Temporary Agricultural Employment of H-2A Nonimmigrants in the United States, 36168-36301 [2019-15307]
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Federal Register / Vol. 84, No. 144 / Friday, July 26, 2019 / Proposed Rules
DEPARTMENT OF LABOR
Employment and Training
Administration
20 CFR Parts 653 and 655
Wage and Hour Division
29 CFR Part 501
[DOL Docket No. ETA–2019–0007]
RIN 1205–AB89
Temporary Agricultural Employment of
H–2A Nonimmigrants in the United
States
Employment and Training
Administration and Wage and Hour
Division, Department of Labor.
ACTION: Proposed rule; request for
comments.
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AGENCY:
SUMMARY: The Department of Labor
(Department or DOL) proposes to amend
its regulations regarding the certification
of temporary employment of
nonimmigrant workers employed in
temporary or seasonal agricultural
employment and the enforcement of the
contractual obligations applicable to
employers of such nonimmigrant
workers. This notice of proposed
rulemaking (NPRM or proposed rule)
streamlines the process by which the
Department reviews employers’
applications for temporary agricultural
labor certifications to use in petitioning
the Department of Homeland Security
(DHS) to employ a nonimmigrant
worker in H–2A status. Amendments to
the current regulations focus on
modernizing the H–2A program and
eliminating inefficiencies. The
Department also proposes to amend the
regulations for enforcement of
contractual obligations for temporary
foreign agricultural workers and the
Wagner-Peyser Act regulations to
provide consistency with revisions to
H–2A program regulations governing
the temporary agricultural labor
certification process.
DATES: Interested persons are invited to
submit written comments on the
proposed rule on or before September
24, 2019.
ADDRESSES: You may submit comments,
identified by Regulatory Information
Number (RIN) 1205–AB89, by any one
of the following methods:
Electronic Comments: Comments may
be sent via https://www.regulations.gov,
a Federal E-Government website that
allows the public to find, review, and
submit comments on documents that
agencies have published in the Federal
Register and that are open for comment.
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Simply type in ‘1205–AB89’ (in quotes)
in the Comment or Submission search
box, click Go, and follow the
instructions for submitting comments.
Mail: Address written submissions to
(including disk and CD–ROM
submissions) to Adele Gagliardi,
Administrator, Office of Policy
Development and Research,
Employment and Training
Administration, U.S. Department of
Labor, 200 Constitution Avenue NW,
Room N–5641, Washington, DC 20210.
Instructions: Please submit only one
copy of your comments by only one
method. All submissions must include
the agency’s name and the RIN 1205–
AB89. Please be advised that comments
received will become a matter of public
record and will be posted without
change to https://www.regulations.gov,
including any personal information
provided. Comments that are mailed
must be received by the date indicated
for consideration.
Docket: For access to the docket to
read background documents or
comments, go to the Federal
e-Rulemaking Portal at https://
www.regulations.gov.
For
further information regarding 20 CFR
part 653, contact Thomas M. Dowd,
Deputy Assistant Secretary,
Employment and Training
Administration, Department of Labor,
Box #12–200, 200 Constitution Avenue
NW, Washington, DC 20210, telephone:
(202) 513–7350 (this is not a toll-free
number). Individuals with hearing or
speech impairments may access the
telephone numbers above via TTY/TDD
by calling the toll-free Federal
Information Relay Service at 1 (877)
889–5627.
For further information regarding 20
CFR part 655, contact Thomas M. Dowd,
Deputy Assistant Secretary,
Employment and Training
Administration, Department of Labor,
Box #12–200, 200 Constitution Avenue
NW, Washington, DC 20210, telephone:
(202) 513–7350 (this is not a toll-free
number). Individuals with hearing or
speech impairments may access the
telephone numbers above via TTY/TDD
by calling the toll-free Federal
Information Relay Service at 1 (877)
889–5627.
For further information regarding 29
CFR part 501, contact Amy DeBisschop,
Acting Director of the Division of
Regulations, Legislation, and
Interpretation, Wage and Hour Division,
Department of Labor, Room S–3502, 200
Constitution Avenue NW, Washington,
DC 20210, telephone: (202) 693–0578
(this is not a toll-free number).
FOR FURTHER INFORMATION CONTACT:
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Individuals with hearing or speech
impairments may access the telephone
number above via TTY/TDD by calling
the toll-free Federal Information Relay
Service at 1 (877) 889–5627.
SUPPLEMENTARY INFORMATION:
I. Revisions to 20 CFR Part 655,
Subpart B
A. Statutory Framework
The H–2A nonimmigrant worker visa
program enables United States
agricultural employers to employ
foreign workers on a temporary basis to
perform temporary or seasonal
agricultural labor or services where the
Secretary of Labor (Secretary) certifies
that (1) there are not sufficient U.S.
workers who are able, willing, and
qualified, and who will be available at
the time and place needed to perform
the labor or services involved in the
petition; and (2) the employment of the
aliens in such labor or services will not
adversely affect the wages and working
conditions of workers in the United
States similarly employed. See section
101(a)(15)(H)(ii)(a) of the Immigration
and Nationality Act (INA or the Act), as
amended by the Immigration Reform
and Control Act of 1986 (IRCA), 8 U.S.C.
1101(a)(15)(H)(ii)(a); section 218(a)(1) of
the INA, 8 U.S.C. 1188(a)(1). The
Secretary has delegated his authority to
issue temporary agricultural labor
certifications to the Assistant Secretary,
Employment and Training
Administration (ETA), who in turn has
delegated that authority to ETA’s Office
of Foreign Labor Certification (OFLC).
Secretary’s Order 06–2010 (Oct. 20,
2010). In addition, the Secretary has
delegated to the Department’s Wage and
Hour Division (WHD) the responsibility
under section 218(g)(2) of the INA, 8
U.S.C. 1188(g)(2), to assure employer
compliance with the terms and
conditions of employment under the H–
2A program. Secretary’s Order 01–2014
(Dec. 19, 2014).
B. Current Regulatory Framework
Since 1987, the Department has
operated the H–2A temporary labor
certification program under regulations
promulgated pursuant to the INA. The
Department’s current regulations
governing the H–2A program were
published in 2010.1 The standards and
procedures applicable to the
certification and employment of
workers under the H–2A program are
found in 20 CFR part 655 and 29 CFR
part 501. In addition, the Department
has issued special procedures for the
1 Final Rule, Temporary Agricultural Employment
of H–2A Aliens in the United States, 75 FR 6884
(Feb. 12, 2010) (2010 Final Rule).
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employment of foreign workers in the
herding and production of livestock on
the range as well as animal shearing,
commercial beekeeping, and custom
combining occupations.2 The
Department incorporated the provisions
for employment of workers in the
herding and production of livestock on
the range into the regulation, with
modifications, in 2015. Those
provisions are now codified at
§§ 655.200 through 655.235.
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C. Need for New Rulemaking
It is the policy of the Department to
increase protections for workers and
vigorously enforce all laws within its
jurisdiction governing the
administration and enforcement of
nonimmigrant visa programs. This
includes the coordination of the
administration and enforcement
activities of ETA, WHD, and the Office
of the Solicitor in the promotion of the
hiring of U.S. workers and the
safeguarding of working conditions in
the United States. In addition, these
agencies make criminal referrals to the
Department’s Office of Inspector
General to combat visa-related fraud
schemes.3
The proposed rule furthers the goals
of Executive Order (E.O.) 13788, Buy
American and Hire American. See 82 FR
18837 (Apr. 21, 2017). The E.O.
articulates the executive branch policy
to ‘‘rigorously enforce and administer’’
the laws governing entry of
nonimmigrant workers into the United
States ‘‘[i]n order to create higher wages
and employment rates for workers in the
United States, and to protect their
economic interests.’’ Id. sec. 2(b). It
directs federal agencies, including the
Department, to protect U.S. workers by
proposing new rules and issuing new
guidance to prevent fraud and abuse in
nonimmigrant visa programs. Id. sec. 5.
The Department proposes to update
its H–2A regulations to ensure that
employers can access legal agricultural
2 See TEGL, No. 17–06, Change 1, Special
Procedures: Labor Certification Process for
Employers in the Itinerant Animal Shearing
Industry under the H–2A Program (June 14, 2011),
accessed at https://wdr.doleta.gov/directives/corr_
doc.cfm?docn=3041; TEGL, No. 33–10, Special
Procedures: Labor Certification Process for Itinerant
Commercial Beekeeping Employers in the H–2A
Program (June 14, 2011), accessed at https://
wdr.doleta.gov/directives/corr_doc.cfm?
DOCN=3043; TEGL, No. 16–06, Change 1, Special
Procedures: Labor Certification Process for MultiState Custom Combine Owners/Operators under the
H–2A Program (June 14, 2011), accessed at https://
wdr.doleta.gov/directives/corr_doc.cfm?
DOCN=3040.
3 See News Release, U.S. Secretary of Labor
Protects Americans, Directs Agencies to
Aggressively Confront Visa Program Fraud and
Abuse (June 6, 2017), https://www.dol.gov/
newsroom/releases/opa/opa20170606.
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labor, without undue cost or
administrative burden, while
maintaining the program’s strong
protections for the U.S. workforce. The
changes proposed in this NPRM would
enhance WHD’s enforcement
capabilities, thereby removing
workforce instability that hinders the
growth and productivity of our nation’s
farms, while allowing for aggressive
enforcement against program fraud and
abuse that undermine the interests of
U.S. workers, in accordance with E.O.
13771, Reducing Regulation and
Controlling Regulatory Costs. Below is
an overview of major proposed changes,
followed by a section-by-section
discussion of all proposed changes.
1. Mandatory Electronic Filing and
Electronic Signatures
a. Mandatory Electronic Filing
The Department proposes to require
electronic filing (e-filing) of
Applications for Temporary
Employment Certification and job orders
for most employers and, if applicable,
their authorized representatives. E-filing
will be required for the Form ETA–
9142A and appropriate appendices; the
Form ETA–790/790A and appropriate
addenda; and all applicable
documentation required by this subpart
to secure a temporary agricultural labor
certification from the Department,
including the surety bonds required for
H–2A Labor Contractors (H–2ALCs). In
addition, the Office of Management and
Budget’s (OMB) approved forms will
require employers and, if applicable,
their authorized representatives to
designate a valid email address for
sending and receiving official
correspondence concerning the
processing of these e-filings by the State
Workforce Agency (SWA) and National
Processing Center (NPC). The
requirement to submit electronic
Applications for Temporary
Employment Certification and job orders
would not apply in situations where the
employer is unable or limited in its
ability to use or access electronic forms
as result of a disability or lacks access
to e-filing.4
This proposal is intended to
maximize end-to-end electronic
processing of Applications for
Temporary Employment Certification
and job orders, which is an important
technological objective of the
Department. Although e-filing of
applications using OFLC’s iCERT Visa
4 The lack of a computer may or may not
constitute lack of access to e-filing under the
proposed regulation. It depends on the
circumstances presented by the employer at the
time of filing.
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Portal System (iCERT System) is not
currently mandated, in the Department’s
experience, employers prefer to use efiling to request temporary agricultural
labor certification in the H–2A program.
Based on temporary agricultural labor
certification applications processed
during fiscal years (FYs) 2016 and 2017,
more than 81 percent of employer H–2A
applications were submitted
electronically to the NPC for processing
using the iCERT System. When
compared to paper-filed applications,
preparing H–2A applications and
uploading supporting documentation
through the iCERT System resulted in
more complete submissions, better
quality entries on form fields, and more
streamlined processing using email as
the primary form of communication
with employers and, if applicable, their
authorized representatives.5 Further, the
Department’s experience indicates that
only a handful of H–2A employers did
not provide an email address on their
H–2A applications.
The Department has determined that
mandating e-filing will reduce costs and
burdens for most employers and for the
Department, reduce the frequency of
delays related to filing applications,
improve the quality of information
collected, and promote administrative
efficiency and accountability. For
employers and their authorized
representatives, the Department’s
proposal to require e-filing would
improve the customer experience by
permitting more prompt adjudication of
applications and reducing paperwork
burdens and mailing costs. E-filing
permits automatic notification that an
application is incomplete or obviously
inaccurate and provides employers with
an immediate opportunity to correct the
errors or upload the missing
documentation. This approach reduces
processing delays and costs for
employers who would otherwise need
to pay for expedited mail or private
courier services to submit corrected
applications.
Paper-based submissions are more
costly for the Department to process
than electronic submissions because
they require manual data entry of
information contained in the required
documents and manual uploading of
scanned copies of the documents into
the iCERT System’s electronic case
documents repository. As noted in a
2012 Government Accountability Office
5 Based on an analysis of 18,775 temporary labor
certification records processed during FY 2016 and
2017, approximately 66 percent of H–2A
applications mailed to the NPC were issued a
Notice of Deficiency (NOD), while approximately
47 percent of H–2A applications filed electronically
were issued a NOD.
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(GAO) report on the H–2A program,
paper-based submissions can result in
misplaced or lost documentation,
unnecessary communication delays
between employers and the
Government, and missed opportunities
to quickly resolve minor deficiencies in
the application process.6 Electronic
submissions, on the other hand, do not
require manual data entry by DOL and
can be instantaneously categorized and
assigned for review by the NPC. If an
Application for Temporary Employment
Certification filed electronically requires
amendments or other corrections, often
those amendments and corrections are
automatically entered into the iCERT
System. Furthermore, electronic
submissions are more likely to include
all necessary documentation and
information because the Department can
require validation of the form entries
and supporting documentation prior to
its submission.
The Department acknowledges that
there may be opportunity costs
associated with transitioning to a new
way of filing and costs associated with
changing familiar processes and
learning new systems. The Department
believes that the efficiencies gained in
processing by the Department from an
increase in electronic filing will
outweigh these costs. The Department
invites comment on this analysis.
Consistent with its adoption of
mandatory e-filing, the Department
plans to expand the capabilities of the
iCERT System to permit the electronic
execution and delivery of surety bonds.
As explained more fully in § 655.132,
accepting electronic surety bonds would
further streamline the application
process and reduce unnecessary delays,
while preserving the Department’s
ability to enforce such bonds.
The Department anticipates that
requiring e-filing will not require a
change of practice for the vast majority
of employers. Based on FY2019 data,
approximately 94.1 percent of H–2A
applications were filed electronically.
Almost all of the remaining 5.9 percent
of H–2A applications filed by mail also
disclosed valid email addresses on the
application form, thereby suggesting
that employers and, if applicable, their
authorized attorneys and agents have
access to the internet and are likely
capable of filing electronically.
Employers without means to file
electronically represent a small
percentage of all filers, and the
Department anticipates the very few
6 See GAO–12–706, H–2A Visa Program:
Modernization and Improved Guidance Could
Reduce Employer Application Burden (2012), U.S.
Government Accountability Office.
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employers without access to e-filing will
continue to decrease with the growth of
information technology and access to
the internet in rural areas. However, the
Department acknowledges that a small
number of employers may be unable to
take advantage of the more efficient efiling process. Therefore, the proposal
permits these employers to file using a
paper-based process if they lack
adequate access to e-filing. In addition,
the proposal establishes a process for
individuals with disabilities to request
an accommodation to allow these
employers to use or access forms and
communications from the Department.
The Department seeks comments on
its proposal to require e-filing. For
example, the Department would like to
know if there are members of the
regulated community, aside from those
already identified in the proposal, who
would be significantly burdened if the
Department requires e-filing. The
Department also seeks comments on efiling methodology, such as the
convenience or inconvenience of efiling and other advantages or
disadvantages of the e-filing process
compared to other filing processes.
b. Acceptance of Electronic Signatures
The Department proposes to promote
greater efficiencies in the application
process and establish parity between
paper and electronic documents by
expanding the ability of employers,
agents, and attorneys to use electronic
methods to comply with signature
requirements for the H–2A program. As
a matter of longstanding policy, the
Department considers an original
signature to be legally-binding evidence
of the intention of a person with regard
to a document, record, or transaction.
Since the implementation of an e-filing
option in December 2012, the
Department also has considered a
signature valid where the employer’s
original signature on a document
retained in the employer’s file is
photocopied, scanned, or similarly
reproduced for electronic transmission
to the Department, whether at the time
of filing or during the course of
processing an Application for
Temporary Employment Certification.
Although acceptance of electronic
(scanned) copies of original signatures
on documents has generated efficiencies
in the application process, modern
technologies and evolving business
practices are rendering the distinction
between original paper and electronic
signatures nearly obsolete, and the
Department and employers can achieve
even greater efficiencies using and
accepting electronic signature methods.
For instance, the use of electronic
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signature methods is necessary for the
Department to implement its proposal to
accept electronic surety bonds.
Under this proposed rule, the
Department would permit an employer,
agent, or attorney to sign or certify a
document required under this subpart
using a valid electronic signature
method. This proposal is consistent
with the principles of two Federal
statutes that govern an agency’s
implementation of electronic document
and signature requirements. First, the
Government Paperwork Elimination Act
(GPEA), Public Law 105.277, Title XVII
(Secs. 1701–1710), 112 Stat. 2681–749
(Oct. 21, 1998), 44 U.S.C. 3504 note,
requires Federal agencies to allow
individuals or entities that deal with the
agencies, when practicable, the option
to submit information or transact with
the agencies electronically and to
maintain records electronically. The
GPEA also specifically states that
electronic records and their related
electronic signatures are not to be
denied legal effect, validity, or
enforceability merely because they are
in electronic form, and encourages
Federal Government use of a range of
electronic signature alternatives. See
sections 1704, 1707 of the GPEA.
Second, the Electronic Signatures in
Global and National Commerce (E–
SIGN) Act, Public Law 106–229, 114
Stat. 464 (June 30, 2000), 15 U.S.C. 7001
et seq., generally provides that
electronic documents have the same
legal effect as their hard copy
counterparts.
The GPEA and E–SIGN Act adopt a
‘‘functional equivalence approach’’ to
electronic signature requirements where
the purposes and functions of the
traditional paper-based requirements for
a signature must be considered, and
how those purposes and functions can
be fulfilled in an electronic context. The
functional equivalence approach rejects
the precept that Federal agency
requirements impose on users of
electronic signatures more stringent
standards of security than required for
handwritten or other forms of signatures
in a paper-based environment.
Consistent with the GPEA, the
Department proposes to accept an
electronic signature on H–2A
applications as long as it (1) identifies
and authenticates a particular person as
the source of the electronic
communication; and (2) indicates such
person’s approval of the information
contained in the electronic
communication.7 In addition, OMB
7 Section 1710(1) of the GPEA. The definition of
electronic signature in the E–SIGN Act essentially
is equivalent to the definition in the GPEA. The
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guidelines state that a valid and
enforceable electronic signature would
require satisfying the following signing
requirements: (1) The signer must use
an acceptable electronic form of
signature; (2) the electronic form of
signature must be executed or adopted
by the signer with the intent to sign the
electronic record; (3) the electronic form
of signature must be attached to or
associated with the electronic record
being signed; (4) there must be a means
to identify and authenticate a particular
person as the signer; and (5) there must
be a means to preserve the integrity of
the signed record.8 The Department will
rely on best practices for electronic
signature safety, such as these five
signing requirements. Consistent with
the GPEA and E–SIGN Act, the
Department proposes to adopt a
technology ‘‘neutral’’ policy with
respect to the requirements for
electronic signature. That is, the
employer, agent, or attorney can apply
an electronic signature required on a
document using any available
technology that can meet the five
signing requirements.
The Department concludes that these
standards for electronic signature are
reasonable and accepted by Federal
agencies. Promoting the use of
electronic signatures would enable
employers, agents, and attorneys to
reduce printing, paper, and storage
costs. For employers that need to retain
and refer to multiple applications for
temporary agricultural labor
certification, the time and costs savings
can be considerable. For the
Department, implementing electronic
signatures would help reduce
operational costs and improve
processing efficiency, including through
the acceptance of electronic surety
bonds.
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2. Revisions to the Adverse Effect Wage
Rate and Prevailing Wage
Methodologies
The Department also proposes to
adjust the methodology used to
establish the required wage rate for the
H–2A program. Section 218(a)(1)(B) of
the INA, 8 U.S.C. 1188(a)(1)(B), provides
that an H–2A worker is only admissible
if the Secretary determines that ‘‘the
employment of the alien in such labor
or services will not adversely affect the
wages and working conditions of
E–SIGN Act defines an electronic signature as ‘‘an
electronic sound, symbol, or process, attached to or
logically associated with a contract or other record
and executed or adopted by a person with the intent
to sign the record.’’ 15 U.S.C. 7006(5).
8 Federal Chief Information Council, Use of
Electronic Signatures in Federal Organization
Transactions, Version 1.0 (Jan. 25, 2013).
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workers in the United States similarly
employed.’’ In 20 CFR 655.120(a), the
Department currently meets this
statutory requirement, in part, by
requiring an employer to offer, advertise
in its recruitment, and pay a wage that
is the highest of the adverse effect wage
rate (AEWR), the prevailing wage, the
agreed-upon collective bargaining wage,
the Federal minimum wage, or the State
minimum wage. The Department
proposes to maintain this wage structure
with only minor modifications.
Within this structure, the Department
proposes to establish separate AEWRs
by agricultural occupation to better
protect against adverse effect on the
wages of similarly employed workers in
the United States. In addition, updates
to the prevailing wage methodology
would set more practical standards that
would allow the Department to establish
reliable and accurate prevailing wage
rates for workers and employers.
The Department currently sets the
AEWR for all H–2A job opportunities at
the annual average hourly gross wage
for field and livestock workers
(combined) for the state or region from
the Farm Labor Survey (FLS) conducted
by the U.S. Department of Agriculture’s
(USDA) National Agricultural Statistics
Service (NASS). Using this
methodology, the Department is
currently able to establish an AEWR for
every State except for Alaska, which is
not covered by the FLS.
The Department proposes to set the
AEWR for a particular agricultural
occupation at the annual average hourly
gross wage for that agricultural
occupation in the State or region
reported by the FLS when the FLS is
able to report such a wage. If the FLS
does not report a wage for an
agricultural occupation in a State or
region, the Department proposes to set
the AEWR at the statewide annual
average hourly wage for the standard
occupational classification (SOC) from
the Occupational Employment Statistics
(OES) survey conducted by the
Department’s Bureau of Labor Statistics
(BLS). This change to an occupationbased wage is intended to produce more
accurate AEWRs than under the current
practice of establishing a single rate for
all agricultural workers in a state or
region. The proposal reflects the
Department’s concern that the current
AEWR methodology may have an
adverse effect on the wages of workers
in higher-paid agricultural occupations,
such as supervisors of farmworkers and
construction laborers on farms, whose
wages may be inappropriately lowered
by an AEWR established from the wages
of field and livestock workers
(combined). This is because the category
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of field and livestock workers
(combined) from the FLS does not
include workers who USDA classifies as
supervisors; ‘‘other workers,’’ such as
agricultural inspectors, animal breeders,
and pesticide handlers and sprayers; or
contract and custom workers. In
addition, the use of generalized data for
agricultural occupations within the field
and livestock (combined) classification
could produce a wage rate that is not
sufficiently tailored to the wage
necessary to protect against adverse
effect for those occupations because that
category aggregates the wages of workers
performing significantly different job
duties, such as agricultural equipment
operators and crop laborers.
In addition, the Department proposes
to modernize the current methodology
used to conduct prevailing wage
surveys, which applies to both H–2A
and other job orders that use the
Wagner-Peyser Act agricultural
recruitment system. ETA Handbook 385
(Handbook 385 or the Handbook),9
which pre-dates the creation of the H–
2A program and has not been updated
since 1981, currently sets the
methodology used to establish
prevailing wage rates for all agricultural
job orders. The Handbook sets
standards, including a requirement for
in-person interviews, which are
inconsistent with available resources at
the state and federal levels. Due to the
difficulty of implementing these
resource-intensive standards, the SWAs
are often required to report ‘‘no finding’’
from prevailing wage surveys; therefore,
the surveys are both costly and fail to
meet the aim of producing reliable
prevailing wage rates. Accordingly, the
Department proposes to update the
prevailing wage standards to allow the
SWAs and other state agencies to
conduct surveys using more practical
standards and establish reliable and
accurate prevailing wage rates for
workers and employers.
3. Incorporation of Certain Training and
Employment Guidance Letters Into the
H–2A Regulatory Structure
Similar to the Department’s approach
to incorporate the standards and
procedures for sheep herders, goat
herders, and the range production of
livestock into regulations promulgated
in 2015—and following the decision of
the United States Court of Appeals for
the District of Columbia in Mendoza v.
Perez, 754 F.3d 1002 (D.C. Cir. 2014),
explained below—the Department now
9 See ETA Handbook No. 385 (Aug. 1981),
available at https://
www.foreignlaborcert.doleta.gov/pdf/et_385_wage_
finding_process.pdf.
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proposes to incorporate into the H–2A
regulations, with some modifications,
the standards and procedures related to
animal shearing, commercial
beekeeping, and custom combining in
this NPRM. These standards and
procedures are currently found in
Temporary and Employment Guidance
Letters (TEGL). The proposed standards
and procedures, if adopted, would be
incorporated at 20 CFR part 655 subpart
B, 655.300 through 655.304.
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4. The Definition of Agriculture
The Department proposes to expand
the definition of ‘‘agriculture’’ under the
H–2A program to include reforestation
and pine straw activities. As further
discussed below, although temporary
foreign workers engaged in reforestation
and pine straw activities are currently
admitted under the H–2B program,
these workers share many of the same
characteristics as traditional agricultural
crews.
5. The 30-Day Rule
The Department proposes to replace
the 50 percent rule with a 30-day rule
requiring employers to provide
employment to any qualified, eligible
U.S. worker who applies for the job
opportunity until 30 calendar days from
the employer’s first date of need on the
certified Application for Temporary
Employment Certification, and a longer
recruitment period for those employers
who choose to stagger the entry of H–
2A workers into the United States, as
explained below. Under the current
regulation, an employer granted
temporary agricultural labor
certification must continue to provide
employment to any qualified, eligible
U.S. worker who applies until 50
percent of the period of the work
contract has elapsed. The obligation to
hire additional workers mid-way
through a season is disruptive to
agricultural operations and makes it
difficult for agricultural employers to be
certain they will have a steady, stable,
properly trained, and fully coordinated
workforce. Since the implementation of
the current regulation, the Department
has collected a significant amount of
data that shows that a very low number
of U.S. workers apply for the job
opportunity within 30 days after the
start date of work, and even fewer after
that.
Section 218(c)(3)(B)(iii) of the INA, 8
U.S.C. 1188(c)(3)(B)(iii), tasked the
Department with determining whether
agricultural employers should be
required by regulation to hire U.S.
workers after H–2A workers have
already departed for the place of
employment. These provisions suggest
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that, in making this determination, the
Department should weigh the ‘‘benefits
to United States workers and costs to
employers.’’ Based on available data, it
appears that the costs of the rule to
employers outweigh any benefits the
rule may provide to U.S. workers.
Replacing the 50 percent rule with a
rule requiring employers to hire
qualified, eligible U.S. worker
applicants for a period of 30 days after
the employer’s first date of need will
balance the needs of workers and
employers. Requiring employers to hire
workers 30 days into the contract
period, while still disruptive to
agricultural operations, shortens the
period during which such disruptions
may occur and restores some stability to
employers that depend on the H–2A
program. Providing U.S. workers the
ability to apply for these job
opportunities 30 days into the contract
period ensures that U.S. workers still
have access to these jobs after the start
of the contract period during the period
of time they are most likely to apply.
6. Staggered Entry
The Department proposes to permit
the staggered entry of H–2A workers
into the United States. Under this
proposal, any employer that receives a
temporary agricultural labor
certification and an approved H–2A
Petition may bring nonimmigrant
workers into the United States at any
time up to 120 days after the first date
of need identified on the certified
Application for Temporary Employment
Certification without filing another H–
2A Petition. If an employer chooses to
stagger the entry of its workers, it must
continue to accept referrals of U.S.
workers and hire those who are
qualified and eligible through the period
of staggering or the first 30 days after the
first date of need identified on the
certified Application for Temporary
Employment Certification, whichever is
longer. This proposal will provide
employers with the flexibility to
accommodate changing weather and
production conditions that are inherent
to agricultural work. It will also reduce
the need for employers to file multiple
Applications for Temporary
Employment Certification for same
occupational classification in which the
only difference is the expected start date
of work, thus improving efficiencies for
both employers and the Department.
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II. Discussion of Proposed Revisions to
20 CFR Part 655, Subpart B; 20 CFR
653.501(c)(2)(i); and 29 CFR Part 501
A. Introductory Sections
1. Section 655.100, Scope and Purpose
of Subpart B
The proposed revisions to this section
clarify the statutory authority for the H–
2A temporary agricultural labor
certification process, and the scope of
the Department’s role in receiving,
reviewing, and adjudicating
applications for temporary agricultural
labor certification, and upholding the
integrity of Applications for Temporary
Employment Certification. These
revisions also clarify the Department’s
authority to establish standards and
obligations with respect to the terms
and conditions of the temporary
agricultural labor certification with
which H–2A employers must comply, as
well as the rights and obligations of H–
2A workers and workers in
corresponding employment.
2. Section 655.101, Authority of the
Agencies, Offices, and Divisions of the
Department of Labor; and 29 CFR 501.1,
Purpose and Scope
The revisions to this section clarify
the delegated authority of, and division
of responsibilities between, ETA and
WHD under the H–2A program. This
section addresses the delegated
authority of OFLC, the office within
ETA that exercises the Secretary’s
responsibility for determining the
availability of qualified U.S. workers to
perform the temporary agricultural labor
or services, and whether the
employment of the H–2A workers will
adversely affect the wages and working
conditions of workers in the United
States similarly employed. This
provision also discusses the authority
delegated to WHD, the agency
responsible for investigation and
enforcement of the terms and conditions
of H–2A temporary agricultural labor
certifications. Finally, this provision
reminds program users of each agency’s
concurrent authority to impose a
debarment remedy when appropriate
under ETA regulations at 20 CFR
655.182 or under WHD regulations at 29
CFR 501.20.
3. Section 655.102, Transition
Procedures
a. Proposal To Rescind the Provision
That Allows for the Creation of Special
Procedures
Special procedures in the H–2A
program were based upon a
determination that variations from the
normal labor certification processes
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were necessary to permit the temporary
employment of foreign workers in
specific industries or occupations when
able, willing, and qualified U.S. workers
were not available and the employment
of foreign workers would not adversely
affect the wages or working conditions
of workers in the United States similarly
employed. The H–2A regulations have,
since their creation, provided authority
for the Department to ‘‘establish,
continue, revise, or revoke special
procedures for processing certain H–2A
applications.’’ 20 CFR 655.102.
In Mendoza v. Perez, 754 F.3d 1002,
1022 (D.C. Cir. 2014), the D.C. Circuit
concluded that 20 CFR 655.102 was ‘‘a
grant of unconstrained and undefined
authority [, and the] purpose of the
[Administrative Procedure Act (APA)]
would be disserved if an agency with a
broad statutory command . . . could
avoid notice-and-comment rulemaking
simply by promulgating a comparably
broad regulation . . . and then invoking
its power to interpret the statute and
regulation in binding the public to a
strict and specific set of obligations.’’
Accordingly, the court in Mendoza
specifically held that the special
procedures pertaining to sheep, goat,
and cattle herding issued under
§ 655.102 were subject to the APA’s
notice and comment requirements
because they possess all the hallmarks
of a legislative rule and could not be
issued through sub-regulatory guidance.
754 F.3d at 1024 (‘‘The [special
procedures] are necessarily legislative
rules because they ‘effect [ ] a
[substantive] change in existing law or
policy,’ and ‘effectively amend[ ] a prior
legislative rule.’ ’’) (citations omitted).
In light of Mendoza, the Department
proposes to rescind from the H–2A
regulations the general provision that
allows for the creation of special
procedures that establish variations for
processing certain Applications for
Temporary Employment Certification.
The Department proposes, in this
NPRM, procedures for handling
applications for each of the occupations
that currently have special procedures
under this authority: Animal shearing,
commercial beekeeping, and custom
combining. The Department also
proposes procedures for handling
applications involving reforestation,
which, as discussed in detail below, the
Department proposes to include within
the H–2A definition of agriculture
activities.
b. Proposal To Add a Provision
Providing Procedures for Implementing
Changes Created by a Final Rule
The Department proposes to rename
§ 655.102, ‘‘Transition procedures,’’ and
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add a transition period in order to
provide an orderly and seamless
transition for implementing changes
created by these proposed regulatory
revisions, if adopted in a final rule.
Generally, the Department processes all
applications in accordance with the
rules in effect on the date the
Application for Temporary Employment
Certification is submitted. However,
based on the Department’s program
experience, a transition period will help
provide employers and other
stakeholders with time to understand
and comply with regulatory revisions
affecting the assurances and obligations
of the H–2A program to obtain and
employ workers under a temporary
agricultural labor certification.
Similarly, a transition period will allow
the Department to implement necessary
changes to program operations,
application forms, technology systems,
and to provide training and technical
assistance to OFLC, SWAs, employers,
and other stakeholders in order to
familiarize them with changes required
by this proposed rule.
Accordingly, the Department
proposes that any application submitted
by an employer prior to the effective
date of a final rule must meet regulatory
requirements and will be processed by
the NPC in accordance with the 2010
Final Rule. The Department also
proposes to establish a transition period
that will apply to any application for
which the first date of need for H–2A
workers is no earlier than the effective
date of a final rule and not later than the
date that is 90 calendar days after the
effective date of a final rule.
Specifically, an employer submitting an
application on or after the effective date
of a final rule, where the first date of
need for H–2A workers is not later than
90 calendar days after the effective date
of a final rule, will continue to meet
regulatory requirements and will be
processed by the NPC in accordance
with the current regulation. Thus, the
Department proposes to establish a 90day transition period in which
employers are allowed to continue filing
applications and receive temporary
agricultural labor certifications under
the regulatory requirements set forth in
the current regulation. However, all
applications submitted by employers on
or after the effective date of a final rule,
where the first date of need for H–2A
workers is later than 90 calendar days
after the effective date of a final rule,
will be expected to fully comply with
all of the requirements of a final rule.
The Department invites comments on
the length of the transition period,
including impact and costs associated
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with a transition period longer or
shorter than 90 days.
4. Section 655.103, Overview of This
Subpart and Definition of Terms; 20
CFR 653.501(c)(2)(i) of the Wagner
Peyser Act Regulations; and 29 CFR
501.3, Definitions
a. Paragraph (b), Definitions; and 20
CFR 653.501(c)(2)(i)
i. Adverse Effect Wage Rate
The current regulation provides that
the AEWR is set at the annual weighted
average hourly wage for field and
livestock workers (combined) based on
the USDA’s FLS. To be consistent with
the Department’s proposal to adjust the
current AEWR methodology, the
Department proposes conforming
changes to the definition of AEWR in
this section. The Department discusses
the proposed changes to the AEWR
methodology in the preamble to
§ 655.120.
ii. Administrator, OFLC Administrator,
WHD Administrator, and Wage and
Hour Division
The current regulation defines the
OFLC Administrator as the primary
official of the OFLC or the OFLC
Administrator’s designee. The
Department proposes to add an
equivalent definition of ‘‘WHD
Administrator’’ to clarify that the OFLC
and WHD Administrators have unique
roles in the H–2A temporary
agricultural labor certification process.
Additionally, the Department proposes
to add a definition of ‘‘Administrator’’
that cross references the definitions of
OFLC Administrator and WHD
Administrator so that interested parties
may be able to locate these definitions
more easily. Finally, the Department
proposes to add a definition of ‘‘Wage
and Hour Division’’ to provide a clear
definition of a term used throughout the
current and proposed regulations.
iii. Area of Intended Employment
The Department proposes a minor
amendment to the definition of ‘‘area of
intended employment’’ that replaces the
terms ‘‘place of the job opportunity’’
and ‘‘worksite’’ with the term ‘‘place(s)
of employment,’’ consistent with the
proposed inclusion and definition of
‘‘place(s) of employment’’ in this
section. Based on the factual
circumstances of each application, the
Certifying Officer (CO) will continue
using the term ‘‘area of intended
employment’’ to assess whether each
place of employment is within normal
commuting distance from the first place
of employment or, if designated, the
centralized ‘‘pick-up’’ point (e.g.,
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worker housing) to every other place of
employment identified in the
application and job order. The
Department maintains that the
recruitment of U.S. workers is most
effective when the work performed
under the job order is advertised to
workers residing in the local or regional
area and enables them to return to their
permanent places of residence on a
daily basis rather than traveling long
distances to reach the places of
employment. Longer than normal
commuting times, transportation issues,
geographic barriers, or the need to live
away from home are all factors that can
discourage U.S. workers from accepting
a temporary agricultural job
opportunity, making it challenging for
the Department to accurately assess
whether there are sufficient U.S.
workers who are able, willing, and
qualified to perform the labor or
services involved in the application.
However, the Department
acknowledges that the absence of a clear
and objective standard for normal
commuting distance in the definition of
area of intended employment makes it
difficult for employers to understand
and predict how the Department will
review the geographic scope of their job
opportunities. Accordingly, the
Department invites comments on
whether it should further revise the
definition of area of intended
employment. Specifically, the
Department is interested in comments
focused on whether there are objective
factors, commuting or labor market area
designation systems, or other
comprehensive commuting studies and
data that can be used to more effectively
determine normal commuting distances
for the purpose of the Department’s
implementation of the H–2A program.
The Department is also interested in
comments on whether it should
continue making fact-based
determinations on a case-by-case basis,
or whether it should impose a more
uniform standard for all employers,
such as maximum commuting distance
or time above which will be considered
an unreasonable commuting distance or
time in all cases. Comments submitted
under this proposed rule should address
the advantages and disadvantages of
each suggested alternative, and how
implementation of the alternative will
ensure the integrity of the labor market
test and provide greater clarity to
employers with respect to what
constitutes a normal commuting
distance to the places of employment
identified in their applications and job
orders.
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iv. Average AEWR
The Department proposes to define a
new term ‘‘average adverse effect wage
rate’’ to complement proposed changes
to § 655.132. As discussed more fully
later in this preamble, the Department
proposes to change the H–2A Labor
Contractor (H–2ALC) surety bond
requirement such that the required bond
amounts adjust annually based on
changes to a nationwide average AEWR.
The Department will calculate and
publish the average AEWR annually
when it calculates and publishes
AEWRs in accordance with
§ 655.120(b).10 The average AEWR will
be calculated as a simple average of the
published AEWRs applicable to the SOC
45–2092 (Farmworkers and Laborers,
Crop, Nursery, and Greenhouse). This
classification was chosen to benchmark
the required bond amounts because the
majority of workers employed by H–
2ALCs perform work in this
classification.
v. Employer and Joint Employment
Section 218 of the INA generally
recognizes that growers, agricultural
associations, and H–2A labor
contractors that file applications are
employers or joint employers.11 In
conformity with the statute as well as
the Department’s current policy and
practice, the Department proposes to
clarify the definitions of employer and
joint employment with respect to the H–
2A program to include those entities the
statute recognizes as employers or joint
employers. First, the Department
proposes to add language to the
definition of joint employment in the
H–2A program that clarifies that an
agricultural association that files an
application as a joint employer is, at all
times, a joint employer of all H–2A
workers sponsored under the
application and, if applicable, of
corresponding workers. Second, the
Department proposes to clarify the
definition of joint employment to
include an employer-member of an
agricultural association that is filing as
a joint employer, but only during the
10 The Department published the 2018 AEWRs for
non-range occupations in Notice, Labor
Certification Process for the Temporary
Employment of Aliens in Agriculture in the United
States: 2018 Adverse Effect Wage Rates for NonRange Occupations, 82 FR 60628 (Dec. 21, 2017).
11 See 8 U.S.C. 1188(c)(2) (‘‘The employer shall be
notified in writing within seven days of the date of
filing if the application does not meet the [relevant]
standards . . . .’’); 8 U.S.C. 1188(c)(3)(A)(i) (‘‘The
Secretary of Labor shall make . . . the certification
described in subsection (a)(1) if . . . the employer
has complied with the criteria for certification . . .
.’’); 8 U.S.C. 1188(d)(2) (‘‘If an association is a joint
or sole employer of temporary agricultural workers
. . . [H–2A] workers may be transferred among
[employer]-members’’).
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period in which the member employs
H–2A workers sponsored under the
association’s joint employer application.
Third, the Department proposes a slight
change to the joint employment
language in the current regulation to
more expressly codify that the common
law of agency determines joint employer
status under the statute. Fourth, the
Department proposes to add language to
the definition of joint employment with
respect to the H–2A program that would
clarify that growers who file the joint
employer application proposed in
§ 655.131(b) are joint employers, at all
times, with respect to the H–2A workers
sponsored under the application and, if
applicable, any corresponding workers.
Fifth, in addition to the proposed
changes to the definition of joint
employment, the Department proposes
to add language to the definition of
employer to clarify that a person who
files an application other than as an
agent is an employer. Sixth, the
Department proposes to add language to
the definition of employer to clarify that
a person on whose behalf an application
is filed is an employer. These proposed
revisions reflect the Department’s
longstanding administrative and
enforcement practice that is already
familiar to employers.
Controlling judicial and
administrative decisions provide that to
the extent a federal statute does not
define the term employer, the common
law of agency governs whether an entity
is an employer.12 Accordingly, the
proposal continues to use the common
law of agency to define the terms
employer and joint employment for
associations and growers that have not
filed applications. Thus, for example,
under the Department’s current and
continuing enforcement policy—with
which employers are already familiar—
if an agricultural association files as a
joint employer, the association’s
employer-members are only joint
employers with the association when
they are jointly employing the H–2A or
corresponding worker under the
common law of agency.
The Department additionally notes
that the current H–2A program
definitions of employer and joint
12 See Nationwide Mutual Insurance v. Darden,
503 U.S. 318, 322–24 (1992); Garcia-Celestino v.
Ruiz Harvesting, 843 F.3d 1276, 1288 (11th Cir.
2016); Admin. v. Seasonal Ag. Services, Inc., 2016
WL 5887688, at *6 (ARB, Sept. 30, 2016). The focus
of the common law standard is the ‘‘hiring entity’s
‘right to control the manner and means by which
the product is accomplished.’ ’’ Ruiz Harvesting,
843 F.3d at 1292–93 (quoting Darden, 503 U.S. at
323). Application of the standard typically entails
consideration of a variety of factors. See Ruiz
Harvesting, 843 F.3d at 1293 (citing Darden, 503
U.S. at 323–24).
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employment, as well as those the
Department proposes herein, are
different from the definitions of
‘‘employer,’’ ‘‘employee,’’ ‘‘employ’’ in
the Fair Labor Standards Act, 29 U.S.C.
201 et seq. (FLSA) and the definition of
‘‘employ’’ in the Migrant and Seasonal
Agricultural Worker Protection Act, 29
U.S.C. 1801 et seq. (MSPA). Thus, the
statutory definitions in the FLSA and
MSPA that determine the existence of
an employment relationship or joint
employer status neither apply nor are
relevant to the determination of whether
an entity is an H–2A employer or joint
employer.
