alien agricultural labor certification. Fees received any later are untimely. Failure to pay fees in a timely manner is a substantial violation which may result in the denial of future temporary alien agricultural labor certifications. (iv) Denied applications. This subpart provides that if the application for temporary alien agricultural labor certification is denied, in whole or in part, the employer may seek review of the denial, or a de novo hearing, by an administrative law judge as provided in this subpart. (b) Definitions of terms used in this subpart. For the purposes of this subpart: Except for consideration means, with respect to an application for temporary PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 alien agricultural labor certification, the action by the OFLC Administrator to notify the employer that a filed temporary alien agricultural labor certification application meets the adverse effect criteria necessary for processing. An application accepted for consideration ultimately will be approved or denied in a temporary alien agricultural labor certification determination. Administrative law judge means a person within the Department of Labor Office of Administrative Law Judges appointed pursuant to 5 U.S.C. 3105; or a panel of such persons designated by the Chief Administrative Law Judge from the Board of Alien Labor Certification Appeals established by part 656 of this chapter, but which shall hear and decide appeals as set forth in § 655.112 of this part. ‘‘Chief Administrative Law Judge’’ means the chief official of the Department of Labor Office of Administrative Law Judges or the Chief Administrative Law Judge’s designee. Administrator, Office of Foreign Labor Certification (OFLC) means the primary official of the Office of Foreign Labor Certification (OFLC Administrator), or the OFLC Administrator’s designee. Adverse effect wage rate (AEWR) means the wage rate which the OFLC Administrator has determined must be offered and paid, as a minimum, to every H–2A worker and every U.S. worker for a particular occupation and/ or area in which an employer employs or seeks to employ an H–2A worker so that the wages of similarly employed U.S. workers will not be adversely affected. Agent means a legal entity or person, such as an association of agricultural employers, or an attorney for an association, which (1) is authorized to act on behalf of the employer for temporary alien agricultural labor certification purposes, and (2) is not itself an employer, or a joint employer, as defined in this paragraph (b). Department of Homeland Security (DHS) through the United States Citizenship and Immigration Services (USCIS) makes the determination under the INA on whether or not to grant visa petitions to employers seeking H–2A workers to perform temporary agricultural work in the United States. DOL means the United States Department of Labor. Eligible worker means a U.S. worker, as defined in this section. Employer means a person, firm, corporation or other association or organization which suffers or permits a person to work and (1) which has a location within the United States to E:\FR\FM\17MRP2.SGM 17MRP2 rwilkins on PROD1PC63 with PROPOSALS2 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules which U.S. workers may be referred for employment, and which proposes to employ workers at a place within the United States and (2) which has an employer relationship with respect to employees under this subpart as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee. An association of employers shall be considered the sole employer if it has the indicia of an employer set forth in this definition. Such an association, however, shall be considered as a joint employer with an employer member if it shares with the employer member one or more of the definitional indicia. Employment Service (ES), in this subpart, refers to the system of federal and state entities responsible for administration of the labor certification process for temporary and seasonal agricultural employment of nonimmigrant foreign workers. This includes the State Workforce Agencies (SWAs), the National Processing Centers (NPCs) and the Office of Foreign Labor Certification (OFLC). Employment Standards Administration means the agency within the Department of Labor (DOL), which includes the Wage and Hour Division, and which is charged with the carrying out of certain functions of the Secretary under the INA. Employment and Training Administration (ETA) means the agency within the Department of Labor (DOL) which includes the Office of Foreign Labor (OFLC). Federal holiday means a legal public holiday as defined at 5 U.S.C. 6103. H–2A worker means any nonimmigrant alien admitted to the United States for agricultural labor or services of a temporary or seasonal nature under section 101(a)(15)(H)(ii)(a) of the INA (8 U.S.C. 1101(a)(15)(H)(ii)(a)). INA means the Immigration and Nationality Act, as amended (8 U.S.C. 1101 et seq.). Job offer means the offer made by an employer or potential employer of H–2A workers to both U.S. and H–2A workers describing all the material terms and conditions of employment, including those relating to wages, working conditions, and other benefits. Job opportunity means a job opening for temporary, full-time employment at a place in the United States to which U.S. workers can be referred. Office of Foreign Labor Certification (OFLC) means the organizational component within the ETA that provides national leadership and policy guidance and develops regulations and procedures to carry out the responsibilities of the Secretary of Labor VerDate Nov<24>2008 18:14 Mar 16, 2009 Jkt 217001 under the INA concerning alien workers seeking admission to the United States in order to work under the Immigration and Nationality Act, as amended. Positive recruitment means the active participation of an employer or its authorized hiring agent in locating and interviewing applicants in other potential labor supply areas and in the area where the employer’s establishment is located in an effort to fill specific job openings with U.S. workers. Prevailing means, with respect to certain benefits other than wages provided by employers and certain practices engaged in by employers, that: (i) Fifty percent or more of employers in an area and for an occupation engage in the practice or offer the benefit; and (ii) This 50 percent or more of employers also employs 50 percent or more of U.S. workers in the occupation and area (including H–2A and non-H– 2A employers for purposes of determinations concerning the provision of family housing, frequency of wage payments, and workers supplying their own bedding, but nonH–2A employers only for determinations concerning the provision of advance transportation and the utilization of farm labor contractors). Secretary means the Secretary of Labor or the Secretary’s designee. Solicitor of Labor means the Solicitor, United States Department of Labor, and includes employees of the Office of the Solicitor of Labor designated by the Solicitor to perform functions of the Solicitor under this subpart. State Workforce Agency (SWA) means the State employment service agency designated under § 4 of the WagnerPeyser Act to cooperate with OFLC in the operation of the ES System. Temporary alien agricultural labor certification means the certification made by the Secretary of Labor with respect to an employer seeking to file with DHS a visa petition to import an alien as an H–2A worker, pursuant to sections 101(a)(15)(H)(ii)(a), 214(a) and (c), and 216 of the INA that (1) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the agricultural labor or services involved in the petition, and (2) the employment of the alien in such agricultural labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed (8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184 (a) and (c), and 1186). Temporary alien agricultural labor certification determination means the written determination made by the PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 11413 OFLC Administrator to approve or deny, in whole or in part, an application for temporary alien agricultural labor certification. United States (U.S.) worker means any worker who, whether a U.S. national, a U.S. citizen, or an alien, is legally permitted to work in the job opportunity within the United States (as defined at § 101(a)(38) of the INA (8 U.S.C. 1101(a)(38))). Wages means all forms of cash remuneration to a worker by an employer in payment for personal services. (c) Definition of agricultural labor or services of a temporary or seasonal nature. For the purposes of this subpart, ‘‘agricultural labor or services of a temporary or seasonal nature’’ means the following: (1) ‘‘Agricultural labor or services’’. Pursuant to section 101(a)(15)(H)(ii)(a) of the INA (8 U.S.C. 1101(a)(15)(H)(ii)(a)), ‘‘agricultural labor or services’’ is defined for the purposes of this subpart as either ‘‘agricultural labor’’ as defined and applied in section 3121(g) of the Internal Revenue Code of 1954 (26 U.S.C. 3121(g)) or ‘‘agriculture’’ as defined and applied in section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)). An occupation included in either statutory definition shall be ‘‘agricultural labor or services’’, notwithstanding the exclusion of that occupation from the other statutory definition. For informational purposes, the statutory provisions are quoted below: (i) ‘‘Agricultural labor’’. Section 3121(g) of the Internal Revenue Code of 1954 (26 U.S.C. 3121(g)), quoted as follows, defines the term ‘‘agricultural labor’’ to include all service performed: (1) On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and furbearing animals and wildlife; (2) Services performed in the employ of the owner or tenant or other operator of a farm, in connection with the operation, or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm; (3) In connection with the production or harvesting of any commodity defined as an agricultural commodity in section 15(g) of the Agricultural Marketing Act, as amended (12 U.S.C. 1141j), or in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, used exclusively for E:\FR\FM\17MRP2.SGM 17MRP2 11414 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules supplying and storing water for farming purposes; (4)(A) In the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity; but only if such operator produced more than one-half of the commodity with respect to which such service is performed; (B) In the employ of a group of operators of farms (other than a cooperative organization) in the performance of service described in subparagraph (A), but only if such operators produced all of the commodity with respect to which such service is performed. For purposes of this subparagraph, any unincorporated group of operators shall be deemed a cooperative organization if the number of operators comprising such group is more than 20 at any time during the calendar quarter in which such service is performed; (C) The provisions of subparagraphs (A) and (B) shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption; or (5) On a farm operated for profit if such service is not in the course of the employer’s trade or business or is domestic service in a private home of the employer. As used in this subsection, the term ‘‘farm’’ includes stock, dairy, poultry, fruit, furbearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards. (ii) ‘‘Agriculture’’ Section 203(f) of title 29, United States Code, (section 3(f) of the Fair Labor Standards Act of 1938, as codified), quoted as follows, defines ‘‘agriculture’’ to include: rwilkins on PROD1PC63 with PROPOSALS2 (f) * * * farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities as defined as agricultural commodities in section 1141j(g) of Title 12), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market. (iii) ‘‘Agricultural commodity’’. Section 1141j(g) of title 12, United States Code (section 15(g) of the Agricultural Marketing Act, as amended), quoted as follows, defines ‘‘agricultural commodity’’ to include: (g) * * * in addition to other agricultural commodities, crude gum (oleoresin) from a VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 living tree, and the following products as processed by the original producer of the crude gum (oleoresin) from which derived: Gum spirits of turpentine, and gum rosin, as defined in section 92 of Title 7. (iv) ‘‘Gum rosin’’. Section 92 of title 7, United States Code, quoted as follows, defines ‘‘gum spirits of turpentine’’ and ‘‘gum rosin’’ as— (c) ‘‘Gum spirits of turpentine’’ means spirits of turpentine made from gum (oleoresin) from a living tree. (h) ‘‘Gum rosin’’ means rosin remaining after the distillation of gum spirits of turpentine. (2) ‘‘Of a temporary or seasonal nature’’—(i) ‘‘On a seasonal or other temporary basis’’. For the purposes of this subpart, ‘‘of a temporary or seasonal nature’’ means ‘‘on a seasonal or other temporary basis’’, as defined in the Employment Standards Administration’s Wage and Hour Division’s regulation at 29 CFR 500.20 under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). (ii) MSPA definition. For informational purposes, the definition of ‘‘on a seasonal or other temporary basis’’, as set forth at 29 CFR 500.20, is provided below: ‘‘On a seasonal or other temporary basis’’ means: Labor is performed on a seasonal basis, where, ordinarily, the employment pertains to or is of the kind exclusively performed at certain seasons or periods of the year and which, from its nature, may not be continuous or carried on throughout the year. A worker who moves from one seasonal activity to another, while employed in agriculture or performing agricultural labor, is employed on a seasonal basis even though he may continue to be employed during a major portion of the year. A worker is employed on ‘‘other temporary basis’’ where he is employed for a limited time only or his performance is contemplated for a particular piece of work, usually of short duration. Generally, employment, which is contemplated to continue indefinitely, is not temporary. ‘‘On a seasonal or other temporary basis’’ does not include the employment of any foreman or other supervisory employee who is employed by a specific agricultural employer or agricultural association essentially on a year round basis. ‘‘On a seasonal or other temporary basis’’ does not include the employment of any worker who is living at his permanent place of residence, when that worker is employed by a specific agricultural employer or agricultural association on essentially a year round basis to perform a variety of tasks for his employer and is not primarily employed to do field work. (iii) ‘‘Temporary’’. For the purposes of this subpart, the definition of ‘‘temporary’’ in paragraph (c)(2)(ii) of PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 this section refers to any job opportunity covered by this subpart where the employer needs a worker for a position, either temporary or permanent, for a limited period of time, which shall be for less than one year, unless the original temporary alien agricultural labor certification is extended based on unforeseen circumstances, pursuant to § 655.106(c)(3) of this part. § 655.101 Temporary alien agricultural labor certification applications. (a) General—(1) Filing of application. An employer who anticipates a shortage of U.S. workers needed to perform agricultural labor or services of a temporary or seasonal nature may apply to the OFLC Administrator, for a temporary alien agricultural labor certification for temporary foreign workers (H–2A workers). A signed application for temporary alien agricultural worker certification shall be filed by the employer, or by an agent of the employer, with the OFLC Administrator. At the same time, a duplicate application shall be submitted to the SWA serving the area of intended employment. (2) Applications filed by agents. If the temporary alien agricultural labor certification application is filed by an agent on behalf of an employer, the agent may sign the application if the application is accompanied by a signed statement from the employer which authorizes the agent to act on the employer’s behalf. The employer may authorize the agent to accept for interview workers being referred to the job and to make hiring commitments on behalf of the employer. The statement shall specify that the employer assumes full responsibility for the accuracy of the application, for all representations made by the agent on the employer’s behalf, and for compliance with all regulatory and other legal requirements. (3) Applications filed by associations. If an association of agricultural producers which uses agricultural labor or services files the application, the association shall identify whether it is: (i) The sole employer; (ii) a joint employer with its employer-member employers; or (iii) the agent of its employer-members. The association shall submit documentation sufficient to enable the OFLC Administrator to verify the employer or agency status of the association; and shall identify by name and address each member which will be an employer of H–2A workers. (b) Application form. Each H–2A application shall be on a form or forms prescribed by ETA. The application shall state the total number of workers the employer anticipates employing in E:\FR\FM\17MRP2.SGM 17MRP2 rwilkins on PROD1PC63 with PROPOSALS2 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules the agricultural labor or service activity during the covered period of employment. The application shall include: (1) A copy of the job offer which will be used by each employer for the recruitment of U.S. and H–2A workers. The job offer shall state the number of workers needed by the employer, based upon the employer’s anticipation of a shortage of U.S. workers needed to perform the agricultural labor or services, and the specific estimated date on which the workers are needed. The job offer shall comply with the requirements of §§ 655.102 and 653.501 of this chapter, and shall be signed by the employer or the employer’s agent on behalf of the employer; and (2) An agreement to abide by the assurances required by § 655.103 of this part. (c) Timeliness. Applications for temporary alien agricultural labor certification are not required to be filed more than 45 calendar days before the first day of need. The employer shall be notified by the OFLC Administrator in writing within seven calendar days of filing the application if the application is not approved as acceptable for consideration. The OFLC Administrator’s temporary alien agricultural labor certification determination on the approved application shall be made no later than 20 calendar days before the date of need if the employer has complied with the criteria for certification. To allow for the availability of U.S. workers to be tested, the following process applies: (1) Application filing date. The entire H–2A application, including the job offer, shall be filed with the OFLC Administrator, in duplicate, no less than 45 calendar days before the first date on which the employer estimates that the workers are needed. Applications may be filed in person; may be mailed to the OFLC Administrator (Attention: H–2A Certifying Officer) by certified mail, return receipt requested; or delivered by guaranteed commercial delivery which will ensure delivery to the OFLC Administrator and provide the employer with a documented acknowledgment of receipt of the application by the OFLC Administrator. Any application received 45 calendar days before the date of need will have met the minimum timeliness of filing requirement as long as the application is eventually approved by the OFLC Administrator as being acceptable for processing. (2) Review of application; recruitment; certification determination period. Section 655.104 of this part requires the OFLC Administrator to promptly review the application, and to notify the VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 applicant in writing within seven calendar days of any deficiencies which render the application not acceptable for consideration and to afford an opportunity for resubmittal of an amended application. The employer shall have five calendar days in which to file an amended application. Section 655.106 of this part requires the OFLC Administrator to grant or deny the temporary alien agricultural labor certification application no later than 20 calendar days before the date on which the workers are needed, provided that the employer has complied with the criteria for certification, including recruitment of eligible individuals. Such recruitment, for the employer, the State agencies, and DOL to attempt to locate U.S. workers locally and through the circulation of intrastate and interstate agricultural clearance job orders acceptable under § 653.501 of this chapter and under this subpart, shall begin on the date that an acceptable application is filed, except that the SWA shall begin to recruit workers locally beginning on the date it first receives the application. The time needed to obtain an application acceptable for consideration (including the job offer) after the five-calendar-day period allowed for an amended application will postpone day-for-day the certification determination beyond the 20 calendar days before the date of need, provided that the OFLC Administrator notifies the applicant of any deficiencies within seven calendar days after receipt of the application. Delays in obtaining an application acceptable for consideration which are directly attributable to the OFLC Administrator will not postpone the certification determination beyond the 20 calendar days before the date of need. When an employer resubmits to the OFLC Administrator (with a copy to the SWA) an application with modifications required by the OFLC Administrator, and the OFLC Administrator approves the modified application as meeting necessary adverse effect standards, the modified application will not be rejected solely because it now does not meet the 45calendar-day filing requirement. If an application is approved as being acceptable for processing without need for any amendment within the sevencalendar-day review period after initial filing, recruitment of U.S. workers will be considered to have begun on the date the application was received by the OFLC Administrator; and the OFLC Administrator shall make the temporary alien agricultural labor certification determination required by § 655.106 of PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 11415 this part no later than 20 calendar days before the date of need provided that other regulatory conditions are met. (3) Early filing. Employers are encouraged, but not required, to file their applications in advance of the 45calendar-day minimum period specified in paragraph (c)(1) of this section, to afford more time for review and discussion of the applications and to consider amendments, should they be necessary. This is particularly true for employers submitting H–2A applications for the first time who may not be familiar with the Secretary’s requirements for an acceptable application or U.S. worker recruitment. Such employers particularly are encouraged to consult with DOL and SWA staff for guidance and assistance well in advance of the minimum 45calendar-day filing period. (4) Local recruitment; preparation of clearance orders. At the same time the employer files the H–2A application with the OFLC Administrator, a copy of the application shall be submitted to the SWA which will use the job offer portion-of the application to prepare a local job order and begin to recruit U.S. workers in the area of intended employment. The SWA also shall begin preparing an agricultural clearance order, but such order will not be used to recruit workers in other geographical areas until the employer’s H–2A application is accepted for consideration and the clearance order is approved by the OFLC Administrator and the SWA is so notified by the OFLC Administrator. (5) [Reserved] (d) Amendments to application to increase number of workers. Applications may be amended at any time, prior to an OFLC Administrator certification determination, to increase the number of workers requested in the initial application by not more than 20 percent (50 percent for employers of less than ten workers) without requiring an additional recruitment period for U.S. workers. Requests for increases above the percent prescribed, without additional recruitment, may be approved only when the need for additional workers could not have been foreseen, and that crops or commodities will be in jeopardy prior to the expiration of an additional recruitment period. (e) Minor amendments to applications. Minor technical amendments may be requested by the employer and made to the application and job offer prior to the certification determination if the OFLC Administrator determines they are justified and will have no significant E:\FR\FM\17MRP2.SGM 17MRP2 rwilkins on PROD1PC63 with PROPOSALS2 11416 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules effect upon the OFLC Administrator’s ability to make the labor certification determination required by § 655.106 of this part. Amendments described at paragraph (d) of this section are not ‘‘minor technical amendments’’. (f) Untimely applications—(1) Notices of denial. If an H–2A application, or any part thereof, does not satisfy the time requirements specified in paragraph (c) of this section, and if the exception in paragraph (d) of this section does not apply, the OFLC Administrator may then advise the employer in writing that the certification cannot be granted because, pursuant to paragraph (c) of this section, there is not sufficient time to test the availability of U.S. workers. The notice of denial shall inform the employer of its right to an administrative review or de novo hearing before an administrative law judge. (2) Emergency situations. Notwithstanding paragraph (f)(1) of this section, in emergency situations the OFLC Administrator may waive the time period specified in this section on behalf of employers who have not made use of temporary alien agricultural workers (H–2 or H–2A) for the prior year’s agricultural season or for any employer which has other good and substantial cause (which may include unforeseen changes in market conditions), provided that the OFLC Administrator has an opportunity to obtain sufficient labor market information on an expedited basis to make the labor certification determination required by § 216 of the INA (8 U.S.C. 1186). In making this determination, the OFLC Administrator will accept information offered by and may consult with representatives of the U.S. Department of Agriculture. (g) Length of job opportunity. The employer shall set forth on the application sufficient information concerning the job opportunity to demonstrate to the OFLC Administrator that the need for the worker is ‘‘of a temporary or seasonal nature’’, as defined at § 655.100(c)(2) of this part. Job opportunities of 12 months or more are presumed to be permanent in nature. Therefore, the OFLC Administrator shall not grant a temporary alien agricultural labor certification where the job opportunity has been or would be filled by an H–2A worker for a cumulative period, including temporary alien agricultural labor certifications and extensions, of 12 months or more, except in extraordinary circumstances. § 655.102 Contents of job offers. (a) Preferential treatment of aliens prohibited. The employer’s job offer to VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 U.S. workers shall offer the U.S. workers no less than the same benefits, wages, and working conditions which the employer is offering, intends to offer, or will provide to H–2A workers. Conversely, no job offer may impose on U.S. workers any restrictions or obligations which will not be imposed on the employer’s H–2A workers. This does not relieve the employer from providing to H–2A workers at least the same level of minimum benefits, wages, and working conditions which must be offered to U.S. workers consistent with this section. (b) Minimum benefits, wages, and working conditions. Except when higher benefits, wages or working conditions are required by the provisions of paragraph (a) of this section, DOL has determined that in order to protect similarly employed U.S. workers from adverse effect with respect to benefits, wages, and working conditions, every job offer which must accompany an H– 2A application always shall include each of the following minimum benefit, wage, and working condition provisions: (1) Housing. The employer shall provide to those workers who are not reasonably able to return to their residence within the same day housing, without charge to the worker, which may be, at the employer’s option, rental or public accommodation type housing. (i) Standards for employer-provided housing. Housing provided by the employer shall meet the full set of DOL Occupational Safety and Health Administration standards set forth at 29 CFR 1910.142, or the full set of standards at §§ 654.404–654.417 of this chapter, whichever are applicable, except as provided for under paragraph (b)(1)(iii) of this section. Requests by employers, whose housing does not meet the applicable standards, for conditional access to the intrastate or interstate clearance system, shall be processed under the procedures set forth at § 654.403 of this chapter. (ii) Standards for range housing. Housing for workers principally engaged in the range production of livestock shall meet standards of the DOL Occupational Safety and Health Administration for such housing. In the absence of such standards, range housing for sheepherders and other workers engaged in the range production of livestock shall meet guidelines issued by ETA. (iii) Standards for other habitation. Rental, public accommodation, or other substantially similar class of habitation must meet local standards for such housing. In the absence of applicable local standards, State standards shall PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 apply. In the absence of applicable local or State standards, Occupational Safety and Health Administration standards at 29 CFR 1910.142 shall apply. Any charges for rental housing shall be paid directly by the employer to the owner or operator of the housing. When such housing is to be supplied by an employer, the employer shall document to the satisfaction of the OFLC Administrator that the housing complies with the local, State, or federal housing standards applicable under this paragraph (b)(1)(iii). (iv) Charges for public housing. If public housing provided for migrant agricultural workers under the auspices of a local, county, or State government is secured by an employer, and use of the public housing unit normally requires charges from migrant workers, such charges shall be paid by the employer directly to the appropriate individual or entity affiliated with the housing’s management. (v) Deposit charges. Charges in the form of deposits for bedding or other similar incidentals related to housing shall not be levied upon workers by employers who provide housing for their workers. However, employers may require workers to reimburse them for damage caused to housing by the individual workers found to have been responsible for damage which is not the result of normal wear and tear related to habitation. (vi) Family housing. When it is the prevailing practice in the area of intended employment and the occupation to provide family housing, family housing shall be provided to workers with families who request it. (2) Workers’ compensation. The employer shall provide, at no cost to the worker, insurance, under a State workers’ compensation law or otherwise, covering injury and disease arising out of and in the course of the worker’s employment which will provide benefits at least equal to those provided under the State workers’ compensation law, if any, for comparable employment. The employer shall furnish the name of the insurance carrier and the insurance policy number, or, if appropriate, proof of State law coverage, to the OFLC Administrator prior to the issuance of a labor certification. (3) Employer-provided items. Except as provided below, the employer shall provide, without charge including deposit charge, to the worker all tools, supplies, and equipment required to perform the duties assigned; the employer may charge the worker for reasonable costs related to the worker’s refusal or negligent failure to return any E:\FR\FM\17MRP2.SGM 17MRP2 rwilkins on PROD1PC63 with PROPOSALS2 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules property furnished by the employer or due to such worker’s willful damage or destruction of such property. Where it is a common practice in the particular area, crop activity and occupation for workers to provide tools and equipment, with or without the employer reimbursing the workers for the cost of providing them, such an arrangement is permissible if approved in advance by the OFLC Administrator. (4) Meals. Where the employer has centralized cooking and eating facilities designed to feed workers, the employer shall provide each worker with three meals a day. When such facilities are not available, the employer either shall provide each worker with three meals a day or shall furnish free and convenient cooking and kitchen facilities to the workers which will enable the workers to prepare their own meals. Where the employer provides the meals, the job offer shall state the charge, if any, to the worker for such meals. Until a new amount is set pursuant to this paragraph (b)(4), the charge shall not be more than $5.26 per day unless the OFLC Administrator has approved a higher charge pursuant to § 655.111 of this part. Each year the charge allowed by this paragraph (b)(4) will be changed by the same percentage as the 12-month percent change in the Consumer Price Index for All Urban Consumers for Food between December of the year just concluded and December of the year prior to that. The annual adjustments shall be effective on the date of their publication by the OFLC Administrator as a notice in the Federal Register. (5) Transportation; daily subsistence—(i) Transportation to place of employment. The employer shall advance transportation and subsistence costs (or otherwise provide them) to workers when it is the prevailing practice of non-H–2A agricultural employers in the occupation in the area to do so, or when such benefits are extended to H–2A workers. The amount of the transportation payment shall be no less (and shall not be required to be more) than the most economical and reasonable similar common carrier transportation charges for the distances involved. If the employer has not previously advanced such transportation and subsistence costs to the worker or otherwise provided such transportation or subsistence directly to the worker by other means and if the worker completes 50 percent of the work contract period, the employer shall pay the worker for costs incurred by the worker for transportation and daily subsistence from the place from which the worker has come to work for the employer to the place of VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 employment. The amount of the daily subsistence payment shall be at least as much as the employer will charge the worker for providing the worker with three meals a day during employment. If no charges will be made for meals and free and convenient cooking and kitchen facilities will be provided, the amount of the subsistence payment shall be no less than the amount permitted under paragraph (b)(4) of this section. (ii) Transportation from place of employment. If the worker completes the work contract period, the employer shall provide or pay for the worker’s transportation and daily subsistence from the place of employment to the place from which the worker, disregarding intervening employment, came to work for the employer, or, if the worker has contracted with a subsequent employer who has not agreed in that contract to provide or pay for the worker’s transportation and daily subsistence expenses from the employer’s worksite to such subsequent employer’s worksite, the employer shall provide or pay for such expenses; except that, if the worker has contracted for employment with a subsequent employer who, in that contract, has agreed to pay for the worker’s transportation and daily subsistence expenses from the employer’s worksite to such subsequent employer’s worksite, the employer is not required to provide or pay for such expenses. (iii) Transportation between living quarters and worksite. The employer shall provide transportation between the worker’s living quarters (i.e., housing provided by the employer pursuant to paragraph (b)(1) of this section) and the employer’s worksite without cost to the worker, and such transportation will be in accordance with applicable laws and regulations. This paragraph (b)(5)(iii) is applicable to the transportation of workers eligible for housing, pursuant to paragraph (b)(1) of this section. (6) Three-fourths guarantee—(i) Offer to worker. The employer shall guarantee to offer the worker employment for at least three-fourths of the workdays of the total periods during which the work contract and all extensions thereof are in effect, beginning with the first workday after the arrival of the worker at the place of employment and ending on the expiration date specified in the work contract or in its extensions, if any. If the employer affords the U.S. or H–2A worker during the total work contract period less employment than that required under this paragraph (b)(6), the employer shall pay such worker the amount which the worker would have earned had the worker, in PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 11417 fact, worked for the guaranteed number of days. For purposes of this paragraph (b)(6), a workday shall mean the number of hours in a workday as stated in the job order and shall exclude the worker’s Sabbath and federal holidays. An employer shall not be considered to have met the work guarantee if the employer has merely offered work on three-fourths of the workdays if each workday did not consist of a full number of hours of work time specified in the job order. The work shall be offered for at least three-fourths of the workdays (that is, 3⁄4 × (number of days) × (specified hours)). Therefore, if, for example, the contract contains 20 eighthour workdays, the worker shall be offered employment for 120 hours during the 20 workdays. A worker may be offered more than the specified hours of work on a single workday. For purposes of meeting the guarantee, however, the worker shall not be required to work for more than the number hours specified in the job order for a workday, or on the worker’s Sabbath or Federal holidays. (ii) Guarantee for piece-rate-paid worker. If the worker will be paid on a piece rate basis, the employer shall use the worker’s average hourly piece rate earnings or the AEWR, whichever is higher, to calculate the amount due under the guarantee. (iii) Failure to work. Any hours which the worker fails to work, up to a maximum of the number of hours specified in the job order for a workday, when the worker has been offered an opportunity to do so pursuant to paragraph (b)(6)(i) of this section and all hours of work actually performed (including voluntary work over 8 hours in a workday or on the worker’s Sabbath or federal holidays) may be counted by the employer in calculating whether the period of guaranteed employment has been met. (iv) Displaced H–2A worker. The employer shall not be liable for payment under this paragraph (b)(6) with respect to an H–2A worker whom the OFLC Administrator certifies is displaced because of the employer’s compliance with § 655.103(e) of this part. (7) Records. (i) The employer shall keep accurate and adequate records with respect to the workers’ earnings including field tally records, supporting summary payroll records and records showing the nature and amount of the work performed; the number of hours of work offered each day by the employer (broken out by hours offered both in accordance with and over and above the three-fourths guarantee at paragraph (b)(6) of this section); the hours actually worked each day by the worker; the E:\FR\FM\17MRP2.SGM 17MRP2 rwilkins on PROD1PC63 with PROPOSALS2 11418 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules time the worker began and ended each workday; the rate of pay (both piece rate and hourly, if applicable); the worker’s earnings per pay period; the worker’s home address; and the amount of and reasons for any and all deductions made from the worker’s wages; (ii) If the number of hours worked by the worker is less than the number offered in accordance with the threefourths guarantee at paragraph (b)(6) of this section, the records shall state the reason or reasons therefore. (iii) Upon reasonable notice, the employer shall make available the records, including field tally records and supporting summary payroll records for inspection and copying by representatives of the Secretary of Labor, and by the worker and representatives designated by the worker; and (iv) The employer shall retain the records for not less than three years after the completion of the work contract. (8) Hours and earnings statements. The employer shall furnish to the worker on or before each payday in one or more written statements the following information: (i) The worker’s total earnings for the pay period; (ii) The worker’s hourly rate and/or piece rate of pay; (iii) The hours of employment which have been offered to the worker (broken out by offers in accordance with and over and above the guarantee); (iv) The hours actually worked by the worker; (v) An itemization of all deductions made from the worker’s wages; and (vi) If piece rates are used, the units produced daily. (9) Rates of pay. (i) If the worker will be paid by the hour, the employer shall pay the worker at least the adverse effect wage rate in effect at the time the work is performed, the prevailing hourly wage rate, or the legal federal or State minimum wage rate, whichever is highest, for every hour or portion thereof worked during a pay period; or (ii)(A) If the worker will be paid on a piece rate basis and the piece rate does not result at the end of the pay period in average hourly piece rate earnings during the pay period at least equal to the amount the worker would have earned had the worker been paid at the appropriate hourly rate, the worker’s pay shall be supplemented at that time so that the worker’s earnings are at least as much as the worker would have earned during the pay period if the worker had been paid at the appropriate hourly wage rate for each hour worked; and the piece rate shall be no less than the piece rate prevailing for the activity VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 in the area of intended employment; and (B) If the employer who pays by the piece rate requires one or more minimum productivity standards of workers as a condition of job retention, (1) Such standards shall 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 (2) If the employer first applied for H– 2 agricultural or H–2A temporary alien agricultural labor certification after 1977, such standards shall be no more than those normally required (at the time of the first application) by other employers for the activity in the area of intended employment, unless the OFLC Administrator approves a higher minimum. (10) Frequency of pay. The employer shall state the frequency with which the worker will be paid (in accordance with the prevailing practice in the area of intended employment, or at least twice monthly whichever is more frequent). (11) Abandonment of employment; or termination for cause. If the worker voluntarily abandons employment before the end of the contract period, or is terminated for cause, and the employer notifies the SWA of such abandonment or termination, the employer will not be responsible for providing or paying for the subsequent transportation and subsistence expenses of any worker for whom the employer would have otherwise been required to pay such expenses under paragraph (b)(5)(ii) of this section, and that worker is not entitled to the ‘‘three-fourths guarantee’’ (see paragraph (b)(6) of this section). (12) Contract impossibility. If, before the expiration date specified in the work contract, the services of the worker are no longer required for reasons beyond the control of the employer due to fire, hurricane, or other Act of God which makes the fulfillment of the contract impossible the employer may terminate the work contract. In the event of such termination of a contract, the employer shall fulfill the three-fourths guarantee at paragraph (b)(6) of this section for the time that has elapsed from the start of the work contract to its termination. In such cases the employer will make efforts to transfer the worker to other comparable employment acceptable to the worker. If such transfer is not effected, the employer shall: (i) Offer to return the worker, at the employer’s expense, to the place from which the worker disregarding intervening employment came to work for the employer, PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 (ii) Reimburse the worker the full amount of any deductions made from the worker’s pay by the employer for transportation and subsistence expenses to the place of employment, and (iii) Notwithstanding whether the employment has been terminated prior to completion of 50 percent of the work contract period originally offered by the employer, pay the worker for costs incurred by the worker for transportation and daily subsistence from the place from which the worker, without intervening employment, has come to work for the employer to the place of employment. Daily subsistence shall be computed as set forth in paragraph (b)(5)(i) of this section. The amount of the transportation payment shall be no less (and shall not be required to be more) than the most economical and reasonable similar common carrier transportation charges for the distances involved. (13) Deductions. The employer shall make those deductions from the worker’s paycheck which are required by law. The job offer shall specify all deductions not required by law which the employer will make from the worker’s paycheck. All deductions shall be reasonable. The employer may deduct the cost of the worker’s transportation and daily subsistence expenses to the place of employment which were borne directly by the employer. In such cases, the job offer shall state that the worker will be reimbursed the full amount of such deductions upon the worker’s completion of 50 percent of the worker’s contract period. However, an employer subject to the Fair Labor Standards Act (FLSA) may not make deductions which will result in payments to workers of less than the federal minimum wage permitted by the FLSA as determined by the Secretary at 29 CFR part 531. (14) Copy of work contract. The employer shall provide to the worker, no later than on the day the work commences, a copy of the work contract between the employer and the worker. The work contract shall contain all of the provisions required by paragraphs (a) and (b) of this section. In the absence of a separate, written work contract entered into between the employer and the worker, the required terms of the job order and application for temporary alien agricultural labor certification shall be the work contract. (c) Appropriateness of required qualifications. Bona fide occupational qualifications specified by an employer in a job offer shall be consistent with the normal and accepted qualifications required by non-H–2A employers in the same or comparable occupations and E:\FR\FM\17MRP2.SGM 17MRP2 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules crops, and shall be reviewed by the OFLC Administrator for their appropriateness. The OFLC Administrator may require the employer to submit documentation to substantiate the appropriateness of the qualification specified in the job offer; and shall consider information offered by and may consult with representatives of the U.S. Department of Agriculture. (d) Positive recruitment plan. The employer shall submit in writing, as a part of the application, the employer’s plan for conducting independent, positive recruitment of U.S. workers as required by §§ 655.103 and 655.105(a) of this part. Such a plan shall include a description of recruitment efforts (if any) made prior to the actual submittal of the application. The plan shall describe how the employer will engage in positive recruitment of U.S. workers to an extent (with respect to both effort and location(s)) no less than that of nonH–2A agricultural employers of comparable or smaller size in the area of employment. When it is the prevailing practice in the area of employment and for the occupation for non-H–2A agricultural employers to secure U.S. workers through farm labor contractors and to compensate farm labor contractors with an override for their services, the employer shall describe how it will make the same level of effort as non-H–2A agricultural employers and provide an override which is no less than that being provided by non-H–2A agricultural employers. rwilkins on PROD1PC63 with PROPOSALS2 § 655.103 Assurances. As part of the temporary alien agricultural labor certification application, the employer shall include in the job offer a statement agreeing to abide by the conditions of this subpart. By so doing, the employer makes each of the following assurances: (a) Labor disputes. The specific job opportunity for which the employer is requesting H–2A certification is not vacant because the former occupant is on strike or being locked out in the course of a labor dispute. (b) Employment-related laws. During the period for which the temporary alien agricultural labor certification is granted, the employer shall comply with applicable federal, State, and local employment-related laws and regulations, including employmentrelated health and safety laws. (c) Rejections and terminations of U.S. workers. No U.S. worker will be rejected for or terminated from employment for other than a lawful jobrelated reason, and notification of all VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 rejections or terminations shall be made to the SWA. (d) Recruitment of U.S. workers. The employer shall independently engage in positive recruitment until the foreign workers have departed for the employer’s place of employment and shall cooperate with the ES System in the active recruitment of U.S. workers by: (1) Assisting the ES System to prepare local, intrastate, and interstate job orders using the information supplied on the employer’s job offer; (2) Placing advertisements (in a language other than English, where the OFLC Administrator determines appropriate) for the job opportunities in newspapers of general circulation and/ or on the radio, as required by the OFLC Administrator: (i) Each such advertisement shall describe the nature and anticipated duration of the job opportunity; offer at least the adverse effect wage rate; give the 3⁄4 guarantee; state that work tools, supplies and equipment will be provided by the employer; state that housing will also be provided, and that transportation and subsistence expenses to the worksite will be provided or paid by the employer upon completion of 50% of the work contract, or earlier, if appropriate; and (ii) Each such advertisement shall direct interested workers to apply for the job opportunity at the appropriate office of the State Workforce Agency in their area; (3) Cooperating with the ES System and independently contacting farm labor contractors, migrant workers and other potential workers in other areas of the State and/or Nation by letter and/or telephone; and (4) Cooperating with the ES System in contacting schools, business and labor organizations, fraternal and veterans’ organizations, and nonprofit organizations and public agencies such as sponsors of programs under the Job Training Partnership Act throughout the area of intended employment and in other potential labor supply areas in order to enlist them in helping to find U.S. workers. (e) Fifty-percent rule. From the time the foreign workers depart for the employer’s place of employment, the employer, except as provided for by § 655.106(e)(1) of this part, shall provide employment to any qualified, eligible U.S. worker who applies to the employer until 50% of the period of the work contract, under which the foreign worker who is in the job was hired, has elapsed. In addition, the employer shall offer to provide housing and the other benefits, wages, and working conditions PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 11419 required by § 655.102 of this part to any such U.S. worker and shall not treat less favorably than H–2A workers any U.S. worker referred or transferred pursuant to this assurance. (f) Other recruitment. The employer shall perform the other specific recruitment and reporting activities specified in the notice from the OFLC Administrator required by § 655.105(a) of this part, and shall engage in positive recruitment of U.S. workers to an extent (with respect to both effort and location) no less than that of non-H–2A agricultural employers of comparable or smaller size in the area of employment. When it is the prevailing practice in the area of employment and for the occupation for non-H–2A agricultural employers to secure U.S. workers through farm labor contractors and to compensate farm labor contractors with an override for their services, the employer shall make the same level of effort as non-H–2A agricultural employers and shall provide an override which is no less than that being provided by non-H–2A agricultural employers. Where the employer has centralized cooking and eating facilities designed to feed workers, the employer shall not be required to provide meals through an override. The employer shall not be required to provide for housing through an override. (g) Retaliation prohibited. The employer shall not intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against, and shall not cause any person to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against, any person who has with just cause: (1) Filed a complaint under or related to section 216 of the INA (8 U.S.C. 1186), or this subpart or any other DOL regulation promulgated pursuant to section 216 of the INA; (2) Instituted or caused to be instituted any proceeding under or related to section 216 of the INA, or this subpart or any other DOL regulation promulgated pursuant to section 216 of the INA (8 U.S.C. 1186); (3) Testified or is about to testify in any proceeding under or related to section 216 of the INA (8 U.S.C. 1186), or this subpart or any other DOL regulation promulgated pursuant to section 216 of the INA; (4) Consulted with an employee of a legal assistance program or an attorney on matters related to section 216 of the INA (8 U.S.C. 1186), or this subpart or any other DOL regulation promulgated pursuant to section 216 of the INA; or (5) Exercised or asserted on behalf of himself/herself or others any right or E:\FR\FM\17MRP2.SGM 17MRP2 11420 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules protection afforded by section 216 of the INA (8 U.S.C. 1186), or this subpart or any other DOL regulation promulgated pursuant to section 216 of the INA. (h) Fees. The application shall include the assurance that fees will be paid in a timely manner, as follows: (1) Amount. The fee for each employer receiving a temporary alien agricultural labor certification is $100 plus $10 for each job opportunity for H– 2A workers certified, provided that the fee for an employer for each temporary alien agricultural labor certification received shall be no greater than $1,000. In the case of a joint employer association receiving a temporary alien agricultural labor certification, the fee for each employer-member receiving a temporary alien agricultural labor certification shall be $100 plus $10 for each job opportunity for H–2A workers certified, provided that the fee for an employer for each temporary alien agricultural labor certification received shall be no greater than $1,000. The joint employer association will not be charged a separate fee. Fees shall be paid by a check or money order made payable to ‘‘Department of Labor’’, and are nonrefundable. In the case of employers of H–2A workers which are members of a joint employer association applying on their behalf, the aggregate fees for all employers of H–2A workers under the application may be paid by one check or money order. (2) Timeliness. Fees received by the OFLC Administrator within 30 calendar days after the date of the temporary alien agricultural labor certification determination are timely. rwilkins on PROD1PC63 with PROPOSALS2 § 655.104 Determinations based on acceptability of H–2A applications. (a) State Workforce Agency activities. The State Workforce Agency (SWA), using the job offer portion of the H–2A application, shall promptly prepare a local job order and shall begin to recruit U.S. workers in the area of intended employment. The OFLC Administrator should notify the SWA by telephone no later than seven calendar days after the application was received by the OFLC Administrator if the application has been accepted for consideration. Upon receiving such notice or seven calendar days after the application is received by the SWA, whichever is earlier, the SWA shall promptly prepare an agricultural clearance order which will permit the recruitment of U.S. workers by the Employment Service System on an intrastate and interstate basis. (b) National Processing Center activities. The OFLC Administrator, upon receipt of the H–2A application, shall promptly review the application to VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 determine whether it is acceptable for consideration under the timeliness and adverse effect criteria of §§ 655.101– 655.103 of this part. If the OFLC Administrator determines that the application does not meet the requirements of §§ 655.101–655.103, the OFLC Administrator shall not accept the application for consideration on the grounds that the availability of U.S. workers cannot be adequately tested because the benefits, wages and working conditions do not meet the adverse effect criteria; however, if the OFLC Administrator determines that the application is not timely in accordance with § 655.101 of this part and that neither the first-year employer provisions of § 655.101(c)(5) nor the emergency provisions of § 655.101(f) apply, the OFLC Administrator may determine not to accept the application for consideration because there is not sufficient time to test the availability of U.S. workers. (c) Rejected applications. If the application is not accepted for consideration, the OFLC Administrator shall notify the applicant in writing (by means normally assuring next-day delivery) within seven calendar days of the date the application was received by the OFLC Administrator with a copy to the SWA. The notice shall: (1) State all the reasons the application is not accepted for consideration, citing the relevant regulatory standards; (2) Offer the applicant an opportunity for the resubmission within five calendar days of a modified application, stating the modifications needed in order for the OFLC Administrator to accept the application for consideration; (3) Offer the applicant an opportunity to request an expedited administrative review of or a de novo administrative hearing before an administrative law judge of the nonacceptance; the notice shall state that in order to obtain such a review or hearing, the employer, within seven calendar days of the date of the notice, shall file by facsimile (fax), telegram, or other means normally assuring next day delivery a written request to the Chief Administrative Law Judge of the Department of Labor (giving the address) and simultaneously serve a copy on the OFLC Administrator; the notice shall also state that the employer may submit any legal arguments which the employer believes will rebut the basis of the OFLC Administrator’s action; and (4) State that if the employer does not request an expedited administrativejudicial review or a de novo hearing before an administrative law judge within the seven calendar days no PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 further consideration of the employer’s application for temporary alien agricultural labor certification will be made by any DOL official. (d) Appeal procedures. If the employer timely requests an expedited administrative review or de novo hearing before an administrative law judge pursuant to paragraph (c)(3) of this section, the procedures at § 655.112 of this part shall be followed. (e) Required modifications. If the application is not accepted for consideration by the OFLC Administrator, but the OFLC Administrator’s written notification to the applicant is not timely as required by § 655.101 of this part, the certification determination will not be extended beyond 20 calendar days before the date of need. The notice will specify that the OFLC Administrator’s temporary alien agricultural labor certification determination will be made no later than 20 calendar days before the date of need, provided that the applicant submits the modifications to the application which are required by the OFLC Administrator within five calendar days and in a manner specified by the OFLC Administrator which will enable the test of U.S. worker availability to be made as required by § 655.101 of this part within the time available for such purposes. § 655.105 Recruitment period. (a) Notice of acceptance of application for consideration; required recruitment. If the OFLC Administrator determines that the H–2A application meets the requirements of §§ 655.101– 655.103 of this part, the OFLC Administrator shall promptly notify the employer (by means normally assuring next-day delivery) in writing with copies to the State agency. The notice shall inform the employer and the State agency of the specific efforts which will be expected from them during the following weeks to carry out the assurances contained in § 655.103 with respect to the recruitment of U.S. workers. The notice shall require that the job order be laced into intrastate clearance and into interstate clearance to such States as the OFLC Administrator shall determine to be potential sources of U.S. workers. The notice may require the employer to engage in positive recruitment efforts within a multi-State region of traditional or expected labor supply where the OFLC Administrator finds, based on current information provided by a State agency and such information as may be offered and provided by other sources, that there are a significant number of able and qualified U.S. workers who, if E:\FR\FM\17MRP2.SGM 17MRP2 rwilkins on PROD1PC63 with PROPOSALS2 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules recruited, would likely be willing to make themselves available for work at the time and place needed. In making such a finding, the OFLC Administrator shall take into account other recent recruiting efforts in those areas and will attempt to avoid requiring employers to futilely recruit in areas where there are a significant number of local employers recruiting for U.S. workers for the same types of occupations. Positive recruitment is in addition to, and shall be conducted within the same time period as, the circulation through the interstate clearance system of an agricultural clearance order. The obligation to engage in such positive recruitment shall terminate on the date H–2A workers depart for the employer’s place of work. In determining what positive recruitment shall be required, the OFLC Administrator will ascertain the normal recruitment practices of nonH–2A agricultural employers in the area and the kind and degree of recruitment efforts which the potential H–2A employer made to obtain H–2A workers. The OFLC Administrator shall ensure that the effort, including the location(s) of the positive recruitment required of the potential H–2A employer, during the period after filing the application and before the date the H–2A workers depart their prior location to come to the place of employment, shall be no less than: (1) The recruitment efforts of non-H–2A agricultural employers of comparable or smaller size in the area of employment; and (2) the kind and degree of recruitment efforts which the potential H–2A employer made to obtain H–2A workers. (b) Recruitment of U.S. workers. After an application for temporary alien agricultural labor certification is accepted for processing pursuant to paragraph (a) of this section, the OFLC Administrator shall provide overall direction to the employer and the SWA with respect to the recruitment of U.S. workers. (c) Modifications. At any time during the recruitment effort, the OFLC Administrator may require modifications to a job offer when the OFLC Administrator determines that the job offer does not contain all the provisions relating to minimum benefits, wages, and working conditions, required by § 655.102(b) of this part. If any such modifications are required after an application has been accepted for consideration by the OFLC Administrator, the modifications must be made; however, the certification determination shall not be delayed beyond the 20 calendar days prior to the date of need as a result of such modification. VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 (d) Final determination. By 20 calendar days before the date of need specified in the application, except as provided for under §§ 655.101(c)(2) and 655.104(e) of this part for untimely modified applications, the OFLC Administrator, when making a determination of the availability of U.S. workers, shall also make a determination as to whether the employer has satisfied the recruitment assurances in § 655.103 of this part. If the OFLC Administrator concludes that the employer has not satisfied the requirements for recruitment of U.S. workers, the OFLC Administrator shall deny the temporary alien agricultural labor certification, and shall immediately notify the employer in writing with a copy to the SWA. The notice shall contain the statements specified in § 655.104(d) of this part. (e) Appeal procedure. With respect to determinations by the OFLC Administrator pursuant to this section, if the employer timely requests an expedited administrative review or a de novo hearing before an administrative law judge, the procedures in § 655.112 of this part shall be followed. § 655.106 Referral of U.S. workers; determinations based on U.S. worker availability and adverse effect; activities after receipt of the temporary alien agricultural labor certification. (a) Referral of able, willing, and qualified eligible U.S. workers. With respect to the referral of U.S. workers to job openings listed on a job order accompanying an application for temporary alien agricultural labor certification, no U.S. worker-applicant shall be referred unless such U.S. worker has been made aware of the terms and conditions of and qualifications for the job, and has indicated, by accepting referral to the job, that she or he meets the qualifications required and is able, willing, and eligible to take such a job. (b)(1) Determinations. If the OFLC Administrator, in accordance with § 655.105 of this part, has determined that the employer has complied with the recruitment assurances and the adverse effect criteria of § 655.102 of this part, by the date specified pursuant to § 655.101(c)(2) of this part for untimely modified applications or 20 calendar days before the date of need specified in the application, whichever is applicable, the OFLC Administrator shall grant the temporary alien agricultural labor certification request for enough H–2A workers to fill the employer’s job opportunities for which U.S. workers are not available. In making the temporary alien agricultural PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 11421 labor certification determination, the OFLC Administrator shall consider as available any U.S. worker who has made a firm commitment to work for the employer, including those workers committed by