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Employer-Member Responsibility for
Violations Committed Under a Joint
Employer Application Filed by an
Agricultural Association
Consistent with existing practice,
when an agricultural association files a
joint employer application, an
employer-member of that association is
an employer of the H–2A workers
during the time when those workers
perform work or services for the
member. When only one employermember is employing the H–2A workers
at the time of a program violation, only
that employer-member and its
agricultural association are
economically responsible for program
violations.
Joint Employer Applications Under
Proposed § 655.131(b)
Proposed § 655.131(b) generally
codifies the Department’s longstanding
practice with regard to joint employer
applications. Each grower party to a
§ 655.131(b) joint employer application
will be jointly liable for compliance
with all H–2A program requirements.
Thus, for example, if employer C and
employer D file a joint employer
application under proposed § 655.131(b)
and employer C fails to pay the H–2A
workers the required wage, employer D
will be jointly liable for employer C’s
violations. This codification of ongoing
administrative and enforcement policy
towards employers that have filed as
joint employers under the program is
designed to maintain consistency with
the Department’s well-known practices
that are already familiar to employers.
The Department’s approach to joint
employment under § 655.131(b)—which
aims to accommodate small growers that
do not have full time work for their H–
2A employees—is implied by the
statute. The statute specifically
contemplates that filers (other than
agents) are employers and only
expressly permits an entity (i.e., an
agricultural association) to transfer H–
2A workers when the entity agrees to
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retain program responsibility with
respect to the workers it transfers.13
Therefore, the Department must require
entities that jointly apply for H–2A
workers, who they intend to transfer
among themselves, to retain program
responsibility for the transferred
workers and, if applicable, any
corresponding workers.
This proposed approach provides a
flexible application system that
harmonizes with the statutory language.
Growers who prefer not to assume the
shared liability under the proposed joint
employer application may file through
an agricultural association acting as a
joint or sole employer. In addition to
conformity with the statute, the
Department’s proposed approach is also
consistent with judicial authority.14
Department’s Approach to Imposing
Liability Among Culpable Joint
Employers
The Department will continue to
apply its longstanding policy with
respect to imposing liability among
culpable joint employers. This policy
includes consideration of the factors at
29 CFR 501.19(b) when the Department
assesses civil money penalties. The
Department applies these factors to joint
employers on a case-by-case basis. For
example, if the Department determines
an agricultural association achieved no
financial gain from an employermember’s failure to pay the required
wage to H–2A or corresponding
workers, but that the employer-member
achieved significant financial gain, the
civil money penalty, if any, applicable
to the association would likely be less
than that applicable to the employermember for this violation.
Proposal To Move Certain Requirements
in the Definition of Employer
The current definition of employer in
the H–2A program requires an employer
to have a place of business in the United
States and a means of contact for
employment as well as a Federal
Employer Identification Number (FEIN).
The Department proposes to move these
requirements to §§ 655.121(a)(1) and
655.130(a). The proposal will require a
prospective employer to include its
FEIN, its place of business in the United
States and a means of contact for
employment in both its job order
submission to the NPC, and its
8 U.S.C. 1188(d)(2).
v. D&S Produce, 447 F.
Supp. 2d 954, 960–62 (E.D. Ark. 2006) (ruling
entities that jointly applied to employ H–2A
workers are joint employers of the workers and
rejecting application of agricultural association
liability principles when the joint employers had
not filed through an association).
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14 Martinez-Bautista
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Application for Temporary Employment
Certification.
vi. First Date of Need and Period of
Employment
The Department proposes to define
the term ‘‘first date of need’’ as the first
date on which the employer anticipates
requiring the temporary agricultural
labor or services for which it seeks a
temporary agricultural labor
certification. This is the date that
appears on the employer’s job order and
Application for Temporary Employment
Certification as the start date of work for
the job opportunity and will be used in
recruitment and for calculating program
requirements (e.g., the positive
recruitment period under § 655.158). By
including the term ‘‘anticipated,’’ the
Department’s proposed definition
would provide a limited degree of
flexibility for the actual start date of
work for some or all of the temporary
workers hired, which may vary due to
such factors as travel delays or crop
conditions at the time work is expected
to begin. Provided that the employer
complies with all obligations to workers
(e.g., providing housing and subsistence
at no cost to workers as set forth in
§ 655.145(b)), the employer’s actual start
date of work may occur within 14
calendar days after the anticipated first
date of need listed on the temporary
agricultural labor certification.
Additionally, the Department proposes
to define the term ‘‘period of
employment’’ as the time during which
the employer requires the temporary
agricultural labor or services for which
it seeks a temporary agricultural labor
certification, as indicated by the first
date of need and the last date of need
provided on the employer’s job order
and Application for Temporary
Employment Certification.
vii. Prevailing Wage
The current H–2A regulation defines
‘‘prevailing wage’’ as ‘‘[w]age
established pursuant to 20 CFR
653.501(d)(4),’’ which is the WagnerPeyser Act regulation that covers
clearance of both H–2A and non-H–2A
agricultural job orders. Due to regulatory
revisions to part 653 under the
Workforce Innovation and Opportunity
Act, § 653.501(d)(4) no longer addresses
prevailing wages but rather discusses
the referral of workers.15 While
§ 653.501(c)(2)(i) contains the
requirement that the SWA must ensure
that job orders provide that the
employer has offered not less than the
15 See Final Rule, Workforce Innovation and
Opportunity Act, 81 FR 56071, 56346–48 (Aug. 19,
2016) (amending § 653.501).
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higher of the prevailing wage rate or
applicable Federal or State minimum
wage, nothing in part 653 addresses
how that prevailing wage is established.
As discussed in detail below, the
Department proposes to modernize the
longstanding sub-regulatory guidance
that it uses to establish prevailing wages
and replace the existing methodology
with a new methodology, as set forth in
proposed regulatory text in 20 CFR
655.120 and discussed in the preamble
to that section. Accordingly, the
Department proposes to conform
changes to the regulatory definition of
prevailing wage in § 655.103 to cross
reference that new proposed
methodology at § 655.120(c). The
Department proposes to use the same
methodology to establish the prevailing
wage for both H–2A and non-H–2A
agricultural job orders. As a result, the
Department proposes to make a
corresponding change to the WagnerPeyser Act regulation at 20 CFR
653.501(c)(2)(i) to define ‘‘prevailing
wage’’ for the agricultural recruitment
system in the same manner as the
Department proposes to define
‘‘prevailing wage’’ for the H–2A
program in 20 CFR 655.103(b).
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viii. Temporary Agricultural Labor
Certification
The Department also proposes
revisions to the definition of ‘‘temporary
agricultural labor certification.’’ Under
the proposal, the definition clarifies that
the certification made by OFLC is made
based on the information contained in
the Application for Temporary
Employment Certification, the job order,
and all supporting documentation
submitted to the Department in the
course of processing the application and
job order. Under the current regulation,
the definition does not make it clear that
the Department’s determination is based
on all of these documents, though OFLC
can and does consider that information
in processing H–2A applications. The
proposed revision would codify the
Department’s long-standing practice to
base the certification determination on
the information contained in those
documents, demonstrating compliance
with regulatory requirements.
ix. Additional definitions
The Department proposes to add
definitions of other terms for clarity:
Act, applicant, Application for
Temporary Employment Certification,
Board of Alien Labor Certification
Appeals (BALCA), Chief ALJ,
Department of Homeland Security,
Employment and Training
Administration, H–2A Petition,
Metropolitan Statistical Area, piece rate,
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place of employment, Secretary of
Labor, Secretary of Homeland Security,
and U.S. Citizenship and Immigration
Services.
b. Paragraph (c), Definition of
Agricultural Labor or Services
The Department proposes to expand
the regulatory definition of agricultural
labor or services pursuant to section
101(a)(15)(H)(ii)(a) of the INA, 8 U.S.C.
1101(a)(15)(H)(ii)(a), to include
reforestation and pine straw activities,
which have similar fundamental
characteristics to occupations currently
defined as agricultural labor or services
by statute or by the Secretary. When
considering the Department’s
enforcement experience and
reconsidering comments on past
proposed rules, the Department has
determined that reforestation and pine
straw activities are more appropriately
included in the H–2A program than in
the H–2B program. In view of the
changes that have taken place since the
last proposal to include these activities
in the H–2A program, it is appropriate
to again seek comment on this issue.
Although the Department cannot
immediately anticipate the full impact
of shifting these specific activities to the
H–2A program, it notes that ‘‘Forest &
Conservation Workers’’ have been the
second leading occupation in DOL’s
certification of H–2B temporary labor
certifications, with upwards of 11,000
certified positions annually in each of
the last two fiscal years (FY17 and
FY18). However, it is unlikely that all of
these certified positions would have
been filled with foreign H–2B workers
due to the H–2B visa cap.
The proposed rule defines
reforestation activities as predominantly
manual forestry operations associated
with developing, maintaining, or
protecting forested areas including, but
not limited to, planting tree seedlings in
specified patterns using manual tools,
and felling, pruning, pre-commercial
thinning, and removing trees and brush
from forested areas. This definition
encompasses tasks that are normally
associated with reforestation work and
the cultivation of trees or other forestry
products, regardless of whether the
result of such cultivation is timber or a
forested area for conservation purposes.
Reforestation activities may include
some forest fire prevention or
suppression duties such as constructing
fire breaks or performing prescribed
burning tasks when such duties are in
connection with and incidental to other
reforestation activities. Forest fire
protection or suppression duties are
reforestation activities only when
incidental to and performed as part of
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tree or forest product cultivation. For
example, reforestation crews engaged in
thinning to accelerate growth of
immature trees may also construct a fire
break, and reforestation crews engaged
in planting may perform a prescribed
burn prior to planting seedlings. This
definition does not include regular and
routine work of a forest firefighting crew
and performance of job duties such as
rescuing fire victims, administering first
aid, locating fires, or monitoring
environmental conditions for fire risk.
The proposed rule also states that
reforestation activities do not include
vegetation management activities in and
around utility, highway, railroad, or
other rights-of-way. As defined here,
reforestation activities exclude
vegetation management activities that
are not associated with the cultivation
of trees or other forestry products for
timber or conservation purposes. 16 This
includes, but is not limited to, right-ofway vegetation management activities
such as the removal of vegetation that
may interfere with utility lines or linesof-sight, herbicide application, brush
clearing, mowing, cutting, and tree
trimming around roads, railroads,
transmission lines, and other rights-ofway. Consequently, employers seeking
temporary foreign workers for
occupations involving these activities
will have to file under the H–2B
program and meet all applicable
program requirements.
The proposed rule defines pine straw
activities as ‘‘[o]perations associated
with clearing the ground of underlying
vegetation, pine cones, and debris; and
raking, lifting, gathering, harvesting,
baling, grading, and loading of pine
straw for transport from pine forests,
woodlands, pine stands, or plantations.’’
As required by the INA, the definition
of agricultural labor or services
encompasses certain statutory
16 The definition of reforestation activities in the
proposed rule excludes right-of-way vegetation
management because this work does not involve the
handling or planting of trees or other forestry
products as an agricultural or horticultural
commodity. Although right-of-way vegetation
management involves similar activities as
performed in reforestation (i.e., brush clearing and
tree trimming), the result of these activities is the
destruction of vegetation, not cultivation. Right-ofway vegetation management therefore is more akin
to landscaping, which is generally recognized as a
non-agricultural industry and would be
inappropriate to include within the scope of the H–
2A program. The Department has also previously
opined that right-of-way vegetation management
does not constitute agricultural employment as
defined by the Migrant and Seasonal Agricultural
Worker Protection Act (MSPA), thereby further
distinguishing this industry from reforestation
activities as defined here, which do constitute
MSPA agricultural employment. See WHD Opinion
Letter, June 11, 2002.
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definitions,17 as well as occupations
defined as such by the Secretary in
regulations. Prior to the 2008 Final
Rule,18 the Secretary did not use his
authority to expand the scope of
agricultural labor or services beyond
those activities that the statute required
to be included, none of which normally
included reforestation or pine straw
activities. The 2008 Final Rule
expanded the definition of agricultural
labor or services to include logging
employment,19 which the current
regulation maintained and further
clarified. See 2010 Final Rule, 75 FR
6884, 6981. Although reforestation and
pine straw activities are generally
recognized as sub-industries of forestry,
they do not generally meet the
definition of logging employment and
therefore were excluded from the
definition of agricultural labor or
services.
Consequently, nonimmigrant workers
engaged in reforestation and pine straw
activities as defined in the proposed
rule historically have been and are
currently admitted under the H–2B
program. However, these activities, as
defined in the proposed rule, share
fundamental similarities with
traditional agricultural industries.
Specifically, both reforestation and pine
straw activities can involve the handling
or planting of agricultural and
horticultural commodities in their
unmanufactured state and include tasks
that are substantially similar to
traditional agriculture, such as planting,
weed control, herbicide application, and
other unskilled tasks related to
preparing the site and cultivating the
soil. See 2008 Final Rule, 73 FR 77110,
77118. Additionally, the working
conditions have similar characteristics
to those encountered in agricultural
industries; reforestation activities are
commonly performed by migrant crews
and overseen by labor contractors, occur
in remote locations, and are frequently
17 Specifically, section 101(a)(15)(H)(ii)(a) of the
INA, 8 U.S.C. 1101(a)(15)(H)(ii)(a), identifies that, in
addition to industries defined as such by the
Secretary, the definition of agricultural labor or
services includes ‘‘agricultural labor defined in
section 3121(g) of the Internal Revenue Code of
1986, agriculture as defined in section 3(f) of the
Fair Labor Standards Act of 1938, as amended
(FLSA), 29 U.S.C. 203(f), and the pressing of apples
for cider on a farm.’’
18 See Final Rule, Temporary Agricultural
Employment of H–2A Aliens in the United States;
Modernizing the Labor Certification Process and
Enforcement, 73 FR 77110, 77212 (Dec. 18, 2008)
(2008 Final Rule).
19 See Final Rule, Temporary Agricultural
Employment of H–2A Aliens in the United States;
Modernizing the Labor Certification Process and
Enforcement, 73 FR 77110, 77212 (Dec. 18, 2008)
(2008 Final Rule).
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paid on a piece rate basis.20 Due to these
similarities, work in both the
reforestation and pine straw industries,
as defined in this proposed rule, often
meets the definition of agricultural
employment under the Migrant and
Seasonal Agricultural Worker Protection
Act (MSPA) 21 and of agricultural
employers under the Occupational
Safety and Health (OSH) Act’s field
sanitation standards.
In past rulemakings, these
fundamental similarities prompted the
Department to consider similar
proposals regarding the inclusion of
reforestation and pine straw activities
within the scope of the H–2A program.
In the 2008 NPRM, the Department
sought comments regarding other
industries for possible inclusion in the
definition of agricultural labor and
services.22 In response, some
representatives from the reforestation
industry suggested that reforestation
activities be included. In the 2008 Final
Rule, the Department acknowledged the
validity of these comments, but wanted
input from a more representative sample
of the affected industry.23 In the 2009
NPRM, the Department proposed the
inclusion of reforestation and pine straw
activities within the definition of
agricultural labor or services. 74 FR
45906, 45910–11. The Department,
however, removed this provision in the
2010 Final Rule in response to
comments that opposed the inclusion of
reforestation. Only one comment
specifically addressed pine straw
activities. 75 FR 6884, 6889.
The Department, however, believes
that many of the comments received in
response to the 2009 NPRM are no
20 For further analysis of the similarities between
reforestation activities and traditional agricultural
crews, see Proposed Rule, Temporary Agricultural
Employment of H–2A Aliens in the United States,
74 FR 45906, 45910–11 (Sept. 4, 2009) (2009
NPRM).
21 See Morante-Navarro v. T & Y Pine Straw, Inc.,
350 F.3d 1163, 1170–72 (11th Cir. 2003); Bresgal v.
Brock, 843 F.2d 1163, 1171–72 (9th Cir. 1987);
Davis Forestry Corp. v. Smith, 707 F.2d 1325, 1328
n.3 (11th Cir. 1983).
22 See Proposed Rule, Temporary Agricultural
Employment of H–2A Aliens in the United States;
Modernizing the Labor Certification Process and
Enforcement, 73 FR 8538, 8555 (Feb. 13, 2008)
(2008 NPRM).
23 ‘‘The comments from the reforestation
industry, while thoughtful, represented the input of
only two individual employers and a single
employer association who do not necessarily
provide a representative sample of the entire
reforestation industry. The department is reluctant
to overturn the regulatory practices of several
decades and impose the significant obligations of an
H–2A employer without significant input from that
industry. While the Department is willing to further
explore whether to include the reforestation
industry in the definition of agriculture, it does not
believe a decision to do so is warranted at this
time.’’ 2008 Final Rule, 73 FR 77110, 77118.
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36177
longer applicable in the current
regulatory environment. Specifically,
some commenters expressed concern
about the additional costs and
regulatory burdens that would be
imposed by participation in the H–2A
program instead of the H–2B program.
2010 Final Rule, 75 FR 6884, 6889.
However, this is no longer the case as
the protections that currently apply to
H–2A workers are generally comparable
to the protections afforded to H–2B
workers in the reforestation and pine
straw industries.24 For example, the
employer’s obligation to pay or
reimburse the worker for inbound and
outbound transportation to and from the
place of employment is similar under
both H–2A and H–2B programs.25
Likewise, among other similarities, both
programs include similar recordkeeping
and disclosure requirements, and
require the employer to provide to the
worker, without charge or deposit
charge, all tools, supplies, and
equipment required to perform the
duties assigned.26
There are certain important
differences, however, between the
programs. For example, while an
itinerant H–2B employer must provide
housing at no cost to the workers (as is
required of all H–2A employers), the H–
2A program further requires that all
employer-provided housing be
inspected and certified, and that rental
and/or public accommodations meet
certain local, State, or Federal
standards. See 20 CFR 655.122(d). In
addition, the H–2A corresponding
employment and three-fourths
guarantee requirements differ slightly
from these same requirements under the
H–2B program.27 Moreover, the time
period during which an employer must
recruit and hire U.S. workers differs
between the H–2A and the H–2B
programs.28 Similarly, employers in the
reforestation and pine straw industries
may qualify as H–2ALCs as defined in
§ 655.103 and, therefore, would be
subject to the requirements found in
§ 655.132, including the requirement to
24 See Interim Final Rule, Temporary NonAgricultural Employment of H–2B Aliens in the
United States, 80 FR 24041 (Apr. 29, 2015).
25 See 20 CFR 655.122(h)(1) and (2) for H–2A
program requirements and 20 CFR 655.20(j)(1)(i)
and (ii) for H–2B program requirements regarding
inbound and outbound transportation.
26 Compare 20 CFR 655.122 and 20 CFR 655.20.
27 See 20 CFR 655.103 and 655.122(i) for H–2A
program requirements and 20 CFR 655.5 and
655.20(f) for H–2B program requirements.
28 See 20 CFR 655.135(d) for H–2A program
requirements and 20 CFR 655.40(c) for H–2B
program requirements.
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obtain a surety bond.29 Reforestation
and pine straw employers would be
required to become familiar, and
comply, with these differences in
program requirements, among others, to
ensure compliance with the H–2A
program under the proposed rule.
Despite these differences, the
Department believes that transitioning
these industries from the H–2B to the
H–2A program should not represent a
significant burden for employers, given
the overall similarities between the
programs and that (as discussed above)
work in both the reforestation and pine
straw industries, as defined in the
proposed rule, often meets the
definition of agricultural employment
under the MSPA.
c. Paragraph (d), Definition of a
Temporary or Seasonal Nature
The Department seeks comment on
the possibility of moving the
adjudication of an employer’s temporary
or seasonal need either exclusively to
DHS or exclusively to DOL. It is an
administration goal to eliminate
duplication wherever feasible and this
potential change may or may not
streamline the adjudications of
temporary or seasonal need for
employers. Section 101(a)(15)(H)(ii)(a)
of the INA, 8 U.S.C.
1101(a)(15)(H)(ii)(a), requires that only
‘‘agricultural labor or services . . . of a
temporary or seasonal nature’’ may be
performed under the H–2A visa
category. Currently, the Department
evaluates an employer’s temporary or
seasonal need in the first instance, using
the standards set forth in § 655.103(d),
which provides that employment is of a
seasonal nature where it is tied to a
certain time of year by an event or
pattern, such as a short annual growing
cycle or a specific aspect of a longer
cycle, and requires labor levels far above
those necessary for ongoing operations.
Employment is of a temporary nature
where the employer’s need to fill the
position with a temporary worker will,
except in extraordinary circumstances,
last no longer than 1 year.
DHS regulations provide that the
Department’s finding that employment
is of a temporary or seasonal nature as
‘‘normally sufficient’’ for the purpose of
an H–2A Petition, but also state that
notwithstanding this finding, DHS
adjudicators will not find employment
29 Additional filing requirements for H–2ALCs
include a detailed itinerary of worksites, a copy of
the MSPA Farm Labor Contractor Certificate of
Registration (if required), copies of fully executed
work contracts with each fixed-site agricultural
business, and specific details and proof pertaining
to worker housing and transportation. See 20 CFR
655.132.
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to be temporary or seasonal in certain
situations, such as ‘‘where an
application for permanent labor
certification has been filed for the same
alien, or for another alien to be
employed in the same position, by the
same employer or by its parent,
subsidiary or affiliate,’’ or ‘‘where there
is substantial evidence that the
employment is not temporary or
seasonal.’’ 8 CFR 214.2(h)(5)(iv)(B). In
making the latter determination, DHS
uses the same definitions of temporary
and seasonal as the Department.
Compare 20 CFR 655.103(d) with 8 CFR
214.2(h)(5)(iv)(A).
Under the current process, the
Department and DHS use separate and
distinct experience to adjudicate
temporary or seasonal need in the H–2A
program. The Department has
developed expertise and a process to
which H–2A employers have become
accustomed. DHS has historically
adjudicated this need as part of its
review of an H–2A visa petition, and it
may have access to independent
documentation unavailable to the
Department that allows it to assess
whether an employer has a temporary or
seasonal need.
The Department contemplates that if
either the Department or DHS became
the sole arbiter of temporary or seasonal
need for all H–2A employers, the
Department and DHS would take
actions, including delegation of
authorities as the final arbiter of
temporary or seasonal need and
amendment of regulations, as needed, to
effectuate this change. Accordingly, the
Department seeks comment on whether
there are benefits or concerns if either
the Department exclusively or DHS
exclusively became the sole arbiter of
temporary or seasonal need.
B. Prefiling Procedures
1. Section 655.120, Offered Wage Rate
Section 218(a)(1) of the INA, 8 U.S.C.
1188(a)(1), provides that an H–2A
worker is admissible only if the
Secretary determines that ‘‘there are not
sufficient workers who are able, willing,
and qualified, and who will be available
at the time and place needed, to perform
the labor or services involved in the
petition, and the employment of the
alien in such labor or services will not
adversely affect the wages and working
conditions of workers in the United
States similarly employed.’’ In 20 CFR
655.120(a), the Department currently
meets this statutory requirement, in
part, by requiring an employer to offer,
advertise in its recruitment, and pay a
wage that is the highest of the AEWR,
the prevailing wage, the agreed-upon
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collective bargaining wage, the Federal
minimum wage, or the State minimum
wage. As discussed below, the
Department proposes to maintain this
wage-setting structure with only minor
revisions and proposes to modify the
methodologies by which the Department
establishes the AEWRs and prevailing
wages.
Specifically, the Department proposes
to establish AEWRs for each agricultural
occupation, as identified by the FLS and
the OES survey, so that each AEWR is
based on data more specific to the
agricultural occupation of workers in
the United States similarly employed
and, as a result, better protects against
adverse effect on the wages of workers
in the United States similarly employed.
In addition, the Department proposes to
modernize the methodology used by the
SWAs to conduct prevailing wage
surveys. Finally, the proposed rule sets
requirements for updates to wage rates
during the work contract and for wage
assignments and appeals of those
assignments. Currently DOL funds the
NASS Farm Labor Survey. USDA is
committed to this survey and including
$5 million in the President’s budget for
its modification and expansion to
collect more granular data. This
expansion will assist in providing the
SOC level data DOL is seeking to best
capture wage rates from farmerworkers
across the country.
The Department currently sets the
AEWR at the gross hourly rate for field
and livestock workers (combined) from
the FLS conducted by the USDA’s
NASS for each State or region. This
produces a single AEWR for all
agricultural workers in a given State or
region, so that supervisors, agricultural
inspectors, graders and sorters of animal
products, agricultural equipment
operators, construction laborers, and
crop laborers are all assigned the same
AEWR.
The Department is concerned that the
current AEWR methodology may have
an adverse effect on the wages of
workers in higher-paid agricultural
occupations, such as construction
laborers and supervisors of farmworkers
on farms or ranches, whose wages may
be inappropriately lowered by an AEWR
established from the wages of field and
livestock workers (combined) because
this is an occupational category from the
FLS that does not include construction
laborers or supervisors of farmworkers,
among other occupations. In addition,
the use of generalized data for other
agricultural occupations could produce
a wage rate that is not sufficiently
tailored to the wage necessary to protect
against adverse effect on workers in the
United States similarly employed.
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Accordingly, the Department
proposes to revise its methodology so
that the AEWR for a particular
agricultural occupation will be based on
the annual average hourly gross wage
for that agricultural occupation in the
State or region reported by the FLS
when the FLS is able to report such a
wage.30 If the FLS does not report a
wage for an agricultural occupation in a
State or region, the Department
proposes to set the AEWR at the
statewide annual average hourly wage
for the SOC from the OES survey
conducted by BLS. If both the FLS
cannot produce an annual average
hourly gross wage for that agricultural
occupation in the State or region and
the OES cannot produce a statewide
annual average hourly wage for the
SOC, then the Department proposes to
set the AEWR based on the national
wage for the occupational classification
from these sources.31 This change to an
occupation-based wage is intended to
produce more tailored AEWRs that
better protect against adverse effect on
workers in the United States similarly
employed than the Department’s current
regulation.
The Department also proposes to
modernize the methodology used by the
SWAs to conduct prevailing wage
surveys, which applies to both H–2A
and other job orders that use the
Wagner-Peyser Act agricultural
recruitment system. The Department
currently relies on Handbook 385,
which pre-dates the creation of the H–
2A program and was last updated in
1981, to set the standards that govern
the prevailing wage surveys that the
SWAs conduct to establish prevailing
wage rates for all agricultural job orders.
30 The Department proposes to remove the word
‘‘weighted’’ from the description of the FLS wage
rate from the current regulation. This proposed
change has no substantive effect. Both the OES and
FLS apply weights in determining the average wage
in accordance with accepted statistical principals,
and the Department’s other regulations which refer
to OES-based wage rates do not use the term
weighted. Therefore, for consistency, the
Department proposes to remove the word
‘‘weighted’’ from the H–2A regulation governing the
AEWR methodology. The Department also proposes
to add the term ‘‘gross’’ after the term ‘‘hourly’’ in
describing the wage rate from the FLS because, as
discussed further below, USDA is considering
making changes to its survey instrument to produce
a wage that excludes certain types of incentive pay
to report a ‘‘base’’ wage separate from the currently
reported gross hourly wage. If the Department elects
to use this new base wage as a source for the AEWR,
the Department would first engage in notice-andcomment rulemaking to adopt that change,
consistent with APA requirements. Until that time,
the Department proposes to continue to use the
‘‘gross’’ hourly wage reported, consistent with the
current regulation.
31 Using a national wage when a State wage
cannot be produced is consistent with the OES
reporting methodology.
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Many of these survey standards, such as
a requirement for in-person interviews,
are inconsistent with modern survey
methods and the level of appropriated
funding at the State and Federal levels.
Due to the difficulty of implementing
these resource-intensive standards, the
SWAs are often required to report ‘‘no
finding’’ from the prevailing wage
surveys that they conduct. As a result,
the current survey standards are not
only resource-intensive but also fail to
meet the Department’s aim of producing
reliable prevailing wage rates.
Accordingly, the Department proposes
to modernize the prevailing wage
standards as set out in proposed
§ 655.120(c) to: (1) Establish reliable and
accurate prevailing wage rates for
employers and workers; and (2) allow
the SWAs and other State agencies to
conduct surveys using standards that
are more realistic.
a. The Department’s Proposal Maintains
the Requirement That the Offered Wage
Rate Must Be the Highest of Applicable
Wage Sources
The Department proposes to continue
to protect against adverse effect on the
wages of workers in the United States
similarly employed by maintaining the
current requirement in § 655.120(a) that
an employer must offer, advertise in its
recruitment, and pay a wage that is the
highest of the AEWR, the prevailing
wage, the agreed-upon collective
bargaining wage, the Federal minimum
wage, or the State minimum wage,
unless a special procedure wage rate
applies, with only three minor changes.
First, the Department proposes to
remove the exception in the current
regulation for separate wage rates set by
‘‘special procedures’’ (i.e., subregulatory variances from the
regulation). The Department proposes to
remove this exception because the only
occupation that has a different wage rate
structure is the herding and production
of livestock on the range, and the wage
methodology for that occupation is
governed by § 655.211 and is no longer
set through a sub-regulatory ‘‘special
procedure.’’ In addition, as discussed
above, the Department proposes to
remove the authority in § 655.102 to
establish, continue, revise, or revoke
special procedures for H–2A
occupations. Accordingly, the
Department proposes to replace the
reference to ‘‘special procedures’’ in the
current regulation with a reference to
the regulatory provisions covering
workers primarily engaged in herding
and production of livestock on the range
as the only exception from the wage
methodology set forth in this proposed
rule.
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Second, the Department proposes to
remove the current reference to ‘‘the
prevailing hourly wage or piece rate in
20 CFR 655.120(a) and (b).’’ 32 Instead,
the Department proposes to refer only to
the ‘‘prevailing wage’’ or ‘‘prevailing
wage rate,’’ except where a given
provision specifically applies only to
prevailing piece rates. The Department
proposes this change because the
Department has issued prevailing wage
rates that are not in the form of an
hourly or piece rate wage, including
monthly prevailing wage rates.
Third, the Department proposes to
clarify that the requirement to offer and
pay the prevailing wage applies only ‘‘if
the OFLC Administrator has approved a
prevailing wage survey for the
applicable crop activity or agricultural
activity meeting the requirements of
paragraph (c)’’ of § 655.120.33 This
revision is intended to clarify that the
Department is not obligated to establish
a prevailing wage separate from the
AEWR for every occupation and
agricultural activity in every State. As
discussed further below, the Department
meets its obligation to protect against
adverse effect on workers in the United
States similarly employed primarily by
requiring employers to offer, advertise,
and pay the AEWR, which under the
current wage methodology is the
required wage rate in approximately 92
percent of H–2A applications based on
a review of OFLC certification data. In
addition, as the Department has
previously acknowledged, the AEWR is
actually a type of prevailing wage rate
because it is the wage rate that is
determined from a survey of actual
wages paid by employers. Accordingly,
the Department is already establishing a
prevailing wage in the form of the
AEWRs for all agricultural occupations.
2008 Final Rule, 73 FR 77110, 77167.
Nevertheless, the Department
recognizes that State-conducted
prevailing wage rates can serve as an
important additional protection for U.S.
workers in crop activities and
agricultural activities with piece rates
or, in rare instances, higher hourly rates
of pay. Accordingly, the Department
proposes to make the changes discussed
below to modernize the prevailing wage
methodology and empower States to
produce a greater number of reliable
prevailing wage surveys results.
However, the Department proposes this
new text to clarify that the Department
is not required to issue prevailing wage
rates for all crop activities and
32 The Department also proposes to make
corresponding changes throughout the regulation.
33 The Department also proposes a corresponding
change to 20 CFR 655.122(l).
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agricultural activities in every State as
such a requirement is both inconsistent
with available Federal and State
resources and unnecessary to prevent
adverse effect. If finalized as proposed,
the Department will work with the
States through their annual grant plans
to focus prevailing wage surveys on
those crop activities and agricultural
activities where prevailing wage surveys
are most useful to protect the wages of
U.S. workers, including for activities for
which employers commonly pay based
on a piece rate and when State agencies
know based on past experience that
prevailing wage surveys commonly
result in hourly wages higher than the
AEWR. The Department invites
comments on other circumstances in
which prevailing wage rates can be most
useful as a tool to protect the wages of
U.S. workers.
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b. The Department Proposes To Base the
AEWR on Occupation-Specific Data
That Better Reflects the Wages of
Workers in the United States Similarly
Employed
The Department is retaining the
requirement in the current regulation
that employers in the H–2A program
offer, advertise, and pay at least the
AEWR if it is the highest applicable
wage. Section 218(a)(1)(B) of the INA, 8
U.S.C. 1188(a)(1)(B), provides that DHS
cannot approve an H–2A Petition unless
the Department certifies that ‘‘the
employment of the alien in such labor
or services will not adversely affect the
wages and working conditions of
workers in the United States similarly
employed.’’ Requiring employers to pay
the AEWR when it is the highest
applicable wage is the primary way the
Department meets its statutory
obligation to certify no adverse effect on
workers in the United States similarly
employed.
As the Department has explained in
previous regulations, the AEWR
‘‘reflects a longstanding concern that
there is a potential for the entry of
foreign workers to depress the wages
and working conditions of domestic
agricultural workers.’’ 2010 Final Rule,
75 FR 6884, 6891. The use of an AEWR,
separate from a State-conduced
prevailing wage for a particular crop
activity or agricultural activity, ‘‘is most
relevant in cases in which the local
prevailing wage is lower than the wage
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considered over a larger geographic area
(within which the movement of
domestic labor is feasible) or over a
broader occupation/crop/activity
definition (within which reasonably
ready transfer of skills is feasible).’’ Id.
at 6892–6893.
The H–2A program is unique among
the temporary nonimmigrant programs
administered by the Department
because the H–2A program is not
subject to a statutory cap. Consequently,
concerns about wage depression from
the importation of foreign workers are
particularly acute because access to an
unlimited number of foreign workers in
a particular labor market and crop
activity or agricultural activity could
cause the prevailing wage of workers in
the United States similarly employed to
stagnate. In this context, the AEWR acts
as ‘‘a prevailing wage concept defined
over a broader geographic or
occupational field.’’ 2010 Final Rule, 75
FR 6884, 6892. In other words, because
the AEWR is generally based on data
collected in a multi-State agricultural
region and an occupation broader than
a particular crop activity or agricultural
activity, while the prevailing wage is
commonly determined based on a
particular crop activity or agricultural
activity at the State or sub-State level,
the AEWR protects against localized
wage depression that might occur in
prevailing wage rates. For these reasons,
the Department proposes to continue to
use an AEWR in the H–2A program and
to require employers to offer, advertise,
and pay at least the AEWR if it is the
highest applicable wage.
i. The Department Proposes To
Continue to the Use the FLS To
Establish the AEWR in Most Geographic
Areas for Most H–2A Workers
The Department proposes to use the
FLS conducted by USDA’s NASS to set
the AEWR for the overwhelming
majority of H–2A workers. The FLS is
the Department’s preferred wage source
for establishing the AEWR because it is
the only comprehensive wage survey
that collects data from farm and ranch
employers. The Department proposes to
use the OES survey conducted by BLS
to set the AEWR only for occupations
and locations where the Department
cannot establish an AEWR based on the
FLS because the FLS does not report a
wage. Because the OES survey is a
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reliable and comprehensive wage survey
and is widely used in the Department’s
other foreign labor certification
programs, the OES survey provides
useful data for setting the AEWR in the
limited circumstances where the FLS
may not report a wage. The use of the
FLS survey, and the OES survey as
needed, will allow the Department to
establish AEWRs based on occupational
classification rather than based on all
field and livestock workers (combined)
and will better protect against adverse
effects on similarly employed U.S.
workers, as discussed below.
As the Department has stated in prior
rulemakings, the FLS and the OES
survey are the two ‘‘leading candidates’’
that the Department could use to
establish the AEWR. 2009 NPRM, 74 FR
45906, 45912. The Department has
always used the FLS to set the H–2A
AEWR, with the exception of a brief
period under the 2008 Final Rule.
Currently, the Department uses the
average gross hourly wage rate for the
category field and livestock workers
(combined) from the FLS as the AEWR
for each State in the multi-State or
single-State crop region to which the
State belongs.
By contrast, under the 2008 Final
Rule, the Department set the AEWR
based on the OES survey. Under that
rule, the Department set the AEWR
using the SOC taxonomy and set a
different AEWR for each SOC and
localized area of intended employment.
The Department used four wage levels
intended to reflect education and
experience under the 2008 Final Rule.
The FLS uses the following
methodology: NASS collects wage and
employment data for four reference
weeks, one each quarter, from all farms
with $1,000 or more in annual sales
revenue for all in all States except for
Alaska. The total sample of the FLS is
approximately 10,000 to 13,000 farms
and ranches, and data is reported for the
United States as a whole and for each
of 15 multi-State labor regions and the
3 single States of Florida, California,
and Hawaii.34
34 Guide to NASS Surveys: Farm Labor, available
at https://www.nass.usda.gov/Surveys/Guide_to_
NASS_Surveys/Farm_Labor/index.php (last
modified May 4, 2018).
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The USDA regions are as follows:
TABLE 1—USDA REGIONS
Appalachian I ............................................................................................
Appalachian II ...........................................................................................
Cornbelt I ..................................................................................................
Cornbelt II .................................................................................................
Delta ..........................................................................................................
Lake ..........................................................................................................
Mountain I .................................................................................................
Mountain II ................................................................................................
Mountain III ...............................................................................................
Northeast I ................................................................................................
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Northeast II ...............................................................................................
Northern Plains .........................................................................................
Pacific .......................................................................................................
Southeast ..................................................................................................
Southern Plains ........................................................................................
Appendix A, Table 1 shows the
AEWRs by region or State established by
the Department for 2016 to 2018 based
on FLS data for field and livestock
workers (combined) under the current
regulation.
Most data for the FLS is collected by
mail and computer-assisted phone
interviews, with personal interviews
used for some large operations and
those with special handling
arrangements. NASS reports FLS data
semiannually based on four quarterly
reference weeks; in November, NASS
reports annual data. In California, NASS
collects data in cooperation with the
California Employment Development
Department and reports the data
monthly. The FLS generally has a
response rate of greater than 50 percent.
The FLS reports hourly wage rates based
on employers’ reports of gross wages
paid and total hours worked for all
hired workers during the survey
reference week for each quarter it
conducts the survey.
Since 2014, the FLS has collected data
by SOC—the same taxonomy that is
used for the OES survey. It does not
currently report wage data by SOC.
Instead, the FLS aggregates and reports
data in the major FLS occupational
categories of field workers, livestock
workers, field and livestock workers
(combined), and all hired workers. In
collaboration with the Department and
the OMB, USDA established and
implemented a crosswalk from the
major FLS categories to the SOC
categories.35 Within the major FLS field
worker category is the SOC category
Farmworkers and Laborers, Crop,
35 See Crosswalk from the National Agricultural
Statistics Service (NASS) Farm Labor Survey (FLS)
Occupations to the 2010 Standard Occupational
Classification (SOC) System, available at https://
www.nass.usda.gov/Surveys/Guide_to_NASS_
Surveys/Farm_Labor/Farm-Labor-Survey-(FLS)-toSOC-Crosswalk.pdf.
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Virginia and North Carolina.
Kentucky, Tennessee, and West Virginia.
Illinois, Indiana, and Ohio.
Iowa and Missouri.
Arkansas, Louisiana, and Mississippi.
Michigan, Minnesota, and Wisconsin.
Idaho, Montana, and Wyoming.
Colorado, Utah, and Nevada.
Arizona and New Mexico.
Connecticut, Maine, Massachusetts, New Hampshire, New York,
Rhode Island, and Vermont.
Delaware, Maryland, New Jersey, and Pennsylvania.
Kansas, Nebraska, North Dakota, and South Dakota.
Oregon and Washington.
Alabama, Georgia, and South Carolina.
Oklahoma and Texas.
Nursery and Greenhouse (SOC 45–
2092). Within the FLS livestock worker
category is the SOC category
Farmworkers, Farm, Ranch, and
Aquacultural Animals (SOC 45–2093).
Agricultural Equipment Operators (SOC
45–2091), Packers and Packagers, Hand
(SOC 53–7064), Graders and Sorters,
Agricultural Products (SOC 45–2041),
and All Other Field Workers and All
Other Livestock Workers (SOC 45–2099)
are assigned to either the livestock
worker or field worker major category of
the FLS depending upon the
agricultural product. Although the FLS
collects data on the wages of
supervisors, the FLS has not been able
to report a statistically valid wage result
for the major FLS category of
supervisors. As a result, the wages of
supervisors are currently only reported
in the all hired workers category and are
not included in the field and livestock
workers (combined) category that the
Department uses to establish the AEWR.
Included within the major FLS category
of supervisors are Farmers, Ranchers,
and Other Agricultural Managers (SOC
11–9013); and First Line Supervisors of
Farm Workers (SOC 45–1011). Finally,
the FLS collects data on ‘‘other
workers.’’ The FLS has not been able to
report a statistically valid wage result
for this FLS category, and, as a result,
wages for ‘‘other workers’’ are reported
only in the all hired workers category
and are not included in the wages
reported in the field and livestock
workers (combined) category. Included
in the ‘‘other workers’’ category are
Agricultural Inspectors (SOC 45–2011),
Animal Breeders (45–2021), Pest
Control Workers (37–2021), and any
other agricultural worker not fitting into
the categories above, including
mechanics, shop workers, truck drivers,
accountants, bookkeepers, and office
workers who fall within a variety of
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SOCs and have a wide variety of job
duties. Contract and custom workers are
excluded from the FLS sample
population.
The OES survey is among the largest
ongoing statistical survey programs of
the Federal Government and produces
wage estimates for over 800
occupations. It is used as the primary
wage source for all of the nonimmigrant
and immigrant prevailing wage
determinations issued by the
Department, except for those in the H–
2A program. The OES program surveys
approximately 200,000 establishments
every 6 months and over a 3-year period
collects the full sample of 1.2 million
establishments, accounting for
approximately 57 percent of
employment in the United States.36
Every 6 months, the oldest data from the
3-year cycle is removed from the
sample, and new data is added. The
wages reported in the older data are
adjusted by the ECI, which is a BLS
index that measures the change in labor
costs for businesses. The OES survey is
primarily conducted by mail, with
follow up by phone to non-respondents
or if needed to clarify data.37 The OES
average 38 hourly wage reported
includes all straight-time, gross pay,
exclusive of premium pay, but
including piece rate pay.
The primary advantage of using a
wage derived from the FLS is that the
FLS surveys farm and ranch employers.
The OES survey, on the other hand,
surveys establishments that support
farm production. While establishments
36 See OES Frequently Asked Questions, available
at https://www.bls.gov/oes/oes_ques.htm.
37 Id.
38 The OES uses the term ‘‘mean.’’ However, for
purposes of this regulation the Department uses the
term ‘‘average’’ because the two terms are
synonymous, and the Department has traditionally
used the term ‘‘average’’ in setting the AEWR from
the FLS.