other authorized persons such as farm labor contractors and family heads. Such a firm commitment shall be considered to have been made not only by workers who have signed work contracts with the employer, but also by those whom the OFLC Administrator determines are likely to sign a work contract. The OFLC Administrator shall count as available any U.S. worker who has applied to the employer (or on whose behalf an application has been made), but who was rejected by the employer for other than lawful job-related reasons or who has not been provided with a lawful jobrelated reason for rejection by the employer, as determined by the OFLC Administrator. The OFLC Administrator shall not grant a temporary alien agricultural labor certification request for any H–2A workers if the OFLC Administrator determines that: (i) Enough able, willing, and qualified U.S. workers have been identified as being available to fill all the employer’s job opportunities; (ii) The employer, since the time the application was accepted for consideration under § 655.104 of this part, has adversely affected U.S. workers by offering to, or agreeing to provide to, H–2A workers better wages, working conditions or benefits (or by offering to, or agreeing to impose on alien workers less obligations and restrictions) than those offered to U.S. workers; (iii) The employer during the previous two-year period employed H–2A workers and the OFLC Administrator has determined, after notice and opportunity for a hearing, that the employer at any time during that period substantially violated a material term or condition of a temporary alien agricultural labor certification with respect to the employment of U.S. or H–2A workers; (iv) The employer has not complied with the workers’ compensation requirements at § 655.102(b)(2) of this part; or (v) The employer has not satisfactorily complied with the positive recruitment requirements specified by this subpart. Further, the OFLC Administrator, in making the temporary alien agricultural labor certification determination, will subtract from any temporary alien agricultural labor certification the specific verified number of job opportunities involved which are vacant because of a strike or other labor dispute involving a work stoppage, or a lockout, E:\FR\FM\17MRP2.SGM 17MRP2 rwilkins on PROD1PC63 with PROPOSALS2 11422 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules in the occupation at the place of employment (and for which H–2A workers have been requested). Upon receipt by the OFLC Administrator of such labor dispute information from any source, the OFLC Administrator shall verify the existence of the strike, labor dispute, or lockout and any resulting vacancies prior to making such a determination. (2) Fees. A temporary alien agricultural labor certification determination granting an application shall include a bill for the required fees. Each employer (except joint employer associations) of H–2A workers under the application for temporary alien agricultural labor certification shall pay in a timely manner a nonrefundable fee upon issuance of the temporary alien agricultural labor certification granting the application (in whole or in part), as follows: (i) Amount. The fee for each employer receiving a temporary alien agricultural labor certification is $100 plus $10 for each job opportunity for H–2A workers certified, provided that the fee to an employer for each temporary alien agricultural labor certification received shall be no greater than $1,000. In the case of a joint employer association receiving a temporary alien agricultural labor certification, each employermember receiving a temporary alien agricultural labor certification shall pay a fee of $100 plus $10 for each job opportunity for H–2A workers certified, provided that the fee to an employer for each temporary alien agricultural labor certification received shall be no greater than $1,000. The joint employer association will not be charged a separate fee. The fees shall be paid by check or money order made payable to ‘‘Department of Labor’’. In the case of employers of H–2A workers which are members of a joint employer association applying on their behalf, the aggregate fees for all employers of H–2A workers under the application may be paid by one check or money order. (ii) Timeliness. Fees received by the OFLC Administrator no more than 30 calendar days after the date of the temporary alien agricultural labor certification determination are timely. (c) Changes to temporary alien agricultural labor certifications; temporary alien agricultural labor certifications involving employer associations—(1) Changes. Temporary alien agricultural labor certifications are subject to the conditions and assurances made during the application process. Any changes in the level of benefits, wages, and working conditions an employer may wish to make at any time during the work contract period must be VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 approved by the OFLC Administrator after written application by the employer, even if such changes have been agreed to by an employee. Temporary alien agricultural labor certifications shall be for the specific period of time specified in the employer’s job offer, which shall be less than twelve months; shall be limited to the employer’s specific job opportunities; and may not be transferred from one employer to another, except as provided for by paragraph (c)(2) of this section. (2) Associations—(i) Applications. If an association is requesting a temporary alien agricultural labor certification as a joint employer, the temporary alien agricultural labor certification granted under this section shall be made jointly to the association and to its employer members. Except as provided in paragraph (c)(2)(iii) of this section, such workers may be transferred among its producer members to perform work for which the temporary alien agricultural labor certification was granted, provided the association controls the assignment of such workers and maintains a record of such assignments. All temporary alien agricultural labor certifications to associations may be used for the certified job opportunities of any of its members. If an association is requesting a temporary alien agricultural labor certification as a sole employer, the temporary alien agricultural labor certification granted pursuant to this section shall be made to the association only. (ii) Referrals and transfers. For the purposes of complying with the ‘‘fiftypercent rule’’ at § 655.103(e) of this part, any association shall be allowed to refer or transfer workers among its members (except as provided in paragraph (c)(2)(iii) of this section), and an association acting as an agent for its members shall not be considered a joint employer merely because of such referral or transfer. (iii) Ineligible employer-members. Workers shall not be transferred or referred to an association’s member, if that member is ineligible to obtain any or any additional workers, pursuant to § 655.110 of this part. (3) Extension of temporary alien agricultural labor certification—(i) Short-term extension. An employer who seeks an extension of two weeks or less of the temporary alien agricultural labor certification shall apply for such extension to DHS. If DHS grants such an extension, the temporary alien agricultural labor certification shall be deemed extended for such period as is approved by DHS. No extension granted under this paragraph (c)(3)(i) shall be for PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 a period longer than the original work contract period of the temporary alien agricultural labor certification. (ii) Long-term extension. For extensions beyond the period which may be granted by DHS pursuant to paragraph (c)(3)(i) of this section, an employer, after 50 percent of the work contract period has elapsed, may apply to the OFLC Administrator for an extension of the period of the temporary alien agricultural labor certification, for reasons related to weather conditions or other external factors beyond the control of the employer (which may include unforeseen changes in market conditions), provided that the employer’s need for an extension is supported in writing by the employer, with documentation showing that the extension is needed and could not have been reasonably foreseen by the employer. The OFLC Administrator shall grant or deny the request for extension of the temporary alien agricultural labor certification based on available information, and shall notify the employer of the decision on the request in writing. The OFLC Administrator shall not grant an extension where the total work contract period, including past temporary alien labor certifications for the job opportunity and extensions, would be 12 months or more, except in extraordinary circumstances. The OFLC Administrator shall not grant an extension where the temporary alien agricultural labor certification has already been extended by DHS pursuant to paragraph (c)(3)(i) of this section. (d) Denials of applications. If the OFLC Administrator does not grant the temporary alien agricultural labor certification (in whole or in part) the OFLC Administrator shall notify the employer by means reasonably calculated to assure next-day delivery. The notification shall contain all the statements required in § 655.104(c) of this part. If a timely request is made for an administrative-judicial review or a de novo hearing by an administrative law judge, the procedures of § 655.112 of this part shall be followed. (e) Approvals of applications—(1) Continued recruitment of U.S. workers. After a temporary agricultural labor certification has been granted, the employer shall continue its efforts to recruit U.S. workers until the actual date the H–2A workers depart for the employer’s place of employment. (i) Unless the SWA is informed in writing of a different date, the SWA shall deem the third day immediately preceding the employer’s first date of need to be the date the H–2A workers depart for the employer’s place of E:\FR\FM\17MRP2.SGM 17MRP2 rwilkins on PROD1PC63 with PROPOSALS2 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules employment. The employer may notify the SWA in writing if the workers depart prior to that date. (ii)(A) If the H–2A workers do not depart for the place of employment on or before the first date of need (or by the stated date of departure, if the SWA has been advised of a different date), the employer shall notify the SWA in writing (or orally, confirmed in writing) as soon as the employer knows that the workers will not depart by the first date of need, and in no event later than such date of need. At the same time, the employer shall notify the SWA of the workers’ expected departure date, if known. No further notice is necessary if the workers depart by the stated date of departure. (B) If the employer did not notify the SWA of the expected departure date pursuant to paragraph (e)(1)(ii)(A) of this section, or if the H–2A workers do not leave for the place of employment on or before the stated date of departure, the employer shall notify the SWA in writing (or orally, confirmed in writing) as soon as the employer becomes aware of the expected departure date, or that the workers did not depart by the stated date and the new expected departure date, as appropriate. (2) Requirement for Active Job Order. The employer shall keep an active job order on file until the ‘‘50-percent rule’’ assurance at § 655.103(e) of this part is met, except as provided by paragraph (f) of this section. (3) Referrals by ES System. The ES system shall continue to refer to the employer U.S. workers who apply as long as there is an active job order on file. (f) Exceptions—(1) ‘‘Fifty-percent rule’’ inapplicable to small employers. The assurance requirement at § 655.103(e) of this part does not apply to any employer who: (i) Did not, during any calendar quarter during the preceding calendar year, use more than 500 ‘‘man-days’’ of agricultural labor, as defined in section 3(u) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(u)), and so certifies to the OFLC Administrator in the H–2A application; and (ii) Is not a member of an association which has applied for a temporary alien agricultural labor certification under this subpart for its members; and (iii) Has not otherwise ‘‘associated’’ with other employers who are applying for H–2A workers under this subpart, and so certifies to the OFLC Administrator. (2) Displaced H–2A workers. An employer shall not be liable for payment under § 655.102(b)(6) of this part with respect to an H–2A worker whom the VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 OFLC Administrator certifies is displaced due to compliance with § 655.103(e) of this part. (g) Withholding of U.S. workers prohibited—(1) Complaints. Any employer who has reason to believe that a person or entity has willfully and knowingly withheld U.S. workers prior to the arrival at the job site of H–2A workers in order to force the hiring of U.S. workers under § 655.103(e) of this part may submit a written complaint to the SWA. The complaint shall clearly identify the person or entity whom the employer believes has withheld the U.S. workers, and shall specify sufficient facts to support the allegation (e.g., dates, places, numbers and names of U.S. workers) which will permit an investigation to be conducted by the SWA. (2) Investigations. The SWA shall inform the OFLC Administrator by telephone that a complaint under the provisions of paragraph (g) of this section has been filed and shall immediately investigate the complaint. Such investigation shall include interviews with the employer who has submitted the complaint, the person or entity named as responsible for withholding the U.S. workers, and the individual U.S. workers whose availability has purportedly been withheld. In the event the SWA fails to conduct such interviews, the OFLC Administrator shall do so. (3) Reports of findings. Within five working days after receipt of the complaint, the SWA shall prepare a report of its findings, and shall submit such report (including recommendations) and the original copy of the employer’s complaint to the OFLC Administrator. (4) Written findings. The OFLC Administrator shall immediately review the employer’s complaint and the report of findings submitted by the local office, and shall conduct any additional investigation the OFLC Administrator deems appropriate. No later than 36 working hours after receipt of the employer’s complaint and the local office’s report, the OFLC Administrator shall issue written findings to the local office and the employer. Where the OFLC Administrator determines that the employer’s complaint is valid and justified, the OFLC Administrator shall immediately suspend the application of § 655.103(e) of this part to the employer. Such suspension of § 655.103(e) of this part under these circumstances shall not take place, however, until the interviews required by paragraph (g)(2) of this section have been conducted. The OFLC Administrator’s determination under the provisions of PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 11423 this paragraph (g)(4) shall be the final decision of the Secretary, and no further review by any DOL official shall be given to it. (h) Requests for new temporary alien agricultural labor certification determinations based on nonavailability of able, willing, and qualified U.S. workers—(1) Standards for requests. If a temporary alien agricultural labor certification application has been denied (in whole or in part) based on the OFLC Administrator’s determination of the availability of able, willing, and qualified U.S. workers, and, on or after 20 calendar days before the date of need specified in the temporary alien agricultural labor certification determination, such U.S. workers identified as being able, willing, qualified, and available are, in fact, not able, willing, qualified, or available at the time and place needed, the employer may request a new temporary alien agricultural labor certification determination from the OFLC Administrator. The OFLC Administrator shall expeditiously, but in no case later than 72 hours after the time a request is received, make a determination on the request. (2) Filing requests. The employer’s request for a new determination shall be made directly to the OFLC Administrator. The request may be made to the OFLC Administrator by telephone, but shall be confirmed by the employer in writing as required by paragraphs (h)(2)(i) or (ii) of this section. (i) Workers not able, willing, qualified, or eligible. If the employer asserts that any worker who has been referred by the ES System or by any other person or entity is not an eligible worker or is not able, willing, or qualified for the job opportunity for which the employer has requested H–2A workers, the burden of proof is on the employer to establish that the individual referred is not able, willing, qualified, or eligible because of lawful job-related reasons. The employer’s burden of proof shall be met by the employer’s submission to the OFLC Administrator, within 72 hours of the OFLC Administrator’s receipt of the request for a new determination, of a signed statement of the employer’s assertions, which shall identify each rejected worker by name and shall state each lawful job-related reason for rejecting that worker. (ii) U.S. workers not available. If the employer telephonically requests the new determination, asserting solely that U.S. workers are not available, the employer shall submit to the OFLC Administrator a signed statement confirming such assertion. If such signed statement is not received by the E:\FR\FM\17MRP2.SGM 17MRP2 rwilkins on PROD1PC63 with PROPOSALS2 11424 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules OFLC Administrator within 72 hours of the OFLC Administrator’s receipt of the telephonic request for a new determination, the OFLC Administrator may make the determination based solely on the information provided telephonically and the information (if any) from the SWA. (3) National Processing Center review—(i) Expeditious review. The OFLC Administrator expeditiously shall review the request for a new determination. The OFLC Administrator may request a signed statement from the SWA in support of the employer’s assertion of U.S. worker nonavailability or referred U.S. workers not being able, willing, or qualified because of lawful job-related reasons. (ii) New determination. If the OFLC Administrator determines that the employer’s assertion of nonavailability is accurate and that no able, willing, or qualified U.S. worker has been refused or is being refused employment for other than lawful job-related reasons, the OFLC Administrator shall, within 72 hours after receipt of the employer’s request, render a new determination. Prior to making a new determination, the OFLC Administrator promptly shall ascertain (which may be through the ES System or other sources of information on U.S. worker availability) whether able, willing, and qualified replacement U.S. workers are available or can be reasonably expected to be present at the employer’s establishment within 72 hours from the date the employer’s request was received. (iii) Notification of new determination. If the OFLC Administrator cannot identify sufficient able, willing, and qualified U.S. workers who are or who are likely to be available, the OFLC Administrator shall grant the employer’s new determination request (in whole or in part) based on available information as to replacement U.S. worker availability. The OFLC Administrator’s notification to the employer on the new determination shall be in writing (by means normally assuring next-day delivery), and the OFLC Administrator’s determination under the provisions of this paragraph (h)(3) shall be the final decision of the Secretary, and no further review shall be given to an employer’s request for a new H–2A determination by any DOL official. However, this does not preclude an employer from submitting subsequent requests for new determinations, if warranted, based on subsequent facts concerning purported nonavailability of U.S. workers or referred workers not being eligible workers or not able, willing, or qualified because of lawful job-related reasons. VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 § 655.107 Adverse effect wage rates (AEWRs). (a) Computation and publication of AEWRs. Except as otherwise provided in this section, the AEWRs for all agricultural employment (except for those occupations deemed inappropriate under the special circumstances provisions of § 655.93 of this part) for which temporary alien agricultural labor certification is being sought shall be equal to the annual weighted average hourly wage rate for field and livestock workers (combined) for the region as published annually by the U.S. Department of Agriculture (USDA) based on the USDA quarterly wage survey. The OFLC Administrator shall publish, at least once in each calendar year, on a date or dates to be determined by the OFLC Administrator, AEWRs for each State (for which USDA publishes regional data), calculated pursuant to this paragraph (a) as a notice or notices in the Federal Register. (b) Higher prevailing wage rates. If, as the result of a State agency prevailing wage survey determination, the prevailing wage rate in an area and agricultural activity (as determined by the State agency survey and verified by the OFLC Administrator) is found to be higher that the AEWR computed pursuant to paragraph (a) of this section, the higher prevailing wage rate shall be offered and paid to all workers by employers seeking temporary alien agricultural labor certification for that agricultural activity and area. (c) Federal minimum wage rate. In no event shall an AEWR computed pursuant to this section be lower than the hourly wage rate published in 29 U.S.C. 206(a)(1) and currently in effect. § 655.108 H–2A applications involving fraud or willful misrepresentation. (a) Referral for investigation. If possible fraud or willful misrepresentation involving a temporary alien agricultural labor certification application is discovered prior to a final temporary alien agricultural labor certification determination or if it is learned that the employer or agent (with respect to an application) is the subject of a criminal indictment or information filed in a court, the OFLC Administrator shall refer the matter to the DHS and DOL Office of the Inspector General for investigation. The OFLC Administrator shall continue to process the application and may issue a temporary alien agricultural labor certification. (b) Continued processing. If a court finds an employer or agent not guilty of fraud or willful misrepresentation, or if PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 the Department of Justice decides not to prosecute an employer or agent, the OFLC Administrator shall not deny the temporary alien agricultural labor certification application on the grounds of fraud or willful misrepresentation. The application, of course, may be denied for other reasons pursuant to this subpart. (c) Terminated processing. If a court or the DHS determines that there was fraud or willful misrepresentation involving a temporary alien agricultural labor certification application, the application is thereafter invalid, consideration of the application shall be terminated and the OFLC Administrator shall return the application to the employer or agent with the reasons therefor stated in writing. § 655.110 Employer penalties for noncompliance with terms and conditions of temporary alien agricultural labor certifications. (a) Investigation of violations. If, during the period of two years after a temporary alien agricultural labor certification has been granted (in whole or in part), the OFLC Administrator has reason to believe that an employer violated a material term or condition of the temporary alien agricultural labor certification, the OFLC Administrator shall, except as provided in paragraph (b) of this section, investigate the matter. If, after the investigation, the OFLC Administrator determines that a substantial violation has occurred, the OFLC Administrator, shall notify the employer that a temporary alien agricultural certification request will not be granted for the next period of time in a calendar year during which the employer would normally be expected to request a temporary alien agricultural labor certification, and any application subsequently submitted by the employer for that time period will not be accepted by the OFLC Administrator. If multiple or repeated substantial violations are involved, the OFLC Administrator’s notice to the employer shall specify that the prospective denial of the temporary alien agricultural labor certification will apply not only to the next anticipated period for which a temporary alien agricultural labor certification would normally be requested, but also to any periods within the coming two or three years; two years for two violations, or repetitions of the same violations, and three years for three or more violations, or repetitions thereof. The OFLC Administrator’s notice shall be in writing, shall state the reasons for the determinations, and shall offer the employer an opportunity to request an expedited administrative review or a de E:\FR\FM\17MRP2.SGM 17MRP2 rwilkins on PROD1PC63 with PROPOSALS2 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules novo hearing before an administrative law judge of the determination within seven calendar days of the date of the notice. If the employer requests an expedited administrative review or a de novo hearing before an administrative law judge, the procedures in § 655.112 of this part shall be followed. (b) Employment Standards Administration investigations. The OFLC Administrator may make the determination described in paragraph (a) of this section based on information and recommendations provided by the Employment Standards Administration, after an Employment Standards Administration investigation has been conducted in accordance with the Employment Standards Administration procedures, that an employer has not complied with the terms and conditions of employment prescribed as a condition for a temporary alien agricultural labor certification. In such instances, the OFLC Administrator need not conduct any investigation of his/her own, and the subsequent notification to the employer and other procedures contained in paragraph (a) of this section will apply. Penalties invoked by the Employment Standards Administration for violations of temporary alien agricultural labor certification terms and conditions shall be treated and handled separately from sanctions available to the OFLC Administrator, and an employer’s obligations for compliance with the Employment Standards Administration’s enforcement penalties shall not absolve an employer from sanctions applied by ETA under this section (except as noted in paragraph (a) of this section). (c) Less than substantial violations— (1) Requirement of special procedures. If, after investigation as provided for under paragraph (a) of this section, or an Employment Standards Administration notification as provided under paragraph (b) of this section, the OFLC Administrator determines that a less than substantial violation has occurred, but the OFLC Administrator has reason to believe that past actions on the part of the employer may have had and may continue to have a chilling or otherwise negative effect on the recruitment, employment, and retention of U.S. workers, the OFLC Administrator may require the employer to conform to special procedures before and after the temporary alien labor certification determination (including special on-site positive recruitment and streamlined interviewing and referral techniques) designed to enhance U.S. worker recruitment and retention in the next year as a condition for receiving a VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 temporary alien agricultural labor certification. Such requirements shall be reasonable, and shall not require the employer to offer better wages, working conditions and benefits than those specified in § 655.102 of this part, and shall be no more than deemed necessary to assure employer compliance with the test of U.S. worker availability and adverse effect criteria of this subpart. The OFLC Administrator shall notify the employer in writing of the special procedures which will be required in the coming year. The notification shall state the reasons for the imposition of the requirements, state that the employer’s agreement to accept the conditions will constitute inclusion of them as bona fide conditions and terms of a temporary alien agricultural labor certification, and shall offer the employer an opportunity to request an administrative review or a de novo hearing before an administrative law judge. If an administrative review or de novo hearing is requested, the procedures prescribed in § 655.112 of this part shall apply. (2) Failure to comply with special procedures. If the OFLC Administrator determines that the employer has failed to comply with special procedures required pursuant to paragraph (c)(1) of this section, the OFLC Administrator shall send a written notice to the employer, stating that the employer’s otherwise affirmative temporary alien agricultural labor certification determination will be reduced by twenty-five percent of the total number of H–2A aliens requested (which cannot be more than those requested in the previous year) for a period of one year. Notice of such a reduction in the number of workers requested shall be conveyed to the employer by the OFLC Administrator in the OFLC Administrator’s written temporary alien agricultural labor certification determination required by § 655.101 of this part. The notice shall offer the employer an opportunity to request an administrative review or a de novo hearing before an administrative law judge. If an administrative review or de novo hearing is requested, the procedures prescribed in § 655.112 of this part shall apply, provided that if the administrative law judge affirms the OFLC Administrator’s determination that the employer has failed to comply with special procedures required by paragraph (c)(1) of this section, the reduction in the number of workers requested shall be twenty-five percent of the total number of H–2A aliens requested (which cannot be more than PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 11425 those requested in the previous year) for a period of one year. (d) Penalties involving members of associations. If, after investigation as provided for under paragraph (a) of this section, or notification from the Employment Standards Administration under paragraph (b) of this section, the OFLC Administrator determines that a substantial violation has occurred, and if an individual producer member of a joint employer association is determined to have committed the violation, the denial of temporary alien agricultural labor certification penalty prescribed in paragraph (a) shall apply only to that member of the association unless the OFLC Administrator determines that the association or other association member participated in, had knowledge of, or had reason to know of the violation, in which case the penalty shall be invoked against the association or other association member as well. (e) Penalties involving associations acting as joint employers. If, after investigation as provided for under paragraph (a) of this section, or notification from the Employment Standards Administration under paragraph (b) of this section, the OFLC Administrator determines that a substantial violation has occurred, and if an association acting as a joint employer with its members is determined to have committed the violation, the denial of temporary alien agricultural labor certification penalty prescribed in paragraph (a) of this section shall apply only to the association, and shall not be applied to any individual producer member of the association unless the OFLC Administrator determines that the member participated in, had knowledge of, or reason to know of the violation, in which case the penalty shall be invoked against the association member as well. (f) Penalties involving associations acting as sole employers. If, after investigation as provided for under paragraph (a) of this section, or notification from the Employment Standards Administration under paragraph (b) of this section, the OFLC Administrator determines that a substantial violation has occurred, and if an association acting as a sole employer is determined to have committed the violation, no individual producer member of the association shall be permitted to employ certified H–2A workers in the crop and occupation for which the H–2A workers had been previously certified for the sole employer association unless the producer member applies for temporary alien agricultural labor certification E:\FR\FM\17MRP2.SGM 17MRP2 rwilkins on PROD1PC63 with PROPOSALS2 11426 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules under the provisions of this subpart in the capacity of an individual employer/ applicant or as a member of a joint employer association, and is granted temporary alien agricultural labor certification by the OFLC Administrator. (g) Types of violations—(1) Substantial violation. For the purposes of this subpart, a substantial violation is one or more actions of commission or omission on the part of the employer or the employer’s agent, with respect to which the OFLC Administrator determines: (i)(A) That the action(s) is/are significantly injurious to the wages, benefits, or working conditions of 10 percent or more of an employer’s U.S. and/or H–2A workforce; and that: (1) With respect to the action(s), the employer has failed to comply with one or more penalties imposed by the Employment Standards Administration for violation(s) of contractual obligations found by that agency (if applicable), or with one or more decisions or orders of the Secretary or a court pursuant to section 216 of the INA (8 U.S.C. 1186), this subpart, or 29 CFR part 501 (Employment Standards Administration enforcement of contractual obligations); or (2) The employer has engaged in a pattern or practice of actions which are significantly injurious to the wages, benefits, or working conditions of 10 percent or more of an employer’s U.S. and/or H–2A workforce; (B) That the action(s) involve(s) impeding an investigation of an employer pursuant to section 216 of the INA (8 U.S.C. 1186), this subpart, or 29 CFR part 501 (Employment Standards Administration enforcement of contractual obligations); (C) That the employer has not paid the necessary fee in a timely manner; (D) That the employer is not currently eligible to apply for a temporary alien agricultural labor certification pursuant to § 655.210 of this part (failure of an employer to comply with the terms of a temporary alien agricultural labor certification in which the application was filed under subpart C of this part prior to June 1, 1987); or (E) That there was fraud involving the application for temporary alien agricultural labor certification of that the employer made a material misrepresentation of fact during the application process; and (ii) That there are no extenuating circumstances involved with the action(s) described in paragraph (g)(1)(i) of this section (as determined by the OFLC Administrator). (2) Less than substantial violation. For the purposes of this subpart, a less than VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 substantial violation is an action of commission or omission on the part of the employer or the employer’s agent which violates a requirement of this subpart, but is not a substantial violation. § 655.111 Petition for higher meal charges. (a) Filing petitions. Until a new amount is set pursuant to this paragraph (a), the OFLC Administrator may permit an employer to charge workers up to $6.58 for providing them with three meals per day, if the employer justifies the charge and submits to the OFLC Administrator the documentation required by paragraph (b) of this section. In the event the employer’s petition for a higher meal charge is denied in whole or in part, the employer may appeal such denial. Such appeals shall be filed with the Chief Administrative Law Judge. Administrative law judges shall hear such appeals according to the procedures in 29 CFR part 18, except that the appeal shall not be considered as a complaint to which an answer is required. The decision of the administrative law judge shall be the final decision of the Secretary. Each year the maximum charge allowed by this paragraph (a) will be changed by the same percentage as the twelvemonth percent change for the Consumer Price Index for all Urban Consumers for Food between December of the year just concluded and December of the year prior to that. The annual adjustments shall be effective on the date of their publication by the OFLC Administrator as a notice in the Federal Register. However, an employer may not impose such a charge on a worker prior to the effective date contained in the OFLC Administrator’s written confirmation of the amount to be charged. (b) Required documentation. Documentation submitted shall include the cost of goods and services directly related to the preparation and serving of meals, the number of workers fed, the number of meals served and the number of days meals were provided. The cost of the following items may be included: Food; kitchen supplies other than food, such as lunch bags and soap; labor costs which have a direct relation to food service operations, such as wages of cooks and restaurant supervisors; fuel, water, electricity, and other utilities used for the food service operation; and other costs directly related to the food service operation. Charges for transportation, depreciation, overhead and similar charges may not be included. Receipts and other cost records for a representative pay period shall be available for inspection by the PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 OFLC Administrator for a period of one year. § 655.112 Administrative review and de novo hearing before an administrative law judge. (a) Administrative review—(1) Consideration. Whenever an employer has requested an administrative review before an administrative law judge of a decision not to accept for consideration a temporary alien agricultural labor certification application, of the denial of a temporary alien agricultural labor certification, or of a penalty under § 655.110 of this part, the OFLC Administrator shall send a certified copy of the ETA case file to the Chief Administrative Law Judge by means normally assuring next-day delivery. The Chief Administrative Law Judge shall immediately assign an administrative law judge (which may be a panel of such persons designated by the Chief Administrative Law Judge from the Board of Alien Labor Certification Appeals established by part 656 of this chapter, but which shall hear and decide the appeal as set forth in this section) to review the record for legal sufficiency. The administrative law judge shall not remand the case and shall not receive additional evidence. (2) Decision. Within five working days after receipt of the case file the administrative law judge shall, on the basis of the written record and after due consideration of any written submissions submitted from the parties involved or amici curiae, either affirm, reverse, or modify the OFLC Administrator’s denial by written decision. The decision of the administrative law judge shall specify the reasons for the action taken and shall be immediately provided to the employer, OFLC Administrator, and DHS by means normally assuring nextday delivery. The administrative law judge’s decision shall be the final decision of the Secretary and no further review shall be given to the temporary alien agricultural labor certification application or the temporary alien agricultural labor certification determination by any DOL official. (b) De novo hearing—(1) Request for hearing; conduct of hearing. Whenever an employer has requested a de novo hearing before an administrative law judge of a decision not to accept for consideration a temporary alien agricultural labor certification application, of the denial of a temporary alien agricultural labor certification, or of a penalty under § 655.110 of this part, the OFLC Administrator shall send a certified copy of the case file to the Chief Administrative Law Judge by E:\FR\FM\17MRP2.SGM 17MRP2 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules means normally assuring next-day delivery. The Chief Administrative Law Judge shall immediately assign an administrative law judge (which may be a panel of such persons designated by the Chief Administrative Law Judge from the Board of Alien Labor Certification Appeals established by part 656 of this chapter, but which shall hear and decide the appeal as set forth in this section) to conduct the de novo hearing. The procedures contained in 29 CFR part 18 shall apply to such hearings, except that: (i) The appeal shall not be considered to be a complaint to which an answer is required, (ii) The administrative law judge shall ensure that, at the request of the employer, the hearing is scheduled to take place within five working days after the administrative law judge’s receipt of the case file, and (iii) The administrative law judge’s decision shall be rendered within ten working days after the hearing. (2) Decision. After a de novo hearing, the administrative law judge shall either affirm, reverse, or modify the OFLC Administrator’s determination, and the administrative law judge’s decision shall be provided immediately to the employer, OFLC Administrator, and DHS by means normally assuring nextday delivery. The administrative law judge’s decision shall be the final decision of the Secretary, and no further review shall be given to the temporary alien agricultural labor certification application or the temporary alien agricultural labor certification determination by any DOL official. § 655.113 Job Service Complaint System; enforcement of work contracts. rwilkins on PROD1PC63 with PROPOSALS2 Complaints arising under this subpart may be filed through the Job Service Complaint System, as described in 20 CFR part 658, subpart E. Complaints which involve worker contracts shall be referred by the local office to the Employment Standards Administration for appropriate handling and resolution. See 29 CFR part 501. As part of this process, the Employment Standards Administration may report the results of its investigation to ETA for consideration of employer penalties under § 655.110 of this part or such other action as may be appropriate. 7. Add subpart C to read as follows: Subpart C—Labor Certification Process for Logging Employment and Non-H–2A Agricultural Employment Sec. 655.200 General description of this subpart and definition of terms. 655.201 Temporary labor certification applications. VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 655.202 Contents of job offers. 655.203 Assurances. 655.204 Determinations based on temporary labor certification applications. 655.205 Recruitment period. 655.206 Determinations of U.S. worker availability and adverse effect on U.S. workers. 655.207 Adverse effect rates. 655.208 Temporary labor certification applications involving fraud or willful misrepresentation. 655.209 Invalidation of temporary labor certifications. 655.210 Failure of employers to comply with the terms of a temporary labor certification. 655.211 Petition for higher meal charges. 655.212 Administrative-judicial reviews. 655.215 Territory of Guam. Subpart C—Labor Certification Process for Logging Employment and Non-H–2A Agricultural Employment § 655.200 General description of this subpart and definition of terms. (a) This subpart applies to applications for temporary alien agricultural labor certification filed before June 1, 1987, and to applications for temporary alien labor certification for logging employment. (b) An employer who desires to use foreign workers for temporary employment must file a temporary labor certification application including a job offer for U.S. workers with an appropriate State Workforce Agency. The employer should file an application a minimum of 80 days before the estimated date of need for the workers. If filed 80 days before need, sufficient time is allowed for the 60-day recruitment period required by the regulations and a determination by the OFLC Administrator as to the availability of U.S. workers 20 days before the date of need. Shortly after the application has been filed, the OFLC Administrator makes a determination as to whether or not the application has been filed in enough time to recruit U.S. workers and whether or not the job offer for U.S. workers offers wages and working conditions which will not adversely affect the wages and working conditions of similarly employed U.S. workers, as prescribed in the regulations in this subpart. If the application does not meet the regulatory wage and working condition standards, the OFLC Administrator shall deny the temporary labor certification application and offer the employer an administrative-judicial review of the denial by an Administrative Law Judge. If the application is not timely, the OFLC Administrator has discretion, as set forth in these regulations, to either deny the application or permit the process to PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 11427 proceed reasonably with the employer recruiting U.S. workers upon such terms as will accomplish the purposes of the INA and the DHS regulations. Where the application is timely and meets the regulatory standards, the State Workforce Agency, the employer, and the Department of Labor recruit U.S. workers for 60 days. At the end of the 60 days, the OFLC Administrator grants the temporary labor certification if the OFLC Administrator finds that (1) the employer has not offered foreign workers higher wages or better working conditions (or less restrictions) than that offered to U.S. workers, and (2) U.S. workers are not available for the employer’s job opportunities. If the temporary labor certification is denied, the employer may seek an administrative-judicial review of the denial by an Administrative Law Judge as provided in these regulations. The Department of Labor thereafter advises the United States Citizenship and Immigration Services of the Department of Homeland Security (DHS) of approvals and denials of temporary labor certifications. The DHS may accept or reject this advice. 8 CFR 214.2(h)(3). The DHS makes the final decision as to whether or not to grant visas to the foreign workers. 8 U.S.C. 1184(a). (c) Definitions for terms used in this subpart. Administrative Law Judge means an official who is authorized to conduct administrative hearings. Administrator, Office of Foreign Labor Certification (OFLC Administrator) means the primary official of the Office of Foreign Labor Certification or the OFLC Administrator’s designee. Adverse effect rate means the wage rate which the OFLC Administrator has determined must be offered and paid to foreign and U.S. workers for a particular occupation and/or area so that the wages of similarly employed U.S. workers will not be adversely affected. The OFLC Administrator may determine that the prevailing wage rate in the area and/or occupation is the adverse effect rate, if the use (or non-use) of aliens has not depressed the wages of similarly employed U.S. workers. The OFLC Administrator may determine that a wage rate higher than the prevailing wage rate is the adverse effect rate if the OFLC Administrator determines that the use of aliens has depressed the wages of similarly employed U.S. workers. Agent means a legal person, such as an association of employers, which (1) is authorized to act as an agent of the employer for temporary labor certification purposes, and (2) which is E:\FR\FM\17MRP2.SGM 17MRP2 rwilkins on PROD1PC63 with PROPOSALS2 11428 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules not itself an employer, or a joint employer, as defined in this section. Area of intended employment means the area within normal commuting distance of the place (address) of intended employment. If the place of intended employment is within a Standard Metropolitan Statistical Area (SMSA), any place within the SMSA is deemed to be within normal commuting distance of the place of intended employment. Department of Homeland Security (DHS) through the United States Citizenship and Immigration Services (USCIS) makes the determination under the INA on whether or not to grant visa petitions to an alien seeking to perform temporary agricultural or logging work in the United States. Employer means a person, firm, corporation or other association or organization (1) which currently has a location within the United States to which U.S. workers may be referred for employment, and which proposes to employ a worker at a place within the United States and (2) which has an employer relationship with respect to employees under this subpart as indicated by the fact that it hires, pays, fires, supervises and otherwise controls the work of such employees. An association of employers shall be considered an employer if it has all of the indicia of an employer set forth in this definition. Such an association, however, shall be considered as a joint employer with the employer member if it shares with the employer member one or more of the definitional indicia. Employment and Training Administration (ETA) means the agency within the Department of Labor (DOL) which includes the Office of Foreign Labor (OFLC). Job opportunity means a job opening for temporary, full-time employment at a place in the United States to which U.S. workers can be referred. Office of Foreign Labor Certification (OFLC) means the organizational component within the ETA that provides national leadership and policy guidance and develops regulations and procedures to carry out the responsibilities of the Secretary of Labor under the INA concerning alien workers seeking admission to the United States in order to work under the Immigration and Nationality Act, as amended. Secretary means the Secretary of Labor or the Secretary’s designee. State Workforce Agency (SWA) means the State employment service agency. Temporary labor certification means the advice given by the Secretary of Labor to the United States Citizenship and Immigration Services (USCIS) of the VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 Department of Homeland Security (DHS), pursuant to the regulations of that agency at 8 CFR 214.2(h)(3)(i), that (1) there are not sufficient U.S. workers who are qualified and available to perform the work and (2) the employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers. United States workers means any worker who, whether U.S. national, citizen or alien, is legally permitted to work permanently within the United States. § 655.201 Temporary labor certification applications. (a)(1) An employer who anticipates a labor shortage of workers for agricultural or logging employment may request a temporary labor certification for temporary foreign workers by filing, or by having an agent file, in duplicate, a temporary labor certification application, signed by the employer, with a SWA in the area of intended employment. (2) If the temporary labor certification application is filed by an agent, however, the agent may sign the application if the application is accompanied by a letter from each employer the agent represents, signed by the employer, which authorizes the agent to act on the employer’s behalf and which states that the employer assumes full responsibility for the accuracy of the application, for all representations made by the agent on the employer’s behalf, and for the fulfillment of all legal requirements arising under this subpart. (3) If an association of employers files the application, the association shall identify and submit documents to verify whether, in accordance with the definitions at § 655.200, it is: (i) The employer, (ii) a joint employer with its member employers, or (iii) the agent of its employer members. (b) Every temporary labor certification application shall include: (1) A copy of the job offer which will be used by the employer (or each employer) for the recruitment of both U.S. and foreign workers. The job offer for each employer shall state the number of workers needed by the employer, and shall be signed by the employer. The job offer shall comply with the requirements of §§ 655.202 and 653.108 of this chapter; (2) The assurances required by § 655.203; and (3) The specific estimated date of need of workers. (c) The entire temporary labor certification application shall be filed PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 with the SWA in duplicate and in sufficient time to allow the State agency to attempt to recruit U.S. workers locally and through the Employment Service intrastate and interstate clearance system for 60 calendar days prior to the estimated date of need. Section 655.206 requires the OFLC Administrator to grant or deny the temporary labor certification application by the end of the 60 calendar days, or 20 days from the estimated date of need, whichever is later. That section also requires the OFLC Administrator to offer employers an expedited administrative-judicial review in cases of denials of the temporary labor certification applications. Following an administrative-judicial review, the employer has a right to contest any denial before the DHS pursuant to 8 CFR 214.2(h)(3)(i). Finally, employers need time, after the temporary labor certification determination, to complete the process for bringing foreign workers into the United States, or to bring an appeal of a denial of an application for the labor certification. Therefore, employers should file their temporary labor certification applications at least 80 days before the estimated date of need specified in the application. (d) Applications may be amended at any time prior to OFLC Administrator determination to increase the number of workers requested in the original application for labor certification by not more than 15 percent without requiring an additional recruitment period for U.S. workers. Requests for increases beyond 15 percent may be approved only when it is determined that, based on past experience, the need for additional workers could not be foreseen and that a critical need for the workers would exist prior to the expiration of an additional recruitment period. (e) If a temporary labor certification application, or any part thereof, does not satisfy the time requirements specified in paragraph (c) of this section, and if the exception in paragraph (d) of this section does not apply, the SWA shall immediately send both copies directly to the appropriate OFLC Administrator. The OFLC Administrator may then advise the employer and the DHS in writing that the temporary labor certification cannot be granted because, pursuant to the regulations at paragraph (c) of this section, there is not sufficient time to test the availability of U.S. workers. The notice of denial to the employer shall inform the employer of the right to administrative-judicial review and to ultimately petition DHS for the admission of the aliens. In emergency E:\FR\FM\17MRP2.SGM 17MRP2 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules situations, however, the OFLC Administrator may waive the time period specified in this section on behalf of employers who have not made use of temporary alien workers for the prior year’s harvest or for other good and substantial cause, provided the OFLC Administrator has sufficient labor market information to make the labor certification determinations required by 8 CFR 214.2(h)(3)(i). (Approved by the Office of Management and Budget under control number 1205–0015) rwilkins on PROD1PC63 with PROPOSALS2 § 655.202 Contents of job offers. (a) So that the employment of aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers, each employer’s job offer to U.S. workers must offer U.S. workers at least the same benefits which the employer is offering, intends to offer, or will afford, to temporary foreign workers. Conversely, no job offer may impose on U.S. workers any restrictions or obligations which will not be imposed on the employer’s foreign workers. For example, if the employer intends to advance transportation costs to foreign workers either directly or indirectly (by having them paid by the foreign government involved), the employer must offer to advance the transportation costs of U.S. workers. (b) Except when higher benefits, wages or working conditions are required by the provisions of paragraph (a) of this section, the OFLC Administrator has determined that, in order to protect similarly employed U.S. workers from adverse effect with respect to wages and working conditions, every job offer for U.S. workers must always include the following minimal benefit, wage, and working condition provisions: (1) The employer will provide the worker with housing without charge to the worker. The housing will meet the full set of standards set forth at 29 CFR 1910.142 or the full set of standards set forth at part 654, subpart E of this chapter, whichever is applicable under the criteria of 20 CFR 654.401; except that, for mobile range housing for sheepherders, the housing shall meet existing Departmental guidelines. When it is the prevailing practice in the area of intended employment to provide family housing, the employer will provide such housing to such workers. (2)(i) If the job opportunity is covered by the State workers’ compensation law, the worker will be eligible for workers’ compensation for injury and disease arising out of and in the course of worker’s employment; or VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 (ii) If the job opportunity is not covered by the State workers’ compensation law, the employer will provide at no cost to the worker, insurance covering injury and disease arising out of and in the course of the worker’s employment which will provide benefits at least equal to those provided under the State workers’ compensation law for comparable employment; (3) The employer will provide without cost to the worker all tools, supplies and equipment required to perform the duties assigned and, if any of these items are provided by the worker, the employer will reimburse the worker for the cost of those so provided; (4) The employer will provide the worker with three meals a day, except that where under prevailing practice or longstanding arrangement at the establishment workers prepare their meals, employers need furnish only free and convenient cooking and kitchen facilities. Where the employer provides the meals, the job offer shall state the cost to the worker for such meals. Until a new amount is set pursuant to this paragraph (b)(4), the cost shall not be more than $4.94 per day unless the OFLC Administrator has approved a higher cost pursuant to § 655.211 of this part. Each year the charge allowed by this paragraph (b)(4) will be changed by the 12-month percent change for the Consumer Price Index for All Urban Consumers for Food between December of the year just concluded and December of the year prior to that. The annual adjustments shall be effective on their publication by the OFLC Administrator in the Federal Register. (5)(i) The employer will provide or pay for the worker’s transportation and daily subsistence from the place, from which the worker, without intervening employment, will come to work for the employer, to the place of employment, subject to the deductions allowed by paragraph (b)(13) of this section. The amount of the daily subsistence payment shall be at least as much as the amount the employer will charge the worker for providing the worker with three meals a day during employment; (ii) If the worker completes the work contract period, the employer will provide or pay for the worker’s transportation and daily subsistence from the place of employment to the place, from which the worker, without intervening employment, came to work for the employer, unless the worker has contracted for employment with a subsequent employer who, in that contract, has agreed to pay for the worker’s transportation and daily subsistence expenses from the PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 11429 employer’s worksite to such subsequent employer’s worksite; and (iii) The employer will provide transportation between the worker’s living quarters and the employer’s worksite without cost to the worker, and such transportation will be in accordance with applicable laws and regulations; (6)(i) The employer guarantees to offer the worker employment for at least three-fourths of the workdays of the total period during which the work contract and all extensions thereof are in effect, beginning with the first workday after the arrival of the worker at the place of employment and ending on the termination date specified in the work contract, or in its extensions if any. For purposes of this paragraph, a workday shall mean any period consisting of 8 hours of work time. An employer shall not be considered to have met the work guarantee if the employer has merely offered work on three-fourths of the workdays. The work must be offered for at least three-fourths of the 8 hour workdays. (That is, 3⁄4 × (number of days × 8 hours.)) Therefore, if, for example, the contract contains 20 workdays, the worker must be offered employment for 120 hours during the 20 workdays. A worker may be offered more than 8 hours of work on a single workday. For purposes of meeting the guarantee, however, the worker may not be required to work for more than 8 hours per workday, or on the worker’s Sabbath or Federal holidays; (ii) If the worker will be paid on a piece rate basis, the employer will use the worker’s average hourly earnings to calculate the amount due under the guarantee; and (iii) Any hours which the worker fails to work when the worker has been offered an opportunity to do so pursuant to paragraph (b)(6)(i) of this section, and all hours of work actually performed (including voluntary work over 8 hours in a workday, or on the worker’s Sabbath or Federal holidays) may be counted by the employer in calculating whether the period of guaranteed employment has been met; (7)(i) The employer will keep accurate and adequate records with respect to the workers’ earnings, including field tally records, supporting summary payroll records, and records showing: The nature and amount of the work performed; the number of hours of work offered each day by the employer (broken out by hours offered both in accordance with, and over and above, the guarantee); the hours actually worked each day by the worker; the time the worker began and ended each workday; the rate of pay; the worker’s E:\FR\FM\17MRP2.SGM 17MRP2 rwilkins on PROD1PC63 with PROPOSALS2 11430 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules earnings per pay period; and the amount of and reasons for any and all deductions made from the worker’s wages; (ii) If the number of hours worked by the worker is less than the number offered in accordance with the guarantee, the records will state the reason or reasons therefor; (iii) The records, including field tally records and supporting summary payroll records, will be made available for inspection and copying by representatives of the Secretary of Labor, and by the worker and the worker’s representatives; and (iv) The employer will retain the records for not less than three years after the completion of the contract; (8) The employer will furnish to the worker at or before each payday, in one or more written statements: (i) The worker’s total earnings for the pay period; (ii) The worker’s hourly rate or piece rate of pay; (iii) The hours of employment which have been offered to the worker (broken out by offers in accordance with, and over and above, the guarantee); (iv) The hours actually worked by the worker; (v) An itemization of all deductions made from the worker’s wages; and (vi) If piece rates are used, the units produced daily; (9)(i) If the worker will be paid by the hour, the employer will pay the worker at least the adverse effect rate; or (ii)(A) If the worker will be paid on a piece rate basis, and the piece rate does not result at the end of the pay period in average hourly earnings during the pay period at least equal to the amount the worker would have earned had the worker been paid at the adverse effect rate, the worker’s pay will be supplemented at that time so that the worker’s earnings are at least as much as the worker would have earned during the pay period if the worker had been paid at the adverse effect rate. (B) If the employer who pays on a piece rate basis requires one or more minimum productivity standards of workers as a condition of job retention, (1) Such standards shall be no more than those applied by the employer in 1977, unless the OFLC Administrator approves a higher minimum; or (2) If the employer first applied for temporary labor certification after 1977, such standards shall be no more than those normally required (at the time of that first application) by other employers for the activity in the area of intended employment, unless the OFLC Administrator approves a higher minimum. VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 (10) The frequency with which the worker will be paid (in accordance with the prevailing practice in the area of intended employment, or at least biweekly whichever is more frequent); (11) If the worker voluntarily abandons employment before the end of the contract period, or is terminated for cause, the employer will not be responsible for providing or paying for the subsequent transportation and subsistence expenses of any worker for whom the employer would have otherwise been required to pay such expenses under paragraph (b)(5)(ii) of this section; (12) If, before the expiration date specified in the work contract, the services of the worker are no longer required for reasons beyond the control of the employer due to fire or other Act of God which makes the fulfillment of the contract impossible, and the OFLC Administrator so certifies, the employer may terminate the work contract. In such cases the employer will make efforts to transfer the worker to other comparable employment acceptable to the worker. If such transfer is not effected, the worker (i) Will be returned to the place from which the worker, without intervening employment, came to work for the employer at the employer’s expense; and (ii) Will be reimbursed the full amount of any deductions made from the worker’s pay by the employer for transportation and subsistence expenses to the place of employment borne directly or indirectly by the employer; (13) The employer will make those deductions from the worker’s paycheck which are required by law. The job offer shall specify all deductions, not required by law, which the employer will make from the worker’s paycheck. All deductions shall be reasonable. The employer may deduct the cost of the worker’s transportation and daily subsistence expenses to the place of employment which were borne directly by the employer; in such cases, however, the job offer shall state that the worker will be reimbursed the full amount of such deductions upon the worker’s completion of 50 percent of the worker’s contract period; and (14) The employer will provide the worker a copy of the work contract between the employer and the worker. The work contract shall contain all of the provisions required by paragraphs (a) and (b) of this section. § 655.203 Assurances. As part of the temporary labor certification application, the employer PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 shall include assurances, signed by the employer, that: (a) The job opportunity is not: (1) Vacant because the former occupant is on strike or being locked out in the course of a labor dispute; or (2) At issue in a labor dispute involving a work stoppage; (b) During the period for which the temporary labor certification is granted, the employer will comply with applicable Federal, State and local employment-related