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that support farm production participate
in the H–2A program, they constitute a
minority of agricultural labor or
services, and so data reported by these
establishments is generally useful for
purposes of calculating the AEWR
applicable to an agricultural occupation
only in the limited circumstances where
FLS data is unavailable for the
occupation.39 Another positive feature
of the FLS is that the statewide and
regional wages issued provide
protection against wage depression that
is most likely to occur in particular local
areas where there is a significant influx
of foreign workers. The OES survey also
produces statewide wage rates in
addition to wage rates based on
metropolitan statistical areas (MSAs).40
Similarly, both the FLS and the OES
surveys report a wage that covers
activities above a crop activity level,
which, as discussed above, is where
wage depression from an influx of
foreign workers could be most acute.
The Department favors the FLS as a
source for the AEWR, and the
Department proposes to use an
occupation-based wage from that survey
due to concerns that the current AEWR
based solely on the field and livestock
worker (combined) wage aggregates data
at a level that combines wages of
agricultural occupations that are
dissimilar and that this may have the
effect of inappropriately raising wages
for lower-paid agricultural jobs while
depressing wages in higher-paid
occupations. For example, a worker
performing construction labor on a farm
under the H–2A program in Ohio must
currently be paid at least the AEWR of
$12.93 per hour because the worker’s
wage is determined based on the field
and livestock (combined) wage, which
contains many dissimilar jobs,
including agricultural equipment
operators; graders and sorters of
agricultural products; hand packers and
packagers of agricultural products; and
farmworkers who tend to farm, ranch,
and aquacultural animals, as well as
farmworkers who perform manual labor
to harvest crop, nursery, and greenhouse
products. This is the case even though
the FLS sample does not include
workers who perform contract work,
and workers performing construction
labor on farms are likely to be employed
as contract workers. In contrast, if the
39 Indeed, BLS refers the public to USDA and
NASS for statistics on U.S. agriculture employment
and wages. See OES Frequently Asked Questions,
https://www.bls.gov/oes/oes_ques.htm.
40 The Department uses MSA-based wage
estimates from the OES survey to set prevailing
wage rates for the H–2B program and used OES
MSA-based wage rates to set AEWRs under the
2008 H–2A Rule.
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same construction worker performed
identical job duties at a location other
than a farm and, therefore, fell under the
H–2B program, the required prevailing
wage rate based on the OES SOC would
be approximately $20.27 per hour.41
This aspect of the current methodology
appears to cause an adverse effect on the
wages of workers in the United States
similarly employed, contrary to the
Department’s statutory mandate.
An AEWR based on an occupational
classification that accounts for
significantly different job duties but
remains broader than a particular crop
activity or agricultural activity in a local
area may better protect U.S. workers.42
Accordingly, the Department proposes
to amend its current AEWR
methodology to issue an occupationspecific AEWR. The Department
proposes to establish the AEWR using
the FLS where the FLS reports a
statewide or regional annual average
gross hourly wage result for a particular
agricultural occupation.
Based on data collected by NASS
from 2015 to 2017, the Department
expects it will be able to establish
AEWRs for most States and regions in
SOCs 45–2092 (Farmworkers and
Laborers, Crop, Nursery, and
Greenhouse) and 45–2093
(Farmworkers, Farm, Ranch, and
Aquacultural Animals). These
occupations would represent
approximately 89 percent of workers in
the H–2A program if Forest and
Conservation Workers (SOC 45–4011)
are added to the H–2A program as
proposed, and so the FLS will continue
to be the basis for the AEWRs covering
the vast majority of H–2A workers. In
addition, the Department anticipates
that it will be able to use the FLS to
establish AEWRs for some States and
regions for SOCs 45–2041 (Graders and
Sorters, Agricultural Products), 45–2091
(Agricultural Equipment Operators), 45–
2099 (Agricultural Workers, All
Other),43 53–7064 (Packers and
41 This is the current statewide OES wage for the
category of Construction Laborer, SOC 47–2061, in
Ohio. Under the H–2B program, a local wage for
that occupation would be used if available. As
discussed below, the Department proposes to use
the statewide OES mean hourly wage to establish
the AEWR if the FLS cannot report a wage for the
occupational classification in a given State or
region.
42 For example, an AEWR under this proposal
would be established for SOC 45–2092
(Farmworkers and Laborers, Crop, Nursery, and
Greenhouse), while particular crop activities within
that category might include the hand harvesting of
strawberries or onion packing shed duties.
43 The Department would not use the ‘‘all other’’
category from the FLS to set a wage if a more
specific SOC applies. For example, under this
proposal, the AEWRs for Forest and Conservation
Workers (SOC 45–4011), Logging Workers (SOC 45–
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Packagers, Hand), 11–9013 (Farmers,
Ranchers and Other Agricultural
Managers), and 45–1011 (First Line
Supervisors of Farm Workers) based on
NASS data. The FLS will never be able
to report a statewide or regional wage
for Alaska because the survey is not
conducted there.
In a circumstance where the FLS
cannot produce a wage for the
occupational classification, the
Department proposes to establish the
AEWRs for all SOCs and States or
regions at the statewide average hourly
wage for that occupation using data
from the OES survey, as discussed
below, unless such a wage is not
reported by BLS. Under this
methodology, the OES statewide average
hourly wage would also be used to
establish the AEWR if USDA ceased to
conduct the FLS for budgetary or other
reasons.
To the extent the FLS may not
consistently report data in each SOC for
a State or region, the wage source used
to establish the AEWR may vary from
year to year, which could result in a
much higher degree of variation in the
AEWR applicable to an occupation from
year to year than exists under the
current methodology. The Department
requests comments on whether there are
alternate methods or sources that it
should use to set the AEWR in the event
that the FLS does not produce a wage
in an SOC and State or region,
including, but not limited to: (1)
Whether the Department should use the
separate field worker and livestock
worker classifications from the FLS to
set AEWRs for workers in occupations
included in those classifications if a
wage based on the SOC from the FLS is
not available; (2) whether the
Department should index past wage
rates for a given SOC using the
Consumer Price Index (CPI) or
Employment Cost Index (ECI) if a wage
cannot be reported for an SOC in a State
or region in a given year based on the
FLS but a wage was available in a
previous year; (3) whether the
Department should use the FLS national
wage rate to set the AEWR for an SOC
if the FLS cannot produce a wage at the
State or regional level; and (4) whether
the Department should consider any
other methodology that would promote
consistency and reliability in wage rates
from year to year.
As an alternative, the Department
invites comments on whether to set
AEWRs based on the current FLS
occupational classifications of field
4020), and Construction Laborers (SOC 47–2061)
would all be based on those specific SOCs, not the
‘‘all other’’ category.
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workers and livestock workers for each
State or region. Under this alternative,
any occupational classifications not
surveyed by NASS under either the field
worker or livestock worker category
would be assigned an AEWR based on
the OES SOC. The disadvantage of this
alternative is that it produces an AEWR
at a broader occupational level than the
SOC taxonomy. As a result, this option
would provide a single AEWR covering
a broader group of occupations, such as
Graders and Sorters, Agricultural
Products (SOC 45–2041) and
Agricultural Equipment Operators (SOC
45–2091), in which workers perform
dissimilar job duties. In contrast, the
advantage of this alternative is that the
FLS is currently able to produce a
statewide or regional wage for both the
field worker and livestock worker
categories in every year, except in
Alaska. As a result, this alternative
would significantly reduce the
likelihood that wage sources will
change from year to year. For the same
reasons, this methodology would also
likely result in the Department using the
FLS to set wages more often if the
Department were to adopt a
methodology that set AEWRs based on
the SOC. As discussed above, the
Department generally prefers to
establish AEWRs based on the FLS
rather than the OES survey because the
FLS surveys farmers and ranchers,
whereas the OES surveys establishments
that support farm production, as
discussed below.
In proposing to continue use of the
FLS to set the AEWR for most H–2A
workers, the Department notes that it
does not have direct control over the
FLS, and that USDA could elect to
terminate the survey at some point.
Indeed, USDA did briefly terminate the
survey in 2007 due to budget
constraints. The Department has
addressed such a possibility in this
proposal by providing that the OES
statewide average hourly wage for the
SOC will be used if the FLS does not
produce an annual gross hourly wage
for the occupational classification for a
State or region.
The Department understands that
USDA may make future adjustments to
the FLS methodology, including that
USDA may exclude certain types of
incentive pay so that a base wage can be
separately reported from the hourly
wage rate. However, even after these
modifications are complete, USDA also
plans to continue to release data using
its current methods. Under this
proposed rule, the Department would
continue to use USDA’s existing
methodology to set AEWRs based on
SOC codes as discussed above. If the
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Department decides to later adjust the
AEWR calculation based on
methodological changes by USDA, the
Department will provide the public with
notice and the opportunity to provide
comment before adopting any changes.
ii. If the OES Produces a Statewide
Average Hourly Wage for the SOC, the
Department Proposes To Use That Wage
To Set the AEWR for Any Occupation
Classification Where the FLS Does Not
Report a Wage for the Occupational
Classification and State or Region
The OES survey can be very useful in
limited circumstances where the FLS
cannot produce statistically reliable data
for an occupation and state or region,
and the OES survey is able to do so. The
Department expects that the OES will be
particularly useful in those occupations
that constitute a small percentage of
agricultural labor or services and a
larger subset of non-agricultural labor or
services (e.g., construction workers), or
where work is generally not performed
on farms, so wages are not generally
sampled by the FLS (e.g., logging
occupations). For these types of
occupations, the FLS cannot produce a
wage for the applicable SOCs. Similarly,
the OES will be useful for the proposed
addition of forest and conservation
workers to the H–2A program. Like
logging, forest and conservation work is
not generally performed on farms or
ranches, so it is generally excluded from
the FLS, and the FLS cannot produce a
wage for the applicable SOC.
Accordingly, in the Department’s view,
the OES survey provides the most
accurate source for determining the
AEWR for these occupations. Indeed,
because the OES survey is the primary
wage source in the H–2B program,
employers bringing in forest and
conservation workers for temporary
work are already required to pay at least
an average hourly wage based on the
OES survey.
Accordingly, the Department
proposes to use the statewide OES
average hourly wage for the SOC where
the FLS cannot produce a wage for the
agricultural occupation and State or
region. In the H–2B program, the
Department generally establishes
prevailing wages based on the OES
survey for the SOC in a metropolitan or
non-metropolitan area. For the H–2A
program, however, the Department
proposes to use a statewide wage both
to more closely align with the
geographic areas from the FLS and to
protect against wage depression from a
large influx of nonimmigrant workers
that is most likely to occur at the local
level. As explained in prior
rulemakings, the concern about
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36183
localized wage depression is more
pronounced in the H–2A program than
in the H–2B program due to both the
vulnerable nature of agricultural
workers and the fact that the H–2A
program is not subject to a statutory cap,
which allows an unlimited number of
nonimmigrant workers to enter a given
local area.44
When the OES survey is used to
establish the AEWR, the Department
proposes to use the average hourly wage
for the SOC, which is the methodology
used under the H–2B program.45 The
average is proposed rather than the fourtiered wage level structure that the
Department used to set the AEWR under
the 2008 H–2A Final Rule. As explained
in the preamble to the Department’s
current H–2A regulation: ‘‘OES wage
levels are not determined by surveying
the actual skill level of workers, but
rather by applying an arithmetic
formula. These are arbitrary percent cutoffs of the distribution of earnings
within the occupations. Therefore, the
associated occupational skill levels are
not well defined, and H–2A wage
differences [imposed by a four tier
system] do not accurately reflect
meaningful differences in skills or job
complexity.’’ 2010 Final Rule, 75 FR
6884, 6900. As the Department further
noted, ‘‘[m]ost of the occupations and
activities relevant to the H–2A program
involve skills that are readily learned in
a very short time on the job, skills peak
quickly, rather than increasing with
long-term experience.’’ Id. To the extent
that there are some agricultural
activities that require a higher amount
of expertise than others, such as
agricultural inspectors or animal
breeders, such differences are accounted
for in the Department’s proposal to issue
AEWRs at the occupational
classification level without regard to
artificial ‘‘tiers.’’
In proposing to use the OES survey to
establish the AEWR for a small
percentage of H–2A workers, the
Department acknowledges that the
Department concluded in the 2010 Final
Rule that use of the OES survey under
the 2008 Final Rule depressed the wages
of workers in the United States similarly
employed. That finding does not apply
to the current proposal for three primary
reasons.
First, the Department proposes to use
the OES survey only when the FLS
cannot produce a wage for an
occupation at the State or regional level.
As discussed above, using the
generalized field and livestock workers
44 See,
e.g., 2010 Final Rule, 75 FR 6884, 6895.
H–2B regulation uses the term ‘‘mean’’
rather than ‘‘average,’’ but the meaning is the same.
45 The
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(combined) wage from the FLS to
establish the AEWR may have a
depressive effect on wages of workers in
the United States similarly employed for
some agricultural occupations. As a
result, if the FLS cannot produce a State
or regional wage for an agricultural
occupation, it is the Department’s
preliminary view, for the reasons
discussed above, that the statewide OES
survey provides a more accurate and
appropriate source for the AEWR.
Second, much of the wage reduction
under the 2008 Final Rule was due to
the fact that the 2008 Final Rule used a
four-tiered wage level system, in
contrast to this NPRM’s proposal to use
the average. As the Department has
noted, under the 2008 Final Rule, ‘‘73
percent of applicants for H–2A workers
specified the lowest available skill
level—corresponding to the wage
earned by the lowest paid 16 percent of
observations in the OES data. Only 8
percent of applicants specified a skill
level that translated into a wage above
the OES median.’’ 2010 Final Rule, 75
FR 6884, 6898. Third, the use of the
statewide wage rather than the wage at
the metropolitan or non-metropolitan
area is intended to prevent the OES
wage from reflecting any wage
depression in a particular local
geographic area. Accordingly, the
proposal to use the OES survey in this
manner does not raise the same
concerns as the 2008 Final Rule did.
The Department recognizes that the
proposed methodology results in some
AEWR increases and some AEWR
decreases depending upon geographic
location and agricultural occupation.
Because any wage reductions are the
result of the use more accurate
occupational data, the reductions are
consistent with the Department’s
obligation to protect against adverse
effect on workers in the United States
similarly employed. The use of more
accurate occupational data means that
lower AEWRs that better reflect the
wage needed to protect against adverse
effect for those agricultural occupations
are generally offset by higher AEWRs in
other occupations.
Appendix A, Table 2 provides average
hourly wages by SOC and State under
the proposed rule. The estimates in
Appendix A, Table 2 are based on
historic data.
iii. The Department Proposes To Use
National Occupational Data If Neither
the OES Survey Nor the FLS Reports a
State or Regional Wage for the
Occupation
In the rare event that both the FLS
does not report an annual average
hourly gross wage for the occupational
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classification in the State or region and
the OES survey does not report a
statewide annual average hourly wage
for the SOC, the Department proposes to
use national data for the occupation to
set the wage for that geographic area. If
both wage sources report a national
wage rate for the occupational
classification, the Department proposes
to set the AEWR at the national annual
average hourly gross wage for the
occupational classification from the FLS
because, for the reasons discussed
above, the Department generally prefers
to use the FLS, which is based on wages
paid by farmers and ranchers. If the FLS
does not report a national wage for the
occupation, the Department proposes to
use the national average hourly OES
wage for that SOC and geographic area.
iv. The Department Requests Comments
on All Aspects of Its Proposed
Methodology for Establishing the AEWR
The Department invites comments on
all aspects of the proposed AEWR
methodology. In particular, the
Department is interested in comments
on the use of the FLS and OES survey,
the conditions under which each survey
should be used to establish the AEWR,
and the proposal to depart from relying
on the field and livestock workers
(combined) wage from the FLS to
instead establish AEWRs based on
occupational classifications. The
Department also invites comments on
any alternate wage sources the
Department might use to establish the
AEWRs in the H–2A program.
c. The Department Proposes To
Modernize the Methodology Used To
Establish the Prevailing Wage Rate
i. The Current Prevailing Wage
Methodology is Outdated and Does Not
Meet the Policy Goal of Producing
Reliable Prevailing Wage Rates
Current 20 CFR 655.120(a) requires
that an employer seeking a temporary
agricultural labor certification to employ
an H–2A worker must offer, advertise in
its recruitment, and pay a wage that is
at least the highest of the AEWR, the
prevailing wage, the agreed-upon
collective bargaining wage, the Federal
minimum wage, or the State minimum
wage.46 In addition, the Wagner-Peyser
regulation at 20 CFR 653.501(c)(2)(i)
requires the SWA to ensure for all
agricultural job orders, H–2A and nonH–2A, that ‘‘wages . . . offered are not
less than the prevailing wages . . .
among similarly employed farmworkers
in the area of intended employment or
46 Under the current regulations and survey
methodology, the AEWR most often sets the
minimum hourly requirement.
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the applicable Federal or State
minimum wage, whichever is higher.’’
Currently, the SWAs are required to
conduct prevailing wage surveys using
standards set forth in Handbook 385,
which pre-dates the creation of the H–
2A program and has not been updated
since 1981. The Handbook is used for
both H–2A and non-H–2A agricultural
job orders. Notable aspects of the
guidance are discussed below.
Handbook 385 requires the SWAs to
conduct prevailing wage surveys to
determine the wage rates paid to
domestic workers. Handbook 385 at I–
116. These surveys are conducted based
on ‘‘crop activity,’’ with ‘‘crop activity’’
defined as follows:
the job actually being performed in a specific
crop at time of survey. A single job title, such
as ‘harvest’, may apply to the entire crop
activity. On the other hand, different stages
of the harvest, such as ‘cotton, 1st pick, 2nd
pick, and strip’, may be involved; or, a
different use of the commodity such as
‘tomatoes, fresh’ or ‘tomatoes, canning.’ In
such cases, the important consideration is
whether the work is different. . . . For the
purposes of this report, each operation or job
related to a specific crop activity for which
a separate wage rate is paid should be
identified and listed separately.
Handbook 385 at I–113. In addition, the
Handbook establishes separate
prevailing wage rates for in-State
workers, interstate workers, and all
workers. Handbook 385 at I–118.
Generally, job orders placed in the
interstate clearance system are required
to use the highest of these three rates.
Handbook 385 at I–118.
Among the guidelines provided, the
Handbook lists sample sizes that the
SWA ‘‘should’’ follow, which vary
depending upon the number of workers.
Handbook 385 at I–114. The Handbook
provides that for some crops with a
small number of domestic workers,
samples of the wages of all workers in
the crop activity should be conducted,
as follows:
TABLE 2—SAMPLE SIZES FROM
HANDBOOK 385
Number of workers in the
crop activity in area
100–349 ................................
350–499 ................................
500–799 ................................
800–999 ................................
1000–1249 ............................
1250–1599 ............................
1600–2099 ............................
2100–2999 ............................
3000 or more ........................
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(percent of
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100
60
50
40
35
30
25
20
15
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Handbook 385 at I–114. The Handbook
does not provide any further
information on whether the sample size
guidelines are intended to be mandatory
in all circumstances and, if the
standards are not intended to be
mandatory in all circumstances, what
factors the Department must consider in
determining whether to issue a
prevailing wage if the sample size
guidelines are not met. The Handbook
further suggests that the State should
conduct at least 1 survey per season in
each of the following circumstances: (1)
At least 100 workers were employed in
the crop activity in the previous season
or are expected to be employed in the
current season; (2) regardless of the
number of workers employed, foreign
workers were employed in the previous
season, or employers have requested or
may be expected to request foreign
workers in the current season,
regardless of the number of workers
involved; (3) the crop activity has an
unusually complex wage structure; or
(4) the crop or crop activity has been
designated by the ETA national office as
a major crop or crop activity. Handbook
385 at I–115. In addition, the Handbook
recommends that surveys should
normally be completed within 3 days.
Handbook 385 at I–115.
The Handbook provides that
prevailing wages are produced based on
a ‘‘40 percent rule’’ and a ‘‘51 percent
rule.’’ Handbook 385 at I–116–17. Under
the 40 percent rule, a single rate or
schedule that ‘‘accounts for the wages
paid to 40 percent or more of the
domestic seasonal workers in a single
crop activity is the prevailing rate.’’
Handbook 385 at I–116. There are
additional special rules if there is more
than one rate or schedule accounting for
40 percent of the domestic seasonal
workers. Handbook 385 at I–116. If no
single rate or schedule accounts for 40
percent or more of the domestic
workers, the prevailing rate is set at the
51 percentile. Handbook 385 at I–117. If
there is more than one unit of payment,
the SWA is instructed to determine
which unit of payment is prevailing and
base the prevailing wage finding on that
unit of payment. Handbook 385 at I–
117.
Most burdensome, the Handbook
methodology requires in-person
interviews to conduct the prevailing
wage survey. Specifically, the wage
survey must include ‘‘a substantial
number of personal employer
interviews,’’ which can only be
supplemented by telephone or mail
contacts ‘‘to a limited extent.’’
Handbook 385 at I–116. Further, the
Handbook requires that 10 percent of
the workers included in the sample for
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the wage survey must be interviewed
and suggests that the worker sample
‘‘should be drawn from workers of as
many as possible of the employers
interviewed.’’ Handbook 385 at I–116.
Neither the FLS nor the OES survey
requires in-person interviews of
employers as the primary collection
method. Both the FLS and OES survey
rely solely on employer-reported data
and do not canvass workers directly.
The methodology in the Handbook
385 is outdated and needs to be
modernized in a manner that produces
reliable and accurate prevailing wage
rates, while still being manageable given
the limited available resources at the
State and Federal levels. The Handbook
methodology dates from 1981, before
the creation of the modern H–2A
program. Before the IRCA, the
Department established AEWRs in only
14 ‘‘traditional user’’ States, leaving the
prevailing wage and Federal and State
minimum wages as the only wage
protections available in other states. See
1989 Final Rule, 54 FR 28037, 28038.
After the passage of the IRCA, the
Department dramatically expanded the
use of the AEWR as a wage protection
in the H–2A program in 49 States
(excluding Alaska) and first began using
the FLS to set the AEWR. See id. In
contrast, no updates were made to the
Handbook 385 after the passage of the
IRCA or at any time since. Requirements
in the Handbook, such as the
requirement for in-person interviews,
are now unrealistic given current SWA
limitations. Due to the continued use of
these standards, the SWAs are often
required to report that the State cannot
produce a finding for a given crop
activity or agricultural activity because
the completed survey cannot meet
methodological standards. Accordingly,
the current wage methodology both
wastes State and Federal resources and
fails to produce reliable and accurate
prevailing wage rates for employers and
workers.
For all of these reasons, the
Department proposes to make changes
to modernize the prevailing wage
methodology. The proposal is intended
to meet the Department’s goals of
establishing requirements that allow the
SWAs and other State agencies to
conduct surveys using standards that
are realistic in a modern budget
environment, while also establishing
reliable and accurate prevailing wage
rates for employers and workers. By
modernizing the prevailing wage survey
standards, the Department hopes to
focus States on producing surveys in the
circumstances in which the surveys can
be most useful for protecting the wages
of U.S. workers, and hopes to encourage
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36185
a greater number of reliable prevailing
wage survey results. The proposal
recognizes that under the proposed
wage methodology, which requires the
offered wage rate to be set at the highest
of all applicable wage rates, prevailing
wage determinations will continue to be
relevant only to a small percentage of
job orders.
ii. The Department Proposes To
Modernize the Methodology Used To
Establish the Prevailing Wage Rate
For the reasons discussed above, the
Department proposes to modernize the
standards in Handbook 385 and replace
the existing prevailing wage
methodology with a new methodology
at § 655.120(c) under which the
Department would establish prevailing
wages for crop activities or agricultural
activities. The Department proposes to
use the term ‘‘crop activity or
agricultural activity’’ rather than the
term ‘‘crop activity’’ from Handbook 385
because prevailing wage rates may exist
for a single agricultural activity
conducted across multiple agricultural
commodities. Establishing wage rates by
both crop activities and agricultural
activities is consistent with the
Department’s current policy. For
example, the Department’s existing subregulatory guidance covering custom
combine workers explains that
prevailing wage rates for custom
combine operators are established in
accordance with Handbook 385.47 This
is because custom combine operators
may be engaged in an agricultural
activity, such as operating harvesting
equipment, with a single wage structure
across multiple crops.
Under the new proposed
methodology, the OFLC Administrator
would establish a prevailing wage for a
given crop activity or agricultural
activity only if all of the requirements
in proposed § 655.120(c)(1) are met.
Requiring that all surveys meet
statistical standards is necessary to
establish reliable and accurate
prevailing wage rates for employers and
workers. The Department proposes the
following standards: (1) The SWA must
submit a standardized form providing
the methodology of the survey, which
must be independently conducted by
47 See TEGL 16–06, Change 1, Special Procedures:
Labor Certification Process for Multi-State Custom
Combine Owners/Operators under the H–2A
Program, Attachment A at p. 1, available at https://
wdr.doleta.gov/directives/attach/TEGL/TEGL16-06Ch1.pdf (last updated June 14, 2011). As discussed
further in the preamble related to proposed
§§ 655.300 through 655.304, the Department
proposes to codify in regulations the existing subregulatory guidance for certain H–2A itinerant
occupations, including guidance applicable to
custom combine operators.
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the SWA or another state entity; (2) the
survey must cover a distinct work task
or tasks performed in a single crop
activity or agricultural activity; (3) the
survey must be based on either a
random sample or a survey of all
employers in the geographic area
surveyed who employ workers in the
crop activity or agricultural activity; (4)
the survey must be limited to the wages
of U.S. workers; (5) a single unit of pay
must be used to compensate at least 50
percent of the U.S. workers included in
the survey; (6) the survey must report an
average wage; (7) the survey must cover
an appropriate geographic area based on
several factors; and (8) the survey must
report the wages of at least 30 U.S.
workers and 5 employers and the wages
paid by a single employer must
represent no more than 25 percent of the
sampled wages included in the survey.
In addition to these methodological
standards, the Department proposes to
establish a validity period of prevailing
wage surveys.
First, the Department proposes to
maintain the current requirement that
the SWA submit a Form ETA–232
providing the methodology for the
survey. If finalized as proposed, the
Department would update the Form
ETA–232 to align with the new
proposed prevailing wage methodology.
While the SWA would continue to
submit the Form ETA–232 to OFLC, the
Department proposes to allow the
survey to be independently conducted
by State entities other than the SWA,
including any State agency, State
college, or State university.48 The
Department proposes to broaden the
universe of State entities that may
conduct a prevailing wage survey
because the SWAs have limited capacity
to conduct surveys given other legal
requirements, including the statutory
requirement to conduct housing
inspections. However, some other State
agencies, State colleges, or State
universities may have resources and
expertise to conduct reliable prevailing
wage surveys for the H–2A program.
The Department proposes to broaden
the categories of State entities that may
conduct prevailing wage surveys to
encourage more prevailing wage surveys
to be conducted by reliable sources,
independent of employer or worker
48 The H–2B regulation generally uses the OES
average wage for the SOC to set the prevailing wage
rate and allows employers to submit non-OES wage
surveys as an alternative to the OES only if the
survey is independently conducted and issued by
a State, including any State Agency, State college
or State university; where the OES does not provide
data in the geographic area; or if the OES does not
accurately represent the relevant job classification.
20 CFR 655.10.
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influence. Under this proposal, a State
entity other than the SWA could choose
to conduct a prevailing wage survey
using State resources without any
foreign labor certification program
funding, or the SWA could elect to
wholly or partially fund a survey
conducted by another State entity using
funds provided by the Department for
foreign labor certification programs.
However, the Department proposes to
continue to require the SWA to submit
the Form ETA–232 for any prevailing
wage survey, even if the survey was
conducted by another State entity, to
provide a single avenue through which
States submit surveys, and so it is clear
that all surveys sent to the Department
are submitted on behalf of the State as
a whole. The SWA is the appropriate
entity to submit any survey to the
Department because the SWA receives
grant funding from the Department for
the H–2A program. Without this
requirement, the Department is
concerned that more than one agency in
a State might conduct a survey for the
same crop activity or agricultural
activity, which would require the
Department to adjudicate conflicting
prevailing wage surveys. The
Department requests comments on
alternate methods of dealing with the
issue of possible conflicting surveys.
The Department also requests comments
on whether there are additional neutral
sources of prevailing wage information
that the Department should use in the
H–2A program.
Second, the Department proposes that
the survey must cover a distinct work
task or tasks performed in a single crop
activity or agricultural activity. The
concept of distinct work tasks is
continued from the Handbook 385,
which provides:
Some crop activities involve a number of
separate and distinct operations. Thus, in
harvesting tomatoes, some workers pick the
tomatoes and place them in containers while
others load the containers into trucks or
other conveyances. Separate wage rates are
usually paid for individual operations or
combinations of operations. For the purposes
of this report, each operation or job related
to a specific crop activity for which a
separate wage rate is paid should be
identified and listed separately.
Handbook 385 at I–113 (emphasis in
original). The distinct task requirement
means that even within a single crop,
distinct work tasks that are
compensated differently (e.g., picking
and packing) would be required to be
surveyed in a manner that produces
separate wage results.
Third, the Department proposes that
the survey must be based on either a
random sample or a survey of all
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employers in the surveyed geographic
area who employ workers in the crop
activity or agricultural activity. This
requirement is based on general
statistical principals and is consistent
with the recommendation in Handbook
385, which provides: ‘‘[w]ithout regard
to whether employers do or do not
utilize the facilities of the Job Service,
the wage survey sample should include
workers of small, medium and large
employers of domestic workers from all
sectors of the area being surveyed, and
should be selected by probability
sampling methods.’’ Handbook 385 at I–
114. Probability and random sampling
are synonymous, and random sampling
includes both simple random sample
and stratified random sample methods.
The Department proposes to maintain
this existing requirement to conduct a
random/probability sample and clarify
that random sampling (or surveying the
entire universe) is a requirement, not a
recommendation. The requirement that
a prevailing wage survey be established
based on a sampling of the entire
universe or a random sample is also
consistent with the H–2B prevailing
wage regulation at § 655.10, as well as
current H–2B prevailing wage guidance
interpreting the H–2B appropriations
riders.49 To make a reasonable, good
faith effort to contact all employers in
the surveyed geographic area who
employ workers in the crop activity or
agricultural activity, the surveyor might
send the survey through the mail or
other appropriate means to all
employers in the geographic area and
then follow up by telephone with all
non-respondents.
Fourth, to protect against possible
adverse effect on the wages of workers
in the United States similarly employed,
the Department proposes to limit the
survey to the wages of U.S. workers.
This limitation applies to both
determining the universe of workers’
wages to be sampled and the universe
of workers’ wages reported. Limiting the
survey to U.S. workers is consistent
with the Department’s current policy
and reflects the Department’s
longstanding concern that including the
wages of non-U.S. workers may depress
wages.50 The Department recognizes
that in the H–2B program, prevailing
wage surveys must be conducted
49 See Effects of the 2016 Department of Labor
Appropriations Act (Dec. 29, 2015) at p. 4, available
at https://www.foreignlaborcert.doleta.gov/pdf/H2B_Prevailing_Wage_FAQs_DOL_Appropriations_
Act.pdf.
50 The Handbook 385 uses the terms ‘‘domestic
workers’’ and ‘‘U.S. workers’’ in describing the
sample to be conducted, and the current Form
ETA–232 similarly limits the survey to U.S.
workers.
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without regard to the immigration status
of the workers whose wages are
included in the survey. However, the
Department proposes to continue to
require prevailing wage surveys in H–
2A to include only the wages of U.S.
workers due to concerns that the
presence of the wages of undocumented
workers in the sample may depress the
wages of workers in the United States
similarly employed are particularly
acute in agriculture, because nearly half
of farmworkers lack work
authorization.51 The Department invites
comments on this policy, including
whether the Department should instead
adopt the H–2B standard.
Fifth, the Department proposes that a
prevailing wage be issued only if a
single unit of pay is used to compensate
at least 50 percent of the U.S. workers
included in the survey. For example, an
hourly prevailing wage rate would only
be issued if at least 50 percent of the
U.S. workers included in the survey are
paid by the hour (and the survey also
meets all other requirements provided
in the proposed rule). For a wage rate
based on a piece rate to be issued under
this proposal, at least 50 percent of the
U.S. workers whose wages are included
in the survey must be both paid by the
piece and also must be paid based on
the same unit of measurement (e.g.,
bushel, bin, etc.). This is similar to the
requirement in the Handbook 385 that if
a survey includes more than one unit of
payment, a prevailing wage rate is
issued based on the unit of pay that
represents the largest number of
workers. Handbook 385 at I–117. The
Department proposes this requirement
both to verify that the rate structure
reflected in the survey is actually
prevailing and to provide that the wages
included in the survey can be averaged,
as discussed in the next paragraph of
the preamble, because it would not be
possible to average wages using
different units of measurement.
Sixth, the Department proposes that a
prevailing wage survey must report an
average wage for the unit of pay that
represents at least 50 percent of the
wages of U.S. workers included in the
survey. This proposal departs from the
requirement in Handbook 385 to use a
‘‘40 percent rule’’ and a ‘‘51 percent
rule,’’ discussed above. The Department
51 According to the most recent U.S. Department
of Labor’s National Agricultural Workers Survey,
between October 1, 2012, and September 30, 2014,
47 percent of farmworkers in the United States
lacked work authorization. Findings from the
National Agricultural Workers Survey (NAWS)
2013–2014: A Demographic and Employment
Profile of United States Farmworkers, Research
Report No. 12 (Dec. 2016), pp. 4–5, available at
https://www.doleta.gov/naws/pages/research/docs/
NAWS_Research_Report_12.pdf.
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proposes to use an average wage to
establish the prevailing wage because it
is consistent with both how the
Department proposes to set the AEWR
under the FLS and OES methodologies
and with the current H–2B wage
methodology for prevailing wage rates.
The Department invites comments on
this methodology as well as possible
alternatives, including whether the ‘‘40
percent rule’’ and a ‘‘51 percent rule’’
from the Handbook should be
maintained or whether the Department
should instead establish the prevailing
wage at the median wage based on the
unit of pay.
Seventh, the Department proposes
that a prevailing wage survey must
cover an appropriate geographic area
based on available resources, the size of
the agricultural population covered by
the survey, and any different wage
structures in the crop activity or
agricultural activity within the State.
With this proposal, the Department
intends to codify existing practice
whereby the Department receives
prevailing wage surveys based on State,
sub-state, and—in the case of logging
activities in Maine, New Hampshire,
and Vermont—regional geographic areas
based on the factors listed above. The
Department requests comments on
whether any other factors should be
considered in determining the
appropriate geographic area for
prevailing wage surveys.
Eighth, and most significantly, the
Department proposes to replace the
statistical guidelines from Handbook
385 with standards that are more
effective in producing a prevailing wage
and more appropriate to a modern
budget environment. As discussed
above, existing standards often result in
‘‘no finding’’ from a prevailing wage
survey; therefore, the current standards
are both a waste of government
resources and fail to meet the goal of
producing reliable and accurate
prevailing wage rates. The Department
is also concerned that employers may be
incentivized not to respond to a survey
under the existing methodology because
the OFLC Administrator does not issue
a prevailing wage if the sample is too
small. As a result, requiring smaller
sample sizes than those suggested in
Handbook 385 may actually increase
survey response rates because
employers may be more likely to
respond to a survey if it is more likely
that the OFLC Administrator will issue
a prevailing wage than under the
current methodology.
The Department proposes that the
survey must report the wages of at least
30 U.S. workers and 5 employers and
that the wages paid by a single employer
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must represent no more than 25 percent
of the sampled wages included in the
survey. The 30-worker standard is
consistent with the requirements for H–
2B prevailing wage rates as well as
minimum reporting numbers for the
OES. See 20 CFR 655.10(f)(4)(ii)
(employer-provided surveys for the H–
2B program must include wage data
from at least 30 workers and three
employers); see also 80 FR 24146, 24173
(Apr. 29, 2015). BLS requires wage
information from a minimum of 30
workers (after raw OES survey data is
appropriately scrubbed and weighted)
before it deems data of sufficient quality
to publish on its website. In addition,
the Department proposes that a survey
must include wages paid by at least five
employers. This is a change from
Handbook 385, which does not have a
minimum number of employers who
must be included in the survey. The
Department recognizes that by
proposing to require that a survey must
include wages paid by at least five
employers, the proposal exceeds the
number of employers (e.g., three)
required to establish prevailing wage
rates under the H–2B program; however,
while prevailing wages in the H–2B
program are generally set based on local
area of intended employment, H–2A
prevailing wage rates are generally set
based on a larger geographic area. In the
Department’s preliminary view, this
makes a higher number of employer
responses appropriate for the H–2A
program. Finally, the Department
proposes that the wages paid by a single
employer must represent no more than
25 percent of the sampled wages. The
Department proposes this 25 percent
standard so that the wage is not unduly
impacted by the wages of a single
dominant employer. The Department
would issue a prevailing wage from a
survey only if all of the sample size
requirements—30 workers, 5 employers,
and the 25 percent single employer
standards—are met.
Both the five employer and 25 percent
dominance standards are consistent
with the ‘‘safety zone’’ standards for
exchanges of employer wage
information established by the
Department of Justice (DOJ) and Federal
Trade Commission (FTC) in the antitrust
context.52 Under the safety zone
52 See Statement 6 of the Antitrust Enforcement
Policy in Health Care (‘‘enforcement policy’’),
August 1996, available at https://www.justice.gov/
atr/public/guidelines/0000.htm. While the
enforcement policy was developed for exchanges of
information in the health care industry, the policy
has been recognized to ‘‘offer significant insights
that go beyond health care, including a very useful
framework for analyzing information exchanges,’’
David H. Evans & Benjamin D. Bleiberg, Trade
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standards, absent extraordinary
circumstances, the exchange of
information about employer wages
meeting the requirements for the safety
zone will not be challenged by the DOJ
or the FTC as a violation of antitrust
law. Although created for a different
purpose than these proposed H–2A
regulatory standards, the safety zone
standards establish levels at which the
DOJ and FTC have established that an
exchange of wage information is
sufficiently anonymized to prevent the
wages of a single employer from being
identified because the wage results
reported too closely track the wages
paid by a single employer. It is the
Department’s preliminary conclusion
that the safety zone standards are
consistent with the Department’s aim of
requiring that the wages reported from
a prevailing wage survey are sufficiently
representative, and the wages of a single
employer do not drive the wage result.
The Department requests comments
on these statistical standards and any
alternate standards that might be used to
meet the Department’s goals of
establishing reliable and accurate
prevailing wage rates consistent with a
modern budget environment. For
example, the Department requests
comments on whether to require the
Handbook’s suggested sample size of 15
percent for crop activities or agricultural
activities with at least 3,000 U.S.
workers but require a smaller sample
than those set in the Handbook for
smaller crop activities and agricultural
activities. Additionally, the Department
requests comments on whether the
proposed sample size requirements, and
any recommended alternative
requirements, should apply to the
survey overall or to the prevailing unit
of pay. For example, the Department
invites comments on whether, if a
survey includes both hourly pay and
piece rate pay based on a bushel unit,
the 30 worker, 5 employer, and 25
percent dominance standards should
apply to the survey overall, or to the
unit of pay that represents the wages
paid to at least 50 percent of the workers
in the survey.
In addition to the standards governing
the methodology in the survey, in
§ 655.120(c)(2), the Department
proposes that a prevailing wage rate
would remain valid for 1 year after
Associations: Collaboration, Conspiracy and
Invitations to Collude, Antitrust Rev. of the
Americas, at 40 (2011); see also Robert H.
Lattinville & Robert A. Boland, Coaching in the
National Football League: A Market Survey and
Legal Review, 17 Marq. Sports L. Rev. 109, at n. 428
(Fall 2006) (‘‘Officials from the FTC have stated that
the principles, while nominally focused on the
health care industry, are broadly applicable to other
industries and professions.’’).
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OFLC posts the wage rate or until
replaced with an adjusted prevailing
wage, whichever comes first, except that
if a prevailing wage that was guaranteed
in the employer’s Application for
Temporary Employment Certification
expires during the contract period, the
employer must continue to guarantee a
wage that is at least equal to the expired
prevailing wage rate. This proposal is
consistent with OFLC’s current policy.
The Department proposes that if an
employer guaranteed a prevailing wage
rate in the Application for Temporary
Employment Certification, it must
continue to guarantee that rate if it is the
highest applicable wage, even if the
prevailing wage rate ‘‘expires’’ during
the contract period. This is because the
employer may not pay a wage lower
than the wage it offered to U.S. or H–
2A workers.
The 1-year validity period for
prevailing wage rates is generally
consistent with OFLC’s current practice.
The Department proposes to maintain
the current validity period with the
goals of both basing prevailing wage
rates on the most recent and accurate
data and making prevailing wage rate
findings available where the prevailing
wage rate would be higher than the
AEWR. The Department invites
comments on whether an alternate
duration for the validity of prevailing
wage surveys would better meet these
goals. For example, the Department
invites comments on whether to use the
2-year period that is used for the H–2B
program. For the H–2B program, an
employer may submit a prevailing wage
survey if it is the most recent edition of
a survey and is based on data collected
no more than 24 months before
submission. The Deparment also invites
comments on whether it should index
prevailing wage rates based on either
the CPI or ECI when the OFLC
Administrator issued a prevailing wage
rate in 1 year for a crop activity or
agricultural activity but a prevailing
wage finding is not available in a
subsequent year. The Department also
invites comments on whether it should
set any limits on the age of the data
reported by a survey.
The Department requests comments
on each of the methodological changes
discussed above, as well as any alternate
prevailing wage survey requirements.
This includes comments on whether
and why any of the elements of
Handbook 385 should be maintained
and incorporated in to the regulation as
well as whether and why any aspects of
the Department’s H–2B prevailing wage
methodology for employer-provided
surveys should be adopted for the H–2A
program. The Department is particularly
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interested in comments that address
how the recommended standard will
meet the Department’s objective to
produce reliable and accurate prevailing
wage rates for employers and workers in
a manner consistent with available
resources at the State and Federal levels.
d. The Department Proposes That the
Employer Must Pay Any Higher AEWR
or Prevailing Wage Rate Not Later Than
14 Days After Notification of the New
Wage Rate
Paragraph (c) of current § 655.120
provides that the Department would
update the AEWR at least annually by
publication in the Federal Register.53 In
addition, the current regulation at
§ 655.122(l) requires employers to pay
the highest wage ‘‘in effect at the time
the work is performed,’’ which means
employers must begin paying the AEWR
upon its effective date. The current
regulation is silent on when a published
AEWR becomes effective. For many
years, the Department published
AEWRs with an immediate effective
date. However, starting with the AEWRs
for 2018, the Department gave
employers up to 14 days to start paying
a newly issued higher AEWR.54 The
Department proposes to provide text in
§ 655.120(c) that clarifies that if a higher
AEWR is published in the Federal
Register during the labor certification
period, the employer must begin paying
the new wage rate within 14 days,
consistent with the current regulation
and policy. This policy prevents adverse
effect on the wages of U.S. workers by
quickly implementing any newlyrequired higher wage rate, while giving
employers a brief window to update
their payroll systems to implement a
newly-issued wage. The 14-day effective
date is based on the current regulation
at § 655.122(m), which requires the
employer to pay the worker at least
twice a month or according to the
prevailing practice in the area of
intended employment, whichever is
more frequent. No changes are proposed
to § 655.122(m). Given this existing
requirement, the 14-day window
provides that an employer is not
required to adjust a worker’s pay in the
middle of a pay period.