laws, including employment related health and safety laws; (c) The job opportunity is open to all qualified U.S. workers without regard to race, color, national origin, sex, or religion, and is open to U.S. workers with handicaps who are qualified to perform the work. No U.S. worker will be rejected for employment for other than a lawful job related reason; (d) The employer will cooperate with the employment service system in the active recruitment of U.S. workers until the foreign workers have departed for the employer’s place of employment by; (1) Allowing the employment service system to prepare local, intrastate and interstate job orders using the information supplied on the employer’s job offer; (2) Placing at least two advertisements for the job opportunities in local newspapers of general circulation. (i) Each such advertisement shall describe the nature and anticipated duration of the job opportunity; offer at least the adverse effect wage rate; give the 3⁄4 guarantee; state that work tools, supplies and equipment will be provided by the employer; state that housing will also be provided, and that transportation and subsistence expenses to the worksite will be provided or paid for by the employer; (ii) Each advertisement shall direct interested workers to apply for the job opportunity at the appropriate office of the State Workforce Agency in their area; (3) Cooperating with the employment service system in contacting farm labor contractors, migrant workers and other potential workers in other areas of the State and/or Nation by letter and/or telephone; (4) Cooperating with the employment service system in contacting schools, business and labor organizations, fraternal and veterans organizations, and non-profit organizations and public agencies such as sponsors of programs under the Comprehensive Employment and Training Act, throughout the area of intended employment, in order to enlist them in helping to find U.S. workers; and E:\FR\FM\17MRP2.SGM 17MRP2 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules (5) If the employer, or an association of employers of which the employer is a member, intends to negotiate and/or contract with the Government of a foreign nation or any foreign association, corporation or organization in order to secure foreign workers, making the same kind and degree of efforts to secure U.S. workers; (e) From the time the foreign workers depart for the employer’s place of employment, the employer will provide employment to any qualified U.S. worker who applies to the employer until fifty percent of the period of the work contract, under which the foreign worker who is in the job was hired, has elapsed. In addition, the employer will offer to provide housing, and the other benefits, wages, and working conditions required by § 655.202, to any such U.S. worker; and (f) Performing the other specific recruitment activities specified in the notice from the OFLC Administrator required by § 655.205(a). rwilkins on PROD1PC63 with PROPOSALS2 § 655.204 Determinations based on temporary labor certification applications. (a) Within two working days after the temporary labor certification application has been filed with it, the SWA shall mail the duplicate application directly to the appropriate OFLC Administrator. (b) The SWA, using the job offer portion of its copy of the temporary labor certification application, shall promptly prepare a local job order and shall begin to recruit U.S. workers in the area of intended employment. (c) The OFLC Administrator, upon receipt of the duplicate temporary labor certification application, shall promptly review the application to determine whether it meets the requirements of §§ 655.201–655.203 in order to determine whether the employer’s application is (1) timely, and (2) contains offers of wages, benefits, and working conditions required to ensure that similarly employed U.S. workers will not be adversely affected. If the OFLC Administrator determines that the temporary labor certification application is not timely in accordance with § 655.201 of this subpart, the OFLC Administrator may promptly deny the temporary labor certification on the grounds that, in accordance with that regulation, there is not sufficient time to adequately test the availability of U.S. workers. If the OFLC Administrator determines that the application does not meet the requirements of §§ 655.202– 655.203 because the wages, working conditions, benefits, assurances, job offer, etc. are not as required, the OFLC Administrator shall deny the certification on the grounds that the VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 availability of U.S. workers cannot be adequately tested because the wages or benefits, etc. do not meet the adverse effect criteria. (d) If the certification is denied, the OFLC Administrator shall notify the employer in writing of the determination, with a copy to the SWA. The notice shall: (1) State the reasons for the denial, citing the relevant regulations; and (2) Offer the employer an opportunity to request an expedited administrativejudicial review of the denial by an Administrative Law Judge. The notice shall state that in order to obtain such a review, the employer must, within five calendar days of the date of the notice, file by facsimile (fax), telegram, or other means normally assuring next day delivery a written request for such a review to the Chief Administrative Law Judge of the Department of Labor (giving the address) and simultaneously serve a copy on the OFLC Administrator. The notice shall also state that the employer’s request for review should contain any legal arguments which the employer believes will rebut the basis of the OFLC Administrator’s denial of certification; and (3) State that, if the employer does not request an expedited administrativejudicial review before an Administrative Law Judge within the five days: (i) The OFLC Administrator will advise the DHS that the certification cannot be granted, giving the reasons therefor, and that an administrativejudicial review of the denial was offered to the employer but not accepted, and enclosing, for DHS review, the entire temporary labor certification application file; and (ii) The employer has the opportunity to submit evidence to the DHS to rebut the bases of the OFLC Administrator’s determination in accordance with the DHS regulation at 8 CFR 214.2(h)(3)(i) but that no further review of the employer’s application for temporary labor certification may be made by any Department of Labor official. (e) If the employer timely requests an expedited administrative-judicial review pursuant to paragraph (d)(2) of this section, the procedures of § 655.212 shall be followed. § 655.205 Recruitment period. (a) If the OFLC Administrator determines that the temporary labor certification application meets the requirements of §§ 655.201 through 655.203, the OFLC Administrator shall promptly notify the employer in writing, with copies to the SWA. The notice shall inform the employer and the SWA of the specific efforts which PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 11431 will be expected from them during the following weeks to carry out the assurances contained in § 655.203 with respect to the recruitment of U.S. workers. The notice shall require that the job order be placed both into intrastate clearance and into interstate clearance to such States as the OFLC Administrator shall determine to be potential sources of U.S. workers. (b) Thereafter, OFLC Administrator, shall provide overall direction to the employer and the SWA with respect to the recruitment of U.S. workers. (c) By the 60th day of the recruitment period, or 20 days before the date of need specified in the application, whichever is later, the OFLC Administrator, when making a determination of the availability of U.S. workers, shall also make a determination as to whether the employer has satisfied the recruitment assurances in § 655.203. If the OFLC Administrator concludes that the employer has not satisfied the requirement for recruitment of U.S. workers, the OFLC Administrator shall deny the temporary labor certification, and shall immediately notify the employer in writing with a copy to the State agency. The notice shall contain the statements specified in § 655.204(d). (d) If the employer timely requests an expedited administrative-judicial review before an Administrative Law Judge, the procedures in § 655.212 shall be followed. § 655.206 Determinations of U.S. worker availability and adverse effect on U.S. workers. (a) If the OFLC Administrator, in accordance with § 655.205 has determined that the employer has complied with the recruitment assurances, the OFLC Administrator, by 60th day of the recruitment period, or 20 days before the date of need specified in the application, whichever is later, shall grant the temporary labor certification for enough aliens to fill the employer’s job opportunities for which U.S. workers are not available. In making this determination the OFLC Administrator shall consider as available for a job opportunity any U.S. worker who has made a firm commitment to work for the employer, including those workers committed by other authorized persons such as farm labor contractors and family heads; such a firm commitment shall be considered to have been made not only by workers who have signed work contracts with the employer, but also by those whom the OFLC Administrator determines are very likely to sign such a work contract. The OFLC Administrator shall also E:\FR\FM\17MRP2.SGM 17MRP2 rwilkins on PROD1PC63 with PROPOSALS2 11432 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules count as available any U.S. worker who has applied to the employer (or on whose behalf an application has been made), but who was rejected by the employer for other than lawful jobrelated related reasons unless the OFLC Administrator determines that: (1) Enough qualified U.S. workers have been found to fill all the employer’s job opportunities; or (2) The employer, since the time of the initial determination under § 655.204, has adversely affected U.S. workers by offering to, or agreeing to provide to, alien workers better wages, working conditions, or benefits (or by offering or agreeing to impose on alien workers less obligations and restrictions) than that offered to U.S. workers. (b)(1) Temporary labor certifications shall be considered subject to the conditions and assurances made during the application process. Temporary labor certifications shall be for a limited duration such as for ‘‘the 1978 apple harvest season’’ or ‘‘until November 1, 1978’’, and they shall never be for more than eleven months. They shall be limited to the employer’s specific job opportunities; therefore, they may not be transferred from one employer to another. (2) If an association of employers is itself the employer, as defined in § 655.200, certifications shall be made to the association and may be used for any of the job opportunities of its employer members and workers may be transferred among employer members. (3) If an association of employers is a joint employer with its employer members, as defined in § 655.200, the certification shall be made jointly to the association and the employer members. In such cases workers may be transferred among the employer members provided the employer members and the association agree in writing to be jointly and severally liable for compliance with the temporary labor certification obligations set forth in this subpart. (c) If the OFLC Administrator denies the temporary labor certification in whole or part, the OFLC Administrator shall notify the employer in writing by means normally assuring next-day delivery. The notice shall contain all of the statements required in § 655.204(d). If a timely request is made for an administrative-judicial review by an Administrative Law Judge, the procedures of § 655.212 shall be followed. (d)(1) After a temporary labor certification has been granted, the employer shall continue its efforts to actively recruit U.S. workers until the VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 foreign workers have departed for the employer’s place of employment. The employer, however, must keep an active job order on file until the assurance at § 655.203(e) is met. (2) The State Workforce Agency (SWA) system shall continue to actively recruit and refer U.S. workers as long as there is an active job order on file. § 655.207 Adverse effect rates. (a) Except as otherwise provided in this section, the adverse effect rates for all agricultural and logging employment shall be the prevailing wage rates in the area of intended employment. (b)(1) For agricultural employment (except sheepherding) in the States listed in paragraph (b)(2) of this section, and for Florida sugarcane work, the adverse effect rate for each year shall be computed by adjusting the prior year’s adverse effect rate by the percentage change (from the second year previous to the prior year) in the U.S. Department of Agriculture’s (USDA’s) average hourly wage rates for field and livestock workers (combined) based on the USDA Quarterly Wage Survey. The OFLC Administrator shall publish, at least once in each calendar year, on a date or dates he shall determine, adverse effect rates calculated pursuant to this paragraph (b) as a notice or notices in the Federal Register. (2) List of States. Arizona, Colorado, Connecticut, Florida (other than sugar cane work), Maine, Maryland, Massachusetts, New Hamsphire, New York, Rhode Island, Texas, Vermont, Virginia, and West Virginia. Other States may be added as appropriate. (3) Transition. Notwithstanding paragraphs (b)(1) and (2) of this section, the 1986 adverse effect rate for agricultural employment (except sheepherding) in the following States, and for Florida sugarcane work, shall be computed by adjusting the 1981 adverse effect rate (computed pursuant to 20 CFR 655.207(b)(1), 43 FR 10317; March 10, 1978) by the percentage change between 1980 and 1985 in the U.S. Department of Agriculture annual average hourly wage rates for field and livestock workers (combined) based on the USDA Quarterly survey: The States listed at 20 CFR 655.207(b)(2) (1985). (c) In no event shall an adverse effect rate for any year be lower than the hourly wage rate published in 29 U.S.C. 206(a)(1) and currently in effect. § 655.208 Temporary labor certification applications involving fraud or willful misrepresentation. (a) If possible fraud or willful misrepresentation involving a temporary labor certification application PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 is discovered prior to a final temporary labor certification determination, or if it is learned that the employer or agent (with respect to an application) is the subject of a criminal indictment or information filed in a court, the OFLC Administrator shall refer the matter to the DHS for investigation and shall notify the employer or agent in writing of this referral. The OFLC Administrator shall continue to process the application and may issue a qualified temporary labor certification. (b) If a court finds an employer or agent innocent of fraud or willful misrepresentation, or if the Department of Justice decides not to prosecute an employer or agent, the OFLC Administrator shall not deny the temporary labor certification application on the grounds of fraud or willful misrepresentation. The application, of course, may be denied for other reasons pursuant to this subpart. (c) If a court or the DHS determines that there was fraud or willful misrepresentation involving a temporary labor certification application, the application shall be deemed invalidated, processing shall be terminated, and the application shall be returned to the employer or agent with the reasons therefor stated in writing. § 655.209 Invalidation of temporary labor certifications. After issuance, temporary labor certifications are subject to invalidation by the DHS upon a determination, made in accordance with that agency’s procedures or by a Court, of fraud or willful misrepresentation of a material fact involving the temporary labor certification application. If evidence of such fraud or willful misrepresentation becomes known to the OFLC Administrator, the OFLC Administrator shall notify the DHS in writing. § 655.210 Failure of employers to comply with the terms of a temporary labor certification. (a) If, after the granting of a temporary labor certification, the OFLC Administrator has probable cause to believe that an employer has not lived up to the terms of the temporary labor certification, the OFLC Administrator shall investigate the matter. If the OFLC Administrator concludes that the employer has not complied with the terms of the labor certification, the OFLC Administrator may notify the employer that it will not be eligible to apply for a temporary labor certification in the coming year. The notice shall be in writing, shall state the reasons for the determination, and shall offer the employer an opportunity to request a E:\FR\FM\17MRP2.SGM 17MRP2 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules hearing within 30 days of the date of the notice. If the employer requests a hearing within the 30-day period, the OFLC Administrator shall follow the procedures set forth at § 658.421(i)(1), (2) and (3) of this chapter. The procedures contained in §§ 658.421(j), 658.422 and 658.423 of this chapter shall apply to such hearings. (b) No other penalty shall be imposed by the employment service on such an employer other than as set forth in paragraph (a) of this section. § 655.211 Petition for higher meal charges. (a) Until a new amount is set pursuant to this paragraph (a), the OFLC Administrator may permit an employer to charge workers up to $6.17 for providing them with three meals per day, if the employer justifies the charge and submits to the OFLC Administrator the documentary evidence required by paragraph (b) of this section. A denial in whole or in part shall be reviewable as provided in § 655.212 of this part. Each year the maximum charge allowed by this paragraph (a) will be changed by the 12-month percent change for the Consumer Price Index for All Urban Consumers for Food between December of the year just concluded and December of the year prior to that. The annual adjustments shall be effective on their publication by the OFLC Administrator in the Federal Register. (b) Evidence submitted shall include the cost of goods and services directly related to the preparation and serving of meals, the number of workers fed, the number of meals served and the number of days meals were provided. The cost of the following items may be included: Food; kitchen supplies other than food, such as lunch bags and soap; labor costs which have a direct relation to food service operations, such as wages of cooks and restaurant supervisors; fuel, water, electricity, and other utilities used for the food service operations; other costs directly related to the food service operation. Charges for transportation, depreciation, overhead, and similar charges may not be included. Receipts and other cost records for a representative pay period shall be available for inspection by the Secretary’s representatives for a period of one year. rwilkins on PROD1PC63 with PROPOSALS2 § 655.212 Administrative-judicial reviews. (a) Whenever an employer has requested an administrative-judicial review of a denial of an application or a petition in accordance with §§ 655.204(d), 655.205(d), 655.206(c), or 655.211, the Chief Administrative Law Judge shall immediately assign an Administrative Law Judge to review the VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 record for legal sufficiency, and the OFLC Administrator shall send a certified copy of the case file to the Chief Administrative Law Judge by means normally assuring next day delivery. The Administrative Law Judge shall not have authority to remand the case and shall not receive additional evidence. Any countervailing evidence advanced after decision by the OFLC Administrator shall be subject to provisions of 8 CFR 214.2(h)(3)(i). (b) The Administrative Law Judge, within five working days after receipt of the case file shall, on the basis of the written record and due consideration of any written memorandums of law submitted, either affirm, reverse or modify the OFLC Administrator’s denial by written decision. The decision of the Administrative Law Judge shall specify the reasons for the action taken and shall be immediately provided to the employer, OFLC Administrator, and DHS by means normally assuring nextday delivery. The Administrative Law Judge’s decision shall be the final decision of the Department of Labor and no further review shall be given to the temporary labor certification determination by any Department of Labor official. § 655.215 Territory of Guam. Subpart C of this part does not apply to temporary employment in the Territory of Guam, and the Department of Labor does not certify to the United States Citizenship and Immigration Services of the Department of Homeland Security (DHS) the temporary employment of nonimmigrant aliens under H–2B visas in the Territory of Guam. Pursuant to DHS regulations, that function is performed by the Governor of Guam, or the Governor’s designated representative within the Territorial Government. Title 29—Labor 8. Redesignate part 501 as part 502 and suspend newly designated Part 502. 9. Add part 501 to read as follows: PART 501—ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 216 OF THE IMMIGRATION AND NATIONALITY ACT Subpart A—General Provisions Sec. 501.0 Introduction. 501.1 Purpose and scope. 501.2 Coordination of intake between DOL agencies. 501.3 Discrimination prohibited. 501.4 Waiver of rights prohibited. 501.5 Investigation authority of Secretary. PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 11433 501.6 Prohibition on interference with Department of Labor officials. 501.7 Accuracy of information, statements, data. 501.10 Definitions. Subpart B—Enforcement of Work Contracts 501.15 Enforcement. 501.16 General. 501.17 Concurrent actions. 501.18 Representation of the Secretary. 501.19 Civil money penalty assessment. 501.20 Enforcement of Wage and Hour investigative authority. 501.21 Referral of findings to ETA. 501.22 Civil money penalties-payment and collection. Subpart C—Administrative Proceedings 501.30 Applicability of procedures and rules. Procedures Relating to Hearing 501.31 Written notice of determination required. 501.32 Contents of notice. 501.33 Request for hearing. Rules of Practice 501.34 General. 501.35 Commencement of proceeding. 501.36 Caption of proceeding. Referral for Hearing 501.37 Referral to Administrative Law Judge. 501.38 Notice of docketing. 501.39 Service upon attorneys for the Department of Labor—number of copies. Procedures Before Administrative Law Judge 501.40 Consent findings and order. Post-Hearing Procedures 501.41 Decision and order of Administrative Law Judge. Review of Administrative Law Judge’s Decision 501.42 Procedures for initiating and undertaking review. 501.43 Responsibility of the Office of Administrative Law Judges. 501.44 Additional information, if required. 501.45 Final decision of the Secretary. Record 501.46 Retention of official record. 501.47 Certification. Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188. Subpart A—General Provisions § 501.0 Introduction. These regulations cover the enforcement of all contractual obligations provisions applicable to the employment of H–2A workers under section 216 of the Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA). These regulations are also applicable to the employment of other workers hired by employers of H– 2A workers in the occupations and for E:\FR\FM\17MRP2.SGM 17MRP2 11434 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules the period of time set forth in the job order approved by ETA as a condition for granting H–2A certification, including any extension thereof. Such other workers hired by H–2A employers are hereafter referred to as engaged in corresponding employment. § 501.1 Purpose and scope. (a) Statutory standard. Section 216(a) of the INA provides that— (1) A petition to import an alien as an H– 2A worker (as defined in subsection (i)(2) may not be approved by the Attorney General unless the petitioner has applied to the Secretary of Labor for a certification that— (A) 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 (B) The employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed. rwilkins on PROD1PC63 with PROPOSALS2 (b) Role of the ETA, USES. The issuance and denial of labor certification under section 216 of the INA has been delegated by the Secretary of Labor to the Employment and Training Administration (ETA). In general, matters concerning the obligations of an employer of H–2A workers related to the labor certification process are administered and enforced by ETA. Included within ETA’s jurisdiction are such issues as whether U.S. workers were available, whether positive recruitment was conducted, whether there was a strike or lockout, the methodology for establishing adverse effect wage rates, whether workers’ compensation insurance was provided, whether employment was offered to U.S. workers for up to 50 percent of the contract period and other similar matters. The regulations pertaining to the issuance and denial of labor certification for temporary alien workers by the Employment and Training Administration are found in title 20 CFR part 655. (c) Role of ESA, Wage and Hour Division. Section 216(g)(2) of the INA provides 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. Certain investigation, inspection and law enforcement functions to carry out the provisions of section 216 of the INA have been delegated by the Secretary of Labor to the Employment Standards Administration (ESA), Wage and Hour VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 Division. In general, matters concerning the obligations of the work contract between an employer of H–2A workers and the H–2A workers and other workers in corresponding employment hired by H–2A employers are enforced by ESA. Included within the enforcement responsibility of ESA, Wage and Hour Division are such matters as the payment of required wages, transportation, meals and housing provided during the employment. The Wage and Hour Division has the responsibility to carry out investigations, inspections and law enforcement functions and in appropriate instances impose penalties, seek injunctive relief and specific performance of contractual obligations, including recovery of unpaid wages. (d) Effect of regulations. The amendments to the INA made by title III of the IRCA apply to petitions and applications filed on and after June 1, 1987. Accordingly, the enforcement functions carried out by the Wage and Hour Division under the INA and these regulations apply to the employment of any H–2A worker and any other workers hired by H–2A employers in corresponding employment as the result of any petition or application filed with the Department on and after June 1, 1987. § 501.2 Coordination of intake between DOL agencies. Complaints received by ETA, or any State Employment Service Agency regarding contractual H–2A labor standards between the employer and the employee will be immediately forwarded to the appropriate Wage and Hour office for appropriate action under these regulations. § 501.3 Discrimination prohibited. No person shall intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any person who has: (a) Filed a complaint under or related to section 216 of the INA or these regulations; (b) Instituted or caused to be instituted any proceedings related to section 216 of the INA or these regulations; (c) Testified or is about to testify in any proceeding under or related to section 216 of the INA or these regulations; (d) Exercised or asserted on behalf of himself or others any right or protection afforded by section 216 of the INA or these regulations. (e) Consulted with an employee of a legal assistance program or an attorney on matters related to section 216 of the PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 INA (8 U.S.C. 1186), or to this subpart or any other DOL regulation promulgated pursuant to section 216 of the INA. Allegations of discrimination in employment against any person will be investigated by Wage and Hour. Where Wage and Hour has determined through investigation that such allegations have been substantiated appropriate remedies may be sought. Wage and Hour may assess civil money penalties, seek injunctive relief, and/or seek additional remedies necessary to make the employee whole as a result of the discrimination, as appropriate, and may recommend to ETA that labor certification of any violator be denied in the future. § 501.4 Waiver of rights prohibited. No person shall seek to have an H–2A worker, or other worker employed in corresponding employment by an H–2A employer, waive rights conferred under section 216 of the INA or under these regulations. Such waiver is against public policy. Any agreement by an employee purporting to waive or modify any rights inuring to said person under the Act or these regulations shall be void as contrary to public policy, except that a waiver or modification of rights or obligations hereunder in favor of the Secretary shall be valid for purposes of enforcement of the provisions of the Act or these regulations. This does not prevent agreements to settle private litigation. § 501.5 Investigation authority of Secretary. (a) General. The Secretary, either pursuant to a complaint or otherwise, shall, as may be appropriate, investigate and, in connection therewith, enter and inspect such places and vehicles (including housing) and such records (and make transcriptions thereof), question such persons and gather such information as deemed necessary by the Secretary to determine compliance with contractual obligations under section 216 of the INA or these regulations. (b) Failure to permit investigation. Where any person using the services of an H–2A worker does not permit an investigation concerning the employment of his or her workers the Wage and Hour Division shall report such occurrence to ETA and may recommend denial of future labor certifications to such person. In addition, Wage and Hour may take such action as may be appropriate, including the seeking of an injunction or assessing civil money penalties, against any person who has failed to permit Wage and Hour to make an investigation. E:\FR\FM\17MRP2.SGM 17MRP2 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules (c) Confidential investigation. The Secretary shall conduct investigations in a manner which protects the confidentiality of any complainant or other person who provides information to the Secretary in good faith. (d) Report of violations. Any person may report a violation of the work contract obligations of section 216 of the INA or these regulations to the Secretary by advising any local office of the Employment Service of the various States, any office of ETA, any office of the Wage and Hour Division, ESA, U.S. Department of Labor, or any other authorized representative of the Secretary. The office or person receiving such a report shall refer it to the appropriate office of the Wage and Hour Division, ESA, for the area in which the reported violation is alleged to have occurred. § 501.6 Prohibition on interference with Department of Labor officials. No person shall interfere with any official of the Department of Labor assigned to perform an investigation, inspection or law enforcement function pursuant to the INA and these regulations during the performance of such duties. Wage and Hour will seek such action as it deems appropriate, including an injunction to bar any such interference with an investigation and/ or assess a civil money penalty therefor. In addition Wage and Hour may refer a report of the matter to ETA with a recommendation that the person’s labor certification be denied in the future. (Federal statutes which prohibit persons from interfering with a Federal officer in the course of official duties are found at 18 U.S.C. 111 and 18 U.S.C. 1114.) § 501.7 Accuracy of information, statements, data. rwilkins on PROD1PC63 with PROPOSALS2 Information, statements and data submitted in compliance with provisions of the Act or these regulations are subject to title 18, section 1001, of the U.S. Code, which provides: Section 1001. Statements or entries generally. Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both. § 501.10 Definitions. The definitions in paragraphs (a) through (d) are set forth for purposes of VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 this part. In addition, the definitions in paragraphs (e) through (v) are promulgated at 20 CFR 655.100(b), are utilized herein, and are incorporated and set forth for information purposes. (a) Act and INA mean the Immigration and Nationality Act, as amended (8 U.S.C. 1101 et seq. ), with reference particularly to section 216. (b) Administrative Law Judge (ALJ) means a person within the Department of Labor Office of Administrative Law Judges appointed pursuant to 5 U.S.C. 3105. (c) Administrator means the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, and such authorized representatives as may be designated to perform any of the functions of the Administrator under this part. (d) Work contract means all the material terms and conditions of employment relating to wages, hours, working conditions, and other benefits, including those terms and conditions required by the applicable regulations in subpart B of 20 CFR part 655, Labor Certification Process for Temporary Agricultural Employment in the United States, and those contained in the Application for Alien Employment Certification and job offer under that subpart, which contract between the employer and the worker may be in the form of a separate written document. In the absence of a separate written work contract incorporating the required terms and conditions of employment, entered into between the employer and the worker, the work contract at a minimum shall be the terms of the job order included in the application for temporary labor certification, and shall be enforced in accordance with these regulations. (e) Adverse effect wage rate (AEWR) means the wage rate which the Director has determined must be offered and paid, as a minimum, to every H–2A worker and every U.S. worker for a particular occupation and/or area in which an employer employs or seeks to employ an H–2A worker so that the wages of similarly employed U.S. workers will not be adversely affected. (f) Agricultural labor or services. Pursuant to section 101(a)(15)(ii)(a) of the INA (8 U.S.C. 1101(a)(15)(H)(ii)(a)), ‘‘agricultural labor or services’’ is defined for the purposes of this subpart as either ‘‘agricultural labor’’ as defined and applied in section 3121(g) of the Internal Revenue Code of 1954 (26 U.S.C. 3121(g)) or ‘‘agriculture’’ as defined and applied in section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)). An occupation included PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 11435 in either statutory definition shall be ‘‘agricultural labor or services’’, notwithstanding the exclusion of that occupation from the other statutory definition. For informational purposes, the statutory provisions are quoted below. (1) Agricultural labor. Section 3121(g) of the Internal Revenue Code of 1954 (26 U.S.C. 3121(g)) quoted as follows, defines the term ‘‘agricultural labor’’ to include all service performed: (1) On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and furbearing animals and wildlife; (2) Services performed in the employ of the owner or tenant or other operator of a farm, in connection with the operation, or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm; (3) In connection with the production or harvesting of any commodity defined as an agricultural commodity in section 15(g) of the Agricultural Marketing Act, as amended (12 U.S.C. 1141j), or in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, used exclusively for supplying and storing water for farming purposes; (4)(A) In the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity; but only if such operator produced more than one-half of the commodity with respect to which such service is performed; (B) In the employ of a group of operators of farms (other than a cooperative organization) in the performance of service described in subparagraph (A), but only if such operators produced all of the commodity with respect to which such service is performed. For purposes of this subparagraph, any unincorporated group of operators shall be deemed a cooperative organization if the number of operators comprising such group is more than 20 at any time during the calendar quarter in which such service is performed; (C) The provisions of subparagraphs (A) and (B) shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption; or (5) On a farm operated for profit if such service is not in the course of the employer’s trade or business or is domestic service in a private home of the employer. E:\FR\FM\17MRP2.SGM 17MRP2 11436 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules As used in this subsection, the term farm includes stock, dairy, poultry, fruit, furbearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards. (2) Agriculture. Section 203(f) of title 29, United States Code, (section 3(f) of the Fair Labor Standards Act of 1938), quoted as follows, defines agriculture to include: (f) * * * farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 15(g) of the Agricultural Marketing Act, as amended), the raising of livestock, bees, fur bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market. (3) Agricultural commodity. Section 1141j(g) of title 12, United States Code, (section 15(g) of the Agricultural Marketing Act, as amended) quoted as follows, defines agricultural commodity to include: (g) * * * in addition to other agricultural commodities, crude gum (oleoresin) from a living tree, and the following products as processed by the original producer of the crude gum (oleoresin) from which derived: Gum spirits of turpentine, and gum rosin, as defined in section 92 of title 7. (iv) Gum rosin. Section 92 of title 7, United States Code, quoted as follows, defines gum spirits of turpentine and gum rosin as— rwilkins on PROD1PC63 with PROPOSALS2 (c) Gum spirits of turpentine means spirits of turpentine made from gum (oleoresin) from a living tree. (g) Gum rosin means rosin remaining after the distillation of gum spirits of turpentine. (g) Of a temporary or seasonal nature—(1) On a seasonal or other temporary basis. For the purposes of this subpart of a temporary or seasonal nature means on a seasonal or other temporary basis, as defined in the Employment Standards Administration’s Wage and Hour Division’s regulation at 29 CFR 500.20 under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). For informational purposes § 500.20 as it pertains to seasonal or temporary basis is quoted below. (2) MSPA definition. For information purposes, the definition of on a seasonal or other temporary basis, as set forth at § 500.20 of this title, is provided below: VerDate Nov<24>2008 18:14 Mar 16, 2009 Jkt 217001 On a seasonal or other temporary basis means: Labor is performed on a seasonal basis, where, ordinarily, the employment pertains to or is of the kind exclusively performed at certain seasons or periods of the year and which, from its nature, may not be continuous or carried on throughout the year. A worker who moves from one seasonal activity to another, while employed in agriculture or performing agricultural labor, is employed on a seasonal basis even though he may continue to be employed during a major portion of the year. A worker is employed on other temporary basis where he is employed for a limited time only or the performance is contemplated for a particular piece of work, usually of short duration. Generally, employment, which is contemplated to continue indefinitely, is not temporary. On a seasonal or other temporary basis does not include the employment of any foreman or other supervisory employee who is employed by a specific agricultural employer or agricultural association essentially on a year round basis. On a seasonal or other temporary basis does not include the employment of any worker who is living at his permanent place of residence, when that worker is employed by a specific agricultural employer or agricultural association on essentially a year round basis to perform a variety of tasks for his employer and is not primarily employed to do field work. (3) Temporary. For the purpose of this subpart, the definition of ‘‘temporary’’ in paragraph (c)(2)(ii) of this section refers to any job opportunity covered by this subpart where the employer needs a worker for a position, either temporary or permanent, for a limited period of time, which shall be for less than one year, unless the original temporary alien agricultural labor certification is extended based on unforeseen circumstances, pursuant to § 655.106(c)(3) of this title. (h) DOL means the U.S. Department of Labor. (i) Employer means a person, firm, corporation or other association or organization which suffers or permits a person to work and (1) which has a location within the United States to which U.S. workers may be referred for employment, and which proposes to employ workers at a place within the United States and (2) which has an employer relationship with respect to employees under this subpart as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee. An association of employers shall be considered the sole employer if it alone has the indicia of an employer set forth in this definition. Such an association, however, shall be considered as a joint employer with an employer member if PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 it shares with the employer member one or more of the definitional indicia. (j) Employment Service (ES) and Employment Service (ES) System mean, collectively, the USES, the State agencies, the local offices, and the ETA regional offices. (k) Employment Standards Administration means the agency within the Department of Labor (DOL), which includes the Wage and Hour Division, and which is charged with the carrying out certain functions of the Secretary under the INA. (l) Employment and Training Administration (ETA) means the agency within the Department of Labor (DOL) which includes the U.S. Employment Service (USES). (m) H–2A worker means any nonimmigrant alien admitted to the United States for agricultural labor or services of a temporary or seasonal nature under section 101(a)(15)(H)(ii)(a) of the INA (8 U.S.C. 1101(a)(15)(H)(ii)(a)). (n) Immigration and Naturalization Service (INS) means the component of the U.S. Department of Justice which makes the determination under the INA on whether or not to grant visa petitions to employers seeking H–2A workers to perform temporary agricultural work in the United States. (o) Job offer means the offer made by an employer or potential employer of H–2A workers to both U.S. and H–2A workers describing all the material terms and conditions of employment, including those relating to wages, working conditions, and other benefits. (p) Secretary means the Secretary of Labor or the Secretary’s designee. (q) State agency means the State employment service agency designated under section 4 of the Wagner-Peyser Act to cooperate with the USES in the operation of the ES System. (r) Solicitor of Labor means the Solicitor, U.S. Department of Labor, and includes employees of the Office of the Solicitor of Labor designated by the Solicitor to perform functions of the Solicitor under this subpart. (s) Temporary alien agricultural labor certification means the certification made by the Secretary of Labor with respect to an employer seeking to file with INS a visa petition to import an alien as an H–2A worker, pursuant to sections 101(a)(15)(H)(ii)(a), 214 (a) and (c), and 216 of the INA that (1) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the agricultural labor or services involved in the petition, and (2) the employment of the alien in such agricultural labor or services will not E:\FR\FM\17MRP2.SGM 17MRP2 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules adversely affect the wages and working conditions of workers in the United States similarly employed (8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184 (a) and (c), and 1186). (t) United States Employment Service (USES) means the agency of the U.S. Department of Labor, established under the Wagner-Peyser Act, which is charged with administering the national system of public employment offices and carrying out certain functions of the Secretary under the INA. (u) United States (U.S.) worker means any worker who, whether a U.S. national, a U.S. citizen, or an alien, is legally permitted to work in the job opportunity within the United States (as defined at section 101(a)(38) of the INA (8 U.S.C. 1101(a)(38)). (v) Wages means all forms of cash remuneration to a worker by an employer in payment for personal services. Subpart B—Enforcement of Work Contracts § 501.15 Enforcement. The investigations, inspections and law enforcement functions to carry out the provisions of section 216 of the INA, as provided in these regulations for enforcement by the Wage and Hour Division, pertain to the employment of any H–2A worker and any other worker employed in corresponding employment by an H–2A employer. Such enforcement includes those work contract provisions as defined in § 501.10(d). The work contract enforced includes the employment benefits which must be stated in the job offer, as prescribed in 20 CFR 655.102. rwilkins on PROD1PC63 with PROPOSALS2 § 501.16 General. Whenever the Secretary believes that the H–2A provisions of the INA or these regulations have been violated such action shall be taken and such proceedings instituted as deemed appropriate, including (but not limited to) the following: (a) Impose denial of labor certification against any person for a violation of the H–2A obligations of the INA or the regulations. ETA shall make all determinations regarding the issuance or denial of labor certification. ESA shall make all determinations regarding the enforcement functions listed in paragraphs (b) through (d) of this section. (b) Institute appropriate administrative proceedings, including the recovery of unpaid wages, the enforcement of any other contractual obligations and the assessment of a civil money penalty against any person for a VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 violation of the H–2A work contract obligations of the Act or these regulations. (c) Petition any appropriate District Court of the United States for temporary or permanent injunctive relief, including the withholding of unpaid wages, to restrain violation of the H–2A provisions the Act or these regulations by any person; (d) Petition any appropriate District Court of the United States for specific performance of contractual obligations. § 501.17 Concurrent actions. The taking of any one of the actions referred to above shall not be a bar to the concurrent taking of any other action authorized by the H–2A provisions of the Act and these regulations, or the regulations of 20 CFR part 655. § 501.18 Representation of the Secretary. (a) Except as provided in section 518(a) of title 28, United States Code, relating to litigation before the Supreme Court, the Solicitor of Labor may appear for and represent the Secretary in any civil litigation brought under the Act. (b) The Solicitor of Labor, through the authorized representatives shall represent the Administrator and the Secretary in all administrative hearings under the H–2A provisions of the Act and these regulations. § 501.19 Civil money penalty assessment. (a) A civil money penalty may be assessed by the Administrator for each violation of the work contract or these regulations. (b) In determining the amount of penalty to be assessed for any violation of the work contract as provided in the H–2A provisions of the Act or these regulations the Administrator shall consider the type of violation committed and other relevant factors. The matters which may be considered include, but are not limited to, the following: (1) Previous history of violation, or violations of the H–2A provisions of the Act and these regulations; (2) The number of workers affected by the violation or violations; (3) The gravity of the violation or violations; (4) Efforts made in good faith to comply with the H–2A provisions of the Act and these regulations; (5) Explanation of person charged with the violation or violations; (6) Commitment to future compliance, taking into account the public health, interest or safety, and whether the person has previously violated the H– 2A provisions of the Act; PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 11437 (7) The extent to which the violator achieved a financial gain due to the violation, or the potential financial loss or potential injury to the workers. (c) A civil money penalty for violation of the work contract will not exceed $1,000 for each violation committed against each worker. A civil money penalty for discrimination or interference with Wage and Hour investigative authority will not exceed $1,000 for each such act of discrimination or interference. § 501.20 Enforcement of Wage and Hour investigative authority. Sections 501.5 through 501.7 of this part prescribe the investigation authority conferred upon the Wage and Hour Division for the purpose of enforcing the contractual obligations. These sections indicate the actions which may be taken upon failure to permit or interference with an investigation. No person shall interfere with any employee of the Secretary who is exercising or attempting to exercise this investigative or enforcement authority. As stated in §§ 501.5, 501.6 and in 501.19 of this part, a civil money penalty may be assessed for each failure to permit an investigation or interference therewith, and other appropriate relief may be sought. In addition Wage and Hour shall report each such occurrence to ETA and may recommend to ETA denial of future labor certifications. The taking of any one action shall not bar the taking of any additional action. § 501.21 Referral of findings to ETA. Where Wage-Hour finds violations Wage and Hour shall so notify the appropriate representative of ETA and shall forward appropriate information, including investigative information to such representative for review and consideration. § 501.22 Civil money penalties—payment and collection. Where the assessment is directed in a final order by the Administrator, by an Administrative Law Judge, or by the Secretary, the amount of the penalty is immediately due and payable to the U.S. Department of Labor. The person assessed such penalty shall remit promptly the amount thereof as finally determined, to the Administrator by certified check or by money order, made payable to the order of ‘‘Wage and Hour Division, Labor.’’ The remittance shall be delivered or mailed to the Wage and Hour Division Regional Office for the area in which the violations occurred. E:\FR\FM\17MRP2.SGM 17MRP2 11438 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules Subpart C—Administrative Proceedings § 501.30 rules. Applicability of procedures and The procedures and rules contained herein prescribe the administrative process which will be applied with respect to a determination to impose an assessment of civil money penalties and which may be applied to the enforcement of contractual obligations, including the collection of unpaid wages due as a result of any violation of the H–2A provisions of the Act or of these regulations. Except with respect to the imposition of civil money penalties, the Secretary may, in his discretion, seek enforcement action in Federal court without resort to any administrative proceedings. Procedures Relating to Hearing (2) Specify the issue or issues stated in the notice of determination giving rise to such request; (3) State the specific reason or reasons why the person requesting the hearing believes such determination is in error; (4) Be signed by the person making the request or by an authorized representative of such person; and (5) Include the address at which such person or authorized representative desires to receive further communications relating thereto. (c) The request for such hearing must be received by the official who issued the determination, at the Wage and Hour Division address appearing on the determination notice, within the time set forth in paragraph (a) of this section. For the affected person’s protection, if the request is by mail, it should be by certified mail. Rules of Practice § 501.31 Written notice of determination required. § 501.34 Whenever the Administrator determines to assess a civil money penalty or to proceed administratively to enforce contractual obligations, including the recovery of unpaid wages, the person against whom such action is taken shall be notified in writing of such determination. Except as specifically provided in these regulations, the ‘‘Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges’’ established by the Secretary at 29 CFR part 18 shall apply to administrative proceedings described in this part. § 501.32 § 501.35 Contents of notice. The notice required by § 501.31 shall: (a) Set forth the determination of the Administrator including the amount of any unpaid wages due or contractual obligations required and the amount of any civil money penalty assessment and the reason or reasons therefor. (b) Set forth the right to request a hearing on such determination. (c) Inform any affected person or persons that in the absence of a timely request for a hearing, the determination of the Administrator shall become final and unappealable. (d) Set forth the time and method for requesting a hearing, and the procedures relating thereto, as set forth in § 501.33. rwilkins on PROD1PC63 with PROPOSALS2 § 501.33 Request for hearing. (a) Any person desiring to request an administrative hearing on a determination referred to in § 501.32 shall make such request in writing to the official who issued the determination, at the Wage and Hour Division address appearing on the determination notice, no later than thirty (30) days after issuance of the notice referred to in § 501.32. (b) No particular form is prescribed for any request for hearing permitted by this part. However, any such request shall: (1) Be typewritten or legibly written; VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 § 501.38 General. Commencement of proceeding. Each administrative proceeding permitted under the Act and these regulations shall be commenced upon receipt of a timely request for hearing filed in accordance with § 501.33. § 501.36 Caption of proceeding. (a) Each administrative proceeding instituted under the Act and these regulations shall be captioned in the name of the person requesting such hearing, and shall be styled as follows: In the Matter of llll, Respondent. (b) For the purposes of such administrative proceedings the Administrator shall be identified as plaintiff and the person requesting such hearing shall be named as respondent. Referral for Hearing § 501.37 Judge. Frm 00032 Fmt 4701 Sfmt 4702 Notice of docketing. Upon receipt of an Order of Reference, the Chief Administrative Law Judge shall appoint an Administrative Law Judge to hear the case. The Administrative Law Judge shall promptly notify all interested parties of the docketing of the matter and shall set the time and place of the hearing. The date of the hearing shall be not more than 60 days from the date on which the Order of Reference was filed. § 501.39 Service upon attorneys for the Department of Labor—number of copies. Two copies of all pleadings and other documents required for any administrative proceeding provided herein shall be served on the attorneys for the Department of Labor. One copy shall be served on the Associate Solicitor, Division of Fair Labor Standards, Office of the Solicitor, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, and one copy on the Attorney representing the Department in the proceeding. Procedures Before Administrative Law Judge § 501.40 Referral to Administrative Law (a) Upon receipt of a timely request for a hearing filed pursuant to and in accordance with § 501.33 the Administrator, by the Associate Solicitor for the Division of Fair Labor Standards or by the Regional Solicitor for the Region in which the action arose, shall, by Order of Reference, promptly refer a copy of the notice of administrative determination complained of, and the original or a PO 00000 duplicate copy of the request for hearing signed by the person requesting such hearing or by the authorized representative of such person, to the Chief Administrative Law Judge, for a determination in an administrative proceeding as provided herein. The notice of administrative determination and request for hearing shall be filed of record in the Office of the Chief Administrative Law Judge and shall, respectively, be given the effect of a complaint and answer thereto for purposes of the administrative proceeding, subject to any amendment that may be permitted under these regulations or 29 CFR part 18. (b) A copy of the Order of Reference, together with a copy of these regulations, shall be served by counsel for the Administrator upon the person requesting the hearing, in the manner provided in 29 CFR 18.3. Consent findings and order. (a) General. At any time after the commencement of a proceeding under this part, but prior to the reception of evidence in any such proceeding, a party may move to defer the receipt of any evidence for a reasonable time to permit negotiation of an agreement containing consent findings and an order disposing of the whole or any part of the proceeding. The allowance of such deferment and the duration thereof shall be at the discretion of the Administrative Law Judge, after E:\FR\FM\17MRP2.SGM 17MRP2 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules consideration of the nature of the proceeding, the requirements of the public interest, the representations of the parties, and the probability of an agreement being reached which will result in a just disposition of the issues involved. (b) Content. Any agreement containing consent findings and an order disposing of a proceeding or any part thereof shall also provide: (1) That the order shall have the same force and effect as an order made after full hearing; (2) That the entire record on which any order may be based shall consist solely of the notice of administrative determination (or amended notice, if one is filed), and the agreement; (3) A waiver of any further procedural steps before the Administrative Law Judge; and (4) A waiver of any right to challenge or contest the validity of the findings and order entered into in accordance with the agreement. (c) Submission. On or before the expiration of the time granted for negotiations, the parties or their authorized representatives or their counsel may: (1) Submit the proposed agreement for consideration by the Administrative Law Judge; or (2) Inform the Administrative Law Judge that agreement cannot be reached. (d) Disposition. In the event an agreement containing consent findings and an order is submitted within the time allowed therefor, the Administrative Law Judge, within thirty (30) days thereafter, shall, if satisfied with its form and substance, accept such agreement by issuing a decision based upon the agreed findings. Post-Hearing Procedures rwilkins on PROD1PC63 with PROPOSALS2 (a) The Administrative Law Judge shall prepare, within 60 days after completion of the hearing and closing of the record, a decision on the issues referred by the Administrator. (b) The decision of the Administrative Law Judge shall include a statement of findings and conclusions, with reasons and basis therefor, upon each material issue presented on the record. The decision shall also include an appropriate order which may affirm, deny, reverse, or modify, in whole or in part, the determination of the Administrator. The reason or reasons for such order shall be stated in the decision. (c) The decision shall be served on all parties and the Secretary in person or by 17:15 Mar 16, 2009 Jkt 217001 Review of Administrative Law Judge’s Decision § 501.42 Procedures for initiating and undertaking review. (a) A respondent, the Administrator or any other party wishing review of the decision of an Administrative Law Judge shall, within 30 days of the decision of the Administrative Law Judge, petition the Secretary to review the decision. Copies of the petition shall be served on all parties and on the Administrative Law Judge. If the Secretary does not issue a notice accepting a petition for review within 30 days after receipt of a timely filing of the petition, or within 30 days of the date of the decision if no petition has been received, the decision of the Administrative Law Judge shall be deemed the final agency action. (b) Whenever the Secretary either on the Secretary’s own motion or by acceptance of a party’s petition, determines to review the decision of an Administrative Law Judge, a notice of the same shall be served upon the Administrative Law Judge and upon all parties to the proceeding in person or by certified mail. § 501.43 Responsibility of the Office of Administrative Law Judges. Upon receipt of the Secretary’s Notice pursuant to § 501.42 of these regulations, the Office of Administrative Law Judges shall promptly forward a copy of the complete hearing record to the Secretary. § 501.44 Additional information, if required. § 501.41 Decision and order of Administrative Law Judge. VerDate Nov<24>2008 certified mail. The decision when served by the Administrative Law Judge shall constitute the final order of the Administrator unless the Secretary, as provided for in § 501.42 below determines to review the decision. Where the Secretary has determined to review such decision and order, the Secretary shall notify each party of: (a) The issue or issues raised; (b) The form in which submission shall be made (i.e., briefs, oral argument, etc.); and the time within which such presentation shall be submitted. § 501.45 Final decision of the Secretary. The Secretary’s final decision shall be issued within 90 days from the notice granting the petition and served upon all parties and the administrative law judge, in person or by certified mail. Record § 501.46 Retention of official record. The official record of every completed administrative hearing provided by PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 11439 these regulations shall be maintained and filed under the custody and control of the Chief Administrative Law Judge. § 501.47 Certification. Upon receipt of a complaint seeking review of a decision issued pursuant to this part filed in a U.S. District Court, after the administrative remedies have been exhausted, the Chief Administrative Law Judge shall promptly index, certify and file with the appropriate U.S. District Court, a full, true, and correct copy of the entire record, including the transcript of proceedings. PART 780—EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR STANDARDS ACT 10. The authority citation for part 780 is revised to read as follows: Authority: Secs. 1–19, 52 Stat. 1060, as amended; 75 Stat. 65; 29 U.S.C. 201–219. 11. Redesignate § 780.115 as § 780.159 and suspend newly designated § 780.159. 12. Add § 780.115 to read as follows: § 780.115 Forest products. Trees grown in forests and the lumber derived therefrom are not ‘‘agricultural or horticultural commodities.’’ Christmas trees, whether wild or planted, are also not so considered. It follows that employment in the production, cultivation, growing, and harvesting of such trees or timber products is not sufficient to bring an employee within section 3(f) unless the operation is performed by a farmer or on a farm as an incident to or in conjunction with his or its farming operations. On the latter point, see §§ 780.160 through 780.164 which discuss the question of when forestry or lumbering operations are incident to or in conjunction with farming operations so as to constitute ‘‘agriculture.’’ For a discussion of the exemption in section 13(a)(13) of the Act for certain forestry and logging operations in which not more than eight employees are employed, see part 788 of this chapter. 13. Redesignate § 780.201 as § 780.215 and suspend newly designated § 780.215. 14. Add § 780.201 to read as follows: § 780.201 Meaning of ‘‘forestry or lumbering operations.’’ The term ‘‘forestry or lumbering operations’’ refers to the cultivation and management of forests, the felling and trimming of timber, the cutting, hauling, E:\FR\FM\17MRP2.SGM 17MRP2 11440 Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / Proposed Rules and transportation of timber, logs, pulpwood, cordwood, lumber, and like products, the sawing of logs into lumber or the conversion of logs into ties, posts, and similar products, and similar operations. It also includes the piling, stacking, and storing of all such products. The gathering of wild plants and of wild or planted Christmas trees are included. (See the related discussion in §§ 780.205 through 780.209 and in part 788 of this chapter which considers the section 13(a)(13) exemption for forestry or logging operations in which not more than eight employees are employed.) ‘‘Wood working’’ as such is not included in ‘‘forestry’’ or ‘‘lumbering’’ operations. The manufacture of charcoal under modern methods is neither a ‘‘forestry’’ nor ‘‘lumbering’’ operation and cannot be regarded as ‘‘agriculture.’’ 15. Redesignate § 780.205 as § 780.216 and suspend newly designated § 780.216. 16. Add § 780.205 to read as follows: § 780.205 Nursery activities generally. rwilkins on PROD1PC63 with PROPOSALS2 The employees of a nursery who are engaged in the following activities are employed in ‘‘agriculture’’: (a) Sowing seeds and otherwise propagating fruit, nut, shade, vegetable, and ornamental plants or trees (but not VerDate Nov<24>2008 17:15 Mar 16, 2009 Jkt 217001 Christmas trees), and shrubs, vines, and flowers; (b) Handling such plants from propagating frames to the field; (c) Planting, cultivating, watering, spraying, fertilizing, pruning, bracing, and feeding the growing crop. 17. Redesignate § 780.208 as § 780.217 and suspend newly designated § 780.217. 18. Add § 780.208 to read as follows: § 780.208 Forest and Christmas tree activities. Operations in a forest tree nursery such as seeding new beds and growing and transplanting forest seedlings are not farming operations. The planting, tending, and cutting of Christmas trees do not constitute farming operations. If such operations on forest products are within section 3(f), they must qualify under the second part of the definition dealing with incidental practices. (See § 780.201.) PART 788—FORESTRY OR LOGGING OPERATIONS IN WHICH NOT MORE THAN EIGHT EMPLOYEES ARE EMPLOYED 19. Redesignate § 788.10 as § 788.18 and suspend newly designated § 788.18. 20. Add § 788.10 to read as follows: PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 § 788.10 ‘‘Preparing * * * other forestry products.’’ As used in the exemption, ‘‘other forestry products’’ mean plants of the forest and the natural properties or substances of such plants and trees. Included among these are decorative greens such as holly, ferns and Christmas trees, roots, stems, leaves, Spanish moss, wild fruit, and brush. Gathering and preparing such forestry products as well as transporting them to the mill, processing plant, railroad, or other transportation terminal are among the described operations. Preparing such forestry products does not include operations which change the natural physical or chemical condition of the products or which amount to extracting as distinguished from gathering, such as shelling nuts, or mashing berries to obtain juices. Signed in Washington, DC, this 10th day of March 2009. Douglas F. Small, Deputy Assistant Secretary, Employment and Training Administration. Shelby Hallmark, Acting Assistant Secretary, Employment Standards Administration. [FR Doc. E9–5562 Filed 3–16–09; 8:45 am] BILLING CODE 4510–FP–P E:\FR\FM\17MRP2.SGM 17MRP2