In addition, the Department proposes
to make minor edits to the existing
language because the AEWRs will no
longer be announced in a single Federal
53 Under 44 U.S.C. 1507, publication in the
Federal Register provides legal notice of the new
wage rates.
54 See Notice, Labor Certification Process for the
Temporary Employment of Aliens in Agriculture in
the United States: 2018 Adverse Effect Wage Rates
for Non- Range Occupations, 82 FR 60628 (Dec. 21,
2017).
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Register announcement. Instead, each
AEWR will be updated at least annually,
but the Department plans to make the
updates through two announcements,
one for the AEWRs based on the FLS,
and another one for the AEWRs based
on the OES survey. This is due to the
different time periods for release of
these two surveys.
Similar to the current regulation on
AEWR updates, the current regulation at
§ 655.120(b) requires the employer to
pay a higher prevailing wage upon
notification to the employer by the
Department. The Department’s current
practice is to publish prevailing wage
rates on its website and to directly
contact employers who are covered by
a higher prevailing wage rate. The
proposed regulation maintains this
current practice for notifying employers
directly, rather than through the Federal
Register, because the administrative
burden of contacting employers directly
is less than publishing multiple
prevailing wage rates in the Federal
Register given that prevailing wage rate
surveys are not provided for all crops,
activities, and locations in a single
cycle. As with the AEWR, the
Department proposes to make the new
prevailing wage rates effective 14 days
after notification so that employers do
not need to update the wage rate in the
middle of a pay period.
For both the AEWR and prevailing
wage rate, the Department proposes that
the employer must pay a higher wage
rate if the wage is adjusted during the
contract period, but may not lower the
wage rate if OFLC issues an AEWR or
prevailing wage that is lower than the
offered wage rate. Because the employer
advertised and offered the higher rate
through its recruitment of U.S. and H–
2A workers, the wage cannot be reduced
below the wage already offered and
agreed to in the work contract. Under
this proposal, an employer would not be
permitted to put a clause in the job
order stating that it may reduce the
offered wage rate if a lower AEWR or
prevailing wage is issued. The
Department also proposes to remove
current regulatory language that requires
an employer to pay the wage ‘‘in effect
at the time work is performed’’ from
§§ 655.120(b) and 655.122(l) because
that language may create confusion
about the existing requirement to
continue to pay a previously offered
wage if the new ‘‘effective’’ wage is
lower.
e. Wage Assignments and Appeals
Under this proposal, an employer
would select the appropriate SOC code
for the job opportunity and guarantee in
its Application for Temporary
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Employment Certification a wage that is
at least the highest of the AEWR for that
SOC, a prevailing wage where the OFLC
Administration has issued such a wage
rate, an agreed-upon collective
bargaining wage, or the applicable
Federal or State minimum wage. The
CO would then review the employer’s
wage selection as part of the review of
the Application for Temporary
Employment Certification to verify that
the employer guarantees at least the
required wage.
Under paragraph (b)(5) of this
proposal, if the job duties on the
Application for Temporary Employment
Certification do not fall within a single
occupational classification, the CO
would determine the applicable AEWR
at the highest AEWR for all applicable
occupational classifications.
Determining the appropriate SOC is an
important component of the
Department’s proposal to move to an
occupation-specific wage. The proposal
to use the highest applicable wage
would reduce the potential for
employers to misclassify workers and
would impose a lower recordkeeping
burden than if the Department
permitted employers to pay different
AEWRs for job duties falling within
different occupational classifications on
a single Application for Temporary
Employment Certification. This
proposal is also consistent with how the
Department assigns prevailing wage
rates for jobs that cover multiple SOCs
in the H–2B program.
Under this proposal, employers who
currently file a single Application for
Temporary Employment Certification
covering multiple workers and a wide
variety of duties might choose to file
separate Applications for Temporary
Employment Certification and limit the
duties of the workers covered by each
Application for Temporary Employment
Certification to a single occupational
classification. The employer would then
pay a separate wage rate based on the
duties of each Application for
Temporary Employment Certification.
The Department invites comments on
the proposal to determine the applicable
AEWR at the highest AEWR for all
applicable occupational classifications,
including any alternate methods the
Department should use to determine the
AEWR if the job duties on the
Application for Temporary Employment
Certification do not fall within a single
occupational classification. For
example, the Department invites
comments on whether it should
establish the AEWR to be guaranteed on
the Application for Temporary
Employment Certification based on the
primary duties of the job as reported on
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36189
the Application for Temporary
Employment Certification. Any
proposals to use a methodology other
than the highest AEWR for all
applicable occupational classifications
should explain how the Department
would protect against misclassification.
All Applications for Temporary
Employment Certification are currently
assigned an SOC by the SWA, but these
assignments have no impact on the
required wage rate in the H–2A
program, because the required wage rate
is not currently based on the SOC
system. Based on past SOC assignments
by the SWA, approximately 95 percent
of H–2A workers will fall within one of
the following SOC codes: 45–2092
(Farmworkers and Laborers, Crop,
Nursery, and Greenhouse), 45–2093
(Farmworkers, Farm, Ranch, and
Aquacultural Animals), 45–2091
(Agricultural Equipment Operators), and
45–4011 (Forest and Conservation
Workers) if reforestation workers are
added to the H–2A program as
proposed. Given the very small number
of SOCs applicable to most H–2A jobs,
the Department expects that employers
will be able to select the correct SOC
code and accompanying AEWR in most
cases.
In a small number of cases, the
employer may select the incorrect SOC
on its Application for Temporary
Employment Certification. If the
employer offers a wage that does not
meet the requirements of § 655.120(a),
proposed paragraph (d)(1) explains that
the CO would issue a NOD and require
the employer to correct the wage rate.
This would include recruiting for the
job opportunity at the correct wage rate.
Proposed paragraph (d)(2) further
provides that if the employer disagrees
with the wage rate required by the CO,
the employer may appeal only after the
Application for Temporary Employment
Certification is denied, and the
employer must follow the procedures in
§ 655.171. This proposal is consistent
with the proposal to eliminate appeals
of NODs discussed in the preamble
related to § 655.141 of this proposed
rule and would promote efficiency by
providing that all possible grounds for
denial are appealed at once, rather than
allowing for separate appeals of
multiple issues.
2. Section 655.121, Job Order Filing
Requirements
a. Submission of the Job Order
The statute requires employers to
engage in the recruitment of U.S.
workers through the employment
service job clearance system
administered by the SWAs. See section
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218(b)(4) of the INA, 8 U.S.C. 1188(b)(4);
see also 29 U.S.C. 49 et seq., and 20 CFR
part 653, subpart F. The Department
proposes to modernize and streamline
the process by which employers submit
job orders to the SWA for review and for
intrastate and interstate clearance in
order to test the local labor market and
determine the availability of U.S.
workers before filing an Application for
Temporary Employment Certification.
Employers have described the current
process of preparing and submitting job
orders to the SWAs as cumbersome,
complicated, and requiring the
expenditure of considerable time and
money. An employer must prepare the
job order, Agricultural and Food
Processing Clearance Order (Form ETA–
790), in paper form, scan it, and submit
it, along with any other paper
attachments, to the SWA using email,
U.S. mail, or private courier. Mistakes
often must be corrected by hand,
initialed and dated, then emailed or
mailed to appropriate parties. Failure to
complete these manual exchanges of
corrections can lead to active job orders
with outdated and/or inaccurate terms
and conditions. Furthermore, the SWAs
generally do not have adequate capacity
to provide for the e-filing and
management of job orders, which may
create uncertainty for employers that
need to submit job orders within
regulatory timeframes. Given that an
employer must provide a copy of the
same job order to the NPC at the time
of filing the Application for Temporary
Employment Certification, the current
job order filing process requires
duplication of effort for employers,
especially those with business
operations covering large geographic
areas that need to coordinate job order
submissions with multiple SWAs.
Therefore, the Department proposes
that an employer submit a newly
designed job order, H–2A Agricultural
Clearance Order (Form ETA–790/790A),
directly to the NPC designated by the
OFLC Administrator. This proposal also
requires an employer to submit the job
order using the electronic method(s)
designated by the OFLC Administrator,
and adopts the use of electronic
signatures. Employers permitted to file
by mail or who request a reasonable
accommodation due to a disability
under the proposed procedures in
§ 655.130(c) would be permitted to file
using those other means. Unless the
employer has a disability or lacks
adequate access to e-filing, the NPC will
return without review any job order
submitted using a method other than the
electronic method(s) designated by the
OFLC Administrator.
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Where the job order is submitted in
connection with a future master
application, an agricultural association
will continue to submit a single job
order in the name of the agricultural
association as a joint employer on behalf
of all employer-members that will be
identified on the Application for
Temporary Employment Certification.
The Department proposes edits to
clarify that the employer-members will
also be listed on the job order. Similarly,
the Department proposes that where two
or more employers are seeking to jointly
employ a worker or workers, as
permitted by proposed § 655.131(b), any
one of the employers may submit the job
order as long as all joint employers are
named on the job order and the future
Application for Temporary Employment
Certification.
Upon receipt of the job order, the NPC
will transmit, on behalf of the employer,
an electronic copy of the job order to the
SWA serving the area of intended
employment for review. If the job
opportunity is located in more than one
State within the same area of intended
employment, the NPC will transmit a
copy of the electronic job order, on
behalf of the employer, to any one of the
SWAs having jurisdiction over the
place(s) of employment for review. The
job order must continue to satisfy the
requirements for agricultural clearance
orders set forth in 20 CFR part 653,
subpart F, and § 655.122.
As explained above, the Department
believes this proposal will modernize
and streamline the job order filing
process and create significant savings
and efficiencies for employers, SWAs,
and the Department. Many employers
and their authorized representatives are
highly automated in their business
operations and familiar with e-filing the
Form ETA–9142A, required appendices,
and supporting documentation with the
NPC. Based on applications filed during
FYs 2016 and 2017, more than 81
percent of employer applications were
submitted electronically to the NPC for
processing. Expanding OFLC’s
technology system to include the
electronic submission of the new Form
ETA–790/790A, prior to the filing of an
Application for Temporary Employment
Certification, will save employers time
and money preparing, scanning, and
mailing the job order to the SWA, and
streamline the filing process by
providing a single point-of-access to H–
2A program services.
To implement this proposal, OFLC’s
technology system will allow an
employer to initiate the new Form ETA–
790/790A online, pre-populate all
business contact information from their
account, and save a partially completed
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form as a ‘‘draft’’ that the employer can
access and complete later. As the Form
ETA–790/790A is prepared online, the
system will provide the employer with
a series of electronic data checks and
prompts to ensure each required field is
completed and values entered on the
form are valid and consistent with
regulatory requirements. An online
glossary and ‘‘help’’ function will allow
the employer to refer to explanations of
key terms along with access to
frequently asked questions designed to
clarify instructions on completing the
form. For an employer that has recurring
seasonal job opportunities, the system
will allow the preparation of multiple
Forms ETA–790/790A and ‘‘reuse’’
previously filed job orders. This ‘‘reuse’’
capability is similar to the one currently
available for preparing the Form ETA–
9142A, and will save the employer
significant time and expense by prepopulating key sections into the draft
Form ETA–790/790A, including
information related to the job
opportunity, crops or agricultural
activities, wage offers, place of
employment and housing locations, and
other worker guarantees (e.g., meals and
transportation).
The newly designed Form ETA–790/
790A will also contain a standardized
set of terms and conditions of
employment, as required by
§§ 653.501(c) and 655.122, that the
employer will review, sign, and date
online prior to submission. The
Department proposes to standardize
these required terms and conditions of
employment to ensure greater
consistency in disclosure to prospective
U.S. worker applicants and reduce the
frequency of inadvertent errors or
omissions that lead to processing
delays. After agreeing to these standard,
required terms and conditions of
employment, the employer will affix its
electronic signature in order to submit
the job order for processing. Once
submitted, the OFLC technology system
will automatically transmit the
electronic Form ETA–790/790A to the
SWA serving the area of intended
employment, thereby eliminating the
need for the employer to send the job
order to the SWA.
For the Department and SWAs,
electronic submission of job orders will
decrease data entry, improve the speed
with which job order information can be
retrieved and shared with the SWAs,
reduce staff time and storage costs, and
improve storage security. Since the new
Form ETA–790/790A will be stored
electronically, it also eliminates the
need for manual corrections of errors
and other deficiencies and improves the
efficiency of posting and maintaining
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b. SWA Review of the Job Order
copy to the employer’s representative, if
applicable.
If the employer is not able to resolve
the deficiencies with the SWA or the
SWA does not respond within the stated
timelines, the Department will continue
to permit the employer to file its
Application for Temporary Employment
Certification and job order to the NPC
using the emergency filing procedures
contained in § 655.134. With the newly
designed Form ETA–790/790A, the
Department anticipates fewer
discrepancies and inconsistencies
between SWA determinations in various
States. The Department continues to
encourage employers to work with the
SWAs early in the process to ensure that
their job orders meet applicable statespecific laws and regulations and are
accepted timely for intrastate and
interstate clearance.
The Department proposes minor
revisions to the timeframes and
procedures under which the SWA
performs a review of the employer’s job
order. The SWA will continue to
provide written notification to the
employer of any deficiencies within 7
calendar days from the date the SWA
received the job order from the NPC.
The Department proposes editorial
changes to clarify that the notification
issued by the SWA must state the
reasons the job order fails to meet the
applicable requirements and state the
modifications needed for the SWA to
accept the job order. The employer will
continue to have an opportunity to
respond to the deficiencies within 5
calendar days from the date the
notification is issued by the SWA, and
the SWA will issue a final notification
to accept or deny the job order within
3 calendar days from the date the
employer’s response is received.
To ensure a timely disposition is
issued on all job orders, the Department
proposes the job order be deemed
abandoned if the employer’s response to
the notification is not received within
12 calendar days after the SWA issues
the notification. In this situation, the
SWA will provide written notification
and direct the employer to submit a new
job order to the NPC that satisfies all the
requirements of this section. The 12calendar-day period provides an
employer with a reasonable maximum
period within which to respond, given
the Department’s concern for timely
processing of the employer’s job order.
The Department is also clarifying that
any notice sent by the SWA to an
employer that requires a response must
be sent using a method that assures next
day delivery, including email or other
electronic methods, and must include a
c. Intrastate and Interstate Clearance of
Approved Job Orders
The Department proposes minor
changes to the process by which the
SWA circulates the approved job order
for intrastate clearance and posts a copy
of the job order for interstate clearance
to other designated SWAs.
Under the current regulation, once the
SWA accepts the job order, it must place
the job order in intrastate clearance and
commence recruitment of U.S. workers.
Where the employer’s job order covers
an area of intended employment that
falls within the jurisdiction of more
than one SWA, the originating SWA
initiates limited interstate clearance by
circulating a copy of the job order to the
other SWAs serving the area of intended
employment. The Department proposes
changes to this process to accommodate
the new requirement that employers file
job orders directly with the NPC. Upon
its acceptance of the job order, the SWA
will continue to place the job order in
its intrastate job clearance system.
However, rather than circulating the job
order to other SWAs covering the area
of intended employment or waiting for
instructions from the CO in the NOA,
the Department proposes that the SWA
notify the NPC that the job order is
approved and must be placed into
interstate clearance. Upon receipt of the
SWA notification, the NPC is
responsible for promptly transmitting an
electronic copy of the approved job
order for interstate clearance to all
SWAs with jurisdiction over the area of
intended employment and the States
designated by the OFLC Administrator
as potential sources of traditional or
expected labor supply, in accordance
with § 655.150.
The Department has concluded that
these proposed changes will provide
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approved job orders on the
Department’s electronic job registry.
This may result in more efficient use of
Department and SWA staff time.
Further, the Department already
provides the SWAs with access to
OFLC’s technology system for purposes
of communicating any deficiencies with
job orders associated with employerfiled H–2A and H–2B applications and
uploading inspection reports of
employer housing. Incorporating a
capability for the SWAs to access and
retrieve the Form ETA–790/790A
assigned by the NPC, virtually in real
time after submission by employers, is
a logical next step in enhancing OFLC’s
technology system and creating a
seamless delivery of program services
for employers.
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U.S. worker applicants with greater
exposure to the job opportunity and
facilitate a more efficient process for
circulating the employer’s job order
through the interstate clearance system.
Circulation of the approved job order for
interstate clearance prior to the filing of
the Application for Temporary
Employment Certification will
significantly increase the amount of
time that job orders are initially
available to prospective U.S. worker
applicants, including in labor supply
States designated by the OFLC
Administrator. Additionally, the SWAs
will save time and resources because the
proposed changes will eliminate the
need to prepare, scan, and transmit
copies of approved job orders to other
SWAs. Since the job order is
electronically available to the NPC, the
NPC can transmit a copy of the
approved job order to other SWAs with
minimal effort and expense.
Where modifications to the job order
are required under this section, the NPC
can serve as a single source of authority
for all modifications to ensure greater
accuracy and consistency in disclosing
the modified terms and conditions of
employment. Once the modifications
are complete, the NPC will promptly recirculate an electronic copy of the job
order to all affected SWAs, as well as
the employer. Consequently, the SWAs
will be able to focus their resources on
recruiting U.S. workers and conducting
timely inspections of employer housing.
d. Other Proposed Changes
To clarify procedures and as a result
of other proposed changes, the
Department is retaining but reorganizing
several components of § 655.121. For
example, the Department proposes to
move the timeliness requirement for
submitting a job order from paragraph
(a)(1) to a new paragraph (b) that focuses
solely on the timeliness requirements.
The change in the location of this
timeliness language, combined with
new paragraphs (c) and (d) to
accommodate the e-filing of job orders
and Applications for Temporary
Employment Certification with the
designated NPC, required renumbering
of subsequent paragraphs. The
Department also proposes procedures to
allow employers that lack adequate
access to e-filing to file the job order by
mail and for employers that are unable
or limited in their ability to use or
access the electronic application due to
a disability to request an
accommodation to allow them to access
and/or file the job order through other
means.
The Department also proposes minor
changes to paragraph (a)(2) and new
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paragraph (a)(3) to clarify procedures for
an agricultural association’s submission
of a job order in connection with a
future master application, as permitted
by proposed § 655.131(a), and for two or
more employers seeking to submit a job
order in connection with a future joint
employment application, as permitted
by proposed § 655.131(b). While only
one joint employer will submit the job
order to the NPC, the job order must
identify names of all employers
included in that job order. Proposed
paragraph (a)(4) retains former
paragraph (a)(3), with technical changes,
and continues to require the employer’s
job order to satisfy the requirements for
agricultural clearance orders set forth in
20 CFR part 653, subpart F, and
§ 655.122.
Finally, the Department has made a
technical correction in proposed
paragraph (g), changing Application for
Temporary Employment Certification to
‘‘application’’ to accurately reflect that
the term ‘‘application’’ refers to a U.S.
worker’s application for the employer’s
job opportunity during recruitment, and
has made similar conforming edits
throughout this subpart.
3. Section 655.122, Contents of Job
Offers
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a. Paragraph (d), Housing
The Department proposes several
revisions to its regulations at
§ 655.122(d) governing housing
inspections and certifications. Pursuant
to the statute and the Department’s
regulations, an employer must provide
housing at no cost to all H–2A workers.
The employer must also provide
housing at no cost to those non-H–2A
workers in corresponding employment
who are not reasonably able to return to
their residences within the same day.
See section 218(c)(4) of the INA, 8
U.S.C. 1188(c)(4); 20 CFR 655.122(d)(1).
Generally, an employer may meet its
housing obligations in one of two ways:
(1) It may provide its own housing that
meets the applicable federal standards;
or (2) it may provide rental and/or
public accommodations that meet the
applicable local, state, or federal
standards.55 The statute further requires
that the determination whether the
housing meets the applicable standards
must be made not later than 30 days
before the first date of need. See section
218(c)(3)(A), (4) of the INA, 8 U.S.C.
1188(c)(3)(A), (4).
55 Housing for workers principally engaged in the
range production of livestock must meet the
minimum standards required by § 655.122(d)(2).
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i. Employer-Provided Housing
Preoccupancy inspections of
employer-provided housing are critical
to ensure that sufficient and safe
housing is available prior to the workers
arriving for the work contract period.
The Department is aware, however, that
the current requirement of
preoccupancy inspections of employerprovided housing for every temporary
agricultural labor certification
(regardless of the condition of the
housing or how recently it may have
been inspected) may result in delays in
the labor certification process. These
delays are often due to insufficient SWA
capacity to conduct timely inspections
of employer-provided housing. These
delays—which are often beyond an
employer’s control regardless of how
early it might request an inspection—
may have a significant detrimental
impact on the employer’s operations.
To address these concerns, the
Department proposes the following
changes to its current regulations. First,
the Department proposes to reiterate in
its regulations the statutory requirement
that determinations with respect to
housing must be made not later than 30
days prior to the first date of need.
Second, the Department proposes to
clarify that other appropriate local,
state, or federal agencies may conduct
inspections of employer-provided
housing on behalf of the SWAs. Third,
the Department proposes to authorize
the SWAs (or other appropriate
authorities 56) to inspect and certify
employer-provided housing for a period
of up to 24 months. Twenty-four month
certification would be subject to
appropriate criteria and prior notice to
the Department by the certifying
authority. In light of the SWAs’
longstanding expertise in conducting
housing inspections, the Department
proposes to authorize each SWA to
develop its own criteria to determine, at
its sole discretion, whether to certify
specific employer-provided housing for
a time period longer than the immediate
work contract period, but in no case
longer than 24 months. The Department
invites comment on whether it should
establish specific criteria that the SWAs
must consider when determining the
validity period of a housing certification
(e.g., history of housing compliance or
age of the housing), and if so, what
those criteria should be.
Under the proposal, an employer
must self-certify that the employerprovided housing remains in
compliance for any subsequent
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20 CFR 653.501(b)(3).
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Certification filed during the validity
period of the official housing
certification previously received from
the SWA (or other appropriate
authority). To self-certify, an employer
must re-inspect the employer-provided
housing, which was previously
inspected by the SWA or other
authority. The employer must then
submit to the SWA and the CO a copy
of the valid certification for the housing
previously issued by the SWA or other
authority, and a written statement,
signed and dated, attesting that the
employer has inspected the housing,
and that the housing is available and
sufficient to accommodate the number
of workers being requested and
continues to meet all applicable
standards.
ii. Rental and/or Public
Accommodations
In its experience administering and
enforcing the H–2A program, the
Department increasingly encounters H–
2A employers that provide rental and/
or public accommodations to meet their
H–2A housing obligations. Under the
Department’s current regulations at
§ 655.122(d)(1)(ii), such housing must
meet the applicable local standards for
such housing. In the absence of
applicable local standards, state
standards apply. In the absence of
applicable local or state standards, DOL
OSHA standards at 29 CFR 1910.142
apply. In addition, an employer that
elects to provide such housing must
document to the satisfaction of the CO
that the housing complies with the
local, state, or federal housing
standards. Through guidance, the
Department has explained that such
documentation might include, but is not
limited to: A SWA inspection report
(where required); a certificate from the
local or state health department or
building department (where required);
or a signed, written statement from the
employer.57
Despite these requirements, in WHD’s
enforcement experience, H–2A
employers often fail to secure sufficient
rooms and/or beds for workers. This
results in unsafe and unsanitary
conditions for workers. Overcrowding,
which is among one of the most
common issues the Department
encounters in rental and/or public
accommodations, may result in
unsanitary conditions, pest infestations,
and outbreaks of communicable
57 See OFLC FAQ, What do I need to submit to
demonstrate the [rental and/or public
accommodations] complies with applicable housing
standards? (June 2017), available at https://
www.foreignlaborcert.doleta.gov/
faqsanswers.cfm#q!917.
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diseases. In some cases, for example,
employers required workers to share a
bed, required workers to sleep on the
floor in a sleeping bag, or converted
laundry or living spaces into sleeping
facilities by putting mattresses on the
ground. In other situations, as many as
eight workers have been housed in a
single room. Moreover, in rooms where
workers also cook, the failure to provide
sufficient space for workers to cook and
sleep and/or to provide sanitary
facilities for preparing and cooking can
lead to health issues from improperly
cooked food and/or pest and rodent
issues. WHD also often encounters
employers that do not provide sufficient
access to laundry facilities when
housing workers in rental and/or public
accommodations. Sufficient access to
laundry is critical to ensure the health
of workers, as workers often perform
work in fields sprayed with pesticides,
which comes in contact with workers’
clothing. Further, WHD has encountered
numerous instances of faulty or
improperly installed heating, water
heating, and cooking equipment in
rental and/or public accommodations,
posing serious safety risks to workers. In
some instances, for example, electrical
currents have run through water faucets.
In other instances, workers have used
hot plates that were not plugged into a
grounded electrical line, causing the hot
plates to catch fire.
Where there are no local or state
standards for rental and/or public
accommodations, the DOL OSHA
standards at 29 CFR 1910.142 apply,
and these standards include specific
requirements addressing these safety
and health concerns. However, even
where local and state standards for
rental and/or public accommodations
exist, these standards often do not
include requirements addressing
overcrowding and other basic safety and
health concerns. The Department,
therefore, is concerned that its current
regulations may be interpreted to mean
that where any local or state standards
for rental and/or public
accommodations exist, only those
standards will apply, even where those
standards do not address basic safety
and health concerns applicable to rental
and/or public accommodations.
To address these concerns, the
Department proposes the following
revisions to its regulations. First, the
Department proposes that, in the
absence of applicable local standards
addressing those health or safety
concerns otherwise addressed by the
OSHA temporary labor camp standards
at 29 CFR 1910.142(b)(2) (‘‘each room
used for sleeping purposes shall contain
at least 50 square feet for each
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occupant’’), § 1910.142(b)(3) (‘‘beds . . .
shall be provided in every room used for
sleeping purposes’’); § 1910.142(b)(9)
(‘‘In a room where workers cook, live,
and sleep a minimum of 100 square feet
per person shall be provided. Sanitary
facilities shall be provided for storing
and preparing food.’’); § 1910.142(c)
(water supply); § 1910.142(b)(11)
(heating, cooking, and water heating
equipment installed properly);
§ 1910.142(f) (laundry, handwashing,
and bathing facilities); and § 1910.142(j)
(insect and rodent control), the relevant
state standards will apply; in the
absence of applicable state standards
addressing such concerns, the relevant
OSHA temporary labor camp standards
will apply. For example, under this
proposal, where local standards for
rental and/or public accommodations
exist, but do not include a standard that
requires a certain minimum square
footage per person, all of the existing
local standards will apply in addition to
any state standard that addresses square
footage. If there is no state standard
addressing minimum square footage,
then the DOL OSHA standard at 29 CFR
1910.142(b)(2) (or, where cooking
facilities are present, § 1910.142(b)(9))
will apply, in addition to the existing
local standards. The Department
welcomes comment on this proposal,
specifically on whether the applicable
standards should address any additional
safety and health concerns relevant to
housing temporary workers in rental
and/or public accommodations that are
otherwise addressed in the DOL OSHA
standards at 29 CFR 1910.142, such as
screens on exterior openings (see
§ 1910.142(b)(8)).
Second, the Department proposes to
specify in the regulations that an
employer must submit to the CO a
signed, dated, written statement,
attesting that the rental and/or public
accommodations meet all applicable
standards and are sufficient to
accommodate the number of workers
requested. This statement must include
the number of bed(s) and room(s) that
the employer will secure for the
worker(s). Where the applicable local or
state standards under § 655.122(d)(1)(ii)
require an inspection, the employer also
must submit a copy of the inspection
report or other official documentation
from the relevant authority. Where no
inspection is required, the employer’s
written statement must confirm that no
inspection is required.
iii. Housing for Workers Covered by 20
CFR 655.200 Through 655.235
The Department proposes clarifying
edits to paragraph (d)(2) to reflect that
§§ 655.230 and 655.235 establish the
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housing requirements for workers
primarily engaged in the herding and
production of livestock on the range.
The Department has established
separate requirements for these workers
for the entirety the H–2A program due
to the unique nature of the work
performed.
b. Paragraph (g), Meals
The Department is retaining the
current regulation at § 655.122(g) that
requires an employer to provide each
worker three meals a day or furnish free
and convenient cooking and kitchen
facilities so that the worker can prepare
meals. Where an employer provides the
meals, the job offer must state the
charge, if any, to the worker for such
meals. Although the Department does
not propose any changes to § 655.122(g),
the Department frequently encounters
violations of this provision and thus
provides the following information to
clarify the provision’s requirements.
Should an employer elect to provide
kitchen and cooking facilities—in lieu
of providing meals—the facilities must
be free, convenient, and adequate for
workers to prepare three meals a day.
These facilities must include clean
space intended for food preparation as
well as necessary equipment, including
working cooking appliances,
refrigeration appliances, and
dishwashing facilities (e.g., sinks
designed for this purpose). The types of
cooking appliances may vary but must
allow workers to sufficiently prepare
three meals a day. For example, an
employer has not met its obligation to
provide kitchen and cooking facilities
by merely providing an electric hot
plate, a microwave, or an outdoor
community grill. Similarly, an employer
has not met its obligation if the workers
are required to purchase cooking
appliances or accessories, such as
portable burners, charcoal, propane, or
lighter fluid.
In the Department’s enforcement
experience, it has found that public
accommodations (e.g., hotels or motels)
frequently do not have adequate cooking
facilities that allow workers to prepare
three meals a day. Specifically, public
accommodations frequently lack stoves,
dishwashing facilities, and clean space
for workers to safely prepare and store
food apart from their sleeping facilities.
Should such public accommodations
lack adequate cooking and kitchen
facilities for workers to prepare and
store their own meals, the employer
must provide three meals a day to each
worker in order to satisfy the employer’s
obligations under § 655.122(g).
Where an employer elects to provide
meals, the employer may deduct any
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previously disclosed allowable meal
charges from the worker’s pay; however,
it must either obtain prepared meals or
prepare the meals itself.58 An employer
may not pass on to the worker any costs
that the employer has incurred for the
provision of the meal that exceeds the
allowable meal charge. Where a worker
elects to purchase food in excess of the
meal provided (e.g., additional servings
or premium items), the worker may bear
the additional cost (assuming the
provided meal was adequate, as
discussed below).
Providing access to third-party
vendors and requiring workers to
purchase meals from the third-party
vendor does not constitute compliance
with the requirement to provide meals
or facilities, even if the employer
provides a meal stipend.59 An employer
may arrange for a third party vendor and
pay for the workers’ meals, or use a
voucher or ticket system where the
employer initially purchases the meals
and distributes vouchers or tickets to
workers to obtain the meals from the
third-party vendor. With such an
arrangement, the employer may deduct
the corresponding allowable meal
charge if previously disclosed and in
compliance with the procedures
described under proposed § 655.173.
Should an employer elect to house
workers in public accommodations, the
employer may receive the appropriate
pro-rated credit for a meal provided by
the public accommodation (e.g.,
continental breakfasts, buffets, etc.)
towards its daily meal obligation as long
as the workers can readily access the
meal. Such credit shall not be allowed
if the daily start time for the work day
prohibits the worker from accessing the
meal prior to departure to the place of
employment. Similarly, when prepared
meals are delivered, the delivery must
occur in a timely and sanitary fashion.
For example, food requiring
refrigeration cannot be delivered hours
before an anticipated mealtime. If meals
are not delivered in a timely or sanitary
fashion, the employer has not satisfied
its meal obligation.
58 The maximum allowable meal charge to
workers is governed by the daily subsistence rate
as defined in § 655.173.
59 See Wickstrum Harvesting, LLC, 2018–TLC–
00018 (May 3, 2018). The ALJ affirmed an ETA
determination denying certifications based on the
employer’s practice of providing workers with a
stipend for meals instead of providing meals or
furnishing free and convenient cooking facilities.
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c. Paragraph (h), Transportation; Daily
Subsistence
i. Paragraph (h)(1), Transportation to
Place of Employment
The Department proposes to revise
the beginning and end points from and
to which an employer must provide or
pay for transportation and subsistence
costs for certain H–2A workers. The
Department’s current regulation at
§ 655.122(h)(1) requires, in part, that an
employer pay a worker for the
reasonable transportation and
subsistence costs incurred when
traveling to the employer’s place of
employment, provided that the worker
completes at least 50 percent of the
work contract period and the employer
has not previously advanced or
otherwise provided such transportation
and subsistence.60 Specifically, an
employer must provide or pay for
transportation and subsistence costs
from ‘‘the place from which the worker
has come to work for the employer.’’
The Department currently interprets the
‘‘place from which the worker has come
to work for the employer’’ to mean the
‘‘place of recruitment,’’ which
sometimes is the worker’s home.61
Additionally, for a worker who
completes the work contract period or is
terminated without cause, and who does
not have immediate subsequent H–2A
employment, § 655.122(h)(2) requires
the employer to provide or pay for
return transportation and subsistence
costs to the place from which the
worker ‘‘departed to work for the
employer,’’ disregarding intervening
employment.62
60 Section 655.122(h)(1) further requires that,
when it is in the prevailing practice among non-H–
2A employers in the area to do so, or when offered
to H–2A workers, the employer must advance
transportation and subsistence costs to workers in
corresponding employment. Section 655.122(h)(1)
also places employers on notice that they may be
subject to the FLSA, which operates independently
of the H–2A program and imposes independent
requirements relating to deductions from wages.
See also 20 CFR 655.122(p). The proposed rule does
not affect an FLSA-covered employer’s obligations
under the FLSA.
61 See, e.g., Preamble to 2009 NPRM, 74 FR
45906, 45915 (‘‘this Proposed Rule requires the
employer to pay for the costs of transportation and
subsistence from the worker’s home to and from the
place of employment’’); OFLC FAQ Sept. 15, 2010
(subsistence costs must be paid for costs incurred
‘‘during the worker’s inbound trip from the point
of recruitment to the employer’s worksite . . . and
during the worker’s outbound trip from the
employer’s worksite to the worker’s home or
subsequent employment’’).
62 Section 655.122(h)(2) further provides that, for
those workers who do have immediate subsequent
H–2A employment, the initial or subsequent
employer must cover the transportation and
subsistence fees for the travel between the initial
and subsequent worksites. The obligation to pay for
such costs remains with the initial H–2A employer
if the subsequent H–2A employer has not
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The proposed rule largely retains the
current requirements of § 655.122(h)(1)
and (2) without change. However, in the
Department’s experience administering
and enforcing the current H–2A
regulations, it is often challenging to
ascertain the place of recruitment and
calculate travel expenses for H–2A
workers departing to work for the
employer from a location outside of the
U.S.63 In many cases, foreign
recruitment is not an official process but
an informal network of former H–2A
workers, their friends, families, and
neighbors. Some H–2A workers may not
actually speak with the employer or the
employer’s representative until arriving
at the U.S. Consulate or Embassy for
visa processing or arriving at the
appropriate port of entry to seek
admission to the United States.64
In light of these challenges, the
Department proposes to revise
§ 655.122(h)(1) to require an employer
to provide or pay for inbound and
return transportation and subsistence
costs (where otherwise required by the
regulation) from and to the place from
which the worker departed to the
employer’s place of employment. For an
H–2A worker departing from a location
outside of the United States, the place
from which the worker departed will
mean the appropriate U.S. Consulate or
Embassy. For those H–2A workers who
must obtain a visa, the Department will
consider the ‘‘appropriate’’ U.S.
Consulate or Embassy to be the U.S.
Consulate or Embassy that issued the
visa. The Department recognizes,
however, that the specific procedures
for processing visas may differ among
U.S. Consulates and Embassies and
seeks comment on whether a different
designation of the ‘‘appropriate’’ U.S.
Consulate or Embassy is warranted.
Additionally, the Department
recognizes that certain H–2A workers do
not require a visa to obtain H–2A status,
and so will not need to visa a consulate
or embassy prior to entering the United
States. See 8 CFR 212.1(a). Accordingly,
the Department seeks comment on what
the ‘‘place from which the worker
department’’ should mean for those
workers who do not require a visa to
contractually agreed to pay the travel expenses.
This section also places employers on notice that
they are not relieved of their obligation to provide
or pay for return transportation and subsistence if
an H–2A worker is displaced as a result of an
employer’s compliance with the recruitment period
described in § 655.135(d).
63 Unless the location outside the United States is
the consulate or embassy that issued the visa.
64 Citizens or nationals of certain localities may
directly seek admission to the United States in H–
2A classification with Customs and Border
Protection at a U.S. port of entry. See 8 CFR
212.1(a).
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obtain H–2A status. For workers in
corresponding employment and those
H–2A workers who depart to the
employer’s place of employment from a
location within the United States, the
place from which the worker departed
will continue to mean the place of
recruitment. The Department also
proposes conforming revisions
throughout the NPRM to refer to the
place from which a worker departs
rather than the place from which the
worker has come to work for the
employer.
This proposal will provide the
Department with a more consistent
place from and to which to calculate
travel costs and obligations for H–2A
workers departing from a location
outside of the United States. It will also
provide H–2A workers and employers
more precision when estimating the
costs associated with H–2A
employment. This proposal is also
consistent with the 2008 Final Rule,
wherein the Department defined the
place of departure for H–2A workers
coming from outside of the United
States as the ‘‘place of recruitment,’’
which meant the appropriate U.S.
Consulate or port of entry. 73 FR 77110,
77151–52, 77217–18. As the Department
explained then, the consulate or port of
entry provides the Department with an
‘‘administratively consistent place from
which to calculate charges and
obligations.’’ Id. at 77151–52. In the
current regulation, the Department
required reimbursement of travel costs
from and to the place of recruitment.
See 75 FR 6884, 6912. However, when
promulgating the current regulation, the
Department did not fully anticipate the
difficulties of determining
transportation costs on a basis that is
unique to the facts of each individual
worker’s place of recruitment. Based on
the Department’s enforcement of the
current regulation, a single gathering
point from which transportation costs
can be anticipated, measured, and paid,
is necessary to the efficient
administration of the H–2A program,
simplifies the process for employers,
and provides a reasonable
transportation reimbursement to
workers.
Finally, the Department recognizes
that before continuing on to the
employer’s place of employment, a
prospective H–2A worker requiring a
visa often must complete several steps
(such as medical exam or fingerprinting
appointments) over the course of several
days between applying for and receiving
a visa at the U.S. Consulate or Embassy.
Some workers make multiple, distinct
trips to the U.S. consulate or Embassy
to complete these steps, though most
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workers complete these steps over one
longer stay immediately prior to
departing to the employer’s place of
employment. In either case, under the
proposed rule, the employer must
provide or pay for all reasonable
subsistence costs (including lodging)
that arise from the time at which the
worker first arrives in the consular/
embassy city for visa processing until
the time the worker arrives at the
employer’s place of employment,
regardless of whether the worker
completes these activities over the
course of one or multiple trips. This
requirement is consistent with
§ 655.135(j) of these regulations which
prohibits an employer or its agent from
seeking or receiving payment of any
kind from any employee subject to 8
U.S.C. 1188 for any activity related to
obtaining H–2A labor certification. As
noted above, however, the employer is
only required to provide or pay for the
worker’s reasonable transportation costs
from the appropriate U.S. Consulate or
Embassy to the place of employment.
ii. Paragraph (h)(4), Employer-Provided
Transportation
The Department proposes to clarify
the minimum safety standards required
for employer-provided transportation in
the H–2A program. The Department’s
current regulation at § 655.122(h)(4)
provides that employer-provided
transportation must comply with
applicable federal, state, or local laws
and must provide, at a minimum, the
same transportation safety standards,
driver licensure, and vehicle insurance
required under MSPA at 29 U.S.C. 1841,
29 CFR 500.105, and 29 CFR 500.120 to
500.128. 20 CFR 655.122(h)(4).
Employers seeking to employ H–2A
workers must also recruit and hire any
available U.S. workers. Because many
H–2A employers also employ U.S.
workers who may be covered by MSPA,
it would not be a burden for these
employers to adhere to the MSPA
transportation safety standards when
transporting H–2A workers. Section
1841 of MSPA provides that employers
must comply with transportation safety
regulations promulgated by the
Secretary, including 29 CFR 500.104
and 500.105. In order to clarify the H–
2A requirement to comply with
§ 500.104, the Department’s proposal
adds a citation specifically to § 500.104.
The Department also seeks comments
concerning how its H–2A regulations
can be modified to improve
transportation safety. Currently,
§ 500.104 applies to automobiles, station
wagons, and all vehicles that are used
for trips of no more than 75 miles. It
contains minimum safety standards for
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mechanisms such as operable brakes,
lights, tires, steering, windshield
wipers, and securely-fastened seats, but
lacks protections against driver fatigue.
The regulation at § 500.105 provides
transportation safety standards,
including measures to prevent driver
fatigue, which are applicable to drivers
and vehicles, other than passenger
automobiles and station wagons, that
transport agricultural workers pursuant
to a day-haul operation or for any trip
covering a distance greater than 75
miles. Despite these transportation
safeguards, vehicle accidents involving
H–2A and other agricultural workers
continue to be a recurring problem, and
are often attributable to unsafe vehicles
and driver fatigue.65 In the agricultural
industry, it is common for drivers to be
agricultural workers themselves, who
after a long day or season of arduous
agricultural work, transport other
agricultural workers from one worksite
to another or to the workers’ home
country after completing their work
contracts in the United States. In a
recent accident, a tractor-trailer hit a bus
carrying 34 agricultural workers when
the bus driver, an agricultural worker,
failed to stop at a traffic signal
apparently no more than 75 miles from
the point of origin. The tractor-trailer
driver and three bus passengers died.
The bus driver, 28 bus passengers, and
a passenger on the truck sustained
injuries. The National Transportation
Safety Board found that the accident
was likely caused by driver fatigue.66
In light of this finding, the
Department invites comments about
additional protections that may be
considered to help ensure against driver
fatigue and other unsafe driving
conditions in order to improve safety in
the transportation of H–2A and
corresponding U.S. workers.
d. Paragraph (j), Earning Records
The lack of permanent addresses
makes it difficult to contact H–2A
workers after they return to their home
country should the Department need to
contact a worker to distribute back
wages, conduct an employee interview
as part of an investigation, or to secure
65 The measures that address driver fatigue under
§ 500.105 include the requirement that drivers of
vehicles covered by this section make meal stops
once every 6 hours and at least one rest stop
between meals. 29 CFR 500.105(b)(2)(viii).
Additionally, § 500.105 requires that drivers and
passengers of trucks traveling more than 600 miles
stop and rest for a period of at least 8 consecutive
hours either before or upon completion of 600
miles. 29 CFR 500.105(b)(2)(x).