Agencies

[Federal Register Volume 74, Number 50 (Tuesday, March 17, 2009)]
[Proposed Rules]
[Pages 11408-11440]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-5562]



[[Page 11407]]

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Part II





Department of Labor





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Employment and Training Administration



20 CFR Part 655



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Wage and Hour Division

29 CFR Parts 501, 780, and 788



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

Federal Register / Vol. 74, No. 50 / Tuesday, March 17, 2009 / 
Proposed Rules

[[Page 11408]]


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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

Wage and Hour Division

29 CFR Parts 501, 780, and 788

RIN 1205-AB55


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

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

ACTION: Notice of proposed suspension of rule.

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SUMMARY: The Department of Labor (DOL or the Department) proposes to 
suspend for 9 months the H-2A regulations published on December 18, 
2008, which became effective on January 17, 2009, that amended the 
rules governing the certification for temporary employment of 
nonimmigrant workers in agricultural occupations on a temporary or 
seasonal basis, and the enforcement of contractual obligations 
applicable to employers of such nonimmigrant workers. A suspension 
would provide the Department with an opportunity to review and 
reconsider the new requirements in light of issues that have arisen 
since the publication of the H-2A Final Rule, while minimizing the 
disruption to the Department, State Workforce Agencies (SWAs), 
employers, and workers. To avoid the regulatory vacuum that would 
result from a suspension, the Department proposes to reinstate on an 
interim basis the rules that were in place on January 16, 2009, the day 
before the revised rules became effective, by reprinting those previous 
regulations.

DATES: Interested persons are invited to submit written comments on the 
proposed suspension on or before March 27, 2009. The Department will 
not necessarily consider any comments received after the above date in 
making its decisions on the final rule.

ADDRESSES: You may submit comments, identified by Regulatory 
Information Number (RIN) 1205-AB55, by any one of the following 
methods:
    Federal e-Rulemaking Portal: https://www.regulations.gov: Follow the 
Web site instructions for submitting comments.
    Mail: Please submit all written comments (including disk and CD-ROM 
submissions) to Thomas Dowd, Administrator, Office of Policy 
Development and Research, Employment and Training Administration, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Room N-5641, 
Washington, DC 20210.
    Hand Delivery/Courier: Please submit all comments to Thomas Dowd, 
Administrator, Office of Policy Development and Research, Employment 
and Training Administration, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Room N-5641, Washington, DC 20210.
    Please submit your comments by only one method. The Department will 
post all comments received on https://www.regulations.gov without making 
any change to the comments, including any personal information 
provided. The https://www.regulations.gov Web site is the Federal e-
Rulemaking portal and all comments posted there are available and 
accessible to the public. The Department cautions commenters not to 
include their personal information such as Social Security numbers, 
personal addresses, telephone numbers, and e-mail addresses in their 
comments as such submitted information will become viewable by the 
public via the https://www.regulations.gov Web site. It is the 
responsibility of the commenter to safeguard his or her information. 
Comments submitted through https://www.regulations.gov will not include 
the commenter's e-mail address unless the commenter chooses to include 
that information as part of his or her comment.
    Please provide written comments only on whether the Department 
should suspend the December 18, 2008 final rule for further review and 
consideration of the issues that have arisen since the final rule's 
publication. Comments concerning the substance or merits of the 
December 18, 2008 final rule or the prior rule will not be considered.
    Postal delivery in Washington, DC may be delayed due to security 
concerns. Therefore, the Department encourages the public to submit 
comments via the Web site indicated above.
    Docket: For access to the docket to read background documents or 
comments received, go to the Federal eRulemaking portal at https://
www.regulations.gov. The Department will also make all the comments it 
receives available for public inspection during normal business hours 
at the ETA Office of Policy Development and Research at the above 
address. If you need assistance to review the comments, the Department 
will provide you with appropriate aids such as readers or print 
magnifiers. The Department will make copies of this notice available, 
upon request, in large print and as an electronic file on a computer 
disk. The Department will consider providing this notice in other 
formats upon request. To schedule an appointment to review the comments 
and/or obtain this notice in an alternate format, contact the Office of 
Policy Development and Research at (202) 693-3700 (VOICE) (this is not 
a toll-free number) or 1-877-889-5627 (TTY/TDD).

FOR FURTHER INFORMATION CONTACT: For further information regarding 20 
CFR part 655, contact William Carlson, PhD, Administrator, Office of 
Foreign Labor Certification, Employment and Training Administration 
(ETA), U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-
4312, Washington, DC 20210; Telephone (202) 693-3010 (this is not a 
toll-free number). For further information regarding 29 CFR parts 501, 
780 and 788, contact James Kessler, Farm Labor Team Leader, Wage and 
Hour Division, Employment Standards Administration, U.S. Department of 
Labor, 200 Constitution Avenue, NW., Room S-3510, Washington, DC 20210; 
Telephone (202) 693-0070 (this is not a toll-free number). Individuals 
with hearing or speech impairments may access the telephone numbers 
above via TTY by calling the toll-free Federal Information Relay 
Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background and Proposed Action

    On December 18, 2008, the Department published final regulations 
revising title 20 of the Code of Federal Regulations (20 CFR) part 655 
and title 29 of the Code of Federal Regulations (29 CFR) parts 501, 
780, and 788 (the ``H-2A Final Rule''). See 73 FR 77110, Dec. 18, 2008. 
The H-2A Final Rule replaced the previous versions of 20 CFR part 655 
(2008) and 29 CFR part 501 (2008) that, for the most part, were 
published at 52 FR 20507, Jun. 1, 1987. With respect to the provisions 
under 29 CFR parts 780 and 788 that were amended by the H-2A Final 
Rule, the previous versions of 29 CFR 780.115, 780.201, 780.205, and 
780.208 were published at 37 FR 12084, Jun. 17, 1972, and the previous 
version of 29 CFR 788.10 was published at 34 FR 15784, Oct. 14, 1969.
    Following the issuance of the H-2A Final Rule, a lawsuit was filed 
in the U.S. District Court for the District of Columbia on January 12, 
2009 (brought by the United Farm Workers and others) challenging the H-
2A Final Rule.

[[Page 11409]]

United Farm Workers, et al. v. Chao, et al., Civil No. 09-00062 RMU 
(D.D.C.). The plaintiffs asserted that in promulgating the H-2A Final 
Rule, the Department violated section 218 of the Immigration and 
Nationality Act as well as the Administrative Procedure Act. The 
plaintiffs requested a temporary restraining order and preliminary 
injunction, along with a permanent injunction that would prohibit DOL 
from implementing the H-2A Final Rule. On January 15, 2009, Judge 
Ricardo M. Urbina denied the plaintiffs' request for a temporary 
restraining order and preliminary injunction on the basis that the 
plaintiffs failed to show ``likely, imminent and irreparable harm''; 
the court did not address the merits of the case or whether the 
plaintiffs demonstrated the substantial likelihood of success on the 
merits. Accordingly, the H-2A Final Rule went into effect as scheduled 
on January 17, 2009. Although the court concluded that the plaintiffs 
were not entitled to a temporary restraining order and preliminary 
injunction, plaintiffs' challenges to the H-2A Final Rule are still 
pending before the district court. The Department's Answer is due in 
district court on March 13, 2009.
    As we move forward with implementing the Final Rule, however, it is 
rapidly becoming evident that the Department and the SWAs may lack 
sufficient resources to effectively and efficiently implement the H-2A 
Final Rule. This has already resulted in processing delays; the delays 
will become even greater as applications for the upcoming growing 
season are now being filed with the Department. The Department has been 
unable to implement the sequence of operational events required to 
avoid confusion and application processing delays. These include 
developing an automated review system before the H-2A Final Rule went 
into effect, and training program users, State Workforce Agency staff, 
and Federal agency staff. Without such an automated system the 
Department must process each application manually, which already is 
causing a significant strain on the timely review and approval of H-2A 
applications. The Department believes that it has a responsibility to 
employers, workers, SWAs, and the public to ensure that a new 
regulatory regime has a sound basis and is capable of effective 
implementation. Suspending the new H-2A Final Rule and reinstating the 
prior rule on an interim basis will allow this examination to occur 
while maintaining the previous status quo.
    In addition, DOL has increasing evidence that undertaking 
implementation of a complex new regulatory program applicable to the 
temporary employment of nonimmigrant workers in agricultural 
occupations before additional examination of the relevant legal and 
economic concerns is proving unnecessarily disruptive and confusing to 
the Department's administration of the H-2A program, SWAs, agricultural 
employers, and domestic and foreign workers. It is particularly 
important to avoid such disruption, if possible, in light of the severe 
economic conditions the country is now facing.
    Furthermore, development of the H-2A Final Rule was based in part 
on policy positions of the prior Administration with which the current 
Administration may differ. Relatedly, the Department may wish to 
reconsider these policy positions in light of the rising unemployment 
among U.S. workers and their availability for these jobs, and 
continuing economic problems in this country. It would not be an 
efficient use of limited agency resources and it would be confusing and 
disruptive to program users to engage in the steps necessary to make 
the current rule operational if the Department were then to soon after 
issue a different rule. Suspending the H-2A Final Rule would prevent 
all parties from having to incur the costs of learning, filing, 
implementing, and operating under a new program that will likely be 
subject to further changes.
    The 10 day comment period on whether to suspend the new H-2A Final 
Rule and reinstate on an interim basis the prior rules is necessary due 
to the time constraints and concerns inherent in the Department's 
administration of the H-2A program, and in the use of the H-2A program 
by the agricultural community. Growers require clear and consistent 
guidance on the rules governing the processing of their applications so 
that they can plan and staff their operations appropriately for the 
impending growing season. The statute requires the Department to 
process H-2A applications within a strict timeframe, and the 
Department's ability to meet the statutory mandate has been undermined 
by the uncertainties and technical deficiencies in the administration 
of the program. A longer comment period would stretch the uncertainty 
over the applicable rules further into the upcoming growing season. 
Confusion or delay in the administration of the program will result in 
the disruption of agricultural production, sales and market conditions 
in areas traditionally served by H-2A workers, which could have further 
deleterious effects on an already unstable economic environment. Given 
that the H-2A Final Rule has already been in effect for more than 6 
weeks, time is of the essence, especially since H-2A applications for 
the upcoming growing season are now being filed with the Department 
under the new regulations. It is imperative that the regulations and 
positions taken in the preamble of the H-2A Final Rule be reviewed to 
ensure that they effectively carry out the statutory objectives and 
requirements of the program; there is a compelling need to undertake 
that review as soon as possible so that any changes in the H-2A Final 
Rule can be implemented in time to avoid jeopardizing the program's use 
by its stakeholders and workers. It is also imperative that during the 
time such a review is undertaken, the Department, SWAs, employers, and 
workers experience minimal disruption as to how applications are 
processed and the terms and conditions that apply.
    To avoid confusion for the readers of the Code of Federal 
Regulations (CFR), if the suspension continues on April 1, 2009, the 
previous regulations that were in effect on April 1, 2008 would appear 
in the next published version of the CFR as 20 CFR 655.1 and 20 CFR 
part 655, subpart B. Additionally, if the suspension continues on July 
1, 2009, the previous regulations that were in effect on July 8, 2008 
would appear in the next published version of the CFR as 29 CFR part 
501, 29 CFR 780.115, 780.201, 780.205, 780.208, and 788.10. The 
suspended regulations also would appear in the CFR and would be 
designated as 20 CFR 655.5, 20 CFR part 655, subpart C, 20 CFR part 
655, subpart N, 29 CFR part 502, and 29 CFR 780.159, 780.216, 780.217, 
and 788.217 for clarity of citation purposes and because two distinct 
regulations cannot use the same regulation number.
    If a final decision is reached to suspend the H-2A Final Rule, DOL 
would reinstate the previous rules verbatim on an interim basis to 
avoid a regulatory vacuum while judicial and administrative review of 
the H-2A Final Rule proceed. The rulemaking document would thus include 
provisions identifying the suspended provisions and interim regulatory 
text identical to the previous H-2A rule. Although the Department 
cannot predict the outcome of its review of the issues that have been 
raised or the outcome of the legal challenge to the H-2A Final Rule, 
either DOL will engage in further rulemaking or the suspension will be 
lifted after 9 months. If a final decision is reached to suspend the H-
2A Final Rule, any H-2A application for which pre-filing positive 
recruitment was

[[Page 11410]]

initiated in accordance with the H-2A Final Rule prior to the date of 
suspension will continue to be governed by the H-2A Final Rule.

List of Subjects

20 CFR Part 655

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

29 CFR Part 501

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

29 CFR Part 780

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

29 CFR Part 788

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

    Accordingly, the Department of Labor proposes that 20 CFR part 655 
and 29 CFR parts 501, 780, and 788 be amended as follows:

Title 20--Employees' Benefits

PART 655--TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES

    1. The authority citation for part 655 is revised to read as 
follows:

    Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i) 
and (ii), 1182(m), (n), and (t), 1184, 1188, and 1288(c) and (d); 29 
U.S.C. 49 et seq.; 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. 323, Pub. L. 103-206, 107 
Stat. 2149; Title IV, Pub. L. 105-277, 112 Stat. 2681; Pub. L. 106-
95, 113 Stat. 1312 (8 U.S.C. 1182 note); and 8 CFR 213.2(h)(4)(i).
    Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184, 
and 1188; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
    Subparts A and C issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b) and 
1184; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
    Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and 
1188; and 29 U.S.C. 49 et seq.
    Subparts D and E issued under 8 U.S.C. 1101(a)(15)(H)(i)(a), 
1182(m), and 1184; 29 U.S.C. 49 et seq. ; and sec. 3(c)(1), Pub. L. 
101-238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note).
    Subparts F and G issued under 8 U.S.C. 1184 and 1288(c); and 29 
U.S.C. 49 et seq.
    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and 
(b1), 1182(n), 1182(t), and 1184; 29 U.S.C. 49 et seq.; sec 
303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1182 
note); and Title IV, Pub. L. 105-277, 112 Stat. 2681.
    Subparts J and K issued under 29 U.S.C. 49 et seq.; and sec. 
221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note).
    Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c), 
1182(m), and 1184; and 29 U.S.C. 49 et seq.

    2. Revise the heading to part 655 to read as set forth above.
    3. Redesignate Sec.  655.1 as Sec.  655.5 and suspend newly 
designated Sec.  655.5.
    4. Add Sec.  655.1 to read as follows:


Sec.  655.1  Scope and purpose of subpart A.

    This subpart sets forth the procedures governing the labor 
certification process for the temporary employment of nonimmigrant 
aliens in the United States in occupations other than agriculture, 
logging, or registered nursing.
    5. Redesignate subpart B, consisting of Sec. Sec.  655.90, 655.92, 
655.93, and 655.100 through 655.119, as subpart N, consisting of 
Sec. Sec.  655.1290, 655.1292, 655.1293, and 655.1300 through 655.1319, 
and suspend newly designated subpart N.
    6. Add subpart B to read as follows:
Subpart B--Labor Certification Process for Temporary Agricultural 
Employment in the United States (H-2A Workers)
Sec.
655.90 Scope and purpose of subpart B.
655.92 Authority of the Office of Foreign Labor Certification (OFLC) 
Administrator.
655.93 Special circumstances.
655.100 Overview of this subpart and definition of terms.
655.101 Temporary alien agricultural labor certification 
applications.
655.102 Contents of job offers.
655.103 Assurances.
655.104 Determinations based on acceptability of H-2A applications.
655.105 Recruitment period.
655.106 Referral of U.S. workers; determinations based on U.S. 
worker availability and adverse effect; activities after receipt of 
the temporary alien agricultural labor certification.
655.107 Adverse effect wage rates (AEWRs).
655.108 H-2A applications involving fraud or willful 
misrepresentation.
655.110 Employer penalties for noncompliance with terms and 
conditions of temporary alien agricultural labor certifications.
655.111 Petition for higher meal charges.
655.112 Administrative review and de novo hearing before an 
administrative law judge.
655.113 Job Service Complaint System; enforcement of work contracts.

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


Sec.  655.90  Scope and purpose of subpart B.

    (a) General. This subpart sets out the procedures established by 
the Secretary of Labor to acquire information sufficient to make 
factual determinations of: (1) Whether there are sufficient able, 
willing, and qualified U.S. workers available to perform the temporary 
and seasonal agricultural employment for which an employer desires to 
import nonimmigrant foreign workers (H-2A workers); and (2) whether the 
employment of H-2A workers will adversely effect the wages and working 
conditions of workers in the U.S. similarly employed. Under the 
authority of the INA, the Secretary of Labor has promulgated the 
regulations in this subpart. This subpart sets forth the requirements 
and procedures applicable to requests for certification by employers 
seeking the services of temporary foreign workers in agriculture. This 
subpart provides the Secretary's methodology for the two-fold 
determination of availability of domestic workers and of any adverse 
effect which would be occasioned by the use of foreign workers, for 
particular temporary and seasonal agricultural jobs in the United 
States.
    (b) The statutory standard. (1) A petitioner for H-2A workers must 
apply to the Secretary of Labor for a certification that, as stated in 
the INA:

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

    (2) Section 216(b) of the INA further requires that the Secretary 
may not issue a certification if the conditions regarding U.S. worker 
availability and adverse effect are not met, and may not issue a 
certification if, as stated in the INA:


    (1) There is a strike or lockout in the course of a labor 
dispute which, under the regulations, precludes such certification.
    (2)(A) The employer during the previous two-year period employed 
H-2A workers and the Secretary has determined, after notice and 
opportunity for a hearing, that the employer at any time during that 
period substantially violated a material term or condition of the 
labor certification with respect to the employment of domestic or 
non-immigrant workers.
    (B) No employer may be denied certification under subparagraph 
(A) for more

[[Page 11411]]

than three years for any violation described in such subparagraph.
    (3) The employer has not provided the Secretary with 
satisfactory assurances that if the employment for which the 
certification is sought is not covered by State workers' 
compensation law, the employer will provide, at no cost to the 
worker, insurance covering injury and disease arising out of and in 
the course of the worker's employment which will provide benefits at 
least equal to those provided under the State workers' compensation 
law for comparable employment.
    (4) The Secretary determines that the employer has not made 
positive recruitment efforts within a multistate region of 
traditional or expected labor supply where the Secretary finds that 
there are a significant number of qualified United States workers 
who, if recruited, would be willing to make themselves available for 
work at the time and place needed. Positive recruitment under this 
paragraph is in addition to, and shall be conducted within the same 
time period as, the circulation through the interstate employment 
service system of the employer's job offer. The obligation to engage 
in positive recruitment * * * shall terminate on the date the H-2A 
workers depart for the employer's place of employment.

    (3) Regarding the labor certification determination itself, section 
216(c)(3) of the INA, as quoted in the following, specifically directs 
the Secretary to make the certification if:

    (i) The employer has complied with the criteria for 
certification (including criteria for the recruitment of eligible 
individuals as prescribed by the Secretary), and
    (ii) The employer does not actually have, or has not been 
provided with referrals of, qualified 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.

    (c) The Secretary's determinations. Before any factual 
determination can be made concerning the availability of U.S. workers 
to perform particular job opportunities, two steps must be taken. 
First, the minimum level of wages, terms, benefits, and conditions for 
the particular job opportunities below which similarly employed U.S. 
workers would be adversely affected must be established. (The 
regulations in this subpart establish such minimum levels for wages, 
terms, benefits, and conditions of employment). Second, the wages, 
terms, benefits, and conditions offered and afforded to the aliens must 
be compared to the established minimum levels. If it is concluded that 
adverse effect would result, the ultimate determination of availability 
within the meaning of the INA cannot be made since U.S. workers cannot 
be expected to accept employment under conditions below the established 
minimum levels. Florida Sugar Cane League, Inc. v. Usery, 531 F. 2d 299 
(5th Cir. 1976). Once a determination of no adverse effect has been 
made, the availability of U.S. workers can be tested only if U.S. 
workers are actively recruited through the offer of wages, terms, 
benefits, and conditions at least at the minimum level or the level 
offered to the aliens, whichever is higher. The regulations in this 
subpart set forth requirements for recruiting U.S. workers in 
accordance with this principle.
    (d) Construction. This subpart shall be construed to effectuate the 
purpose of the INA that U.S. workers rather than aliens be employed 
wherever possible. Elton Orchards, Inc. v. Brennan, 508 F. 2d 493, 500 
(1st Cir. 1974); Flecha v. Quiros, 567 F.2d 1154, 1156 (1st Cir. 1977). 
Where temporary alien workers are admitted, the terms and conditions of 
their employment must not result in a lowering of the wages, terms, and 
conditions of domestic workers similarly employed. Williams v. Usery, 
531 F. 2d 305, 306 (5th Cir. 1976), cert. denied, 429 U.S. 1000, and 
the job benefits extended to any U.S. workers shall be at least those 
extended to the alien workers.


Sec.  655.92  Authority of the Office of Foreign Labor Certification 
(OFLC) Administrator.

    Under this subpart, the accepting for consideration and the making 
of temporary alien agricultural labor certification determinations are 
ordinarily performed by the Office of Foreign Labor Certification 
(OFLC) Administrator (OFLC Administrator), who, in turn, may delegate 
this responsibility to a designated staff member. The OFLC 
Administrator will informally advise the employer or agent of the name 
of the official who will make determinations with respect to the 
application.


Sec.  655.93  Special circumstances.

    (a) Systematic process. The regulations under this subpart are 
designed to provide a systematic process for handling applications from 
the kinds of employers who have historically utilized nonimmigrant 
alien workers in agriculture, usually in relation to the production or 
harvesting of a particular agricultural crop for market, and which 
normally share such characteristics as:
    (1) A fixed-site farm, ranch, or similar establishment;
    (2) A need for workers to come to their establishment from other 
areas to perform services or labor in and around their establishment;
    (3) Labor needs which will normally be controlled by environmental 
conditions, particularly weather and sunshine; and
    (4) A reasonably regular workday or workweek.
    (b) Establishment of special procedures. In order to provide for a 
limited degree of flexibility in carrying out the Secretary's 
responsibilities under the INA, while not deviating from the statutory 
requirements to determine U.S. worker availability and make a 
determination as to adverse effect, the OFLC Administrator has the 
authority to establish special procedures for processing H-2A 
applications when employers can demonstrate upon written application to 
and consultation with the OFLC Administrator that special procedures 
are necessary. In a like manner, for work in occupations characterized 
by other than a reasonably regular workday or workweek, such as the 
range production of sheep or other livestock, the OFLC Administrator 
has the authority to establish monthly, weekly, or bi-weekly adverse 
effect wage rates for those occupations, for a Statewide or other 
geographical area, other than the rates established pursuant to Sec.  
655.107 of this part, provided that the OFLC Administrator uses a 
methodology to establish such adverse effect wage rates which is 
consistent with the methodology in Sec.  655.107(a). Prior to making 
determinations under this paragraph (b), the OFLC Administrator may 
consult with employer representatives and worker representatives.
    (c) Construction. This subpart shall be construed to permit the 
OFLC Administrator to continue and, where the OFLC Administrator deems 
appropriate, to revise the special procedures previously in effect for 
the handling of applications for sheepherders in the Western States 
(and to adapt such procedures to occupations in the range production of 
other livestock) and for custom combine crews.