66 National Transportation Safety Board Public
Meeting Report, pg. 4, available at https://
www.ntsb.gov/news/events/Documents/2017HWY16MH019-BMG-abstract.pdf.
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employee testimony during litigation.
The Department, therefore, proposes to
clarify that an employer must collect
and maintain a worker’s permanent
address in the worker’s home country.
The Department’s current regulation at
§ 655.122(j)(1) requires an employer to
maintain a worker’s home address,
among other information. The
regulation, however, does not define
‘‘home address.’’ Consequently, in
administering and enforcing the H–2A
program, the Department often
encounters employers who maintain
only the worker’s temporary address at
the worker’s place of employment in the
United States. Employers must maintain
the worker’s actual permanent home
address—which is usually in the
worker’s country of origin. Accordingly,
the Department proposes to clarify that
an employer must collect and maintain
a worker’s permanent address in the
worker’s home country.
As part of its efforts to modernize and
enhance its administration and
enforcement of the H–2A program, the
Department is also considering whether
to require an employer to maintain a
worker’s email address and phone
number(s) in the worker’s home country
when available. This information would
greatly assist the Department in
contacting an H–2A worker in the
worker’s home country, should the
Department need to do so for the
reasons outlined above. However, the
Department understands that not all
workers possess an email address or a
private phone number or may not want
to disclose such information to the
employer for personal reasons. This, in
turn, could make it difficult for an
employer to demonstrate that it
requested but did not receive such
information from a worker. The
Department, therefore, requests
comments on potential benefits and
implications of these additional
recordkeeping requirements on H–2A
employers. Finally, the Department
proposes minor, nonsubstantive
revisions to this section.
e. Paragraph (l), Rates of Pay
The Department proposes several
changes to paragraph (l). First, the
Department proposes to remove the
statement ‘‘[i]f the worker is paid by the
hour’’ and replace it with ‘‘[e]xcept for
occupations covered by §§ 655.200
through 655.235.’’ This change is
proposed consistent with the
explanation provided above for
§ 655.120(a) because the only
occupations with a different wage
methodology are those covered by the
regulatory provisions for workers
primarily engaged in the herding or
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production of livestock on the range as
discussed in §§ 655.200 through
655.235. The Department is concerned
that the existing language ‘‘[i]f the
worker is paid by the hour,’’ might
create confusion about the fact that all
other employers, including those who
pay a monthly salary and those who pay
based on a piece rate, must pay the
highest applicable wage as set forth in
§ 655.120(a). This revision also clarifies
that if the employer is certified for a
monthly salary because, for example,
the prevailing wage rate is a monthly
rate, the employer must still pay the
highest applicable wage rate. The
requirement to pay the highest
applicable wage means that if paying
the AEWR for all hours worked in a
given month would result in a higher
wage than the certified monthly salary,
the employer must pay the AEWR for all
hours worked in that month.
Due to the requirement that the
employer pay the highest applicable
wage, regardless of the unit of pay, all
employers except those employing
workers covered by §§ 655.200 through
655.235 are required to keep a record of
all hours worked. Consistent with FLSA
principles, which provide a
longstanding and generally recognized
definition of ‘‘hours worked,’’ the term
includes, but is not limited to, travel
time between places of employment;
driving vehicles to transport equipment
or workers between housing and the
place of employment, other than a bona
fide carpool arrangement; time spent
engaged to wait, such as waiting for the
fields to dry or necessary equipment to
arrive; and preparing tools for work. In
addition, if the Department certifies the
employer with a monthly wage rate that
specifies that food will be provided
(e.g., $2,000 per month plus room and
board), the employer must provide food
in addition to wages, and the employer
cannot take a credit for the cost of food
if the credit would bring the worker
below the wage that is the highest of the
AEWR, the prevailing wage, the agreedupon collective bargaining wage, the
Federal minimum wage, or the State
minimum wage. Further, because all H–
2A employers are required to provide
housing without charge to the worker,
an employer also cannot not take a
credit for the cost of housing.
The Department also proposes to
make corresponding changes to align
this paragraph with the proposed
changes to § 655.120. Those changes are
discussed in the preamble to § 655.120.
f. Paragraph (n), Abandonment of
Employment or Termination for Cause
The Department’s current regulation
at § 655.122(n) provides relief from the
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requirements relating to return
transportation and subsistence costs 67
as well as the three-fourths guarantee 68
when an employer notifies the NPC, and
DHS in the case of an H–2A worker, if
a worker voluntarily abandons
employment before the end of the
contract period or is terminated for
cause.69 It should be noted that the
employer’s timely notification to DHS of
H–2A workers who voluntarily abandon
employment or are terminated for cause
is vital to ensuring program integrity
and identifying workers who had been,
but may no longer be, in the United
States lawfully.
This provision also protects
employers from disrupting their farming
operations and incurring other costs and
obligations to workers who voluntarily
abandon employment, such as the
obligations to provide housing and
meals, and to solicit the return of U.S.
workers to the job next season.
The Department’s current regulation
at § 655.153 requires an employer to
contact the U.S. workers it employed in
the previous year to solicit their return
to the job unless the workers abandoned
employment or were dismissed for
cause during the previous year. The
Department’s proposal related to
§ 655.153 would require an employer to
provide timely notice to the NPC of
such abandonment or termination in the
manner described in § 655.122(n) to
receive relief from its otherwise
applicable contact obligation. The
employer may email the notification or
send it by facsimile or U.S. mail to the
contact information provided on OFLC’s
website at
www.foreignlaborcert.doleta.gov. The
Department proposes to revise
§ 655.122(n) to require an employer to
maintain records of the notification
detailed in the same section, including
records related to U.S. workers’
abandonment of employment or
termination for cause during the
previous year, for not less than 3 years
from the date of the certification. See 20
CFR 655.153.
In its experience administering and
enforcing the H–2A program, the
Department encounters H–2A
employers that claim that they have
made proper notification in a timely
manner in regard to workers who have
abandoned employment or have been
terminated for cause. Employers,
however, frequently cannot produce
records of such notification when
requested. In order to promote its
enforcement policy of appropriately
67 See
20 CFR 655.122(h).
20 CFR 655.122(i).
69 See 20 CFR 655.122(n).
68 See
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investigating claims of abandonment or
termination because of the potential for
abuse in an effort to evade
transportation, subsistence, threefourths guarantee, or U.S. worker
contact obligations,70 the Department
proposes to require each employer to
maintain records of the notification to
the NPC, and DHS in the case of a
worker in H–2A visa status, for not less
than 3 years from the date of the
certification. The requirement to
maintain records of the notification
assists in protecting the interests of able,
willing, and qualified U.S. workers who
might be available to perform the
agricultural work, consistent with the
INA and E.O. 13788. In addition, these
records could assist growers in the event
U.S. workers who have abandoned
employment or been terminated for
cause later assert the employer failed to
contact them as required by proposed
§ 655.153.
The Department additionally notes
that abandonment of employment,
which can occur at any time during the
contract period, will sometimes be
apparent. For example, a worker may
simply fail to report for work without
the employer’s consent, in which case
the regulations deem the worker to have
abandoned employment upon a failure
to report to work for 5 consecutive
working days. See 20 CFR 655.122(n). In
order for an employer to avail itself of
the abandonment exception to the
typical requirement to contact a U.S.
worker, however, the U.S. worker’s
abandonment of employment must have
been voluntary. Thus, if a U.S. worker
discontinues employment because
working conditions have become so
intolerable that a reasonable person in
the worker’s position would not stay,
the worker’s departure may constitute
an involuntary constructive discharge.
Specific factual circumstances dictate
whether a constructive discharge has
occurred. Although the constructive
discharge inquiry is inherently factspecific, the Department has previously
identified circumstances which likely
support, and circumstances which
likely do not support, a finding of
constructive discharge rather than job
abandonment.71
70 See Department of Labor, Wage and Hour
Division, Field Assistance Bulletin No. 2012–1, H–
2A ‘‘Abandonment or Termination for Cause’’
Enforcement of 20 CFR 655.122(n) (Feb. 28, 2012),
https://www.dol.gov/whd/FieldBulletins/fab2012_
1.pdf.
71 See Department of Labor, Wage and Hour
Division, Field Assistance Bulletin No. 2012–1, H–
2A ‘‘Abandonment or Termination for Cause’’
Enforcement of 20 CFR 655.122(n) (Feb. 28, 2012),
https://www.dol.gov/whd/FieldBulletins/fab2012_
1.pdf.
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g. Paragraph (p), Deductions
The Department’s current regulation
at § 655.122(p) prohibits unauthorized
deductions. An employer must disclose
any deductions not required by law in
the job offer. The Department, however,
routinely encounters employers who fail
to disclose deductions; improperly
withhold FICA taxes; or properly
disclose and withhold federal income
tax at the worker’s request, but fail to
remit the withholding to the proper
agencies. These actions, although
sometimes inadvertent, constitute
violations of the H–2A statute and
regulations.
The Department does not propose any
change to the regulation at § 655.122(p),
but seeks to clarify that according to the
Internal Revenue Service (IRS), an
employer may not withhold Federal
Insurance Contributions Act (FICA)
taxes from an H–2A worker’s paycheck;
and that an employer generally is not
required to withhold federal income tax
from an H–2A worker’s paycheck. In
some situations, employers may be
prohibited from withholding federal
income tax under the H–2A program.
i. FICA Taxes
The Department follows IRS rulings
with respect to taxes and withholdings.
IRS guidelines provide that H–2A
workers are exempt from FICA taxes,
which include social security and
Medicare taxes.72 An employer,
therefore, may not withhold FICA taxes
from an H–2A worker’s paycheck.
ii. Federal Income Tax Withholding
Compensation paid to an H–2A
worker for agricultural labor performed
in connection with an H–2A visa is not
subject to mandatory federal income tax
withholding if the worker provides the
employer a Social Security Number
(SSN) or Individual Taxpayer
Identification Number (ITIN).73 The
employer may voluntarily withhold
federal income tax when it is disclosed
in the job order, provided the
withholding is requested by the H–2A
worker. The employer, however, is
required to make ‘‘backup withholding’’
if an H–2A worker fails to provide an
SSN or ITIN and receives aggregate
annual compensation of $600 or more.74
72 See IRS, Publication 51 (Circular A),
Agricultural Employer’s Tax Guide 2018 11 (Jan. 25,
2018), https://www.irs.gov/pub/irs-pdf/p51.pdf.
73 See IRS, Publication 5144, Federal Income Tax
and FICA Withholding for Foreign Agricultural
Workers with an H–2A Visa (June 2014), https://
www.irs.gov/pub/irs-pdf/p5144.pdf.
74 See Internal Revenue Service, Foreign
Agricultural Workers on H–2A Visas (June 5, 2018),
https://www.irs.gov/individuals/internationaltaxpayers/foreign-agricultural-workers.
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Employers should continue to consult
with the IRS or their tax consultants
regarding federal withholding
requirements and consult with
applicable local and state tax authorities
for compliance with their standards.
Additionally, employers are encouraged
to review WHD Field Assistance
Bulletin No. 2012–3 75 for further
information on compliance with the
requirements for deductions under the
H–2A program.
h. Paragraph (q), Disclosure of Work
Contract.
The Department’s current regulation
at § 655.122(q) requires an employer to
disclose a copy of the work contract
between the employer and the worker in
a language understood by the worker as
necessary or reasonable. The time by
which the work contract must be
provided depends on whether the
worker is entering the U.S. to commence
employment or is already present in the
U.S.; however, for most H–2A workers,
this must occur by the time the worker
applies for a visa. The Department is
retaining the current disclosure
requirements with one minor revision.
The Department proposes to specify that
the work contract must be disclosed to
those H–2A workers who do not require
a visa to enter the United States under
8 CFR 212.1(a)(1) not later than the time
of an offer of employment. This is the
same point at which H–2A workers who
are already in the United States because
they are moving between H–2A
employers receive the work contract.
4. Section 655.123, Positive Recruitment
of U.S. Workers
The Department proposes a new
section describing employers’ positive
recruitment obligations. The statute
requires the Secretary to deny the
temporary agricultural labor
certification if the employer has not
made positive recruitment efforts within
a multistate region of traditional or
expected labor supply where the
Secretary finds that there are a
significant number of qualified U.S.
workers who, if recruited, would be
willing to make themselves available for
work at the time and place needed.
Section 218(b)(4) of the INA, 8 U.S.C.
1188(b)(4). The requirement for
employers to engage in positive
recruitment is in addition to, and occurs
within the same time period as, the
circulation of the job order through the
75 See Department of Labor, Wage and Hour
Division, Field Assistance Bulletin No. 2012–3,
General Guidance on Voluntary Assignments of
Wages under the H–2A Program (May 17, 2012),
https://www.dol.gov/whd/FieldBulletins/fab2012_
3.pdf.
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interstate clearance system maintained
by the SWAs. Id. Proposed paragraph (a)
reiterates these statutory requirements.
Proposed paragraph (b) permits
employers to conduct their positive
recruitment efforts after the SWA
serving the area of intended
employment has reviewed and accepted
the employer’s job order for intrastate
clearance and before the employer files
an Application for Temporary
Employment Certification. Specifically,
upon acceptance of the job order by the
SWA under § 655.121, the NPC will
transmit the accepted job order to other
appropriate SWAs, thereby initiating the
interstate clearance of the job order as
set forth in § 655.150. The employer
then may commence the required
positive recruitment, as set forth in
§§ 655.151 through 655.154.
Under proposed paragraph (c), if the
employer chooses to engage in prefiling
positive recruitment, the employer must
begin its positive recruitment efforts
within 7 calendar days of the date on
which the SWA accepted the job order
and must continue recruiting until the
date specified in § 655.158. This
timeframe will ensure that the employer
begins its prefiling positive recruitment
in a timely manner, and that such efforts
are conducted within the same time
period as the interstate clearance of the
approved job order, as required by the
statute.
Permitting positive recruitment to
commence prior to the filing an
Application for Temporary Employment
Certification will clearly benefit those
employers that consistently file job
orders in compliance with program
requirements because they may be able
to obtain certification more quickly
without the need for the Department to
first issue a NOA or a NOD. The
proposal will also provide the
Department with better information
with which to make its certification
determinations.
To ensure recruitment of U.S. workers
continues for an adequate period of
time, proposed paragraph (f) prohibits
the employer from preparing a
recruitment report for submission with
the Application for Temporary
Employment Certification more than 50
calendar days before the first date of
need. The initial recruitment report
assures the Department that the
employer is actively making efforts to
conduct positive recruitment of U.S.
workers, as required by the statute and
this subpart.
Proposed paragraph (e) requires the
employer to accept and hire all
qualified, available U.S. worker
applicants through the end of the
recruitment period set forth in
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§ 655.135(d), clarifying that this
requirement applies to employers who
engage in pre-filing recruitment. In
addition, proposed paragraph (d)
ensures U.S. workers have a fair
opportunity to apply for these jobs by
prohibiting preferential treatment of
potential H–2A workers through
interview requirements.
5. Section 655.124, Withdrawal of a Job
Order
The Department proposes to
reorganize the current withdrawal
provisions at § 655.172 by moving the
job order withdrawal provision from
§ 655.172(a) to proposed § 655.124,
‘‘Withdrawal of a job order,’’ in the
sections of the regulation governing
‘‘Prefiling Procedures,’’ which address
job orders filed in anticipation of future
Applications for Temporary
Employment Certification. The
Department proposes placing the job
order withdrawal procedures and the
job order filing and review procedures
together in ‘‘Prefiling Procedures’’ to
make the rule better organized and more
user-friendly.
In addition to relocating the job order
withdrawal provision, the Department
proposes minor edits to the job order
withdrawal provision for both clarity
and consistency with other proposed
changes. For example, removing ‘‘from
intrastate posting’’ is necessary because
both intrastate and interstate posting
may have begun under proposed
§ 655.121(f). Consistent with the
proposal that employers submit their job
orders to the NPC, proposed
§ 655.124(b) would establish the NPC as
the recipient of job order withdrawal
requests. An employer would submit its
request to the NPC in writing,
identifying the job order and stating its
reason(s) for requesting withdrawal.
The Department proposes no change
to an employer’s continuing obligations
to workers recruited in connection with
the job order; these obligations attach at
recruitment and continue after
withdrawal.
C. Application for Temporary
Employment Certification Filing
Procedures
1. Section 655.130, Application Filing
Requirements
a. Paragraph (a), What To File
The Department proposes to
modernize and clarify the procedures by
which an employer files an Application
for Temporary Employment
Certification for H–2A workers under
this subpart. Based on the Department’s
experience administering the H–2A
program under the current regulation, a
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common reason for issuing a NOD on an
employer’s application includes failure
to complete all required fields on a
form, failure to submit one or more
supporting documents required by the
regulation at the time of filing, or both.
Under the current regulation, the NPC
must issue non-substantive NODs to
obtain information or documentation
from the employer that the regulation
expressly requires the employer to
submit at the time of filing. This use of
NPC staff resources increases processing
times for all employers, including
employers that consistently file
complete and accurate applications.
To address these concerns and create
an incentive for employers to file
complete applications, § 655.130(a)
would continue to require employers to
file a completed Application for
Temporary Employment Certification.
For applications submitted
electronically, OFLC’s technology
system will not permit an employer to
submit an Application for Temporary
Employment Certification until the
employer completes all required fields
on the forms and uploads and saves to
the pending application an electronic
copy of all documentation and
information required at the time of
filing, including a copy of the job order
submitted in accordance with § 655.121.
For applications permitted to be filed by
mail pursuant to the procedures
discussed below, if an employer submits
an application that is incomplete or
contains errors, completing the
application would require the
Department to issue a NOD identifying
any deficiencies, and for the employer
to mail back a revised application, thus
requiring a timely back-and-forth.
b. Paragraphs (c) and (d), Location and
Method of Filing
In paragraph (c), the Department
proposes to require an employer to
submit the Application for Temporary
Employment Certification and all
required supporting documentation
using an electronic method(s)
designated by the OFLC Administrator.
The Department also proposes
procedures to allow employers that lack
adequate access to e-filing to file by mail
and, for employers who are unable or
limited in their ability to use or access
the electronic application due to a
disability, to request an accommodation
to allow them to access and/or file the
application through other means.
Employers who are limited in their
ability or unable to access electronic
forms or communication due to a
disability may use the procedures in
§ 655.130(c)(2) to request an
accommodation. Proposed paragraph (d)
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adopts the use of electronic signatures
as a valid form of the employer’s
original signature and, if applicable, the
original signature of the employer’s
authorized attorney agent or surety.
Unless the employer requests an
accommodation due to a disability or
adequate access to e-filing, the NPC will
return, without review, any Application
for Temporary Employment
Certification submitted using a method
other than the electronic method(s)
designated by the OFLC Administrator.
For reasons discussed earlier in this
preamble, the Department believes this
proposal will modernize and streamline
the application filing process, will not
require a change in practice for the
overwhelming majority of employers
and their authorized attorneys or agents,
and will create significant
administrative efficiencies for
employers and the Department.
c. Paragraph (e), Scope of Applications
The Department proposes a new
paragraph (e) to clarify the scope of all
Applications for Temporary
Employment Certification submitted by
employers to the NPC. First, proposed
paragraph (e) clarifies that each
Application for Temporary Employment
Certification must be limited to places
of employment within a single area of
intended employment, except where
otherwise permitted by the subpart (e.g.,
under § 655.131(a)(2), a master
application may include places of
employment within two contiguous
States). This proposal addresses the lack
of clarity in the 2010 Final Rule
regarding whether an application could
include places of employment that span
more than one area of intended
employment. The 2010 Final Rule also
introduced some ambiguity by its
revisions to § 655.132(a), which
specifically limited H–2ALC
applications to places of employment
within a single area of intended
employment.
In both the temporary and permanent
labor certification programs, the
Department has historically used the
area of intended employment for the
purpose of determining recruitment
requirements employers must follow to
locate qualified and available U.S.
workers, and to aid the Department in
assessing whether the wages, job
requirements, and terms and conditions
of the job opportunity will adversely
affect workers in the United States
similarly employed in that same local or
regional area.
Whether an employer is a fixed-site
employer or H–2ALC, the area of
intended employment is an essential
component of the labor market test
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necessary to determine availability of
U.S. workers for the job opportunity and
to ensure that U.S. workers in the local
or regional area have an opportunity to
apply for those job opportunities located
within normal commuting distance of
their permanent residences. Qualified
U.S. workers may be discouraged from
applying for these job opportunities if
the employer’s offer of employment is
conditioned on workers being available
to perform the labor or services at places
of employment both within and outside
the normal commuting area or
assignment to places of employment
outside normal commuting distance
from their residences, despite the
availability of closer work. In addition,
monitoring program compliance
becomes more difficult and the potential
for violations increases when workers
employed under a single Application for
Temporary Employment Certification
are dispersed across multiple areas of
intended employment. For those
reasons, applications in the H–2A
program, unless a specific exception
applies, must generally be limited to
one area of intended employment, based
on which other regulatory requirements
attach (such as recruitment, housing,
and wages). The Department therefore
proposes to make this requirement
clearer in § 655.130(e).
Second, paragraph (e) clarifies that an
employer may file only one Application
for Temporary Employment
Certification for place(s) of employment
covering the same geographic scope,
period of employment, and occupation
or comparable work. This provision will
prevent the Department from receiving
and processing duplicate applications.
This provision will also reduce
duplicative efforts by preventing an
employer from filing a new application
for the same job opportunity while an
appeal is pending. In addition, it
clarifies that filing more than one
Application for Temporary Employment
Certification is necessary when an
employer needs workers to perform fulltime job opportunities that do not
involve the same occupation or
comparable work, or workers to perform
the same full-time work, but in different
areas of intended employment or with
different starting and ending dates (e.g.,
ramping up or winding down
operations).
d. Paragraph (f), Staggered Entry of H–
2A Workers
The Department proposes to add a
new paragraph (f) to § 655.130, which
permits the staggered entry of H–2A
workers into the United States. Under
this proposal, any employer that
receives a temporary agricultural labor
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certification and an approved H–2A
Petition may bring nonimmigrant
workers into the United States at any
time during the 120-day period after the
first date of need identified on the
certified Application for Temporary
Employment Certification without filing
another H–2A Petition. If an employer
chooses to stagger the entry of its
workers, it must continue to accept
referrals of U.S. workers and hire those
who are qualified and eligible through
the period of staggering or the first 30
days after the first date of need
identified on the certified Application
for Temporary Employment
Certification, whichever is longer, as
described in more detail in the preamble
discussing § 655.135(d). Additionally,
the employer must comply with the
requirement to update its recruitment
report as described in § 655.156.
The Department preliminarily
concludes that due to the uncertain
nature of agricultural work, permitting
the option to stagger the entry of
workers under a single Application for
Temporary Employment Certification is
necessary to provide employers with the
flexibility to accommodate changing
weather and production conditions.
Agriculture, especially in more laborintensive crops and commodities, is
different from other economic sectors
and has unique implications for the
availability of labor. The agricultural
production process is highly dependent
on changing climatic and biological
conditions that create seasonal cycles
for planting, cultivating, and harvesting
crops. Although farmers have some
degree of control over when they plant
their crops each year, there is great
uncertainty regarding when and how
much of the crop will be harvestable
and, depending on its commercial
value, how quickly the crop needs to get
to the marketplace. Because agricultural
production is highly seasonal and
generally dispersed over a broad
geographic area, timely access to the
right amount of labor at the right places
becomes essential to the success of
farming operations. This situation
becomes even more critical for small
farms that grow a wide array of
diversified crops where the planting,
cultivating, and harvesting periods are
not the same, but may occur
sequentially or in close proximity to one
another.
Currently, employers whose needs for
agricultural workers occur at different
points of a season must file separate
Applications for Temporary
Employment Certification containing a
new start date of work for each group of
job opportunities. This means
employers must repeat each step of the
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labor certification process with the
Department and the visa petition
process with DHS, even though the
agricultural labor or services to be
performed is in the same occupational
classification and the only difference is
the expected start date of work. For
agricultural associations filing as joint
employers with a number of its
employer-members, the master
applications are more complex and
burdensome to prepare and file, because
the agricultural association must
coordinate the amount and timing of
labor needed across numerous
employer-members growing a wide
array of different crops under the same
start date of work. Consequently, the
Department receives and processes
numerous master applications filed by
the same agricultural association, often
one every calendar month, covering
substantially the same employermembers who need workers to perform
work in the same occupational
classification based on a different start
date of work. For these reasons, the
Department proposes to permit H–2A
employers to stagger the entry of
nonimmigrant workers into the United
States.
Furthermore, requiring those
employers that choose to stagger to
accept referrals of U.S. workers through
the period of staggering or the first 30
days of the contract period, whichever
is longer, sufficiently ensures that the
job opportunity will remain available to
qualified U.S. workers and that the
employment of H–2A workers will not
adversely affect the wages and working
conditions of workers in the United
States similarly employed. Under this
proposal, for as long as there is a job
opportunity that has not yet been filled
by an H–2A worker, the job opportunity
remains open, and qualified, eligible
U.S. workers must be hired. The
Department has chosen 120 days as the
maximum period of staggering because
enough has changed in the available
labor market pool after a 4-month period
that it needs to be retested. Limiting the
staggering period to 120 days or fewer
ensures that DOL satisfies its statutory
mandate to certify that ‘‘there are not
sufficient workers who are able, willing,
and qualified, and who will be available
at the time and place needed, to perform
the labor or services involved in the
petition.’’ 8 U.S.C. 1188(a)(1)(A).
Employers that wish to stagger the
entry of their H–2A workers into the
United States, including a joint
employer filing an Application for
Temporary Employment Certification
under § 655.131(b), must notify the NPC
in writing of their intent to stagger and
identify the period of time, up to 120
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days, during which the staggering will
take place. This notice must be filed
electronically, unless the employer was
permitted to file by mail as set forth in
§ 655.130(c). An agricultural association
filing as a joint employer with its
members (that may have different
staggered entry needs) must make a
single request on behalf of all its
members duly named on the
Application for Temporary Employment
Certification and provide the NPC with
the maximum staggered entry timeframe
(i.e., the longest period of time any one
member plans to stagger the entry of its
H–2A workers). Since agricultural
associations have a unique statutory
ability to transfer H–2A workers among
any of their certified job opportunities,
the Department proposes that
associations must accept qualified,
eligible U.S. workers at any time during
the provided staggered entry timeframe.
Under this proposal, employers may
submit notice of their intent to use the
staggering provisions at any time after
the Application for Temporary
Employment Certification is filed
through 14 days after the first date of
need certified by the NPC, including
any modifications approved by the CO.
This timeframe balances employers’
need for flexibility with prospective
workers’ need for certainty in the terms
of employment offered. Thus, the
Department proposes that an employer
who does not submit notice of intent to
use the staggering provisions during the
requirement timeframe (i.e., no later
than 14 days after the first date of need
listed on the temporary agricultural
labor certification issued) is not
permitted to stagger entry of its workers
and must submit a separate
Applications for Temporary
Employment Certification containing a
new first date of need for those job
opportunities with a later start date.
Upon receipt of the employer’s notice of
intent to stagger, the NPC will inform all
SWAs that received a copy of the
employer’s job order to extend the
period of recruitment by the provided
staggered entry timeframe, if applicable.
In accordance with § 655.121(g), the
SWA(s) will keep the employer’s job
order in its active file and refer any U.S.
worker who applies for the job
opportunity through the end of the new
recruitment period. In addition, the NPC
will update the electronic job registry to
ensure that the job order remains active
through the new recruitment period, in
accordance with § 655.144(b).
The Department modeled this new
proposed paragraph on the staggered
entry provision available to seafood
employers in the H–2B program. See 20
CFR 655.15(f)(2). That provision was
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added to the Interim Final Rule
pursuant to section 108 of the
Consolidated and Further Continuing
Appropriations Act, 2015, Public Law
113–235, 128 Stat. 2130, 2464, and
differs from the provision proposed in
this NPRM in several respects. See 80
FR 24041, 24060. First, in the H–2B
program, staggered entry is available
only to employers in the seafood
industry, while in this proposal, it is
available to all H–2A employers that
receive a temporary agricultural labor
certification and an approved H–2A
Petition. Because all H–2A employers
may require flexibility to accommodate
changing weather and production
conditions, the staggered entry
procedures are available to any
employer participating in the program.
Second, H–2B employers who stagger
the entry of their nonimmigrant workers
into the United States between 90 and
120 days after the start date of need
must complete a new assessment of the
local labor market during the period that
begins at least 45 days after the start
date of need and ends before 90 days
after the start date of need, which
includes listing the job in local
newspapers, placing new job orders
with the SWA, posting the job
opportunity at the place of employment
for at least 10 days, and offering the job
to any qualified, available U.S. worker
who applies. See 20 CFR 655.15(f)(2).
Here, the Department has proposed that
the approved job order being circulated
for recruitment by the SWA remain
open and that employers must hire all
qualified, eligible U.S. workers who
apply through the period of staggering,
but the Department has not proposed
employers to conduct a new assessment
of the local labor market for staggering
periods that exceed 90 days. For
purposes of this NPRM, the Department
determined that its proposal sufficiently
protects U.S. workers and fulfills its
statutory obligations. The Department,
however, welcomes comments on
whether additional recruitment for
employers that stagger the entry of
workers beyond 90 days should be
required and what form that recruitment
should take.
Third, H–2B employers must sign and
date an attestation form stating the
employer’s compliance with the
regulatory requirements for staggered
entry and provide a copy of the
attestation to the H–2B worker seeking
entry to the United States with
instructions that the workers present the
documentation upon request to the
Department of State’s (DOS’s) consular
officers when they apply for a visa and/
or DHS’s U.S. Customs and Border
Protection officers when seeking
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admission to the United States. See 20
CFR 655.15(f)(3). Here, in order to
streamline the process and avoid
additional paperwork, the Department
plans to update Appendix A to the Form
ETA–9142A to make clear that
recruitment obligations and assurances
are extended for those employers who
stagger the entry of their H–2A workers.
Furthermore, the Department does not
propose to require H–2A workers to
present documentation to DOS or DHS,
but invites the public to comment on
this or other aspects of the proposed
procedures.
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e. Paragraph (g), Information
Dissemination
Finally, the Department proposes
minor editorial changes to newly
designated paragraph (g) that permits
OFLC to provide information received
in the course of processing Applications
for Temporary Employment
Certification or in the course of
conducting program integrity measures
not only to the WHD, but to any other
Federal agency, as appropriate, for
investigative and/or enforcement
purposes. The Department proposes this
change to promote greater collaboration
among Federal agencies with authority
to enforce compliance with program
requirements and combat fraud and
abuse.
2. Section 655.131, Agricultural
Association and Joint Employer Filing
Requirements
The Department proposes to revise
this section to include provisions that
govern the filing of Applications for
Temporary Employment Certification by
joint employers other than agricultural
associations that file master
applications. To reflect these new
provisions, the Department proposes to
rename this section, ‘‘Agricultural
association and joint employer filing
requirements.’’ The Department is
otherwise retaining the provisions at
§ 655.131 that govern the filing of an
Application for Temporary Employment
Certification by an agricultural
association on behalf of its employermembers, with minor revisions to the
procedures for applications by
agricultural associations. The INA
requires that agricultural associations be
permitted to file H–2A applications,
including master applications, and that
they be permitted to do so either as
employers or agents. Section
218(c)(3)(B)(iv), (d) of the INA; 8 U.S.C.
1188(c)(3)(B)(iv), (d). Therefore, the
Department is continuing its
longstanding practice of permitting an
agricultural association to file an
application as an employer or agent on
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behalf of its employer-members,
including the option to file a master
application as a joint employer.
a. Agricultural Association Filing
Requirements
The Department’s proposed rule
makes no substantive changes to
agricultural associations’ filing
requirements. Accordingly, the
proposed rule permits an agricultural
association to file an application as a
sole employer, joint employer, or agent,
as contemplated in the INA. See section
218(c)(3)(B)(iv), (d) of the INA; 8 U.S.C.
1188(c)(3)(B)(iv), (d). The proposed rule
renumbers the introductory paragraph
as paragraph (a), and the current
paragraph (a) would become paragraph
(a)(1). The Department proposes to add
a new paragraph (a)(3) codifying the
Department’s longstanding practice that
an agricultural association that files a
master application as a joint employer
with its employer-members may sign
the application on behalf of the
employer-members, but an agricultural
association that files as an agent may
not and must obtain each member’s
signature on the application. Finally,
the Department proposes to divide the
current paragraph (b) into a new
paragraph (a)(2), which addresses
master application filing requirements,
and a new paragraph (a)(4), which
addresses the procedure for issuing a
final determination to the association
that approves the application, consistent
with the proposed revisions to
§ 655.162.
b. Master Applications
Master applications are contemplated
by section 218(d) of the INA, 8 U.S.C.
1188(d), and the Department has
permitted the filing of master
applications as a matter of practice. The
proposed rule retains the master
application filing requirements
currently described in paragraph (b), but
will describe these requirements in
paragraphs (a)(2) and (4), with minor
amendments necessary to ensure the
provisions are consistent with proposed
revisions to the definition of master
application in § 655.103 and the
modernization proposals that revise the
§ 655.162 procedures for issuance of
certifications. Under the current
regulation, the Department only certifies
a master application if all employermembers have the same first dates of
need. The Department proposes to
permit a master application if the
employer-members have different first
dates of need, provided no first date of
need listed in the application differs by
more than 14 calendar days from any
other listed first date of need, consistent
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with the proposed revision to the
definition of master application in
§ 655.103, as explained further above.
The Department also proposes to delete
the phrase ‘‘just as though all of the
covered employers were in fact a single
employer’’ because this phrase was
open to the misinterpretation that the
provisions of the regulation that govern
the geographic scope of a master
application apply to single employer
filers as well. Removal of this phrase
clarifies that this paragraph applies only
to agricultural associations and their
employer-members.
The Department also proposes to
revise the procedures for issuing
certified applications to an agricultural
association. Paragraph (b) of the current
regulation requires the CO to send the
certified Application for Temporary
Employment Certification to the
association and contemplates that the
association will send copies of the
certified application to its employermembers for inclusion in petitions to
USCIS. Consistent with the proposed
revisions to § 655.162 below, proposed
paragraph (a)(4) states that the CO will
send the agricultural association a Final
Determination using electronic
method(s).
c. Joint Employer Filing Requirements
The Department proposes a new
paragraph (b) to codify the Department’s
longstanding practice of permitting two
or more individual employers to file a
single Application for Temporary
Employment Certification as joint
employers. This situation arises when
two or more individual employers
operating in the same area of intended
employment have a shared need for the
workers to perform the same
agricultural labor or services during the
same period of employment, but each
employer cannot guarantee full-time
employment for the workers during
each workweek. This allows smaller
employers that do not have full time
work for an H–2A worker and lack
access to an association, to utilize the
H–2A program. Typically, there is an
arrangement among the employers to
share or interchange the services of the
workers to provide full-time
employment during each workweek and
guarantee all the terms and conditions
of employment under the job order or
work contract.
This proposal establishes the
procedures and requirements under
which two or more individual
employers may continue to participate
in the H–2A program as joint employers.
Under proposed paragraph (b)(1)(i), any
one of the employers may file the
Application for Temporary Employment
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Certification with the NPC, so long as
the names, addresses, and the crops and
agricultural labor or services to be
performed are identified for each
employer seeking to jointly employ the
workers. Consistent with longstanding
practice, any applications filed by two
or more employers will continue to be
limited to places of employment within
a single area of intended employment
covering the same occupation or
comparable work during the same
period of employment for all joint
employers, as required by § 655.130(e).
Typically, this allows neighboring
farmers with similar needs to use the
program, though they do not, by
themselves, have a need for a full time
worker.
The proposed application filing
procedures for two or more employers
under proposed § 655.131(b) are
different from the procedures for a
master application filed by an
agricultural association as a joint
employer in several ways. First, unlike
the master application provision, the
employers filing a single Application for
Temporary Employment Certification
under proposed paragraph (b) would not
be in joint employment with an
agricultural association of which they
may be members. Thus, if an
agricultural association assists one or
more of its employer-members in filing
an Application for Temporary
Employment Certification under
proposed paragraph (b), the agricultural
association would be filing as an agent
for its employer-members. Second, all
employers filing an Application for
Temporary Employment Certification
under proposed paragraph (b) would
have to have the same first date of need
and require the agricultural labor or
services of the workers requested during
the same period of employment in order
to offer and provide full-time
employment during each workweek. In
contrast, in a master application filed by
an agricultural association, each
employer-member would offer and
provide full-time employment to a
distinct number of workers during a
period of employment that may have
first dates of need differing by up to 14
calendar days. Finally, unlike a master
application where the places of
employment for the employer-members
could cover multiple areas of intended
employment within no more than two
contiguous States, the employers filing
a single application as joint employers
under proposed paragraph (b) would
have to identify places of employment
within a single area of intended
employment.
Proposed paragraph (b)(1)(ii) provides
that each joint employer must employ
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each H–2A worker the equivalent of 1
workday (e.g., a 7-hour day) each
workweek. This requirement is in
keeping with the purpose of this filing
model, which is to allow smaller
employers in the same area and in need
of part-time workers performing the
same work under the job order, to join
together on a single application, making
the H–2A program accessible to these
employers. This requirement provides a
limiting principle that is intended to
assure that individual employers with
full time needs use the established
application process for individual
employers, that association members
use the statutory process provided for
associations, and that joint applications
are restricted to employers with a
simultaneous need for workers that
cannot support the full time
employment of an H–2A worker. In this
way, the Department can carry out the
statutory requirements applicable to
individual employers and to
associations. The Department invites
comments on this requirement, and how
to best effectuate the purposes of joint
employer applications.
Each employer seeking to jointly
employ the workers under the
Application for Temporary Employment
Certification would have to comply with
all the assurances, guarantees, and other
requirements contained in this subpart
and in part 653, subpart F, of the
chapter. Therefore, proposed
§ 655.131(b)(1)(iii) would require each
joint employer to sign and date the
Application for Temporary Employment
Certification. By signing the application,
each joint employer attests to the
conditions of employment required of
an employer participating in the H–2A
program, and assumes full
responsibility for the accuracy of the
representations made in the application
and job order, and for all of the
assurances, guarantees, and
requirements of an employer in the H–
2A program. In the event the
Department determines any employer
named in the Application for
Temporary Employment Certification
has committed a violation, either one or
all of the employers named in the
Application for Temporary Employment
Certification can be found responsible
for remedying the violation(s) and for
attendant penalties.
Where the CO grants temporary
agricultural labor certification to joint
employers, proposed § 655.131(b)(2)
provides that the joint employer that
filed the Application for Temporary
Employment Certification would receive
the Final Determination correspondence
on behalf of the other joint employers in
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accordance with the procedures
proposed in § 655.162.
3. Section 655.132, H–2A Labor
Contractor Filing Requirements; and 29
CFR 501.9, Enforcement of Surety Bond
The Department proposes to revise
the additional filing requirements for H–
2ALCs at § 655.132. First, the
Department proposes to move language
addressing the scope of H–2ALC
applications in current paragraph (a) to
proposed paragraph (e) in § 655.130 to
clarify that the geographic scope of an
Application for Temporary Employment
Certification is limited to one area of
intended employment, except as
otherwise permitted by this subpart,
without regard to the type of employer
filing the application (i.e., fixed-site
employer, joint-employers, agricultural
association filing as a sole employer or
agent, or H–2ALC). An H–2ALC
application and job order will continue
to be limited to places of employment
within a single area of intended
employment. However, pursuant to the
Department’s proposed § 655.130(e) that
this same limitation applies to all
applications and job orders, the
Department proposes to remove current
paragraph (a) to eliminate any confusion
or redundancy in the regulatory text.
Therefore, the Department proposes
that current paragraph (b) becomes
paragraph (a) in the proposed rule. This
paragraph continues to explain the
enhanced documentation requirements
for H–2ALCs with minor amendments.
The Department observes that the
number of H–2ALCs applying for
temporary agricultural labor
certifications has risen dramatically in
recent years and is expected to continue
to increase.76 Given the increased use of
the H–2A program by H–2ALCs and the
relatively complex and transient nature
of their business operations, the
Department has determined the
enhanced documentation requirements
for H–2ALCs, provided at the time of
filing an Application for Temporary
Employment Certification, continue to
be necessary in order to protect the
safety and security of workers and
ensure basic program requirements are
met. Under this paragraph, H–2ALCs
76 Based on an analysis of Applications for
Temporary Employment Certification processed for
FYs 2014 and 2017, the number of applications
filed by H–2ALCs more than doubled from 660 (FY
2014) to 1,410 (FY 2017), and the number of worker
positions certified for H–2ALCs nearly tripled from
approximately 24,900 (FY 2014) to 72,400 (FY
2017). Between FYs 2014 and 2017, the average
annual increase in H–2ALC applications requesting
temporary labor certification was 29 percent,
compared to only 18 percent for agricultural
associations and 11 percent for individual farms
and ranches.
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will continue to include in or with their
Applications for Temporary
Employment Certification at the time of
filing the information and
documentation listed in redesignated
paragraphs (a) through (e) to
demonstrate compliance with regulatory
requirements, with the following
proposed revisions.
In proposed paragraph (e)(2), the
Department proposes a minor editorial
clarification and a technical correction.
Because H–2ALC operations typically
require transporting workers to multiple
worksite locations owned or operated by
the fixed-site agricultural business, the
Department proposes to replace the term
‘‘the worksite’’ with ‘‘all place(s) of
employment’’ to clarify that
transportation provided by the fixed-site
agricultural business between all the
worksites and the workers’ living
quarters must comply with the
requirements of this section.
Additionally, the Department has
corrected the reference for workers’
compensation coverage of transportation
from § 655.125(h) to § 655.122(h).
In proposed paragraph (c), the
Department is retaining the requirement
that an H–2ALC is required to submit
with its Application for Temporary
Employment Certification proof of its
ability to discharge its financial
obligations in the form of a surety bond.
20 CFR 655.132(b)(3); 29 CFR 501.9.
This bonding requirement, which
became effective in 2009, allows the
Department to ensure that labor
contractors, who may be transient and
undercapitalized, can meet their payroll
and other program obligations, thereby
preventing program abuse. 20 CFR
655.132(b)(3); 29 CFR 501.9. Following
a final decision that finds violations, the
WHD Administrator may make a claim
to the surety for payment of wages and
benefits owed to H–2A workers, workers
in corresponding employment, and U.S.
workers improperly rejected from
employment, laid off, or displaced, up
to the face amount of the bond.
Currently, bond amounts range from
$5,000 to $75,000 depending on the
number of H–2A workers employed by
the H–2ALC under the labor
certification. 29 CFR 501.9(c).
Based on the Department’s experience
implementing the bonding requirement
and its enforcement experience with H–
2ALCs, the Department proposes
updates to the regulations. These
updates are intended to clarify and
streamline the existing requirement and
to strengthen the Department’s ability to
collect on such bonds, including by
accepting electronic surety bonds and
requiring the use of a standard bond
form. Further, the Department proposes
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adjustments to the required bond
amounts to reflect annual increases in
the AEWR and to address the increasing
number of certifications covering a
significant number of workers (e.g.,
more than 150 workers).
Under the current regulations,
application requirements for an H–
2ALC, including obtaining a surety
bond, are found in 20 CFR 655.132.
Most of the requirements pertaining to
bonds, however, including the required
bond amounts and scope of bond
coverage, are found in 29 CFR 501.9.
The Department has observed that a
large proportion of the surety bonds
submitted by labor contractors do not
meet the requirements of 29 CFR 501.9.
This hinders the Department’s ability to
effectively collect wages and benefits
owed to workers when violations are
found. Therefore, to make these
regulations more accessible to the
regulated community, the Department
proposes moving the substantive
requirements governing the content of
labor contractor surety bonds to 20 CFR
655.132(c) so that these requirements
are in the same section as other
requirements for the Application for
Temporary Employment Certification.77
Requirements that pertain solely to the
WHD’s procedures for enforcing bonds
will remain in 29 CFR 501.9.
To further address the issue of
noncompliant bonds and streamline its
review of bond submissions, the
Department proposes to expand the
capabilities of the iCERT System to
permit the electronic execution and
delivery of surety bonds and to adopt a
bond form that will include
standardized bond language.
Since the implementation of e-filing
in December 2012, OFLC has permitted
employers to upload a scanned copy of
the surety bond at the time of filing and,
upon acceptance of the application
under § 655.143, provided a written
notice reminding employers to submit
the original surety bond during
processing, before issuance of the
certification.78 Implementing a process
to accept electronic surety bonds will
eliminate delays associated with the
mailing of an original paper bond and
promote efficiency in the review of the
bonds without compromising program
integrity. The Department, therefore,
proposes to develop a process for
accepting electronic surety bonds that
would involve a bond form to be
completed through the iCERT System,
77 Available at https://www.foreign
laborcert.doleta.gov/h-2a.cfm.
78 Notice, Electronic Filing of H–2A and H–2B
Labor Certification Applications Through the iCERT
Visa Portal System, 77 FR 59672 (Sept. 28, 2012).
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36203
verify the identity and authority of
signatories to the bond (the H–2ALC
and surety’s representative), allow both
parties to sign the bond form
electronically, and securely store and
transmit the executed bond to the
Department along with the rest of the
application. Under this proposal,
electronic surety bonds are required for
all H–2ALCs subject to the Department’s
proposed mandatory e-filing
requirement. H–2ALCs exempt from
mandatory e-filing under § 655.130(c)
due to a disability or lack adequate
access to e-filing would be permitted to
submit paper surety bonds, along with
the rest of their paper application.
Until such time as the Department’s
proposed process for accepting
electronic surety bonds is operational,
the Department will allow H–2ALCs to
submit an electronic (scanned) copy of
the surety bond with the application,
provided that the original bond is
received within 30 days of the date that
the certification is issued. To ensure
that the original bond is received within
this time period, the Department
proposes to revise § 655.182 to specify
that failure to submit a compliant,
original surety bond within this time
period will constitute a substantial
violation that may warrant debarment.
This proposed addition means that the
failure to submit a compliant, original
surety bond is also grounds for revoking
the certification. This will allow greater
flexibility and efficiency in the
processing of applications while
protecting the Department’s ability to
enforce the bonds. Under this
alternative proposal, the Department
still requires the use of a standardized
form bond.
The use of a standardized form bond
will also streamline the processing and
improve compliance with the bonding
requirement. Currently, the bonds
received by the Department vary
considerably in wording and form. Not
only does this make it more difficult to
discern whether a bond is sufficient for
the purposes of the Application for
Temporary Employment Certification, it
also results in different sureties and
labor contractors believing they are
subject to differing legal requirements.
For instance, as discussed below,
different bonding companies have
interpreted the current regulatory
language in different ways. The
Department’s proposed bond form is
ETA–9142A—Appendix B. The
Department seeks comments from the
public, and particularly from
stakeholders and those in the bond
industry, on the feasibility and
accessibility of its proposals to
implement a process for accepting
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electronic surety bonds and to use a
standardized bond form.
The proposed bond form with its
standardized language is intended to
incorporate the existing bond
requirements in most respects, while
clarifying certain requirements for the
regulated community. For example, the
proposed bond language still requires a
surety to pay sums for wages and
benefits owed to H–2A workers, workers
in corresponding employment, and U.S.
workers improperly rejected from
employment, laid off, or displaced
based on a final decision finding a
violation or violations of 20 CFR part
655, subpart B, or 29 CFR part 501, but
clarifies that the wages and benefits
owed may include the assessment of
interest.
Similarly, the proposed language also
clarifies the time period during which
liability on the bond accrues, as
distinguished from the time period in
which the Department may seek
payment from the surety under the
bond. Currently 29 CFR 501.9(b)
provides that bonds must be written to
cover ‘‘liability incurred during the term
of the period listed in the Application
for Temporary Employment
Certification.’’ Language in paragraph
(d), pertaining to the time period in
which claims can be made against a
bond, permits cancellation or
termination of the bond with 45 days’
written notice to the WHD
Administrator. 29 CFR 501.9(d). This
provision was intended to permit a
surety to end the period in which a
claim can be made against a bond
provided that the minimum claims
period of paragraph (d) had elapsed.
Instead, some sureties have interpreted
this language as permitting the early
termination of the bond during the
period in which liability accrues. The
proposed bond language described
below makes it clear that liability
accrues for the duration of the period
covered by the labor certification.
The Department proposes several
changes to the bond requirements.
Currently, a bond must be written to
cover liability incurred during the
period of the labor certification and the
labor contractor is required to amend
the surety bond to cover any requested
and granted extensions of the labor
certification. 29 CFR 501.9(b). The
standardized bond language proposed
by the Department provides that
liability accrues during the period of the
labor certification, including any
extension, thereby eliminating the need
to amend the surety bond, streamlining
the extension process, and reducing the
risk of errors introduced when
amending the bonds.
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The Department also proposes
extending and simplifying the time
period in which a claim can be filed
against the surety. As currently written,
the Department must be given no fewer
than 2 years from the expiration of the
labor certification in which to enforce
the bond. This is tolled when the
Administrator commences enforcement
proceedings. After this time, sureties are
permitted to terminate this claims
period with 45 days’ written notice to
the WHD Administrator. Under the
proposed rule, this period of
enforcement is extended to 3 years (and
is still tolled by the commencement of
enforcement proceedings). This does not
extend the accrual of liability. Instead,
it allows the Department more time to
complete its investigations while
retaining the ability to seek recovery
from the surety. Because the
Department’s proposed standardized
bond language provides more specificity
as to the length of the claims period (3
years as opposed to ‘‘no less than [2]
years’’), the provision allowing
cancellation or termination of the claims
period with 45 days’ written notice has
been eliminated.
Further, the Department proposes
adjusting the required bond amounts
annually to reflect increases in the
AEWR and increasing the bond amounts
required for certifications covering a
significant number of workers (e.g., 150
or more workers). The bonding
requirement for H–2ALCs was created
because, in the Department’s
experience, these employers can be
transient and undercapitalized, making
it difficult to recover the wages and
benefits owed to their workers when
violations are found.79 Current required
bond amounts range from $5,000 to
$75,000, based on the number of H–2A
workers to be employed under the labor
certification, with the highest amount
required for certifications covering 100
or more workers. 29 CFR 501.9(c).
However, the Department has found that
the current bond amounts often are
insufficient to cover the amount of
wages and benefits owed by labor
contractors, limiting the Department’s
ability to seek back wages for workers.
The Department seeks comment on the
specific adjustments proposed, as well
as alternative means of adjusting the
79 See 2008 Final Rule, 73 FR 77110, 77163; see
also 2010 Final Rule, 75 FR 6884, 6941 (‘‘The
Department’s enforcement experience has found
that agricultural labor contractors are more often in
violation of applicable labor standards than fixedsite employers. They are also less likely to meet
their obligations to their workers than fixed-site
employers.’’).
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bond amounts to better reflect risk and
ensure sufficient coverage.
First, the Department proposes
adjusting the current bond amounts to
reflect the annual increase in the AEWR.
For certifications covering fewer than 75
workers, the bond amounts have
remained the same since 2009, when the
bonding requirement was implemented;
for certifications covering 75 or more
workers, the bond amounts have been
unchanged since 2010. See 2008 Final
Rule, 73 FR 77110, 77231. As a result,
as the AEWR rises, the bonds are less
likely to cover the full amount of wages
and benefits owed to workers. When the
Department examined the required bond
amounts in its 2009–2010 rulemaking, it
proposed and adopted additional bond
amounts for certifications covering 75 to
99 workers and those covering 100 or
more workers. 2009 NPRM, 74 FR
45906, 45925; 2010 Final Rule, 75 FR
6884, 6941. In so doing, it based the
new bond amount for certifications
covering 100 or more workers on the
amount of wages 100 workers would be
paid over a 2-week period (80 hours)
assuming an AEWR of $9.25. 2009
NPRM, 74 FR 45906, 45925. Therefore,
the Department proposes to adjust the
existing required bond amounts
proportionally on an annual basis to the
degree that a nationwide average AEWR
exceeds $9.25. The Department will
calculate and publish an average AEWR
annually when it calculates and
publishes AEWRs in accordance with
§ 655.120(b). The average AEWR will be
calculated as a simple average of these
AEWRs applicable to SOC 45–2092
(Farmworkers and Laborers, Crop,
Nursery, and Greenhouse). To calculate
the updated bond amounts, the
Department will use the current bond
amounts as a base, multiply the base by
the average AEWR, and divide that
number by $9.25. Until the Department
publishes an average AEWR, the
updated amount will be based on a
simple average of the 2018 AEWRs,
which the Department calculates to be
$12.20. For instance, for a certification
covering 100 workers, the Department
would calculate the required bond
amount according to the following
formula:
$75,000 (base amount) × $12.20 ÷ $9.25
= $98,919 (updated bond amount).
In subsequent years, the 2018 average
AEWR of $12.20 would be replaced in
this calculation by the average AEWR
calculated and published in that year.
Second, the Department proposes
increasing the required bond amounts
for certifications covering a significant
number of workers (e.g., 150 or more
workers). In recent years, the
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Department has observed more
certifications for which the current bond
amounts do not provide adequate
protection. In the first half of FY 2018
alone, OFLC issued 75 certifications to
labor contractors that planned to
employ 150 or more workers (9.8
percent of the certifications issued to
labor contractors). In contrast, during
the entire FY 2014 (the first year with
easily comparable data), only 28 (4.7
percent) of the certifications issued by
OFLC covered 150 or more workers.
This represents more than a two-fold
increase between 2014 and 2018 in the
percentage of certifications for crews of
150 or more workers; and more than a
five-fold increase in the total number of
such certifications over the same time
period. Further, certifications are being
issued that cover even larger numbers of
workers. In FY 2014, no certifications
were issued for 500 or more workers. In
contrast, in the first half of FY 2018,
several certifications have been issued
which each cover nearly 800 workers.
Given these dramatic increases in
crew sizes, the Department proposes
increasing the required bond amount for
certifications covering 150 or more
workers. For such certifications, the
bond amount applicable to certifications
covering 100 or more workers is used as
a starting point and is increased for each
additional set of 50 workers. The
interval by which the bond amount
increases will be updated annually to
reflect increases in the AEWR. This
value will be based on the amount of
wages earned by 50 workers over a 2week period and, in its initial
implementation, would be calculated
using the 2018 average AEWR as
demonstrated:
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$12.20 (2018 Average AEWR) × 80 hours ×
50 workers = $48,800 in additional bond
for each additional 50 workers over 100.
For example, a certification covering a
crew of 150 workers would require
additional surety in the amount of
$48,800 (150¥100 = 50; 1 additional set
of 50 workers). For a crew of 275
workers, additional surety of $146,400
would be required (275¥100 = 175;
175÷50 = 3.5; this is 3 additional sets of
50 workers). As explained above, this
additional surety is added to the bond
amount required for certifications of 100
or more workers. Thus, for a crew of 150
workers the required bond amount
would be $147,719 ($98,919 required for
certifications of 100 or more workers +
$48,800 in additional surety). Likewise,
for a crew of 275 workers, the required
bond amount would be $245,319
($98,919 + $146,400 in additional
surety).
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While this may represent a significant
increase in the face value of the required
bond, the Department understands that
employer premiums for farm labor
contractor surety bonds generally range
from 1 to 4 percent on the standard
bonding market (i.e., contractors with
fair/average credit or better); therefore,
any increase in premiums will be
reasonably calculated given the large
number of workers potentially
impacted. Further, the Department
believes this is necessary to ensure
fairness among labor contractors and for
workers. The current framework
‘‘disproportionately advantages larger
H–2ALCs while providing diminishing
levels of protection for employees of
such contractors’’—the very concerns
which led the Department to create
higher bond amounts for certifications
covering 75 to 99 and 100 or more
workers. 2010 Final Rule, 75 FR 6884,
6941.
Finally, because the proposed rule in
§ 655.103 expands the definition of
agriculture to include reforestation and
pine straw activities, employers in these
industries may qualify as H–2ALCs and
therefore would be required to comply
with the surety bond requirements
described in this section.
The Department seeks comments on
the impact of the Department’s
proposed updates to the required bond
amounts and whether these
appropriately reflect the amount of risk
that would otherwise be borne by
workers.
Additionally, the Department seeks
comments as to whether any additional
filing requirements for H–2ALCs are
needed to ensure that labor contractors
are able to meet H–2A program
obligations.
4. Section 655.134, Emergency
Situations
The Department proposes minor
amendments to § 655.134 to provide
greater clarity with respect to the
procedures for handling Applications
for Temporary Employment
Certification filed on an emergency
basis. Proposed paragraph (a) contains
minor technical changes, including
moving a parenthetical example of
‘‘good and substantial cause’’ to
paragraph (b), where the meaning of
‘‘good and substantial cause’’ is
discussed in more detail.
Paragraph (b) continues to address
what an employer must submit to the
NPC when requesting a waiver of the
time period for filing an Application for
Temporary Employment Certification,
including a statement describing the
emergency situation that justifies the
waiver request. The factors that may
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36205
constitute good and substantial cause
will continue to be nonexclusive, but
the Department has clarified that these
situations involve the substantial loss of
U.S. workers due to Acts of God or
similar unforeseeable man-made
catastrophic events (e.g., a hazardous
materials emergency or governmentcontrolled flooding), unforeseeable
changes in market conditions, pandemic
health issues, or similar conditions that
are wholly outside of the employer’s
control. The minor clarifications do not
materially change the regulatory
standards, but establish greater
consistency with a similar provision
contained in the H–2B regulation at
§ 655.17.80
The Department also proposes
changes to paragraphs (b) and (c) to
simplify the emergency application
filing process for employers and provide
greater clarity with respect to the
procedures for handling such
applications. Consistent with the
proposal in § 655.121(a) to require
employers to submit job orders to the
NPC, rather than a SWA, the
Department proposes to eliminate the
requirement that an employer
requesting an emergency situation
waiver submit a copy of the job order
concurrently to both the NPC and the
SWA serving the area of intended
employment. Rather, the employer must
submit the required documentation to
the NPC. Upon receipt of a complete
waiver request, the CO promptly will
transmit a copy of the job order, on
behalf of the employer, to the SWA
serving the area of intended
employment and request review for
compliance with the requirements set
forth in §§ 653.501(c) and 655.122. This
proposed change simplifies the
application filing process by providing
one point of submission (i.e., the NPC)
for all job orders and will save
employers time and cost by eliminating
the need to file a duplicate copy of the
job order concurrently with the NPC
and the SWA. In addition, it makes the
process for filing job orders in
emergency situations consistent with
the process for filing job orders under
proposed § 655.121.
Under this proposal, the CO will
continue to process emergency
80 Pursuant to 20 CFR 655.17(b), the employer
may request a waiver of the required time period(s)
for filing an H–2B Application for Temporary
Employment Certification based on good and
substantial cause that ‘‘may include, but is not
limited to, the substantial loss of U.S. workers due
to Acts of God, or a similar unforeseeable manmade catastrophic event (such as an oil spill or
controlled flooding) that is wholly outside of the
employer’s control, unforeseeable changes in
market conditions, or pandemic health issues.’’ 80
FR 24041, 24116, 24117.
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Applications for Temporary
Employment Certification in a manner
consistent with the provisions set forth
in §§ 655.140 through 655.145 and make
final determinations in accordance with
§§ 655.160 through 655.167. The CO
will concurrently review the
Application for Temporary Employment
Certification, job order, other
documentation, and statement
submitted by the employer that details
the reason(s) that necessitate the waiver
request. The Department’s proposed
paragraph (c)(1) requires that the SWA
inform the CO of any deficiencies in the
job order within 5 calendar days of the
date the SWA receives the job order.
Under proposed paragraph (c)(2), if the
employer’s submission does not justify
waiver of the filing timeframe and/or
the CO determines there is not sufficient
time to undertake an expedited test of
the labor market, the CO will issue a
NOD under § 655.141 that states the
reason(s) the waiver request cannot be
granted. The NOD will also provide the
employer with an opportunity to submit
a modified Application for Temporary
Employment Certification or job order
that brings the requested workers’
anticipated start date into compliance
with the required time periods for filing.
In providing these clarifying
amendments, the Department proposes
to eliminate current procedures that
require the CO to deny certification
under in § 655.164 if the waiver cannot
be granted, without first providing the
employer with an opportunity to modify
the application or job order to bring it
into compliance with the nonemergency job order filing timeliness
requirement at § 655.121(b).
The Department believes that
providing employers with an
opportunity to submit a modified
Application for Temporary Employment
Certification or job order before a denial
determination is issued will result in
better customer service and more
efficient processing for OFLC and
employers. The Department’s
experience under the current regulation
demonstrates that employers prefer to
adjust their first date of need to comply
with regulatory requirements, and
thereby continue the application
process, rather than receive a denial
determination and either follow the
procedures under § 655.121 to submit
the same job order to the NPC, revised
only to list the anticipated start date as
at least 60 days from the filing date, or
face a time-consuming and costly
appellate process. More importantly, the
COs and SWAs expend considerable
time and effort reviewing Applications
for Temporary Employment
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Certification and job orders for
compliance with regulatory
requirements, and if those efforts result
in denials, employers begin the process
again and file duplicate applications
and job orders with modified periods of
employment. For these reasons, when
an employer has failed to justify a
waiver request and/or there is not
sufficient time to undertake an
expedited test of the labor market, the
Department proposes that employers be
provided an opportunity to modify their
applications or job orders.
5. Section 655.135, Assurances and
Obligations of H–2A Employers
a. Paragraph (d), 30-Day Rule
The Department proposes to replace
the 50 percent rule in § 655.135(d) with
a 30-day rule requiring employers to
provide employment to any qualified,
eligible U.S. worker who applies for the
job opportunity until 30 calendar days
from the employer’s first date of need on
the certified Application for Temporary
Employment Certification, including
any modifications thereof, and a longer
recruitment period for those employers
who choose to stagger the entry of H–
2A workers into the United States under
proposed § 655.130(f). The 50 percent
rule, which requires employers of H–2A
workers to hire any qualified, eligible
U.S. worker who applies to the
employer during the first 50 percent of
the work contract period, was originally
created by regulation as part of the
predecessor H–2 agricultural worker
program in 1978.81 In 1986, the IRCA
added the 50 percent rule to the INA as
a temporary 3-year statutory
requirement, pending the findings of a
study that the Department was required
to conduct as well as review of ‘‘other
relevant materials including evidence of
benefits to U.S. workers and costs to
employers, addressing the advisability
of continuing a policy which requires an
employer, as a condition for
certification under this section, to
continue to accept qualified, eligible
United States workers for employment
after the date the H–2A workers depart
for work with the employer.’’ Section
218(c)(3)(B)(iii) of the INA, 8 U.S.C.
1188(c)(3)(B)(iii). In the absence of the
enactment of Federal legislation prior to
the end of the 3-year period, the statute
instructed the Secretary to publish the
findings immediately and promulgate
an interim or final regulation based on
the findings.
20 CFR 655.203(e) (1978); Final Rule,
Temporary Employment of Alien Agricultural and
Logging Workers in the United States, 43 FR 10306,
10316 (Mar. 10, 1978).
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To comply with these requirements,
the Secretary hired a research firm to
analyze the cost-benefit impact of the 50
percent rule on U.S. workers, growers,
and the general public. See 2008 NPRM,
73 FR 8538, 8553. The research firm
studied the impact of the 50 percent
rule in just Virginia and Idaho, the two
States that were determined to have the
highest number of U.S. worker referrals
made pursuant to the 50 percent rule.
The number of growers interviewed was
extremely small, as the firm interviewed
only those growers that actually hired
U.S. workers because of the 50 percent
rule—only 66 growers (0.1 percent) in
all of Virginia and Idaho’s total 64,346
farms (according to USDA). The study
sought to determine the costs to
employers that hire referred 50 percent
rule workers and the concomitant
benefits to the U.S. workers hired under
the rule. Even with this narrow focus,
the study made it clear that the H–2A
program was not regarded as desirable
by growers. Of those questioned, 6
percent said they were dropping out of
the H–2A program because of the 50
percent rule. Forty percent wanted the
rule eliminated entirely and 33 percent
wanted to alter the requirement by, for
example, requiring the 50 percent rule
workers to finish the season or
modifying substantially the 50 percent
rule by requiring the hiring of U.S.
workers only up to a certain point
before the first date of need.
In 1990, pursuant to what is now
section 218(c)(3)(B)(iii) of the INA, 8
U.S.C. 1188(c)(3)(B)(iii), ETA published
an interim final rule to continue the 50
percent requirement.82 That rule was
never finalized. In 2007, the Department
commissioned a survey of stakeholder
representatives to evaluate the
effectiveness of the 50 percent rule as a
mechanism to minimize adverse
impacts of the H–2A rule on U.S.
farmworkers. See 2008 Final Rule, 73
FR 77110, 77127 n.3. The surveyors for
this study conducted interviews with a
number of stakeholders to gather
information on the impact of the 50
percent rule, including employers,
SWAs, and farm worker advocacy
organizations. The researchers found
that the rule played an insignificant role
in the program overall, hiring-wise, and
had not contributed in a meaningful
way to protecting employment for
domestic agricultural workers. The
researchers estimated that the number of
agricultural hires resulting from
82 Continuation of Interim Final Rule, Labor
Certification Process for the Temporary
Employment of Aliens in Agriculture in the United
States; ‘‘Fifty-Percent Rule’’, 55 FR 29356 (July 19,
1990).
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referrals to employers during the 50
percent rule period was exceedingly
small, with H–2A employers hiring less
than 1 percent of the legal U.S.
agricultural workforce through the 50
percent rule. All surveyed stakeholder
groups reported that U.S. workers hired
under the 50 percent rule typically did
not stay on the job for a significant
length of time once hired.
In 2008, the Department eliminated
the 50 percent rule, based on its
determination that the rule created
substantial uncertainty for employers in
managing their labor supply and labor
costs during the life of an H–2A contract
and served as a substantial disincentive
to participate in the program. 2008 Final
Rule, 73 FR 77110, 77127. The
Department determined that the
obligation to hire additional workers
mid-way through a season was
disruptive to agricultural operations and
made it difficult for agricultural
employers to be certain they would have
a steady, stable, properly trained, and
fully coordinated workforce. Id. On the
other hand, the Department found that
some U.S. workers secured jobs through
referrals made pursuant to the rule, but
that the number of hires was small, and
that many workers hired pursuant to the
rule did not complete the entire work
period. Id. at 77127–28. Therefore, the
Department concluded that the costs of
the rule substantially outweighed any
potential benefits for U.S. workers. Id. at
77128. However, in order to prevent the
disruption of access of U.S. workers to
agricultural employment activities and
allow for the collection of additional
data about the costs and benefits of
mandatory post-date-of-need hiring, the
Department created a 5-year transitional
period under the Final Rule during
which mandatory post-date-of-need
hiring of qualified and eligible U.S.
workers would continue to be required
of employers for a period of 30 days
after the employer’s first date of need.
Id. In effect, the Department replaced
the 50 percent rule with a 30-day rule
for the transitional period.
In 2010, the Department reinstated the
50 percent rule, concluding that the
potential costs to employers incurred as
a result of the 50 percent rule were
outweighed by the benefits to U.S.
workers of having access to these jobs
through 50 percent of the contract
period. 2010 Final Rule, 75 FR 6884,
6922. The Department cited the lack of
definitive data as the basis for its
reinstatement of the rule. Id.
Since the implementation of the
current regulation, the Department has
gained additional experience and
collected a significant amount of data
that can assess whether the 50 percent
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rule is an effective means of protecting
the employment opportunities of U.S.
workers from potential adverse impact
resulting from the employment of
foreign workers. Specifically, as part of
the audit examination process under
§ 655.180, the recruitment reports
submitted by employers to the
Department are a relevant and readily
available source of information in
assessing how many U.S. workers
applied for the certified job
opportunities and at what point in time,
as well as the disposition of each U.S.
worker. Under the current regulation, an
employer granted temporary agricultural
labor certification must continue to
provide employment to any qualified,
eligible U.S. worker who applies until
50 percent of the period of the work
contract has elapsed, and update the
recruitment report for each U.S. worker
who applied through the entire
recruitment period.83
The Department examined the
recruitment reports of 1,824 certified H–
2A applications covering more than
33,510 jobs selected for audit
examination and fully audited during
calendar years 2016 to 2018.84
Approximately 87 percent (1,582) of the
recruitment reports of 1,824 certified H–
2A applications reviewed, covering
23,324 jobs, reported that no U.S.
workers applied for the job
opportunities at any point during the 50
percent recruitment period. Of the
remaining 13 percent (242) of the 1,824
certified H–2A applications, covering
10,186 jobs, employer recruitment
reports revealed that 3,392 U.S. workers
applied for the available job
opportunities at some point from the
beginning of the employer’s H–2A
recruitment efforts through 50 percent
of the work contract period. Of those
who applied, only 2,053 were
reportedly hired, accounting for
approximately 6 percent of the total
33,510 jobs available.
Of that 13 percent, the Department
conducted a detailed review of 52
recruitment reports showing that U.S.
83 In accordance with § 655.156(b), this updated
written recruitment report is retained by the
employer and must be made available to the
Department in the event of a post-certification audit
or upon request by authorized representatives of the
Secretary.
84 In accordance with § 655.180(a), the 1,824
certified H–2A applications were selected for audit
examination between October 1, 2015 and April 2,
2018, at random and based on the discretion of the
CO. Nearly 75 percent (24,782) of the 33,500 jobs
covered by the 1,824 audited H–2A applications
were located in the states of Florida, Georgia, New
York, Louisiana, California, Kentucky, Washington,
North Carolina, South Carolina, and Mississippi—
the same states that consistently constitute more
than 68 percent of all certified jobs in the H–2A
program during FY 2015, 2016, and 2017.
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workers applied for available jobs from
the beginning of the employer’s H–2A
recruitment efforts through 50 percent
of the work contract period. That review
revealed that more than 84 percent of
the U.S. workers who applied for the
available job opportunities did so
during the active recruitment period
before the start date of work and
through the first 30 days after the start
date of work.85 For the remaining 16
percent of U.S. workers who applied
and/or were hired more than 30 days
after the start date of work, employer
recruitment reports revealed that the
overwhelming majority of the referral
and hiring activities occurred within the
next 60 days of the recruitment period.
Employers also reported that many of
these U.S. workers who were hired
either did not report to work or
voluntarily resigned or abandoned the
job shortly after beginning work.
The language of section
218(c)(3)(B)(iii) of the INA, 8 U.S.C.
1188(c)(3)(B)(iii), suggests that when
issuing regulations dictating whether
agricultural employers should be
required to hire U.S. workers after H–2A
workers have already departed for the
place of employment, the Department
should weigh the ‘‘benefits to United
States workers and costs to employers.’’
Based on the data described above, it
appears that a very low number of U.S.
workers apply for the job opportunity
within thirty days after the start date of
work, and even fewer after that;
therefore, the costs of the rule to
employers, including the actual or
potential cost of returning displaced H–
2A workers to the place from which
they departed, outweigh any benefits
the rule may provide to U.S. workers.
The 50 percent rule is not an effective
method of filling available jobs for
employers needing a stable workforce
and, according to the data, provides
little benefit to U.S. workers who, based
on the data described above, apply for
jobs either before the start date of work
or during the first 30 days after the start
date of work. In order to balance the
needs of workers and employers,
proposed paragraph (d)(1) replaces the
50 percent rule with a rule requiring
employers to hire qualified, eligible U.S.
worker applicants for a period of 30
days after the employer’s first date of
85 Of the 2,809 U.S. workers who applied for the
certified jobs, 50 percent (1,393) applied before the
start date of work; 36 percent (1,002) applied within
30 days after the start date of work; and 15 percent
(414) applied more than 30 days after the start date
of work. Of the 1,843 U.S. workers hired for the
certified jobs, 47 percent (862) were hired before the
start date of work; 37 percent (687) were hired
within 30 days after the start date of work; and 16
percent (294) were hired more than 30 days after
the start date of work.
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need. Requiring employers to hire
workers 30 days into the contract
period, while still disruptive to
agricultural operations, shortens the
period during which such disruptions
may occur and restores some stability to
employers that depend on the H–2A
program. Moreover, it is clear from the
data provided above that the vast
majority of U.S. workers hired after the
first date of need were hired within the
first 30 days of the period of need.
Providing U.S. workers the ability to
apply for these job opportunities 30
days into the contract period ensures
that U.S. workers still have access to
these jobs after the start of the contract
period during the period of time they
are most likely to apply.
Furthermore, the Department notes
that the impact of this proposed change
on U.S. workers is minimized by the
staggered entry proposal, discussed
further in the preamble to § 655.130(f).
Under that proposal, if a petition for H–
2A nonimmigrant workers filed by an
employer is granted, the employer may
bring the H–2A workers described in the
petition into the United States at any
time up to 120 days from the first date
of need stated on the Application for
Temporary Employment Certification.
Proposed paragraph (d)(2) of § 655.135
provides that if an employer chooses to
stagger the entry of H–2A workers, it
must hire any qualified, eligible U.S.
worker who applies for the job
opportunity through the period of
staggering or the end of the 30-day
period, whichever is longer, for a period
of up to 120 calendar days from the first
date of need. The Department has
determined that in order to fulfill its
statutory duty to ensure that foreign
workers are not admitted unless
sufficient U.S. workers are unavailable,
the period during which employers are
obligated to hire qualified and eligible
U.S. workers must extend beyond 30
days to the last date on which the H–
2A workers enter the country.
Under proposed § 655.135(d), an
employer may choose the relative
stability and predictability of a shorter
recruitment period, or may choose the
flexibility of staggering the entry of its
H–2A workers that comes with a longer
recruitment period, depending on its
needs. In the case of staggered entry, the
resulting longer recruitment period
should be less disruptive than the 50
percent rule, since, in most cases in
which the employer chooses to stagger
the entry of its workers, a U.S. worker
hired after the beginning of the contract
period would not displace an H–2A
worker who has already begun
employment. Rather than displacing an
H–2A worker who has already entered
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the United States and begun work, the
U.S. worker would most likely fill one
of the positions with a later start date
(i.e., one of the staggered positions).
Regardless of the employer’s choice,
U.S. workers will continue to have
access to these job opportunities for a
significant period of time after the work
contract has commenced and, in the
case of staggered entry, for a period of
time almost comparable to that available
under the 50 percent rule.
The Department proposes conforming
changes to those sections of the current
rule that refer to the 50 percent rule. In
§§ 655.122(h)(2) and (i)(4), 655.144(b),
655.150(b), 655.156(b), 655.157(c),
655.220(c), and 655.225(b), the
Department has replaced references to
the 50 percent rule with language
referring to the recruitment periods
described in § 655.135(b). These
changes account for the Department’s
proposals both to replace the 50 percent
rule with a 30-day rule and to require
a longer recruitment period for those
employers who choose to stagger the
entry of their H–2A workers into the
United States.
In making the proposal to replace the
50 percent rule, the Department has
considered available data as well as its
experience administering the H–2A
program, but it would like to consider
additional information from the public
before making a final decision. To that
end, the Department invites comments
from parties who may have data
illustrating the costs and benefits of the
50 percent rule in the current labor
market, particularly, comprehensive
studies of the frequency with which H–
2A employers hire U.S. workers
pursuant to the 50 percent rule. The
Department also invites comments on
whether, if the employer chooses to
stagger the entry of H–2A workers, the
resulting recruitment period should run
to the last date on which the employer
expects foreign workers to enter the
country, as proposed herein, or if the
recruitment period should extend 30
days beyond the period of staggering.
b. Paragraph (k), Contracts With Third
Parties Comply With Prohibitions
Finally, the Department proposes to
clarify that employers engaging any
foreign labor contractor or recruiter
‘‘must contractually prohibit in writing’’
the foreign labor contractor or recruiter,
or any agent of such contractor or
recruiter, from seeking or receiving
payments from prospective employees.
For employers’ convenience and to
facilitate more consistent and uniform
compliance with this regulatory
provision, the Department proposes
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contractual language employers must
use to satisfy this requirement.
The Department makes this proposal
because when employers use recruiters,
they must make it abundantly clear that
their foreign labor contractors or
recruiters and their agents are not to
receive remuneration from prospective
employees recruited in exchange for
access to a job opportunity. The
proposed contractual language specifies
that foreign labor contractors and
recruiters, and their agents and
employees, are not to receive payments
of any kind from any prospective
employee subject to 8 U.S.C. 1188 for
any activity related to obtaining H–2A
labor certification. To help monitor
compliance with this prohibition, the
Department is retaining the requirement
that employers make these written
contracts or agreements available upon
request by the CO or another Federal
party.
6. Section 655.136, Withdrawal of an
Application for Temporary Employment
Certification and Job Order
As discussed in the preamble
discussing § 655.124 above, the
Department proposes to reorganize the
current withdrawal provisions at
§ 655.172 by moving withdrawal
procedures for specific stages of H–2A
processing to the portion of the
regulation that addresses that processing
stage. The Department proposes to move
the current Application for Temporary
Employment Certification and related
job order withdrawal provision from
§ 655.172(b) to new § 655.136, located in
the ‘‘Application for Temporary
Employment Certification Filing
Procedures’’ portion of the regulation,
which begins at § 655.130. By placing
the provisions for Application for
Temporary Employment Certification
filing and withdrawal together, the
Department anticipates employers will
be able to find these withdrawal
procedures more easily.
In addition, the Department proposes
to revise the current provision by
removing language limiting withdrawal
to the period after formal acceptance.
Instead, the proposal permits employers
to submit a withdrawal request at any
time before the CO makes a final
determination. Employers may realize
after filing and before formal acceptance
that they cannot comply with
certification requirements (e.g., after
reviewing a NOD), or for some other
reason, they may no longer wish to
pursue the application. Withdrawal is
an efficient mechanism to end
processing of the application and job
order. Finally, proposed § 655.136(b)
clarifies that employers must submit
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withdrawal requests in writing to the
NPC, identifying the Application for
Temporary Employment Certification
and job order to be withdrawn and
stating the reason(s) for requesting
withdrawal.
The Department proposes no change
to an employer’s continuing obligations
to workers recruited in connection with
the job order and/or Application for
Temporary Employment Certification;
these obligations attach at recruitment
and continue after withdrawal.
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D. Processing of Applications for
Temporary Employment Certification
1. Section 655.140, Review of
Applications
The Department proposes minor
amendments to § 655.140 to clarify
existing procedures and explain the first
actions available to the CO after initial
review of the Application for Temporary
Employment Certification, job order,
and any necessary supplementary
documentation. Under current
paragraph (a), the CO conducts an initial
review of the application and issues a
NOA to the employer under § 655.143 if
the application meets acceptance
requirements or a NOD under § 655.141
if the application contains deficiencies.
The Department proposes to amend
paragraph (a) by adding language that
explains that in addition to issuance of
a NOA or NOD, the CO’s first action
may be issuance of a Final
Determination under § 655.160. As
explained in the preamble discussing
§ 655.123 above, the Department
proposes to permit the employer to
conduct recruitment prior to filing its
application. Consistent with that
proposal, a Final Determination to
certify the application may be the
appropriate first action if the employer
conducts pre-filing recruitment,
provided the application meets all
certification criteria and the employer
has complied with all regulatory
requirements necessary for certification.
Likewise, a Final Determination to deny
the application may be the appropriate
first action if the application is
incurably deficient at the time it is filed,
such as an application filed by a
debarred employer.
The Department proposes to amend
paragraph (b) to include language that
permits the CO to send electronic
notices and requests to the employer
and permits the employer to send
electronic responses to these notices
and requests, which is consistent with
current practice and other
modernization proposals explained in
this NPRM. The Department encourages
electronic communication and OFLC
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currently permits H–2A employers to
respond to notices and requests
electronically. Proposed paragraph (b)
retains the option to issue and respond
to notices and requests using traditional
methods that assure next day delivery,
which is necessary in some cases, such
as when the employer does not have
access to e-filing methods. Proposed
paragraph (b) also clarifies that the CO
will send notices and requests to the
address the employer provides in the
Application for Temporary Employment
Certification.
2. Section 655.141, Notice of Deficiency
In paragraph (b), the Department
proposes to remove language that allows
an employer to request expedited
administrative review or a de novo
hearing of a NOD. The Department
proposes this change to conform to the
language of the INA, which requires
expedited administrative review, or a de
novo hearing at the employer’s request,
only for a denial of certification or a
revocation of such a certification. See
section 218(e)(1) of the INA, 8 U.S.C.
1188(e)(1). Because the NOD is neither
a denial of certification nor a revocation
of such a certification, this proposal
better conforms with statutory
requirements under the INA. For the
same reason, the Department also
proposes to remove current paragraph
(c), which permits employers to appeal
a NOD. Additionally, the Department
proposes to remove language from
paragraph (b)(5) that prohibits the
employer from appealing the denial of
a modified Application for Temporary
Employment Certification. This change
aligns this section with the language in
§ 655.142(c), which permits the appeal
of a denial of a modified application.
In paragraph (b)(3), the Department
proposes to add language to clarify that
the employer may submit a modified job
order in response to a NOD. This
proposal conforms paragraph (b)(3) with
the language in paragraphs (a), (b)(1),
and (b)(2) of the current rule, which
allows the CO to issue a NOD for job
order deficiencies and provides the
employer an opportunity to submit a
modified job order to cure those
deficiencies.
3. Section 655.142, Submission of
Modified Applications
The Department proposes
amendments to clarify the provisions at
§ 655.142 that govern the employer’s
submission of a modified Application
for Temporary Employment
Certification or job order. The
Department proposes to add language to
paragraphs (a) and (b) that clarifies the
employer may submit a modified job
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order in response to a NOD, which
conforms these paragraphs to the
provisions at § 655.141 that permit the
CO to issue a NOD for job order
deficiencies and provide the employer
opportunity to submit a modified job
order to cure those deficiencies.
Proposed paragraph (a) also clarifies
that if the employer submits a modified
application or job order, the CO will
postpone the Final Determination for a
maximum of 5 calendar days, consistent
with the current provision that the CO’s
Final Determination will be postponed
by 1 calendar day for each day the
employer’s response is untimely (i.e.,
past the due date for submitting a
modification under § 655.141(b)(2)).
In addition, proposed paragraph (a)
explicitly authorizes the CO to issue
multiple NODs, if necessary, which
mirrors language included at § 655.32(a)
of the 2015 Interim Final Rule that
governs the H–2B temporary labor
certification program. See 80 FR 24041,
24122. Authority to issue multiple
NODs provides the CO with the
necessary flexibility to work with
employers to resolve deficiencies that
prevent acceptance of their Applications
for Temporary Employment
Certification or job orders. For example,
a CO may discover a deficiency while
reviewing submissions by the employer,
such as an employer’s response to a
NOD, which raises other issues that
require the CO to request additional
modifications.
4. Section 655.143, Notice of
Acceptance
The Department proposes revisions to
§ 655.143 to clarify current policy and to
reflect proposed changes to the
organizing structure of this section to
ensure the NOA content requirements
reflect the proposals to amend positive
recruitment requirements, such as labor
supply State determinations in
proposed § 655.154(d), requiring the CO
to transmit the job order to the SWAs for
interstate circulation, and permitting the
employer to conduct prefiling
recruitment. As explained in the
preamble discussing § 655.123 above,
the Department’s proposed rule permits
the employer to conduct the positive
recruitment activities required by
§§ 655.151 through 655.154 before filing
its Application for Temporary
Employment Certification (i.e., prefiling
recruitment). To ensure § 655.143 is
consistent with this proposal, the
proposed content requirements for
NOAs account for whether the employer
has conducted prefiling recruitment,
and whether that recruitment is
complete and compliant with the
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employer’s positive recruitment
obligations.
Proposed paragraphs (b)(1)(i) through
(iii) correspond with paragraphs (b)(1)
through (3) in the current regulation and
describe the content requirements for
NOAs sent to an employer that has not
chosen to commence positive
recruitment prior to filing the
Application for Temporary Employment
Certification, or an employer that has
submitted, along with its Application
for Temporary Employment
Certification, evidence of satisfactorily
fulfilling some, but not all, of its
positive recruitment obligations
following the procedures set forth in
proposed § 655.123. The proposed
content requirements are substantively
the same as those described in current
paragraphs (b)(1) through (3), but the
Department has made minor editorial
revisions to reflect the modification of
the job order circulation procedure in
proposed § 655.150, explained in the
preamble for that section. Under
proposed paragraph (b)(1)(i), the NOA
will not direct the SWA serving the area
of intended employment to send the job
order to other SWAs for circulation
because the CO will be responsible for
sending the job order to the appropriate
SWAs under the proposed rule. Under
proposed paragraph (b)(1)(ii), the NOA
continues to direct the employer to
engage in positive recruitment and to
submit a recruitment report, but the
Department has replaced the reference
to § 655.154 with §§ 655.151 through
655.154 to better reflect positive
recruitment requirements. Finally,
under proposed paragraph (b)(1)(iii), the
NOA continues to state that the
employer’s positive recruitment must
occur during and in addition to SWA
recruitment, and continues to specify
the date on which the employer’s
positive recruitment obligation
terminates. However, the Department
has simplified the language by stating
the employer’s recruitment obligation
ends on the date specified in § 655.158,
as amended in this proposed rule,
instead of quoting that section
unnecessarily.
Proposed paragraph (b)(2) describes
the content of the NOA the CO will send
to an employer who submitted, along
with its Application for Temporary
Employment Certification, evidence of
having commenced some or all aspects
of positive recruitment, as permitted by
proposed § 655.123, but failed to
comply with some or all of the
requirements for the positive
recruitment activities conducted. When
an employer has engaged in prefiling
recruitment activities, the CO will
evaluate that recruitment to ensure
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positive recruitment requirements at
§§ 655.151 through 655.154 have been
met and, if not, direct the employer to
bring its recruitment into compliance.