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

    (a) Overview--(1) Filing applications. This subpart provides 
guidance to an employer who desires to apply for temporary alien 
agricultural labor certification for the employment of H-2A workers to 
perform agricultural employment of a temporary or seasonal nature. The 
regulations in this subpart provide that such employer shall file an H-
2A application, including a job offer, on forms prescribed by the 
Employment and Training Administration (ETA), which describes the 
material terms and conditions of employment to be offered and afforded 
to U.S. workers and H-2A

[[Page 11412]]

workers, with the OFLC Administrator. The entire application shall be 
filed with the OFLC Administrator no less than 45 calendar days before 
the first date of need for workers, and a copy of the job offer shall 
be submitted at the same time to the local office of the State 
employment service agency which serves the area of intended employment. 
Under the regulations, the OFLC Administrator will promptly review the 
application and notify the applicant in writing if there are 
deficiencies which render the application not acceptable for 
consideration, and afford the applicant a five-calendar-day period for 
resubmittal of an amended application or an appeal of the OFLC 
Administrator's refusal to approve the application as acceptable for 
consideration. Employers are encouraged to file their applications in 
advance of the 45-calendar-day period mentioned above in this paragraph 
(a)(1). Sufficient time should be allowed for delays that might arise 
due to the need for amendments in order to make the application 
acceptable for consideration.
    (2) Amendment of applications. This subpart provides for the 
amendment of applications, at any time prior to the OFLC 
Administrator's certification determination, to increase the number of 
workers requested in the initial application; without requiring, under 
certain circumstances, an additional recruitment period for U.S. 
workers.
    (3) Untimely applications. If an H-2A application does not satisfy 
the specified time requirements, this subpart provides for the OFLC 
Administrator's advice to the employer in writing that the 
certification cannot be granted because there is not sufficient time to 
test the availability of U.S. workers; and provides for the employer's 
right to an administrative review or a de novo hearing before an 
administrative law judge. Emergency situations are provided for, 
wherein the OFLC Administrator may waive the specified time periods.
    (4) Recruitment of U.S. workers; determinations--(i) Recruitment. 
This subpart provides that, where the application is accepted for 
consideration and meets the regulatory standards, the State agency and 
the employer begin to recruit U.S. workers. If the employer has 
complied with the criteria for certification, including recruitment of 
U.S. workers, by 20 calendar days before the date of need specified in 
the application (except as provided in certain cases), the OFLC 
Administrator makes a determination to grant or deny, in whole or in 
part, the application for certification.
    (ii) Granted applications. This subpart provides that the 
application for temporary alien agricultural labor certification is 
granted if the OFLC Administrator finds that the employer has not 
offered foreign workers higher wages or better working conditions (or 
has imposed less restrictions on foreign workers) than those offered 
and afforded to U.S. workers; that sufficient U.S. workers who are 
able, willing, and qualified will not be available at the time and 
place needed to perform the work for which H-2A workers are being 
requested; and that the employment of such aliens will not adversely 
affect the wages and working conditions of similarly employed U.S. 
workers.
    (iii) Fees--(A) Amount. This subpart provides that each employer 
(except joint employer associations) of H-2A workers shall pay to the 
OFLC Administrator fees for each temporary alien agricultural labor 
certification received. The fee for each employer receiving a temporary 
alien agricultural labor certification is $100 plus $10 for each job 
opportunity for H-2A workers certified, provided that the fee to an 
employer for each temporary alien agricultural labor certification 
received shall be no greater than $1,000. In the case of a joint 
employer association receiving a temporary alien agricultural labor 
certification, each employer-member receiving a temporary alien 
agricultural labor certification shall pay a fee of $100 plus $10 for 
each job opportunity for H-2A workers certified, provided that the fee 
to an employer for each temporary alien agricultural labor 
certification received shall be no greater than $1,000. The joint 
employer association will not be charged a separate fee.
    (B) Timeliness of payment. The fee must be received by the OFLC 
Administrator no later than 30 calendar days after the granting of each 
temporary alien agricultural labor certification. Fees received any 
later are untimely. Failure to pay fees in a timely manner is a 
substantial violation which may result in the denial of future 
temporary alien agricultural labor certifications.
    (iv) Denied applications. This subpart provides that if the 
application for temporary alien agricultural labor certification is 
denied, in whole or in part, the employer may seek review of the 
denial, or a de novo hearing, by an administrative law judge as 
provided in this subpart.
    (b) Definitions of terms used in this subpart. For the purposes of 
this subpart:
    Except for consideration means, with respect to an application for 
temporary alien agricultural labor certification, the action by the 
OFLC Administrator to notify the employer that a filed temporary alien 
agricultural labor certification application meets the adverse effect 
criteria necessary for processing. An application accepted for 
consideration ultimately will be approved or denied in a temporary 
alien agricultural labor certification determination.
    Administrative law judge means a person within the Department of 
Labor Office of Administrative Law Judges appointed pursuant to 5 
U.S.C. 3105; or a panel of such persons designated by the Chief 
Administrative Law Judge from the Board of Alien Labor Certification 
Appeals established by part 656 of this chapter, but which shall hear 
and decide appeals as set forth in Sec.  655.112 of this part. ``Chief 
Administrative Law Judge'' means the chief official of the Department 
of Labor Office of Administrative Law Judges or the Chief 
Administrative Law Judge's designee.
    Administrator, Office of Foreign Labor Certification (OFLC) means 
the primary official of the Office of Foreign Labor Certification (OFLC 
Administrator), or the OFLC Administrator's designee.
    Adverse effect wage rate (AEWR) means the wage rate which the OFLC 
Administrator has determined must be offered and paid, as a minimum, to 
every H-2A worker and every U.S. worker for a particular occupation 
and/or area in which an employer employs or seeks to employ an H-2A 
worker so that the wages of similarly employed U.S. workers will not be 
adversely affected.
    Agent means a legal entity or person, such as an association of 
agricultural employers, or an attorney for an association, which (1) is 
authorized to act on behalf of the employer for temporary alien 
agricultural labor certification purposes, and (2) is not itself an 
employer, or a joint employer, as defined in this paragraph (b).
    Department of Homeland Security (DHS) through the United States 
Citizenship and Immigration Services (USCIS) makes the determination 
under the INA on whether or not to grant visa petitions to employers 
seeking H-2A workers to perform temporary agricultural work in the 
United States.
    DOL means the United States Department of Labor.
    Eligible worker means a U.S. worker, as defined in this section.
    Employer means a person, firm, corporation or other association or 
organization which suffers or permits a person to work and (1) which 
has a location within the United States to

[[Page 11413]]

which U.S. workers may be referred for employment, and which proposes 
to employ workers at a place within the United States and (2) which has 
an employer relationship with respect to employees under this subpart 
as indicated by the fact that it may hire, pay, fire, supervise or 
otherwise control the work of any such employee. An association of 
employers shall be considered the sole employer if it has the indicia 
of an employer set forth in this definition. Such an association, 
however, shall be considered as a joint employer with an employer 
member if it shares with the employer member one or more of the 
definitional indicia.
    Employment Service (ES), in this subpart, refers to the system of 
federal and state entities responsible for administration of the labor 
certification process for temporary and seasonal agricultural 
employment of nonimmigrant foreign workers. This includes the State 
Workforce Agencies (SWAs), the National Processing Centers (NPCs) and 
the Office of Foreign Labor Certification (OFLC).
    Employment Standards Administration means the agency within the 
Department of Labor (DOL), which includes the Wage and Hour Division, 
and which is charged with the carrying out of certain functions of the 
Secretary under the INA.
    Employment and Training Administration (ETA) means the agency 
within the Department of Labor (DOL) which includes the Office of 
Foreign Labor (OFLC).
    Federal holiday means a legal public holiday as defined at 5 U.S.C. 
6103.
    H-2A worker means any nonimmigrant alien admitted to the United 
States for agricultural labor or services of a temporary or seasonal 
nature under section 101(a)(15)(H)(ii)(a) of the INA (8 U.S.C. 
1101(a)(15)(H)(ii)(a)). INA means the Immigration and Nationality Act, 
as amended (8 U.S.C. 1101 et seq.).
    Job offer means the offer made by an employer or potential employer 
of H-2A workers to both U.S. and H-2A workers describing all the 
material terms and conditions of employment, including those relating 
to wages, working conditions, and other benefits.
    Job opportunity means a job opening for temporary, full-time 
employment at a place in the United States to which U.S. workers can be 
referred.
    Office of Foreign Labor Certification (OFLC) means the 
organizational component within the ETA that provides national 
leadership and policy guidance and develops regulations and procedures 
to carry out the responsibilities of the Secretary of Labor under the 
INA concerning alien workers seeking admission to the United States in 
order to work under the Immigration and Nationality Act, as amended.
    Positive recruitment means the active participation of an employer 
or its authorized hiring agent in locating and interviewing applicants 
in other potential labor supply areas and in the area where the 
employer's establishment is located in an effort to fill specific job 
openings with U.S. workers.
    Prevailing means, with respect to certain benefits other than wages 
provided by employers and certain practices engaged in by employers, 
that:
    (i) Fifty percent or more of employers in an area and for an 
occupation engage in the practice or offer the benefit; and
    (ii) This 50 percent or more of employers also employs 50 percent 
or more of U.S. workers in the occupation and area (including H-2A and 
non-H-2A employers for purposes of determinations concerning the 
provision of family housing, frequency of wage payments, and workers 
supplying their own bedding, but non-H-2A employers only for 
determinations concerning the provision of advance transportation and 
the utilization of farm labor contractors).
    Secretary means the Secretary of Labor or the Secretary's designee.
    Solicitor of Labor means the Solicitor, United States Department of 
Labor, and includes employees of the Office of the Solicitor of Labor 
designated by the Solicitor to perform functions of the Solicitor under 
this subpart.
    State Workforce Agency (SWA) means the State employment service 
agency designated under Sec.  4 of the Wagner-Peyser Act to cooperate 
with OFLC in the operation of the ES System.
    Temporary alien agricultural labor certification means the 
certification made by the Secretary of Labor with respect to an 
employer seeking to file with DHS a visa petition to import an alien as 
an H-2A worker, pursuant to sections 101(a)(15)(H)(ii)(a), 214(a) and 
(c), and 216 of the INA that (1) there are not sufficient workers who 
are able, willing, and qualified, and who will be available at the time 
and place needed, to perform the agricultural labor or services 
involved in the petition, and (2) the employment of the alien in such 
agricultural labor or services will not adversely affect the wages and 
working conditions of workers in the United States similarly employed 
(8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184 (a) and (c), and 1186).
    Temporary alien agricultural labor certification determination 
means the written determination made by the OFLC Administrator to 
approve or deny, in whole or in part, an application for temporary 
alien agricultural labor certification.
    United States (U.S.) worker means any worker who, whether a U.S. 
national, a U.S. citizen, or an alien, is legally permitted to work in 
the job opportunity within the United States (as defined at Sec.  
101(a)(38) of the INA (8 U.S.C. 1101(a)(38))).
    Wages means all forms of cash remuneration to a worker by an 
employer in payment for personal services.
    (c) Definition of agricultural labor or services of a temporary or 
seasonal nature. For the purposes of this subpart, ``agricultural labor 
or services of a temporary or seasonal nature'' means the following:
    (1) ``Agricultural labor or services''. Pursuant to section 
101(a)(15)(H)(ii)(a) of the INA (8 U.S.C. 1101(a)(15)(H)(ii)(a)), 
``agricultural labor or services'' is defined for the purposes of this 
subpart as either ``agricultural labor'' as defined and applied in 
section 3121(g) of the Internal Revenue Code of 1954 (26 U.S.C. 
3121(g)) or ``agriculture'' as defined and applied in section 3(f) of 
the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)). An occupation 
included in either statutory definition shall be ``agricultural labor 
or services'', notwithstanding the exclusion of that occupation from 
the other statutory definition. For informational purposes, the 
statutory provisions are quoted below:
    (i) ``Agricultural labor''. Section 3121(g) of the Internal Revenue 
Code of 1954 (26 U.S.C. 3121(g)), quoted as follows, defines the term 
``agricultural labor'' to include all service performed:

    (1) On a farm, in the employ of any person, in connection with 
cultivating the soil, or in connection with raising or harvesting 
any agricultural or horticultural commodity, including the raising, 
shearing, feeding, caring for, training, and management of 
livestock, bees, poultry, and furbearing animals and wildlife;
    (2) Services performed in the employ of the owner or tenant or 
other operator of a farm, in connection with the operation, or 
maintenance of such farm and its tools and equipment, or in 
salvaging timber or clearing land of brush and other debris left by 
a hurricane, if the major part of such service is performed on a 
farm;
    (3) In connection with the production or harvesting of any 
commodity defined as an agricultural commodity in section 15(g) of 
the Agricultural Marketing Act, as amended (12 U.S.C. 1141j), or in 
connection with the ginning of cotton, or in connection with the 
operation or maintenance of ditches, canals, reservoirs, or 
waterways, not owned or operated for profit, used exclusively for

[[Page 11414]]

supplying and storing water for farming purposes;
    (4)(A) In the employ of the operator of a farm in handling, 
planting, drying, packing, packaging, processing, freezing, grading, 
storing, or delivering to storage or to market or to a carrier for 
transportation to market, in its unmanufactured state, any 
agricultural or horticultural commodity; but only if such operator 
produced more than one-half of the commodity with respect to which 
such service is performed;
    (B) In the employ of a group of operators of farms (other than a 
cooperative organization) in the performance of service described in 
subparagraph (A), but only if such operators produced all of the 
commodity with respect to which such service is performed. For 
purposes of this subparagraph, any unincorporated group of operators 
shall be deemed a cooperative organization if the number of 
operators comprising such group is more than 20 at any time during 
the calendar quarter in which such service is performed;
    (C) The provisions of subparagraphs (A) and (B) shall not be 
deemed to be applicable with respect to service performed in 
connection with commercial canning or commercial freezing or in 
connection with any agricultural or horticultural commodity after 
its delivery to a terminal market for distribution for consumption; 
or
    (5) On a farm operated for profit if such service is not in the 
course of the employer's trade or business or is domestic service in 
a private home of the employer.
    As used in this subsection, the term ``farm'' includes stock, 
dairy, poultry, fruit, fur-bearing animal, and truck farms, 
plantations, ranches, nurseries, ranges, greenhouses or other 
similar structures used primarily for the raising of agricultural or 
horticultural commodities, and orchards.

    (ii) ``Agriculture'' Section 203(f) of title 29, United States 
Code, (section 3(f) of the Fair Labor Standards Act of 1938, as 
codified), quoted as follows, defines ``agriculture'' to include:

    (f) * * * farming in all its branches and among other things 
includes the cultivation and tillage of the soil, dairying, the 
production, cultivation, growing, and harvesting of any agricultural 
or horticultural commodities (including commodities as defined as 
agricultural commodities in section 1141j(g) of Title 12), the 
raising of livestock, bees, fur-bearing animals, or poultry, and any 
practices (including any forestry or lumbering operations) performed 
by a farmer or on a farm as an incident to or in conjunction with 
such farming operations, including preparation for market, delivery 
to storage or to market or to carriers for transportation to market.

    (iii) ``Agricultural commodity''. Section 1141j(g) of title 12, 
United States Code (section 15(g) of the Agricultural Marketing Act, as 
amended), quoted as follows, defines ``agricultural commodity'' to 
include:

    (g) * * * in addition to other agricultural commodities, crude 
gum (oleoresin) from a living tree, and the following products as 
processed by the original producer of the crude gum (oleoresin) from 
which derived: Gum spirits of turpentine, and gum rosin, as defined 
in section 92 of Title 7.

    (iv) ``Gum rosin''. Section 92 of title 7, United States Code, 
quoted as follows, defines ``gum spirits of turpentine'' and ``gum 
rosin'' as--

    (c) ``Gum spirits of turpentine'' means spirits of turpentine 
made from gum (oleoresin) from a living tree.
    (h) ``Gum rosin'' means rosin remaining after the distillation 
of gum spirits of turpentine.

    (2) ``Of a temporary or seasonal nature''--(i) ``On a seasonal or 
other temporary basis''. For the purposes of this subpart, ``of a 
temporary or seasonal nature'' means ``on a seasonal or other temporary 
basis'', as defined in the Employment Standards Administration's Wage 
and Hour Division's regulation at 29 CFR 500.20 under the Migrant and 
Seasonal Agricultural Worker Protection Act (MSPA).
    (ii) MSPA definition. For informational purposes, the definition of 
``on a seasonal or other temporary basis'', as set forth at 29 CFR 
500.20, is provided below:

    ``On a seasonal or other temporary basis'' means:
    Labor is performed on a seasonal basis, where, ordinarily, the 
employment pertains to or is of the kind exclusively performed at 
certain seasons or periods of the year and which, from its nature, 
may not be continuous or carried on throughout the year. A worker 
who moves from one seasonal activity to another, while employed in 
agriculture or performing agricultural labor, is employed on a 
seasonal basis even though he may continue to be employed during a 
major portion of the year.
    A worker is employed on ``other temporary basis'' where he is 
employed for a limited time only or his performance is contemplated 
for a particular piece of work, usually of short duration. 
Generally, employment, which is contemplated to continue 
indefinitely, is not temporary.
    ``On a seasonal or other temporary basis'' does not include the 
employment of any foreman or other supervisory employee who is 
employed by a specific agricultural employer or agricultural 
association essentially on a year round basis.
    ``On a seasonal or other temporary basis'' does not include the 
employment of any worker who is living at his permanent place of 
residence, when that worker is employed by a specific agricultural 
employer or agricultural association on essentially a year round 
basis to perform a variety of tasks for his employer and is not 
primarily employed to do field work.

    (iii) ``Temporary''. For the purposes of this subpart, the 
definition of ``temporary'' in paragraph (c)(2)(ii) of this section 
refers to any job opportunity covered by this subpart where the 
employer needs a worker for a position, either temporary or permanent, 
for a limited period of time, which shall be for less than one year, 
unless the original temporary alien agricultural labor certification is 
extended based on unforeseen circumstances, pursuant to Sec.  
655.106(c)(3) of this part.


Sec.  655.101  Temporary alien agricultural labor certification 
applications.

    (a) General--(1) Filing of application. An employer who anticipates 
a shortage of U.S. workers needed to perform agricultural labor or 
services of a temporary or seasonal nature may apply to the OFLC 
Administrator, for a temporary alien agricultural labor certification 
for temporary foreign workers (H-2A workers). A signed application for 
temporary alien agricultural worker certification shall be filed by the 
employer, or by an agent of the employer, with the OFLC Administrator. 
At the same time, a duplicate application shall be submitted to the SWA 
serving the area of intended employment.
    (2) Applications filed by agents. If the temporary alien 
agricultural labor certification application is filed by an agent on 
behalf of an employer, the agent may sign the application if the 
application is accompanied by a signed statement from the employer 
which authorizes the agent to act on the employer's behalf. The 
employer may authorize the agent to accept for interview workers being 
referred to the job and to make hiring commitments on behalf of the 
employer. The statement shall specify that the employer assumes full 
responsibility for the accuracy of the application, for all 
representations made by the agent on the employer's behalf, and for 
compliance with all regulatory and other legal requirements.
    (3) Applications filed by associations. If an association of 
agricultural producers which uses agricultural labor or services files 
the application, the association shall identify whether it is: (i) The 
sole employer; (ii) a joint employer with its employer-member 
employers; or (iii) the agent of its employer-members. The association 
shall submit documentation sufficient to enable the OFLC Administrator 
to verify the employer or agency status of the association; and shall 
identify by name and address each member which will be an employer of 
H-2A workers.
    (b) Application form. Each H-2A application shall be on a form or 
forms prescribed by ETA. The application shall state the total number 
of workers the employer anticipates employing in

[[Page 11415]]

the agricultural labor or service activity during the covered period of 
employment. The application shall include:
    (1) A copy of the job offer which will be used by each employer for 
the recruitment of U.S. and H-2A workers. The job offer shall state the 
number of workers needed by the employer, based upon the employer's 
anticipation of a shortage of U.S. workers needed to perform the 
agricultural labor or services, and the specific estimated date on 
which the workers are needed. The job offer shall comply with the 
requirements of Sec. Sec.  655.102 and 653.501 of this chapter, and 
shall be signed by the employer or the employer's agent on behalf of 
the employer; and
    (2) An agreement to abide by the assurances required by Sec.  
655.103 of this part.
    (c) Timeliness. Applications for temporary alien agricultural labor 
certification are not required to be filed more than 45 calendar days 
before the first day of need. The employer shall be notified by the 
OFLC Administrator in writing within seven calendar days of filing the 
application if the application is not approved as acceptable for 
consideration. The OFLC Administrator's temporary alien agricultural 
labor certification determination on the approved application shall be 
made no later than 20 calendar days before the date of need if the 
employer has complied with the criteria for certification. To allow for 
the availability of U.S. workers to be tested, the following process 
applies:
    (1) Application filing date. The entire H-2A application, including 
the job offer, shall be filed with the OFLC Administrator, in 
duplicate, no less than 45 calendar days before the first date on which 
the employer estimates that the workers are needed. Applications may be 
filed in person; may be mailed to the OFLC Administrator (Attention: H-
2A Certifying Officer) by certified mail, return receipt requested; or 
delivered by guaranteed commercial delivery which will ensure delivery 
to the OFLC Administrator and provide the employer with a documented 
acknowledgment of receipt of the application by the OFLC Administrator. 
Any application received 45 calendar days before the date of need will 
have met the minimum timeliness of filing requirement as long as the 
application is eventually approved by the OFLC Administrator as being 
acceptable for processing.
    (2) Review of application; recruitment; certification determination 
period. Section 655.104 of this part requires the OFLC Administrator to 
promptly review the application, and to notify the applicant in writing 
within seven calendar days of any deficiencies which render the 
application not acceptable for consideration and to afford an 
opportunity for resubmittal of an amended application. The employer 
shall have five calendar days in which to file an amended application. 
Section 655.106 of this part requires the OFLC Administrator to grant 
or deny the temporary alien agricultural labor certification 
application no later than 20 calendar days before the date on which the 
workers are needed, provided that the employer has complied with the 
criteria for certification, including recruitment of eligible 
individuals. Such recruitment, for the employer, the State agencies, 
and DOL to attempt to locate U.S. workers locally and through the 
circulation of intrastate and interstate agricultural clearance job 
orders acceptable under Sec.  653.501 of this chapter and under this 
subpart, shall begin on the date that an acceptable application is 
filed, except that the SWA shall begin to recruit workers locally 
beginning on the date it first receives the application. The time 
needed to obtain an application acceptable for consideration (including 
the job offer) after the five-calendar-day period allowed for an 
amended application will postpone day-for-day the certification 
determination beyond the 20 calendar days before the date of need, 
provided that the OFLC Administrator notifies the applicant of any 
deficiencies within seven calendar days after receipt of the 
application. Delays in obtaining an application acceptable for 
consideration which are directly attributable to the OFLC Administrator 
will not postpone the certification determination beyond the 20 
calendar days before the date of need. When an employer resubmits to 
the OFLC Administrator (with a copy to the SWA) an application with 
modifications required by the OFLC Administrator, and the OFLC 
Administrator approves the modified application as meeting necessary 
adverse effect standards, the modified application will not be rejected 
solely because it now does not meet the 45-calendar-day filing 
requirement. If an application is approved as being acceptable for 
processing without need for any amendment within the seven-calendar-day 
review period after initial filing, recruitment of U.S. workers will be 
considered to have begun on the date the application was received by 
the OFLC Administrator; and the OFLC Administrator shall make the 
temporary alien agricultural labor certification determination required 
by Sec.  655.106 of this part no later than 20 calendar days before the 
date of need provided that other regulatory conditions are met.
    (3) Early filing. Employers are encouraged, but not required, to 
file their applications in advance of the 45-calendar-day minimum 
period specified in paragraph (c)(1) of this section, to afford more 
time for review and discussion of the applications and to consider 
amendments, should they be necessary. This is particularly true for 
employers submitting H-2A applications for the first time who may not 
be familiar with the Secretary's requirements for an acceptable 
application or U.S. worker recruitment. Such employers particularly are 
encouraged to consult with DOL and SWA staff for guidance and 
assistance well in advance of the minimum 45-calendar-day filing 
period.
    (4) Local recruitment; preparation of clearance orders. At the same 
time the employer files the H-2A application with the OFLC 
Administrator, a copy of the application shall be submitted to the SWA 
which will use the job offer portion-of the application to prepare a 
local job order and begin to recruit U.S. workers in the area of 
intended employment. The SWA also shall begin preparing an agricultural 
clearance order, but such order will not be used to recruit workers in 
other geographical areas until the employer's H-2A application is 
accepted for consideration and the clearance order is approved by the 
OFLC Administrator and the SWA is so notified by the OFLC 
Administrator.
    (5) [Reserved]
    (d) Amendments to application to increase number of workers. 
Applications may be amended at any time, prior to an OFLC Administrator 
certification determination, to increase the number of workers 
requested in the initial application by not more than 20 percent (50 
percent for employers of less than ten workers) without requiring an 
additional recruitment period for U.S. workers. Requests for increases 
above the percent prescribed, without additional recruitment, may be 
approved only when the need for additional workers could not have been 
foreseen, and that crops or commodities will be in jeopardy prior to 
the expiration of an additional recruitment period.
    (e) Minor amendments to applications. Minor technical amendments 
may be requested by the employer and made to the application and job 
offer prior to the certification determination if the OFLC 
Administrator determines they are justified and will have no 
significant

[[Page 11416]]

effect upon the OFLC Administrator's ability to make the labor 
certification determination required by Sec.  655.106 of this part. 
Amendments described at paragraph (d) of this section are not ``minor 
technical amendments''.
    (f) Untimely applications--(1) Notices of denial. If an H-2A 
application, or any part thereof, does not satisfy the time 
requirements specified in paragraph (c) of this section, and if the 
exception in paragraph (d) of this section does not apply, the OFLC 
Administrator may then advise the employer in writing that the 
certification cannot be granted because, pursuant to paragraph (c) of 
this section, there is not sufficient time to test the availability of 
U.S. workers. The notice of denial shall inform the employer of its 
right to an administrative review or de novo hearing before an 
administrative law judge.
    (2) Emergency situations. Notwithstanding paragraph (f)(1) of this 
section, in emergency situations the OFLC Administrator may waive the 
time period specified in this section on behalf of employers who have 
not made use of temporary alien agricultural workers (H-2 or H-2A) for 
the prior year's agricultural season or for any employer which has 
other good and substantial cause (which may include unforeseen changes 
in market conditions), provided that the OFLC Administrator has an 
opportunity to obtain sufficient labor market information on an 
expedited basis to make the labor certification determination required 
by Sec.  216 of the INA (8 U.S.C. 1186). In making this determination, 
the OFLC Administrator will accept information offered by and may 
consult with representatives of the U.S. Department of Agriculture.
    (g) Length of job opportunity. The employer shall set forth on the 
application sufficient information concerning the job opportunity to 
demonstrate to the OFLC Administrator that the need for the worker is 
``of a temporary or seasonal nature'', as defined at Sec.  
655.100(c)(2) of this part. Job opportunities of 12 months or more are 
presumed to be permanent in nature. Therefore, the OFLC Administrator 
shall not grant a temporary alien agricultural labor certification 
where the job opportunity has been or would be filled by an H-2A worker 
for a cumulative period, including temporary alien agricultural labor 
certifications and extensions, of 12 months or more, except in 
extraordinary circumstances.


Sec.  655.102  Contents of job offers.

    (a) Preferential treatment of aliens prohibited. The employer's job 
offer to U.S. workers shall offer the U.S. workers no less than the 
same benefits, wages, and working conditions which the employer is 
offering, intends to offer, or will provide to H-2A workers. 
Conversely, no job offer may impose on U.S. workers any restrictions or 
obligations which will not be imposed on the employer's H-2A workers. 
This does not relieve the employer from providing to H-2A workers at 
least the same level of minimum benefits, wages, and working conditions 
which must be offered to U.S. workers consistent with this section.
    (b) Mini

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