Under proposed paragraph (b)(2)(i), the
NOA will direct the employer to
conduct corrective positive recruitment
and to submit proof of compliant
advertising concurrently with the
recruitment report. Under proposed
paragraph (b)(2)(ii), the NOA will state
that the employer’s positive recruitment
must occur during and in addition to
SWA recruitment, and will terminate on
the date specified in § 655.158.
In addition, proposed paragraph (b)(3)
will require all NOAs to specify any
other documentation or assurances the
employer must provide in order for the
Application for Temporary Employment
Certification to meet the requirements
for certification. This might include, for
example, a required original surety
bond, housing documentation, or MSPA
Farm Labor Contractor Certificate of
Registration. Under this provision, the
CO may issue a NOA in cases where the
application is complete and compliant
for recruitment purposes, but the
employer has not submitted all
documentation required for
certification. This reflects current
practice, which allows the employer to
engage in positive recruitment while
simultaneously gathering additional
information that will be required for
certification. This process is more
efficient than requiring the employer to
submit all information required for
certification prior to allowing the
employer to commence recruitment.
Finally, proposed paragraph (b)(4)
retains the requirement that all NOAs
state that the CO will issue a Final
Determination not later than 30 calendar
days prior to the employer’s first date of
need, except in cases where the
employer’s application requires
modification under § 655.141. The
Department proposes to amend
paragraph (b)(4) by adding language that
permits the CO to issue a Final
Determination fewer than 30 calendar
days prior to the employer’s first date of
need. The proposed revisions would
allow the CO to hold an application that
would otherwise be denied on the
thirtieth day before the employer’s start
date to allow the employer more time to
meet all certification requirements. For
example, the SWA may have inspected
the employer’s housing and identified a
repair that must be made before the
housing certification can be issued,
which the employer is in the process of
addressing. Therefore, this proposal
gives the employer a short period of
time beyond the 30-day mark to submit
the missing documentation, thereby
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minimizing unnecessary burdens and
delays. Furthermore, the proposal
minimizes inefficiencies for the NPC,
which would otherwise be required to
issue a denial and either reopen and
certify the application following a
successful appeal or fully process a
second application for the same job
opportunity.
5. Section 655.144, Electronic Job
Registry
The Department is retaining the
current language of the electronic job
registry provisions at § 655.144, with the
exception of three minor amendments to
make this section consistent with other
proposals and current practice. The
Department’s public disclosure of
redacted job orders (Forms ETA–790/
790A) through the electronic job registry
on OFLC’s website is essential to
ensuring transparency and
accountability in the Department’s
administration of the foreign labor
certification program. In addition, the
electronic job registry is a valuable
resource for worker advocacy
organizations, State and Federal
agencies and public officials, and
interested members of the public.
OFLC’s publication of job order
information on the registry reduces
Government costs and paperwork
burdens by reducing the number of
Freedom of Information Act requests the
Department receives. Finally, placement
of job orders on the electronic job
registry helps to make information about
employers’ job opportunities more
widely available to U.S. workers.
The Department also proposes to add
the phrase ‘‘in active status’’ to clarify
that job orders must remain in active
status on the electronic job registry until
the end of the recruitment period set
forth in § 655.135(d); when the
recruitment period ends, the job order
remains on the electronic job registry in
inactive status. Finally, the Department
proposes to amend paragraph (a) by
deleting the sentence that explains the
Department will begin posting job
orders on the registry once it has
initiated operation of the registry. The
registry is now fully operational;
therefore, this sentence is unnecessary
and should be removed.
E. Post-Acceptance Requirements
1. Section 655.150, Interstate Clearance
of Job Order
The Department is retaining
§ 655.150, which addresses the process
for placement of approved job orders
into interstate clearance, with clarifying
revisions necessary to conform this
section to proposed revisions to the
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recruitment and filing processes. The
Department proposes to revise § 655.150
consistent with the centralization of job
order submission to, and dissemination
from, the NPC as proposed in § 655.121.
Under proposed § 655.121(c), the
employer files its job order with the
NPC, rather than a SWA serving the area
of intended employment. After
receiving the job order from the
employer, the NPC sends the job order
to a SWA serving the area of intended
employment for review and, after
approval, circulation in that SWA’s
intrastate employment service system,
as described in § 655.121. The CO,
rather than the SWA, would then
transmit the approved job order to the
appropriate SWAs for interstate
clearance (e.g., SWAs serving other
states where work will be performed) on
the employer’s behalf. Finally, proposed
paragraph (a) also clarifies that the job
order will be placed into interstate
clearance in labor supply states
designated by the OFLC Administrator,
consistent with proposed changes to the
labor supply state determination
method in § 655.154(d).
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2. Section 655.151, Advertising in the
Area of Intended Employment
The Department recently proposed
revisions to § 655.151 in a separate
proposed rule, Modernizing Recruitment
Requirements for the Temporary
Employment of H–2A Foreign Workers
in the United States.86 This Proposed
Rule does not propose any revisions to
this section, and the revisions proposed
in the separate rulemaking are not
reflected in this proposed rule.
3. Section 655.152, Advertising Content
Requirements
The Department proposes only minor
editorial amendments to the advertising
content provisions in § 655.152 to
clarify existing obligations and ensure
consistency with changes made in other
sections of this proposed rule. The
Department will continue to require
advertisements to state certain job offer
information that complies with H–2A
program requirements and is essential to
apprising prospective workers of the job
opportunity (e.g., offered wage, or wage
range floor, no lower than the amount
required under §§ 655.120(a) and
655.122(l)).
The Department proposes to add the
word ‘‘content’’ to the section title to
clarify the section addresses advertising
content requirements specifically. The
Department proposes to amend the
86 83 FR 55994 (Nov. 9, 2018). On June 17, 2019,
the Department submitted a final rule of that
rulemaking to OMB for review. See https://
www.reginfo.gov/public/do/eoDetails?rrid=129233.
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introductory paragraph to include a
reference to § 655.154 to clarify that the
§ 655.152 content requirements apply to
additional positive recruitment
conducted under that section as well.
The proposed revisions to paragraphs
(a) and (d) explain that advertisements
must include the names of each joint
employer and the name of the
agricultural association, if applicable.
Finally, the Department proposes to
delete references to employer interviews
of U.S. applicants in paragraph (j)
because the proposed rule includes this
language in proposed § 655.123,
‘‘Positive recruitment of U.S. workers.’’
4. Section 655.153, Contact With Former
U.S. Workers
The Department retains § 655.153
with some minor proposed revisions.
Section 655.153 presently requires an
employer to contact, by mail or other
effective means (e.g., phone or email),87
U.S. workers it employed in the
occupation at the place of employment
during the previous year to solicit their
return to the job. This obligation aims to
ensure that these U.S. workers, who
likely have an interest in these job
opportunities, receive notice of the job
opportunities and to prevent the
employer from effectively displacing
qualified and available U.S. workers by
seeking H–2A workers. An employer,
however, need not contact those U.S.
workers it dismissed for cause or those
who abandoned the worksite. The
Department proposes to add language to
§ 655.153 requiring an employer to
provide the notice described in
§ 655.122(n) 88 to the NPC with respect
to a U.S. worker who abandoned
employment or was terminated for
cause in the previous year. The proposal
also requires an employer to have
provided the notice in a manner
consistent with the NPC Federal
Register notice issued under
§ 655.122(n).89 This proposal is
intended to ensure that there is virtually
contemporaneous documentation to
support an employer assertion that a
U.S. worker abandoned employment or
that it terminated the U.S. worker for
cause. Under this proposal, the
2010 Final Rule, 75 FR 6884, 6929.
§ 655.122(n), a worker’s abandonment of
employment or termination for cause relieves an
employer of responsibility for subsequent
transportation and subsistence costs and the
obligation to meet the three-fourths guarantee for
that worker, if the employer provides notice to the
ETA NPC, and in the case of an H–2A worker DHS,
of the abandonment or termination.
89 See Notice, Information about the DOL
Notification Process for Worker Abandonment, or
Termination for Cause for H–2A Temporary
Agricultural Labor Certifications, 76 FR 21041 (Apr.
14, 2011).
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88 Under
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employer must contact former U.S.
workers who abandoned employment or
it terminated for cause if, while subject
to H–2A program requirements, it fails
to provide notice in the required
manner.
The Department may not certify an
application unless the prospective
employer has engaged in positive
recruitment efforts of able, willing, and
qualified U.S. workers available to
perform the work. See section 218(b)(4)
of the INA, 8 U.S.C. 1188(b)(4). The
prospective employer’s positive
recruitment obligation is distinct from,
and in addition to, its obligation to
circulate the job through the SWA
system. Id. E.O. 13788 requires the
Department, consistent with applicable
law, to protect the economic interests of
U.S. workers. See 82 FR 18837, sec. 2(a),
5. The requirement to notify the
Department of abandonment and
termination for cause would protect the
interests of able, willing, and qualified
U.S. workers who might be available to
perform the agricultural work,
consistent with the INA and E.O. 13788.
In addition, the notice could assist
growers in the event U.S. workers who
have abandoned employment or been
terminated for cause later assert the
employer failed to contact them as
required by § 655.153.
The proposed notice obligation
should not increase the existing
regulatory burden. Section 655.122(n)
permits an employer to avoid the
responsibility to satisfy the three-fourths
guarantee as well as its return
transportation and subsistence payment
obligations when a U.S. worker
voluntarily abandons employment or
the employer terminates the worker for
cause if the employer notifies the NPC
not later than 2 working days after the
abandonment or termination. Employers
already have a strong financial incentive
to submit this notice to avoid
responsibility for the three-fourths
guarantee and return transportation and
subsistence costs and the requirement to
submit the notice to avoid § 655.153’s
contact obligation is unlikely to change
the current regulatory burden on
employers.
As noted above, § 655.153 currently
permits employers to contact U.S.
workers by mail or other effective
means. The regulatory text of the 2008
Final Rule specified that other effective
means included phone and email
contact. 73 FR 77110, 77215. The 2010
Final Rule removed the specific
reference to phone or email contact from
the text to simplify the regulatory
language, but the 2010 preamble
expressly stated that phone or email
contact remained effective means to
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contact U.S. workers. 75 FR 6884, 6929.
The Department hereby reaffirms that
phone and email contact continue to be
effective means to contact U.S. workers.
The Department understands there are
circumstances where employers had not
employed H–2A workers in the previous
year but are now applying to employ H–
2A workers for the current year. In those
circumstances, employers often have
employed U.S. workers in the
occupation at the place of employment
during the previous year. Similarly, a
regular user of the H–2A program might
employ U.S. workers in the pertinent
occupation at the place of employment
to provide agricultural services for the
first time and then use the H–2A
program in the succeeding year.
In each instance, § 655.153 requires
these employers to contact the U.S.
workers employed in the previous year.
This obligation applies to entities that
employed U.S. workers in the previous
year under the common law definition
of employer incorporated in
§ 655.103(b). For example, if a grower
applying to employ H–2A workers used
farm labor contractors to provide U.S.
workers during the previous year and
the grower employed the U.S. workers
under the common law of agency, then
§ 655.153 requires the employer to
contact those U.S. workers. In the event
that the grower has not kept payroll
records for such U.S. workers, the
regulations implementing MSPA will
typically have required the farm labor
contractors to have furnished the grower
with a copy of all payroll records
including the workers’ names and
permanent addresses. The growers must
maintain these records for 3 years. 29
CFR 500.80(a), (c). These records should
provide the employer with contact
information for the pertinent U.S.
workers.
While the Department’s proposal
would continue to impose the contact
obligation found in § 655.153 on
employers that did not participate in the
H–2A program in the previous year, the
proposal would not require such
employers to have provided the NPC the
notice described in § 655.122(n) in order
to avoid the obligation to contact U.S.
workers the employer terminated for
cause in the previous year or who
abandoned the employment in the
previous year.
Finally, the proposed rule clarifies
that the employer’s contact with former
U.S. workers must occur during the
positive recruitment period (i.e., while
the employer’s job order is circulating
with the SWAs in interstate clearance
system and terminating on the date
workers depart for the place of
employment, as determined under
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§ 655.158) by including a reference to
§ 655.158.
5. Section 655.154, Additional Positive
Recruitment
The INA requires employers to engage
in positive recruitment of U.S. workers
within a multi-State region of traditional
or expected labor supply. Section
218(b)(4) of the INA, 8 U.S.C. 1188(b)(4).
The Department proposes to provide
greater clarity with respect to the
procedures OFLC will use to determine
the States of traditional or expected
labor supply.
Under the current regulation, the CO
receives informal information from the
SWAs at least once every 6 months on
the availability of workers and interstate
referrals to agricultural job openings.
Based on that information, if traditional
or expected labor supply States exist for
an area of intended employment, the CO
will designate such States in the NOA
to inform the locations where the
employer must conduct positive
recruitment. The designation of
traditional or expected labor supply
States is not publicly accessible and,
based on the Department’s experience
implementing the current regulation,
has not resulted in any significant
changes in State designations year to
year.
The Department proposes to clarify
the procedure for identifying traditional
or expected labor supply States. The
OFLC Administrator would make an
annual determination of traditional or
expected labor supply States based
primarily on information provided by
the SWAs within 120 calendar days
preceding the determination. The OFLC
Administrator may also consider
information from other sources in
making this determination. A listing of
the States designated as States of labor
supply for each State, if any, would be
published by OFLC on an annual basis
on the OFLC website at
www.foreignlaborcert.doleta.gov. The
State designations issued by OFLC
would become effective on the date of
publication for employers who have not
commenced positive recruitment under
this subpart and would remain valid
until a new determination is published.
The Department has determined that the
increased transparency resulting from
this proposal would provide clear
expectations for employers to meet their
positive recruitment obligations,
especially employers who choose to
begin their positive recruitment
activities as soon as their job orders are
approved by the SWA under § 655.121
and prior to the filing of an Application
for Temporary Employment
Certification under § 655.123.
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6. Section 655.156, Recruitment Report
The Department proposes minor
revisions to § 655.156, which requires
the employer to prepare and maintain in
its records a written report describing
recruitment steps undertaken and the
results of those efforts, including the
name and contact information of U.S.
worker applicants, identification of
recruitment sources, confirmation of
contact with former U.S. workers, the
number of applicants hired and, if
applicable, the number of U.S. workers
rejected, summarized by the lawful jobrelated reasons for such rejections. The
Department will maintain the
requirement that employers must
update their recruitment reports
throughout the recruitment period to
ensure the employers account for
contact with each prospective U.S.
worker during that time. The
Department proposes minor revisions to
paragraph (a) to simplify language and
reflect procedural changes resulting
from the proposed positive recruitment
provisions at § 655.123. Finally, the
Department proposes minor
amendments to paragraphs (a)(1) and (3)
to clarify existing obligations related to
recruitment reports.
The Department’s proposed positive
recruitment provisions at § 655.123,
explained in more detail above, will
permit an employer with an approved
job order to begin positive recruitment
prior to submitting its Application for
Temporary Employment Certification
application and to submit its initial
recruitment report simultaneously with
the application. Under this proposal, if
an employer chooses to conduct
prefiling positive recruitment, does so
properly, and submits a compliant
initial recruitment report at the time of
filing, the CO may determine
certification is the appropriate first
action under § 655.140. Under these
circumstances, the employer would not
receive a NOA. Consistent with these
proposed changes, the Department
proposes to amend paragraph (a) of
§ 655.156 by deleting the language that
requires employers to submit the
recruitment report on a date specified
by the CO in the NOA. Under
circumstances which require the CO to
issue a NOA, § 655.143 specifies that the
NOA must direct the employer to
submit a recruitment report.
Additionally, the Department
proposes to add language to paragraph
(a)(1) to make explicit the employer’s
obligation to include in its recruitment
report the date of advertisement for each
recruitment source. The proposed rule
also clarifies that the employer’s
recruitment report must identify the
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specific, proper name of each
recruitment source, rather than
identifying the general type of
recruitment source, like ‘‘web page’’ or
‘‘online job board.’’ Finally, paragraph
(a)(3) of the proposed rule clarifies that
if the employer has no former U.S.
workers that it is required to contact, the
employer must include an affirmative
statement in the report explaining the
reason(s) the recruitment report does
not include confirmation of such
contact. This amendment enables COs
to confirm that the employer’s omission
of language describing contact with
former U.S. workers was intentional,
rather than inadvertent.
F. Labor Certification Determinations
1. Section 655.161, Criteria for
Certification
The Department proposes
amendments to this section to clarify
existing rules and procedures. The
Department proposes to revise
paragraph (a) by replacing references to
establishment of temporary need and
compliance with specific sections of the
regulation with clearer language stating
the employer must comply with all
requirements of 20 CFR part 655,
subpart B, necessary for certification,
which encompasses the requirements to
establish temporary need and comply
with the specific sections referenced in
the current regulation. The revisions to
paragraph (b) clarify that the CO will
count as available any U.S. worker
whom the employer must consider and
whom the employer has not rejected for
a lawful, job-related reason. The
proposed language does not revise the
substance of the paragraph, but sets out
the current provision in clearer terms.
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2. Section 655.162, Approved
Certification
The Department proposes to amend
§ 655.162 to accommodate two
procedural changes that will modernize
the filing process, and streamline both
the issuance of temporary agricultural
labor certifications to employers and the
delivery of those certifications to USCIS.
Currently, the CO issues a certification
to the employer by completing the last
page of the Form ETA–9142A,
Application for Temporary Employment
Certification, printing it on blue security
paper, and sending the original
certification using means that normally
assures next day delivery. The employer
then includes this original Form ETA–
9142A, printed on blue security paper,
in its H–2A Petition to USCIS.
To both simplify and expedite this
process, while maintaining program
integrity, the Department proposes to
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issue certifications using a new Final
Determination notice that would
contain succinct, essential information
about the certified application. The CO
would send the Final Determination
notice that confirms certification, as
well as a copy of the certified
Application for Temporary Employment
Certification and job order, both to the
employer and USCIS using an electronic
method designated by the OFLC
Administrator. In cases where an
employer is permitted to file by mail as
set forth in § 655.130(c), the Department
would use the same electronic method
to transmit the certification
documentation directly to USCIS as all
other electronically filed applications,
but would deliver certification
documentation to the employer using a
method that normally assures next day
delivery. Consistent with current
practice, the Department would send a
copy of the certification documentation
to the employer and, if applicable, to the
employer’s agent or attorney.
In addition to increasing processing
efficiency, the Department anticipates
these proposed procedures would
reduce paperwork, time, and resource
burdens on employers that currently
must receive hard-copy certifications
from OFLC. The proposal would reduce
paperwork and expedite processing of
petitions at USCIS, in part, by providing
certification information directly from
OFLC to USCIS electronically. Further,
in cases in which an original
certification is lost or misplaced, the
new procedure would also eliminate the
need for an employer to request USCIS
to obtain a duplicate certification
directly from OFLC.
3. Section 655.164, Denied Certification
The Department proposes revisions to
§ 655.164 to modernize the procedure
for transmission of Final Determination
notices to employers and make this
section consistent with the proposed
appeal procedures at § 655.171.
Consistent with proposed procedural
changes to § 655.162 and other
modernization proposals explained
above in this NPRM, the Department
proposes to require COs to send Final
Determination notices to employers
using an electronic method authorized
by the OFLC Administrator, except
where the Department has permitted an
employer to file by mail as set forth in
§ 655.130(c), in which case the CO
would send the notice using a method
that normally assures next day delivery.
The Department proposes a revision
to paragraph (a) specifying that, in
addition to stating the reasons the
certification is denied, the denial will
cite to the relevant regulatory standards.
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Additionally, to streamline information
on appealing a denied certification, the
Department proposes to reference—in
paragraphs (b) and (c)—the proposed
appeal procedures outlined in
§ 655.171. Rather than duplicate
information on the request for review in
each section that contains an appealable
decision by the CO, the Department’s
proposal consolidates that information
in one location at § 655.171. In addition
to decreasing duplicative information,
this change would align the appeal
information in § 655.164 with the
corresponding section in the H–2B
regulations. See 20 CFR 655.53.
Under this proposal, both regulations
will house information on the request
for review in a central location for ease
of reference and consistency. The
Department proposes, as part of this
effort, to modify paragraph (c) to clarify
that if a request for review is not
submitted in accordance with § 655.171,
the CO’s decision is final and the
Department will not accept an appeal of
that determination. This change mirrors
the language used in the corresponding
H–2B section. See 20 CFR 655.53(c).
4. Section 655.165, Partial Certification
The Department proposes revisions to
§ 655.165 to streamline this section and
make it consistent with other proposals
in this NPRM. The proposed
introductory paragraph explains that the
CO will send Final Determination
notices using the electronic
transmission procedures proposed in
§ 655.162. This paragraph also proposes
a minor amendment to clarify that
partial certification is not limited to U.S.
workers the SWA refers to the employer.
The CO can issue a full certification
only where the employer has fully
considered each U.S. worker who
applied, whether directly or through
SWA referral, and identified a lawful,
job-related reason for not hiring the
worker.
The Department proposes a revision
to paragraph (a) by specifying that the
partial certification will cite the relevant
regulatory standards supporting the
reduction of the period of employment,
the number of H–2A workers, or both.
Additionally, as discussed in the
preamble to § 655.164, the Department
proposes to replace language discussing
appeal procedures in paragraphs (b) and
(c) with a reference to § 655.171. This
proposal avoids the duplication of
information and consolidates that
information in one location at § 655.171.
This change also aligns the appeal
information in § 655.165 with the
corresponding section in the H–2B
regulations. See 20 CFR 655.54.
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Lastly, as part of efforts to ensure ease
of reference and consistency, proposed
paragraph (c) clarifies that if a request
for review is not submitted in
accordance with § 655.171, the CO’s
decision is final and the Department
will not accept an appeal of that
determination. This change mirrors
proposed changes to § 655.164 and the
language used in the corresponding H–
2B section on partial certification. See
20 CFR 655.54(d).
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5. Section 655.166, Requests for
Determinations Based on
Nonavailability of U.S. Workers
The Department proposes clarifying
amendments to § 655.166 to simplify the
provision and to ensure consistency
with the e-filing and certification
procedures proposed in §§ 655.130 and
655.162, which require all such requests
to be made and responded to in writing
using electronic methods, unless the
employer requests to file a request for
new determination by mail or for a
reasonable accommodation using the
procedures set forth in § 655.130(c).
The Department proposes to amend
paragraph (b) by replacing current
language that permits employers to
request new determinations
telephonically or using email with
language consistent with the electronic
methods proposed in this NPRM.
Similarly, the proposal revises
paragraph (c) by specifying that the CO
would issue determination notices
following the electronic or other
methods proposed in §§ 655.162 and
655.165.
6. Section 655.167, Document Retention
Requirements of H–2A Employers
The proposal retains, with minor
clarifying amendments, the document
retention requirements in § 655.167. The
proposal revises paragraph (c)(1)(iii) by
replacing the word ‘‘or’’ with ‘‘and’’ to
clarify that employers must comply
with each recruitment step applicable to
the Application for Temporary
Employment Certification. In addition,
the proposal clarifies that if a worker
voluntarily abandons employment
before the end of the contract period, or
is terminated for cause, as set forth in
§ 655.122(n), employers must retain
records demonstrating they notified the
NPC and DHS. The Department recently
proposed revisions to § 655.167 in a
separate proposed rule, Modernizing
Recruitment Requirements for the
Temporary Employment of H–2A
Foreign Workers in the United States.90
90 83 FR 55994 (Nov. 9, 2018). On June 17, 2019,
the Department submitted a Final Rule of that
rulemaking to OMB for review. See https://
www.reginfo.gov/public/do/eoDetails?rrid=129233.
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Those proposed revisions are not
reflected in this proposed rule.
G. Post Certification
1. Section 655.171, Appeals
a. General Changes
The Department proposes to conform
the text in § 655.171 with the
corresponding appeals section in the H–
2B regulations to the extent possible.
This change includes adding proposed
paragraph (a) to describe the content of
the request for review and the
procedures for its submission. Proposed
paragraph (a) draws on language from
the H–2B appeals procedures at § 655.61
as well as existing text in the H–2A
regulations. General information on the
request for review was previously
located in sections of the H–2A
regulations that discussed the CO’s
authority and procedure for issuing a
specific decision (e.g., a denied
certification). See, e.g., 20 CFR 655.164.
The Department’s proposal seeks to
consolidate this information in
proposed paragraph (a) for ease of
reference and consistency with the H–
2B regulations.
In particular, the Department
proposes to extend the time in which an
employer may file a request for review
from 7 calendar days to within 10
business days of the date of the CO’s
decision. This proposal aligns with the
timeframe to request review under the
H–2B regulations, except in one aspect.
Unlike the timeframe to request review
under the H–2B regulations, the
proposal requires the request for review
in H–2A to be received by—rather than
sent to—the Chief ALJ and the CO
within 10 business days of the CO’s
decision. However, the Department
believes that specifying a time for
receipt of the request for review is a
reasonable modification of the H–2B
timeframe because it enables the
Department to more easily determine if
a request was filed in a timely manner.
The proposal also allows the employer
more time to develop a robust request,
which in the case of a request for
administrative review will serve as the
employer’s brief to the Office of
Administrative Law Judges (OALJ). To
this end, the Department seeks to clarify
that the request must include the
specific factual issues the employer
seeks to have examined as part of its
appeal. Having this information allows
for the prompt and fair processing of
appeals by providing the ALJ and the
CO adequate notice regarding the nature
of the appeal.
The Department has additionally
found that in the past, some requests
did not identify the type of review
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sought by the employer, which could
result in delays (as the ALJ asked for
clarification) or a type of review not
desired by the employer (as the ALJ
presumed the employer requested a
hearing). To avoid this situation, the
Department proposes to include
language in proposed paragraph (a) that
the request for review clearly state
whether the employer is requesting
administrative review or a de novo
hearing. The Department proposes to
add that the case will proceed as a
request for administrative review if the
request does not clearly state the
employer is seeking a hearing. See 8
U.S.C. 1188(e)(1) (noting the regulations
must provide for expedited
administrative review or, at the
employer’s request, for a de novo
hearing). Similarly, an employer
requesting a de novo hearing should
state whether it is requesting an
expedited hearing in accordance with
proposed paragraph (e)(1)(ii), or its
request for a hearing will be construed
as requesting a non-expedited hearing.
Taken together, this proposed change is
expected to improve judicial efficiency
and the orderly and consistent
administration of appeal proceedings,
which allows the parties and the ALJ, in
turn, to adequately prepare for the case
at hand.
The Department proposes to clarify
that where the request is for
administrative review, the request may
only contain such evidence that was
before the CO at the time of his or her
decision. The Department seeks the
addition of this language in proposed
paragraph (a), which tracks language in
the administrative review section
(proposed paragraph (d)), so that
employers or their representative(s) can
prepare their requests accordingly. The
Department also proposes to add
language that an employer may submit
new evidence with its request for a de
novo hearing, which will be considered
by the ALJ if the new evidence is
introduced during the hearing. The
Department seeks the inclusion of this
language in proposed paragraph (a),
which tracks language in the de novo
hearing section (proposed paragraph
(e)), so that employers or their
representative(s) can assemble their
requests and prepare their cases
accordingly.
Similar to the reorganization of
information in proposed paragraph (a),
proposed paragraphs (b) and (c) draw on
existing language in the H–2A
regulations and language from the H–2B
appeals procedures to reorganize
information on the appeal file and the
assignment of the case into separate
sections. The Department proposes
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minor amendments to the language of
proposed paragraph (c) to clarify that
the ALJ assigned to the case may be a
single member or a three-member panel
of the BALCA. The proposed
amendments to paragraphs (b) and (c)
mirror the wording and organization of
the appeals section in the H–2B
regulations. See 20 CFR 655.61(b), (d).
Finally, the Department proposes
changes to the issuance of the ALJ’s
decision for both an administrative
review and a de novo hearing. Proposed
paragraphs (d)(4) and (e)(3) modify the
individuals and entities that receive the
ALJ’s decision to align with the
recipients of ALJ decisions under the H–
2B regulations, namely, the employer,
the CO, and counsel for the CO. See 20
CFR 655.61(f). This proposed change
also removes language from current
paragraphs (a) and (b)(2) stating the
ALJ’s decision is the final decision of
the Secretary because the language is
unnecessary in light of the OALJ’s Rules
of Practice and Procedure for
Administrative Hearings. Under those
rules, the ALJ’s decision is the final
agency action for purposes of judicial
review when the applicable statute or
regulation does not provide for a review
procedure, as here. See 29 CFR 18.95; 20
CFR 655.171. In addition, the removal of
the ‘‘final decision’’ language is
consistent with the H–2B regulations,
which lacks similar language, and does
not affect the issue of whether the
parties may appeal to the ARB, which
is governed by other authorities issued
by the Department. See 20 CFR 655.61;
Secretary’s Order 02–2012, Delegation
of Authority and Assignment of
Responsibility to the Administrative
Review Board, 77 FR 69378 (Nov. 16,
2012). To clarify an employer’s existing
administrative exhaustion obligations,
however, the Department proposes to
specify in proposed paragraph (a) that
when a hearing or administrative review
of a CO’s decision is authorized in this
subpart, an employer must request such
review in accordance with § 655.171 in
order to exhaust its administrative
remedies.
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b. Paragraph (d), Administrative Review
The Department proposes specific
changes to address the briefing
schedule, standard and scope of review,
and the timeline for a decision in cases
of administrative review. In proposed
paragraph (d)(1), the Department seeks
to clarify the briefing schedule so that
it is consistent across cases of
administrative review and better
informs the ALJ’s decision-making
process. The current H–2A regulations
governing administrative review do not
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provide for a briefing schedule,91 and
the Department has found that the
briefing schedule has varied across
cases as a result. In most cases, the ALJ
has permitted the CO and the employer
to file a brief simultaneously within a
certain period, usually 2 to 4 business
days, after receipt of the OFLC
administrative file. However, this
current practice of simultaneous
briefing results in situations where
issues raised in the employer’s brief are
not addressed in the CO’s brief. The CO
and the employer, moreover, do not
know when briefing is due until the
issuance of the order setting the briefing
schedule.
In contrast, the proposed briefing
schedule allows an employer that
wishes to file a brief as part of its appeal
to do so with its request for review. To
provide the employer time to develop a
brief that sets forth the specific grounds
for its request and corresponding legal
argument, the Department proposes to
extend the time in which the employer
may request review from 7 calendar
days to within 10 business days of the
CO’s decision. The CO may then
respond to the employer’s brief within
7 business days of the receipt of the
OFLC administrative file. Under this
proposed schedule, an employer is
afforded a predictable amount of time to
present its legal arguments in one place
and the CO may then respond to those
arguments within a set timeframe.
Similar to current practice, the
employer and the CO each file one brief
to allow for an accelerated briefing
schedule. But compared with the
practice of simultaneous briefing, the
proposal more effectively assists the
ALJ’s decision-making process by
allowing for a complete set of arguments
by the employer and responses by the
CO while providing the parties a
predictable briefing schedule that
remains expedited. The Department
invites the public to comment on other
ways, including alternative briefing
procedures that address the concern for
a predictable, effective, yet expedited
briefing schedule for cases of
administrative review.
In proposed paragraph (d)(2), the
Department seeks to incorporate the
arbitrary and capricious standard of
review into requests for administrative
review. This proposed change codifies
the Department and OALJ’s wellestablished and longstanding
interpretation of the standard of review
for such requests. See J and V Farms,
LLC, 2016–TLC–00022, at 3 & n.2 (Mar.
7, 2016). As the regulation is currently
silent on the standard of administrative
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91 See
20 CFR 655.171(a).
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review, this proposed change provides
helpful clarity and ensures the OALJ is
conducting its administrative review in
a consistent manner.
In proposed paragraph (d)(3), the
Department seeks to include clarifying
language that the scope of
administrative review is limited to
evidence in the OFLC administrative
file that was before the CO when the CO
made his or her decision. The
Department proposes this clarifying
language because the administrative file
may contain new evidence submitted by
the employer to the CO after the CO has
issued his or her decision, such as when
the employer submits a request for
review with new evidence, or a
corrected recruitment report with new
information, after the CO has denied
certification. Although such evidence is
in the administrative file, the ALJ may
not consider this new evidence because
it was not before the CO at the time of
the CO’s decision. This amendment
incorporates legal principles already in
existence for H–2A cases, namely, that
administrative review is limited to (1)
evidence in the written record that was
(2) before the CO when the CO made his
or her decision.92
In proposed paragraph (d)(4), the
Department has modified the timeline
in which the ALJ should issue a
decision from 5 business days to 10
business days after receipt of the OFLC
administrative file, or within 7 business
days of the submission of the CO’s brief,
whichever is later. This schedule
conforms to the timeline in the H–2B
appeals procedures while continuing to
provide for an expedited review
procedure. See 20 CFR 655.61(f).
c. Paragraph (e), De Novo Hearing
The Department proposes specific
changes to proposed paragraphs (e)(1),
the conduct of a de novo hearing, and
(e)(2), the standard and scope of review
for such hearings. In proposed
paragraph (e)(1), if the employer
requests an expedited hearing, the
Department proposes to change the time
in which such a hearing must occur
from 5 to 14 business days after the
ALJ’s receipt of the OFLC administrative
file. This proposed change is based on
the Department’s administrative
experience and is intended to allow the
parties reasonable time to adequately
92 See 20 CFR 655.171(a) (allowing written
submissions ‘‘which may not include new
evidence’’); Keller Farms, Inc., 2009–TLC–00008, at
5 (Nov. 21, 2008) (‘‘all evidence . . . not before ETA
at the time it made its decision will not be
considered’’); see also J and V Farms, 2016–TLC–
00022, at 3 n.2 (the ‘‘substance of [the appeals
regulation] has remained the same since 1987’’)
(citation and internal quotation marks omitted).
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prepare for a hearing while effectuating
the INA’s concern for prompt processing
of H–2A applications.
Additionally, the Department
proposes to clarify that the ALJ has
broad discretion to limit discovery and
the filing of pre-hearing motions in a
way that contributes to a fair hearing
while not unduly burdening the parties.
As is the case with the 2010 Final Rule,
29 CFR part 18 governs rules of
procedure during the hearing process,
subject to certain exceptions discussed
in this section and part 18. Although 29
CFR 18.50 et seq. permits an ALJ to
exercise discretion in matters of
discovery, the Department’s proposed
language makes explicit the ALJ’s broad
discretion to limit discovery and the
filing of pre-hearing motions in the
circumstances of a hearing under the H–
2A program. The Department proposes
to include this language because in the
H–2A program, the time to hold a
hearing and to issue a decision
following that hearing are expedited,
such that the need for limits on requests
for discovery and the filing of prehearing motions is particularly
pronounced. The administrative
procedures in 29 CFR part 18, and
particularly the sections on discovery
and motions, were not specifically
designed for the H–2A program, nor for
situations that require an accelerated
adjudication process, as is required by
the H–2A program. As such, the
Department’s proposal provides the ALJ
with broad discretion to restrict
discovery and the filing of pre-hearing
motions to situations where they are
needed to ensure the fundamental
fairness of the proceedings.
The Department has retained the 10calendar-day timeframe in which an ALJ
must issue a decision after a hearing,
but invites the public to comment on
whether this time period should be
modified. For cases in which the
employer waives its right to a hearing,
the Department proposes to clarify that
the proper standard and scope of review
is the standard and scope used for
administrative review. This is because
under the INA, the regulations must
provide for expedited administrative
review or, at the employer’s request, a
de novo hearing. See section 218(e)(1) of
the INA, 8 U.S.C. 1188(e)(1). If the
employer requests a de novo hearing,
but then waives its right to such a
hearing, the case reverts to the other
option—administrative review. In that
circumstance, the standard and scope of
review for administrative review
applies. Similarly, should an ALJ
determine that a case does not contain
disputed material facts to warrant a
hearing, review must proceed under the
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standard and scope used in cases of
administrative review.
With regard to the standard and scope
of review, the Department proposes to
clarify that the ALJ will review the
evidence presented during the hearing
and the CO’s decision de novo. This
standard of review recognizes that new
evidence may be introduced during the
hearing and allows the ALJ, as
permitted under section 218(e)(1) of the
INA, to review such evidence and other
evidence introduced during the hearing
de novo. See 8 U.S.C. 1188(e)(1) (noting
regulations shall provide for a de novo
administrative hearing at the applicant’s
request). Similarly, the INA permits the
ALJ to review the CO’s decision de novo
when the employer requests a de novo
administrative hearing. See id. As the
INA supports a de novo standard of
review, the Department proposes to
codify it in the regulations so that the
standard is clearly and consistently
applied.
In addition, the Department has
recognized that there may be instances
when the issues are purely legal, or
when only limited factual matters are
necessary to determine the issues in the
case. Proposed paragraphs (e)(2) and
(e)(1)(ii) have been revised to address
this possibility and provide that the ALJ
may determine the issues following a
hearing only on the disputed factual
issues, if any. The OALJ already relies
on mechanisms, including, but not
limited to, status conferences and
prehearing exchanges, to determine
which issues raised in the request for
review can be resolved as a matter of
law and which issues involve disputed
material facts requiring the introduction
of new evidence during a hearing. The
Department’s proposed language
acknowledges and codifies this existing
practice.
The Department also proposes to
clarify that if new evidence is submitted
with a request for de novo hearing, and
the ALJ determines that a hearing is
warranted, the new evidence submitted
with the request for review must be
introduced during the hearing to be
considered by the ALJ. This proposed
change continues to allow for the
introduction of new evidence, and for
the de novo review of that evidence by
the ALJ, while ensuring new evidence
submitted with a request for review is
subject to the same procedures that
apply to new evidence introduced
during a hearing, such as the
opportunity for cross-examination and
rebuttal.
Finally, as part of its efforts to
conform this section with the appeals
section in the H–2B regulations, the
Department intends to move language
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that the ALJ must affirm, reverse, or
modify the CO’s decision, or remand to
the CO for further action from proposed
paragraph (e)(3) to proposed paragraph
(e)(2), which addresses the standard and
scope of review.
2. Section 655.172, Post-Certification
Withdrawals
The Department proposes to revise
§ 655.172 by relocating the job order
withdrawal provision from § 655.172(a)
to proposed § 655.124 and the
Application for Temporary Employment
Certification withdrawal provision from
§ 655.172(b) to proposed § 655.136, as
discussed in the preamble for those
sections. As a result, proposed § 655.172
addresses only the withdrawal of
certifications, which is appropriate
because § 655.172 is located in the postcertification section of the regulation.
This new provision includes proposed
procedures for requesting withdrawal
that are consistent with those an
employer must follow to request
withdrawal of a job order or an
Application for Temporary Employment
Certification and job order: all
withdrawal requests must be made in
writing and submitted to the NPC, and
must identify the certification to be
withdrawn and state the reasons for the
employer’s request. Also, the proposed
language reiterates that withdrawal does
not nullify an employer’s obligations to
comply with the terms and conditions
of employment under the certification.
3. Section 655.173, Setting Meal
Charges; Petition for Higher Meal
Charges
The Department is retaining the
methodology used to adjust meal charge
rates annually and the requirement that
an employer charge workers no more
than the allowable meal charge set by
the regulation, unless the CO approves
a higher meal charge amount and, then,
only after the effective date the CO
specifies. For clarity, in paragraph (a)
the Department proposes to replace the
standard meal charge in effect in 2010
when the current regulations were
published (i.e., $10.64) with the current
amount of $12.26 per day. The
Department proposes one additional
revision in paragraph (a), which would
make the annually adjusted meal charge
effective on a date specified in the
Federal Register notice, which would
be no more than 14 calendar days after
publication in the Federal Register.
This proposal would provide a brief
period for adjustment to updated rates.
In paragraph (b), the Department will
continue to allow employers to petition
for authorization to charge workers
more than the standard meal charge set
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under paragraph (a), provided the
employer justifies the requested higher
meal charge. The provision retains the
basic process for requesting higher meal
charges, with clarifying edits, including
a revision to clarify that a request to
charge a higher amount will be denied
if the employer’s documentation does
not justify the amount requested, or if
the amount requested exceeds the
permitted maximum higher meal
charge. In addition, the proposal
provides that the maximum higher meal
charge would be adjusted in the same
manner as the standard meal charge.
The Department is retaining the
requirement that an employer that
directly provides meals to workers (i.e.,
through its own kitchen facilities and
cooks) submits the documentation
specified in paragraph (b)(1)(i) and
ensures that its requested higher meal
charge includes only permitted costs.
Increasingly, however, employers
submit higher meal charge requests
based on the employer’s costs to provide
meals to workers through a third party
(e.g., hiring a food truck to prepare and
deliver meals or engaging restaurants
near the housing or place of
employment to provide meals).
Therefore, the Department proposes
documentation requirements in new
paragraph (b)(1)(ii) that address
situations in which the employer has
engaged the services of a third party to
provide meals to workers. Proposed
paragraph (b)(1)(ii) would require
documentation identifying each third
party engaged to prepare meals,
describing how the employer’s
agreement with each third party will
fulfill the employer’s obligation to
provide three meals a day to workers,
and documenting each third party’s
charges to the employer for the meals to
be provided. Proposed paragraph
(b)(1)(ii) would also prohibit the
employer, or anyone affiliated with the
employer, from receiving a direct or
indirect benefit from a higher meal
charge to a worker. Finally, this
paragraph requires the employer to
retain records of payments to the third
party and deductions from worker’s pay.
The Department proposes minor
revisions to paragraph (b)(2) to clarify
that the employer may not begin
charging higher rates for meals until it
has received the CO’s approval and it
has disclosed the new rate to workers.
The proposed changes also clarify that
a CO’s decision approving a request to
charge a higher rate is valid only with
respect to the arrangement described in
the documentation submitted with the
employer’s request. If such arrangement
changes, the employer may charge no
more than the maximum amount
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permitted under paragraph (a), until the
employer submits, and the CO approves,
a new petition for a higher meal charge.
As a further measure to ensure that an
employer’s choice to engage a third
party to provide three meals a day to
workers does not unreasonably reduce
workers’ wages, in paragraph (b), the
Department proposes implementing a
ceiling on the maximum amount the CO
may approve as a higher meal charge
amount. An objective ceiling on
allowable higher meal charges would
not only ensure workers’ wages are not
subject to improper deductions, but also
would provide predictability on meal
charges, enabling employers and
workers to make more informed
financial decisions involving the meal
charge included in the job offer. An
employer would be able to make
informed business decisions, knowing
the maximum amount it may be
permitted to charge workers for
providing meals, regardless of the
specific way in which it chooses to
provide meals to workers, while the
worker would be assured that the
worker will not be charged more than
the maximum higher meal charge
amount set by the regulation.
The proposed maximum allowable
higher meal charge is consistent with
the Department’s use of a ceiling on
higher meal charge amounts prior to the
implementation of the 2008 Final
Rule.93 The proposed ceiling of $14.94
per day is derived from the last
maximum allowable higher meal charge
amount published in the Federal
Register and effective in 2008 (i.e.,
$12.27 per day), updated using the same
methodology as in paragraph (a) to
adjust the standard meal charge
amount.94 This higher meal charge
ceiling would be adjusted annually
using the same methodology as is
currently in place for adjusting standard
meal charge amounts in paragraph (a).
The Department invites comments on
methods for processing and evaluating
higher meal charge requests involving
93 Notice, Allowable Charges for Agricultural and
Logging Workers’ Meals, 73 FR 10288 (Feb. 26,
2008). See page I–28 of the ETA Handbook NO. 398,
discussing the methods used to provide meals and
meal charge limits. At that time, employers used a
centralized cooking and feeding facility at the place
of employment; arranged for a catering service to
prepare meals elsewhere and deliver them to the
employer’s place of employment; or furnished at no
cost to the workers convenient cooking and eating
facilities of sufficient size and capacity (including
utensils) which would enable workers to prepare
their own meals. Where the employer provided
meals, its daily charge for providing three meals
could not exceed the standard amount permitted by
the regulations, absent a higher meal charge request
at 20 CFR 655.102 or the maximum higher meal
charge amount permitted at 20 CFR 655.111.
94 73 FR 10288.
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third-party prepared meals, including
documentation requirements and the
process for determining and updating a
higher meal charge ceiling. In particular,
the Department invites comments on
alternative methods for determining and
updating a higher meal charge ceiling
that will not inhibit the provision of
sufficient, adequate meals and will not
reduce workers’ wages without
justification. For example, the
Department invites comments on
whether an appropriate higher meal
charge ceiling could be set in relation to
worker’s wages (e.g., as proportion of
the AEWR applicable to the job
opportunity or the actual wage offered
to the worker, or average local, regional,
or national meal costs).
4. Section 655.175, Post-Certification
Amendments
The Department proposes to add a
new § 655.175 that would permit an
employer to request minor amendments
to the places of employment listed in an
approved certification under certain
limited conditions. The Department’s
current regulations offer some options
for an employer to address changed
circumstances after certification, such as
the option to file a new Application for
Temporary Employment Certification
based on good and substantial cause
under the emergency processing
provisions at § 655.134. However, the
current rule does not permit
amendments to an application after the
CO has issued a Final Determination.
Therefore, the Department proposes this
new section to provide employers some
flexibility to respond to unforeseen
circumstances arising after certification
is granted. The Department continues to
expect an employer to ensure bona fide
work is available at all places of
employment disclosed in its
Application for Temporary Employment
Certification and to take into
consideration all foreseeable
circumstances and factors within its
control when describing the need for H–
2A workers on its application. This is
critically important so that the
recruitment conducted in connection
with that application appropriately tests
the U.S. labor market and the
Department’s determination as to
whether insufficient U.S. workers are
available at the time and place needed
by the employer is accurate.
In proposed paragraph (a), the
Department proposes to permit postcertification amendments to the
certified places of employment as long
as (1) the employer has good and
substantial cause for the requested
amendment; (2) the circumstances
underlying the amendment request
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could not have been reasonably foreseen
before certification and are outside the
employer’s control; (3) the material
terms and conditions of the job order are
not affected by the requested
amendment; and (4) the new places of
employment requested are within the
certified areas of intended employment.
The proposal limits post-certification
amendments to situations in which
good and substantial cause exists, such
as when an employer requires
immediate adjustments to places of
employment within the certified area of
intended employment in order to
respond to unforeseen emergent
situations that may jeopardize or
severely damage crops or other
agricultural commodities. For example,
a post-certification amendment may be
available when an Act of God severely
damages some of the employer’s crops
and, as a result, the work scheduled to
be performed at that places of
employment is no longer needed, while
crops at other locations within the same
area of intended employment need
urgent attention. As defined in the
emergency situations provision at
§ 655.134, ‘‘[g]ood and substantial cause
may include, but is not limited to, the
substantial loss of U.S. workers due to
weather-related activities or other
reasons, unforeseen events affecting the
work activities to be performed,
pandemic health issues, or similar
conditions.’’
The proposal also limits postcertification amendments to situations
in which the reasons for the request
could not have been reasonably foreseen
before certification and are wholly
outside the employer’s control. In
situations where the employer could
foresee the need for amendment after
filing, but prior to the CO issuing a Final
Determination, the employer may
request amendment under the
provisions set forth at § 655.145. For
example, if unusually heavy storms and
rains occur before the employer files its
Application for Temporary Employment
Certification, impacts on crop
conditions are known or reasonably
foreseeable before the CO issues the
Final Determination. Further, staffing
levels are within the employer’s control.
Therefore, related minor modifications
to the job order and Application for
Temporary Employment Certification
would be appropriately addressed
through a pre-certification amendment
request under § 655.145. If the employer
experiences normal, predictable, or
foreseeable circumstances within its
control that would cause a reasonable
employer to take mitigation measures in
advance of receiving certification, the
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employer will be required to submit a
new Application for Temporary
Employment Certification. For example,
in an area where the local or State
government has announced plans to
release water from a reservoir to provide
more water to farmers, which has
become an annual event, and the
employer’s fields are known to be more
productive when they receive more
water, the release of reservoir water is
a normal, predictable, and foreseeable
event that is not extraordinary or
unforeseeable.
The circumstances under which the
Department proposes to permit postcertification amendments are limited to
ensure the amendments will not
compromise the terms and conditions of
the job offer contained in the
certification, apart from the specific
places of employment within the
certified area of intended employment.
In addition, post-certification
amendments must not compromise the
underlying determinations the CO made
when issuing the certification, most
importantly the determinations ‘‘that
there are not sufficient U.S. workers
able, willing, and qualified to perform
the work in the area of intended
employment at the time needed and that
the employment of foreign workers will
not adversely affect the wages and
working conditions of U.S. workers
similarly employed.’’ Section 218(a)(1)
of the INA, 8 U.S.C. 1188(a)(1); 8 CFR
214.2(h)(5)(ii); 20 CFR 655.103(a).
Finally, under this proposal, all
places of employment an employer
requests to add to the certification must
be located within the same areas of
intended employment as the
certification issued. When an employer
requires agricultural labor or services at
a place of employment not located
within the area of intended employment
certified, the employer would be
required to file a new Application for
Temporary Employment Certification,
and engage in a labor market test to
support the determinations required by
§ 655.100.
Proposed paragraph (b) outlines the
procedures for requesting postcertification amendments. An employer
desiring amendment to its approved
places of employment would submit a
written request to the NPC. The request
would specify the certified places of
employment the employer wishes to
add or remove from the certification, the
expected start and end dates of work at
each place of employment, and if the
places of employment are not owned or
operated by the employer, the fixed-site
agricultural businesses to which the
employer would be providing labor or
services. In addition, the employer must
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provide a description of the good and
substantial cause justifying the need for
the amendments requested and explain
how the circumstances were not
reasonably foreseeable and are wholly
outside the employer’s control.
Proposed paragraph (b) would also
require the employer’s amendment
request to include three assurances.
First, the employer would assure the
amendments requested would not
change the material terms and
conditions of the work contract
underlying the certification. This
assurance informs the CO that the
employer has taken necessary steps to
ensure that it continues to meet its
program obligations. For example, if an
employer sought to add a place of
employment across a State border from
its certified places of employment, the
employer would be required to have or
secure workers’ compensation coverage
adequate for the new State and pay the
required wage rate for the new State, if
higher than the certified wage offer, as
appropriate. An employer seeking to
add a place of employment it does not
own or control would be required to
secure additional documents to cover
the new location where it will be acting
as an H–2ALC (e.g., a fully-executed
contract for that place of employment
and any additional employee
transportation authorizations required
by the MSPA Farm Labor Contractor
Certificate of Registration provisions
due to the changed circumstances).
Further, this assurance informs the CO
that the labor or services to be provided
at the new place of employment are the
same as the work performed under the
temporary agricultural labor
certification.
Second, the employer would be
required to assure that it complied with
its duty to provide a copy of the
modified job order to workers. See 20
CFR 655.122(q). Third, the employer
would assure that it will retain and
make available all documentation
substantiating the amendment request,
if approved by the CO, following the
procedures at § 655.167. For example,
an H–2ALC would be required to retain,
and submit upon request, the fullyexecuted work contract with the grower
at each place of employment added.
Proposed paragraph (c) sets forth the
procedures for processing amendment
requests. Given the urgency of the
circumstances under which an
employer would submit a postcertification amendment request, the
Department proposes the CO to review
the employer’s request and issue a
decision within 3 business days of
receipt. In deciding whether to grant the
request, the CO would take into
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consideration whether the employer
sufficiently justified its request, whether
the employer provided the necessary
assurances, and how the amendment
will affect the underlying labor market
test for the job opportunity.
Amendments would not be effective
unless and until approved by the CO.
The Department invites comments on
all aspects of the proposal to allow postcertification amendments. For example,
the Department seeks comments on
whether post-certification amendments
should be permitted and, if so, the
conditions under which an employer
should be permitted to request
amendments to a certification. The
Department is particularly interested in
comments that address the types of
circumstances that should be
considered extraordinary and
unforeseeable for the purposes of postcertification amendments and the
volume and frequency of postcertification amendments anticipated.
The Department also invites comment
on methods through which the
Department can balance employers’
needs to adapt quickly to changed
circumstances with the Department’s
need to protect the integrity of the labor
certification program, such as comments
that explain the advantages or
disadvantages of an attestation-based
amendment process and alternative
processes. The Department is especially
interested in comments that specify the
types of limitations it should impose on
post-certification amendments, such as
comments that address the necessity of
a time limit on post-certification
amendment requests, and whether the
Department should consider
alternatives, such as limiting requests to
45 days after certification, after which
time the employer could submit an
emergency processing request; 30 days
after certification, consistent with the
proposed end of the recruitment period
for the certification; or 60 days after
certification, consistent with the normal
timeframe for submitting the job order.
Finally, the Department seeks comments
regarding the reasonableness of the
timeframe for CO review and
determination.
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H. Integrity Measures
1. Section 655.180, Audit
The Department proposes minor
revisions to this section to clarify the
procedures by which OFLC conducts
audits of applications for which
certifications have been granted.
Proposed revisions to paragraphs (b)(1)
and (2) clarify that audit letters will
specify the documentation that
employers must submit to the NPC, and
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that such documentation must be sent to
the NPC not later than the due date
specified in the audit letter, which will
be no more than 30 calendar days from
the date the audit letter is issued. In
paragraph (b)(2), the Department
proposes to revise the timeliness
measure from the date the NPC receives
the employer’s audit response to the
date the employer submits its audit
response. This change is more
consistent with other filing
requirements contained in this proposed
rule and better ensures employers’
ability to timely submit their responses.
Proposed revisions to paragraph (b)(3)
clarify that partial audit compliance
does not prevent revocation or
debarment. Rather, employers must
fully comply with the audit process in
order to avoid revocation under
§ 655.181(a)(3) or debarment under
§ 655.182(d)(1)(vi) based on a finding
that the employer impeded the audit.
The Department proposes adding
language to paragraph (c) to clarify that
the CO can issue more than one request
for supplemental information if the
circumstances warrant. It is current
practice for the CO to issue multiple
requests for supplemental information
to ensure employers have every
opportunity to comply fully with audit
requests and to ensure the CO’s audit
findings are based on the best record
possible; this proposal would codify
that practice.
Finally, the Department proposes
revisions in paragraph (d) to clarify the
referrals a CO may make as a result of
audit, including updating the name of
the office within the Department of
Justice, Civil Rights Division, Immigrant
and Employee Rights Section, that will
receive referrals related to
discrimination against eligible U.S.
workers.
2. Section 655.181, Revocation
The Department proposes minor
revisions to paragraph (b)(2) of this
section to clarify that if an employer
does not appeal a final determination to
revoke a certification according to the
procedures in proposed § 655.171, that
determination will become final agency
action. The Department has removed
language referring to the timeline for
filing an appeal, as that information is
provided in proposed § 655.171.
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3. Section 655.182, Debarment; 29 CFR
501.16, Sanctions and Remedies—
General; 29 CFR 501.19, Civil Money
Penalty Assessment; 29 CFR 501.20,
Debarment and Revocation; 29 CFR
501.21, Failure To Cooperate With
Investigations; 29 CFR 501.41, Decision
and Order of Administrative Law Judge;
29 CFR 501.42, Procedures for Initialing
and Undertaking Review; 29 CFR
501.43, Responsibility of the Office of
Administrative Law Judges; 29 CFR
501.44, Additional Information, if
Required; and 29 CFR 501.45, Final
Decision of the Administrative Review
Board
The Department proposes to revise
the debarment provision for the H–2A
labor certification program to improve
integrity and promote compliance with
program requirements. Under the INA,
the Department may not issue a
certification for an H–2A worker if the
Secretary has determined that the
employer substantially violated a
material term or condition of the labor
certification with respect to the
employment of domestic or
nonimmigrant workers. Section
218(b)(2)(A) of the INA, 8 U.S.C.
1188(b)(2)(A). The Department
implemented this INA provision by
enacting regulations allowing the
debarment of employers, and later
agents and attorneys, and their
successors in interest, who appeared
before it, and the effect of the debarment
was that a debarred entity will not be
issued future labor certifications. See 20
CFR 655.182(a), (b); 20 CFR 655.118(a)
(2008); 20 CFR 655.110(a) (1987). The
Department proposes to revise § 655.182
to clarify that if an employer, agent, or
attorney is debarred from participation
in the H–2A program, the employer,
agent, or attorney, or their successors in
interest, may not file future
Applications for Temporary
Employment Certification during the
period of debarment. See proposed 20
CFR 655.182(b). If any such applications
are filed, the Department will deny
them without review. See id. The
proposed revision to § 655.182 does not
change the regulation’s current
prohibition on debarred entities’
participation in the H–2A program in
ways other than the filing of the
Application for Temporary Employment
Certification, such as placing
advertisements, or recruiting workers.
When an application is filed by a
debarred entity under the current
regulations, the Department’s practice
has been to issue a NOD before denying
the application pursuant to § 655.182.
However, the INA does not require the
issuance of such a notice in this
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instance. Section 218(c)(2) of the INA, 8
U.S.C. 1188(c)(2), requires that an
employer be notified within 7 days of
the date of filing if the application does
not meet the standards for approval. The
INA’s grant of debarment authority for
the H–2A labor certification program
appears in the section dealing with the
conditions for denial of certification and
requires the Department to deny
certification on any application sought
by a debarred employer. See section
218(b) of the INA, 8 U.S.C. 1188(b).
Thus, when a debarred employer files
an application, the Department is
statutorily required to deny the
application. There would be little to be
gained from issuing a NOD and offering
the employer an opportunity to correct
the deficiency where the deficiency
cannot be overcome.95 Processing
applications filed by, or through, an
entity that has been debarred imposes a
resource burden for the Department
though the Department has no
discretion over the issuance of such
certifications.
Under the proposal, if an employer
represented by a debarred agent or
attorney files an application, the
application would be denied without
review. Following the denial, in order to
obtain certification, the employer would
need to submit a new application
without the debarred entity as the
employer’s representative. Finally, as
with all certification denials, denials on
the basis of debarment will be
appealable to OALJ pursuant to
§ 655.164.
The Department also proposes to
revise § 655.182 to allow for the
debarment of agents or attorneys, and
their successors in interest, based on
their own misconduct. Since the 2008
Final Rule, the H–2A regulations have
allowed the Department to debar an
agent or attorney based on its
participation in the employer’s
substantial violation. See 20 CFR
655.182(b); 2010 Final Rule, 75 FR 6884,
6936–37; 2008 Final Rule, 73 FR 77110,
77188. The Department proposes to
hold agents and attorneys of the
employer accountable in debarment for
their own violations as well as for their
participation in the employer’s
violation. Under proposed § 655.182(a),
the Department may debar an agent or
attorney for its own substantial
violations, as those are defined in
§ 655.182(d). The Department also
proposes conforming revisions to the
definition of ‘‘successor in interest’’ in
95 Any challenges to the debarment would be
raised separately. Under current regulations, the
employer, agent, or attorney has an opportunity to
challenge the debarment before it becomes effective.
See 20 CFR 655.182(f), 29 CFR 501.20(e).
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§ 655.103(b) to reflect that a debarred
agent’s or attorney’s successor in
interest may be held liable for the
debarred agent’s or attorney’s violation.
The Department has had concerns
about the role of agents in the H–2A
program, and has questioned whether
agents’ participation in the H–2A labor
certification process is undermining
compliance with program requirements.
However, the current H–2A debarment
provision does not provide a
mechanism for holding the agent or
attorney accountable for its own
violation unless the Department finds
that it participated in the employer’s
violation. Nevertheless, there may be
situations where an agent or attorney
commits a violation that the Department
finds it cannot or, in its discretion,
should not, attribute to the employer.
For example, if an agent that is
responsible for conducting recruitment
for an H–2A employer fails to refer U.S.
worker applicants to the employer, the
Department may find, in appropriate
circumstances, that only the agent
should be debarred. In addition, if an
agent forges employer signatures to file
fraudulent applications for H–2A
workers, or if an agent or attorney
commits a heinous act within the
meaning of § 655.182(d), the employer
may not necessarily be responsible for
such misconduct.
The Department has determined that
in order to improve program integrity
and compliance, agents and attorneys
should be accountable for their own
misconduct independent of the
employer’s violation. This revision
would make agent and attorney
misconduct debarrable to the same
extent as the misconduct of the
employer-clients. Further, the proposal
would institute consistency between the
H–2A regulations and the other labor
certification programs the Department
administers. See 20 CFR 655.73(b) (H–
2B); 20 CFR 656.31(f) (PERM).
The Department has inherent power
to regulate the conduct of agents and
attorneys who practice before it, as well
as the authority to debar such
individuals for unprofessional conduct.
As the Department has previously
explained, administrative agencies have
the authority to regulate who can
practice and participate in
administrative proceedings before them.
See Goldsmith v. U.S. Board of Tax
Appeals, 270 U.S. 117, 121 (1926);
Koden v. U.S. Dep’t of Justice, 564 F.2d
228, 232–33 (7th Cir. 1977). Such power
exists even if they do not have express
statutory authority to prescribe the
qualifications of those entities. Touche
Ross & Co. v. SEC, 609 F.2d 570, 582 (2d
Cir. 1979). In addition, agencies with
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the authority to determine who may
practice before them have the power to
debar or discipline such individuals for
unprofessional conduct. Koden, 564
F.2d at 233.
The Department has exercised the
authority to debar agents and attorneys
from the H–2A program for the last
decade. In the 2008 Final Rule, the
Department revised the debarment
provision to permit the debarment of
employers’ agents and attorneys. 73 FR
77110, 77188. The 2010 Final Rule
maintained the provision permitting the
debarment of agents and attorneys for
participating in the employer’s violation
to ‘‘ensure that we are able to address
substantial violations committed by the
attorneys or agents themselves, or
committed in concert with the
employers.’’ 75 FR 6884, 6936–37. The
preamble explained that debarment of
agents and attorneys was necessary to
uphold the integrity and effectiveness of
the H–2A program. Id.
As the examples provided above
illustrate, where an agent or attorney
commits a substantial violation, though
generally the employer would be
responsible for the misconduct, the
Department believes it is necessary to
have the ability to target debarment
actions at the bad actor directly. Under
this proposal, and as has been the case
in the H–2A program for the last decade,
agents and attorneys could still be
debarred for participating in the
employer’s substantial violation, just as
the employer could be debarred based
on the agent or attorney’s misconduct.
I. Labor Certification Process for
Temporary Agricultural Employment in
Range Sheep Herding, Goat Herding,
and Production of Livestock Operations
The Department proposes changes to
this section mainly to conform the labor
certification process for herding and the
production of livestock on the range to
other revisions in the proposed rule, as
appropriate. Minor proposed changes
include replacing a dash between two
sections with the word ‘‘through’’ (e.g.,
replacing ‘‘§§ 655.200–655.235’’ with
‘‘§§ 655.200 through 655.235’’) for
technical consistency with other
sections of the proposed rule. The
Department seeks public comment on
the substantive changes, which are
discussed below, and affect portions of
proposed §§ 655.205, 655.211(a)(2),
655.215(b) introductory text and (b)(1),
655.220(b), (c), and 655.225(b), (d).
Except for these minor and substantive
proposed changes, the Department is
not reconsidering—and therefore not
requesting comment on—any other
portions of §§ 655.200 through 655.235.
In particular, the Department is neither
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reconsidering nor seeking comment on
the wage rate methodology for herding
and range livestock job opportunities.
Instead, the entirety of §§ 655.200
through 655.235 are reprinted in subpart
B of this proposed rule for ease of
reference only.
1. Section 655.205, Herding and Range
Livestock Job Orders
The Department proposes to revise
§ 655.205 to reflect proposed revisions
to the normal job order filing procedures
in § 655.121 and to clarify variances
from proposed § 655.121 that remain for
job opportunities involving herding or
production of livestock on the range.
Consistent with current procedures, a
job order filed under § 655.205 would
not be subject to the timeframe
requirements specified in paragraphs (a)
and (b) of § 655.121 or the SWA job
order review procedure described in
paragraphs (e) and (f). Rather, an
employer qualifying for processing
under §§ 655.200 through 655.235
would submit its completed job order to
the NPC at the same time as the related
Application for Temporary Employment
Certification, which it must submit no
less than 45 days before its first date of
need in compliance with the timeframe
requirement of § 655.130(b), unless the
application qualifies for emergency
situations processing under § 655.134.
The NPC would coordinate review of
the job order with the SWA and address
any job order and Application for
Temporary Employment Certification
deficiencies in a manner consistent with
the provisions set forth in §§ 655.140
through 655.145.
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2. Section 655.211, Herding and Range
Livestock Wage Rate
The Department proposes to revise
§ 655.211 for consistency with the
annual AEWR update notice procedure
proposed in § 655.120(b). As discussed
in relation to § 655.120(b), providing a
short transition period (i.e., no more
than 14 days) for an employer to
implement a new higher AEWR
prevents adverse effect on the wages of
U.S. workers by quickly implementing
any newly required higher wage rate,
while giving employers a brief window
to update their payroll systems to
implement a newly-issued wage.
3. Section 655.215, Procedures for Filing
Herding and Range Livestock
Applications for Temporary
Employment Certification
The Department proposes revisions to
simplify § 655.215 and conform to
revisions in this proposed rule. In
paragraph (b) detailed language about
required additional information is
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obsolete, as the job order Form ETA–
790/790A addenda include data fields
for employers to provide detailed
information about the job opportunity.
Revised language in paragraph (b)(1)
clarifies that an Application for
Temporary Employment Certification
for herding or production of livestock
on the range may cover multiple areas
of intended employment in one state or
in two or more contiguous states.
4. Section 655.220, Processing Herding
and Range Livestock Applications for
Temporary Employment Certification
In addition to minor revisions to
§ 655.220 proposed for consistency
within the proposed rule, the
Department proposes to revise
paragraph (b) to reflect the
centralization of job order dissemination
from the NPC to the SWAs as proposed
in § 655.121. Consistent with § 655.121,
after the content of a job order for
herding or production of livestock on
the range has been approved, the NPC
would transmit the job order to all
applicable SWA to begin recruitment.
5. Section 655.225, Post-Acceptance
Requirements for Herding and Range
Livestock
The Department proposes minor
revisions in § 655.225 to simplify
language and reflect procedural changes
proposed in this proposed rule, such as
the proposed revision of the duration of
the recruitment period at § 655.135(d).
The Department recently proposed
revisions to § 655.225 in a separate
proposed rule, Modernizing Recruitment
Requirements for the Temporary
Employment of H–2A Foreign Workers
in the United States.96 Those proposed
revisions are not reflected in this
proposed rule.
J. Labor Certification Process for
Temporary Agricultural Employment in
Animal Shearing, Commercial
Beekeeping, Custom Combining, and
Reforestation Occupations
1. Section 655.300, Scope and Purpose
The introductory provision proposes
to establish that, because of the unique
nature of the occupations, employers
who seek to hire temporary agricultural
foreign workers to perform animal
shearing, commercial beekeeping,
custom combining, and reforestation as
defined in proposed §§ 655.103 and
655.301, are subject to certain standards
that are different from the regular H–2A
procedures in subpart B of the part. To
96 83 FR 55994 (Nov. 9, 2018). On June 17, 2019,
the Department submitted a final rule of that
rulemaking to OMB for review. See https://
www.reginfo.gov/public/do/eoDetails?rrid=129233.
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36221
date, the Department has processed
these applications using Departmental
guidance letters (TEGLs), one specific to
each occupation, containing variances
that are substantially similar to those
standards and procedures the
Department now proposes.97 In this
proposed rule, the Department proposes
to create a set of procedures for
employers who employ workers
engaged in these four occupations.
Establishing a single set of procedures,
with certain variations where
appropriate, for these occupations will
create administrative efficiencies for the
Department, promote greater
consistency in the review of H–2A
applications, provide foreign workers
and workers in the United States
similarly employed with largely the
same benefits and guarantees, and
provide greater clarity for employers
with respect to program requirements.
The Department seeks comments from
the public on all aspects of these
proposed regulations.
In order to employ foreign workers
under these procedures, an employer’s
job opportunity must possess all of the
characteristics described in §§ 655.300
through 655.304. As a preliminary
matter, the job opportunity must involve
work in one of the covered occupations:
Animal shearing, commercial
beekeeping, custom combining, or
reforestation. In addition, the
procedures apply to job opportunities in
those occupations where workers are
required to perform agricultural work on
a scheduled itinerary covering multiple
areas of intended employment in one or
more contiguous States. Unless
otherwise specified in the proposed
procedures, employers whose job
opportunities meet the criteria under
§§ 655.300 through 655.304 must
comply with the H–2A requirements in
97 See Training and Employment Guidance Letter,
No. 17–06, Change 1, Special Procedures: Labor
Certification Process for Employers in the Itinerant
Animal Shearing Industry under the H–2A Program
(June 14, 2011), accessed at https://wdr.doleta.gov/
directives/corr_doc.cfm?docn=3041; Training and
Employment Guidance Letter, No. 33–10, Special
Procedures: Labor Certification Process for Itinerant
Commercial Beekeeping Employers in the H–2A
Program (June 14, 2011), accessed at https://
wdr.doleta.gov/directives/corr_doc.cfm?
DOCN=3043; Training and Employment Guidance
Letter, No. 16–06, Change 1, Special Procedures:
Labor Certification Process for Multi-State Custom
Combine Owners/Operators under the H–2A
Program (June 14, 2011), accessed at https://
wdr.doleta.gov/directives/corr_doc.cfm?
DOCN=3040; and Training and Employment
Guidance Letter, No. 27–06, Special Guidelines for
Processing H–2B Temporary Labor Certification in
Tree Planting and Related Reforestation
Occupations (June 12, 2007), accessed at https://
wdr.doleta.gov/directives/corr_doc.cfm?
DOCN=2446.
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§§ 655.100 through 655.185,98 including
payment of the highest applicable wage
rate, determined in accordance with
§ 655.122(l) for all hours worked.99
Where the job opportunity does not
fall within the scope of the covered
occupations in §§ 655.300 through
655.304, the employer must comply
with all of the regular H–2A procedures.
If an employer submits an application
containing information and attestations
indicating that its job opportunity is
eligible for processing under these
proposed regulations but later, as a
result of an investigation or other
compliance review, it is determined that
the employment was not eligible for
inclusion under these regulations, the
employer will be responsible for
compliance with all of the regular H–2A
procedures and requirements in
§§ 655.100 through 655.185. In addition,
the Department may seek other
remedies, such as civil monetary
penalties and potentially debarment
from use of the H–2A program, for the
violations.
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2. Section 655.301, Definition of Terms
The proposed definitions contained in
this section define the occupations
subject to proposed §§ 655.300 through
655.304, and are intended to assist
employers in understanding the only
types of work that qualify for these
regulatory variances. Though the TEGLs
did not contain definitions of these
terms, the proposed definitions are
based on the Department’s current
understanding of what work in these
occupations generally involves.
The proposed definition of animal
shearing describes typical activities
associated with the shearing and
crutching of sheep, goats, or other
animals producing wool or fleece. Those
activities include gathering, moving,
and sorting animals into shearing yards,
stations, or pens; placing animals into
98 For example, covered employers must comply,
as they do currently, with the processing
procedures in 20 CFR 655.150–655.158 related to
recruitment. Similarly, they must comply with
§ 655.122(g) and either must provide each worker
with three meals a day or must furnish free and
convenient cooking and kitchen facilities to the
workers that will enable the workers to prepare
their own meals. Where the employer provides the
meals, the job offer must state the charge, if any,
to the worker for such meals. The amount of meal
charges is governed by § 655.173.
99 Compliance with 20 CFR 655.122(l), as revised
by this proposed rule, requires an employer to ‘‘pay
the worker at least the AEWR, a prevailing wage if
the OFLC Administrator has approved a prevailing
wage survey for the applicable crop activity or
agricultural activity meeting the requirements of
§ 655.120(c), the agreed-upon collective bargaining
rate, the Federal minimum wage, or the State
minimum wage rate, whichever is highest, for every
hour or portion [of an hour] worked during a pay
period.’’
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position prior to shearing; selecting and
using suitable equipment and tools for
shearing; shearing animals with care
according to industry standards;
marking, sewing, or disinfecting any
nicks and cuts due to shearing; cleaning
and washing animals after shearing;
gathering, storing, loading, and
delivering wool or fleece to storage
yards, trailers, or other containers; and
maintaining, oiling, sharpening, and
repairing equipment and other tools
used for shearing. Wool or fleece
grading constitutes animal shearing
under the proposed definition only
where such activities are performed by
workers who are employed by the same
employer as the animal shearing crew
and who travel and work with the
animal shearing crew. In addition, for
purposes of this definition, hauling
shearing equipment would be
considered animal shearing under the
proposed definition only where such
activities are performed by workers who
are employed by the same employer as
the animal shearing crew and who
travel and work with the shearing crew.
The proposed definition of
commercial beekeeping describes
typical activities associated with the
care or husbandry of bee colonies for
producing and collecting honey, wax,
pollen, and other products for
commercial sale or providing
pollination services to agricultural
producers. Those services include
assembling, maintaining and repairing
hives, frames, or boxes; inspecting and
monitoring colonies to detect diseases,
illnesses, or other health problems;
feeding and medicating bees to maintain
the health of the colonies; installing,
raising, and moving queen bees;
splitting or dividing colonies, when
necessary, and replacing combs;
preparing, loading, transporting, and
unloading colonies and equipment;
forcing bees from hives, inserting
honeycomb of bees into hives, or
inducing swarming of bees into hives of
prepared honeycomb frames;
uncapping, extracting, refining,
harvesting, and packaging honey,
beeswax, or other products for
commercial sale; cultivating bees to
produce bee colonies and queen bees for
sale; and maintaining and repairing
equipment and other tools used to work
with bee colonies.
The proposed definition of custom
combining describes typical activities
associated with combining crops for
agricultural producers, including
operating self-propelled combine
equipment (i.e., equipment that reaps or
harvests, threshes, and swath or
winnow the crop); performing manual
or mechanical adjustments to cutters,
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blowers, and conveyers; performing
safety checks on harvesting equipment;
and maintaining and repairing
equipment and other tools used for
performing swathing or combining
work. Transporting harvested crops to
elevators, silos, or other storage areas
constitute activities associated with
custom combining for the purposes of
the proposed definition only where
such activities are performed by workers
who are employed by the same
employer as the combining crew and
who travel and work with the custom
combining crew. Though transporting
equipment from one field to another
does not constitute agricultural work,
the Department finds it is appropriate to
include those activities in the proposed
definition of custom combining because
such activities are a necessary part of
performing combine work on an
itinerary. Thus, solely for the purposes
of the proposed variance in §§ 655.300
through 655.304, transporting combine
equipment and other tools used for
custom combining work from one field
to another is included in the definition
of custom combining only where such
activities are performed by workers who
are employed by the same employer as
the custom combining crew and who
travel and work with the custom
combining crew. Component parts of
custom combining not performed by the
harvesting entity, such as grain
cleaning, do not fall within the
proposed definition. The planting and
cultivation of crops, and other related
activities, are not considered custom
combining for the purposes of this
proposed definition.
The Department proposes a definition
of reforestation for inclusion in
§ 655.103, as discussed above. As noted
above, the proposed rule states that
reforestation activities do not include
vegetation management activities in and
around utility, highway, railroad, or
other rights-of-way. As defined in
proposed § 655.103, reforestation
activities exclude right-of-way
vegetation management activities such
as the removal of vegetation that may
interfere with utility lines or lines-ofsight, herbicide application, brush
clearing, mowing, cutting, and tree
trimming around roads, railroads,
transmission lines, and other rights-ofway. Employers seeking workers for
occupations involving these activities
therefore would not be eligible to file
under the provisions set forth in
§§ 655.300 through 655.304.
The Department seeks comments on
all the definitions. In particular, the
Department seeks comments on whether
the definitions accurately and
comprehensively reflect the activities
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workers in these occupations perform
and whether a final rule should limit
additional job duties that workers may
perform under certifications approved
under §§ 655.300 through 655.304
beyond those duties outlined in this
proposed section.
3. Section 655.302, Contents of Job
Orders
a. Paragraph (a), Content of Job Offers
This provision addresses proposed
variances from the job order filing
requirements in § 655.121. Unless
otherwise specified in proposed
§§ 655.300 through 655.304, the
employer must satisfy the requirements
for job orders under § 655.121 and for
the content of job orders established
under part 653, subpart F, and
§ 655.122.
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b. Paragraph (b), Job Qualifications and
Requirements
The Department proposes variances
addressing certain aspects of the job
qualifications and requirements to
clarify those the Department generally
considers normal and accepted for these
occupations, which may be included in
job orders for each of the occupations
subject to §§ 655.300 through 655.304.
The provisions in this proposed rule,
described below, are similar to those
provided by the TEGLs for the itinerant
animal shearing, commercial
beekeeping, and custom combining
employers in the H–2A program. The
proposed rule does not include
variances from the regular H–2A job
order requirements for employers in the
reforestation occupation. As with all
other applications, the CO may require
the employer to submit documentation
to substantiate the appropriateness of
any job qualifications and requirements
specified in the job order. Each job
qualification listed in the job offer must
be bona fide. In all cases, the employer
must apply all qualifications and
requirements included in the job offer
equally to U.S. and foreign workers in
order to maintain compliance with the
prohibition against preferential
treatment of foreign workers contained
at § 655.122(a).
i. Animal Shearing
Consistent with the TEGL, the
Department proposes to allow a job offer
in these occupations to include a
statement that applicants must possess
up to 6 months of experience in similar
occupations and require references for
the employer to verify this experience.
The job offer may also specify that
applicants must possess experience
with an industry shearing method or
pattern, must be willing to join the
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employer at the time the job opportunity
is available and at the place the
employer is located, and must be
available to complete the scheduled
itinerary under the job order. In
addition, U.S. worker applicants who
possess experience based on a similar or
related industry shearing method or
pattern must be afforded a break-in
period of no less than 5 working days
to adapt to the shearing method or
pattern preferred by the employer.
ii. Commercial Beekeeping
Consistent with the TEGL, the
Department proposes to allow a job offer
in these occupations to include a
statement that applicants must possess
up to 3 months of experience in similar
occupations and require references for
the employer to verify this experience.
The job offer for commercial beekeeping
occupations may also specify that
applicants may not have bee, pollen, or
honey-related allergies, must possess a
valid commercial U.S. driver’s license
or be able to obtain such license not
later than 30 days after the first workday
after the arrival of the worker at the
place of employment, must be willing to
join the employer at the time and place
the employer is located, and must be
available to complete the scheduled
itinerary under the job order.
iii. Custom Combining
Consistent with the TEGL, the
Department proposes to allow a job offer
in these occupations to include a
statement that applicants must possess
up to 6 months of experience in similar
occupations and require references for
the employer to verify applicant
experience. The job offer for custom
combining occupations may also specify
that applicants must be willing to join
the employer at the time and place the
employer is located and available to
complete the scheduled itinerary under
the job order.
c. Paragraph (c), Communication
Devices
Employers are obligated under
§ 655.122(f) to provide each worker,
without charge or deposit charge, all
tools, supplies, and equipment required
to perform the duties assigned. Due to
the potentially remote, isolated, and
unique nature of the work to be
performed by workers in animal
shearing and custom combining
occupations, the proposed procedures
would require the employer to provide
each worker, without charge or deposit
charge, effective means of
communicating with persons capable of
responding to the worker’s needs in case
of an emergency. The procedures are
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36223
consistent with those in place for
workers primarily engaged in the
herding and production of livestock on
the range under the H–2A program. See
20 CFR 655.210(d)(2). Communication
means are necessary to perform the
work and can include, but are not
limited to, satellite phones, cell phones,
wireless devices, radio transmitters, or
other types of electronic communication
systems. The employer would also have
to specify in the job order the type(s) of
electronic communication device(s) and
that such devices will be provided
without charge or deposit.
This proposed rule is similar to the
Department’s current policy in the
TEGLs for the itinerant animal shearing
and multi-state custom combining
occupations.100 Because of the remote,
transient, and unique nature of these
occupations, effective means of
communication between the employer
and the worker are necessary to ensure
that the employer is able to check the
worker’s status, and that the worker is
able to communicate an emergency to
persons capable of responding.
The Department’s current regulation
at § 655.122(f) requires an employer to
provide all tools, supplies, and
equipment required to perform the
duties assigned. All employers
participating in the H–2A program must
comply with the requirement in
§ 655.122(f), including those employers
in the animal shearing, beekeeping, and
custom combining industries. Similarly,
the Department’s current regulation at
§ 655.122(p) prohibits an employer from
making an unlawful deduction that is
primarily for the benefit or convenience
of the employer. Though the TEGL
covering reforestation may allow
employers to require workers to provide
their own tools and equipment in
certain cases, the proposed rule does not
provide a variance from the
requirements in § 655.122(f) and (p),
because all tools, supplies, and
equipment required to perform the
duties assigned are primarily for the
benefit and convenience of the
employer. Consequently, employers in
the animal shearing, custom combining,
100 Specifically, the Department’s current policy
in the TEGLs requires an employer to provide at no
cost to each worker in animal shearing and custom
combining occupations effective means of
communicating with persons capable of responding
to the worker’s needs in case of an emergency. See
Department of Labor, Employment and Training
Administration, Training and Employment
Guidance Letter No. 17–06, Change 1 (June 14,
2011), https://wdr.doleta.gov/directives/attach/
TEGL/TEGL17-06-Ch1.pdf. See also Department of
Labor, Employment and Training Administration,
Advisory: Training and Employment Guidance
Letter No. 16–06, Change 1 (June 14, 2011), https://
wdr.doleta.gov/directives/attach/TEGL/TEGL16-06Ch1.pdf.
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beekeeping, and reforestation industries
must comply with § 655.122(f) and (p)
and provide, without charge or deposit
charge, to the workers all tools,
supplies, and equipment to perform the
duties assigned.
These tools, supplies, and equipment
include any items required by law, the
employer, or the nature of the work to
perform the job safely and effectively.
For example, if a reforestation employer
requires its employees to wear a
particular brand or type of boots for
safety reasons, or for compliance with
the OSHA standards or contractual
obligations with upper-tier contractors,
the employer must provide the boots
without charge or deposit charge.
Similarly, if an employer in beekeeping
occupations requires certain equipment
for safety reasons, such as a veil, gloves,
or beekeeping suit, the employer must
provide this equipment to the workers
without charge or deposit charge.
Additional examples of tools, supplies,
and equipment that may be required by
law, the employer, or the nature of the
work in these occupations include
combs, cutters, hand pieces, and
grinders in the animal shearing
occupations; bee brushes, hive tools,
smokers, veils, and gloves in the
commercial beekeeping occupations;
and chainsaws, boots, seedling satchels,
planting trowel, rain gear, gloves, ear
and eye protection, and protective
masks in the reforestation occupations.
The Department invites comments as to
whether it should require specific tools,
supplies, and equipment in these
industries, or whether it would be
helpful to include in the regulation a list
of items that typically are required by
law, the employer, or the nature of the
work and location, and which must be
provided to the workers without charge
or deposit.
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d. Paragraph (d), Housing
For job opportunities involving
animal shearing and custom combining,
the employer must specify in the job
order that housing will be provided as
set forth in § 655.304. As discussed
below, employers of workers in these
occupations will be permitted to offer
mobile housing that meets the standards
set forth in § 655.304, except for
situations when the mobile housing is
located on the range as defined in
§ 655.201. When the housing unit is on
the range, the mobile housing must meet
the standards for range housing in
§ 655.235.
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4. Section 655.303, Procedures for Filing
Applications for Temporary
Employment Certification
Under proposed § 655.303, employers
in covered occupations will continue to
satisfy the requirements for filing an
Application for Temporary Employment
Certification with the NPC designated
by the OFLC Administrator as required
under §§ 655.130 through 655.132. In
addition, the Department proposes to
continue to require employers seeking
workers in the covered occupations to
provide the locations, estimated start
and end dates, and, if applicable, names
for each farmer or rancher for whom
work will be performed under the job
order when filing an Application for
Temporary Employment Certification.
The locations should be identified with
as much specificity as possible in order
to apprise potential U.S. workers of
where the work will be performed and
to ensure recruitment in all areas of
intended employment.
The Department proposes to continue
to allow employers or agricultural
associations engaged in the covered
occupations to file applications and job
orders covering work locations in
multiple areas of intended employment
and within one or more contiguous
States.101 This approach is warranted by
the unique nature of work in these
occupations, particularly the itinerant
nature of work crews. In addition, the
Department proposes to continue to
allow an agricultural association to file
a master application as a joint employer
covering work locations in multiple
areas of intended employment within
two or more contiguous States.
The Department proposes to apply the
geographic limitation in § 655.303(b)(1)
and (2) to applications for job
opportunities involving commercial
beekeeping, with the exception that
those applications may include one
noncontiguous State at the beginning
and end of the period of employment for
retrieving bee colonies from and
returning them to the overwintering
location. For beekeepers, winter months
provide an opportunity to engage in
colony health and maintenance
activities, such as splitting and building
colonies, while the bees are not engaged
in the pollination, pollen collection, and
honey production activities of the rest of
the year. Typically, migratory
beekeeping operations overwinter their
hives in warm-winter states, such as
101 This would continue the current practice that
permits a variance from the geographic scope
limitations of 20 CFR 655.132(a) for H–2ALCs
engaged in these occupations, and from 20 CFR
655.131(b) for master applications that include
worksites in more than two contiguous States.
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Texas. As warmer weather returns to the
rest of the country and plants begin to
flower, beekeepers may move their
hives from these overwintering
locations to the places where their
pollination and honey-production
activities will take place for the rest of
the year, such as cultivated fields and
orchards in California and uncultivated
fields in North Dakota and South Dakota
where clover and wildflowers grow.
Apart from accommodating the initial
care and gathering of the hives at
overwintering locations for transport
and the hives’ return to the
overwintering locations, the Department
proposes to maintain the same
geographic scope criteria for all
applications covered under the
provisions at §§ 655.300 through
655.304. Once the hives are moved from
the overwintering location to their nonwinter destinations, a beekeeping
Application for Temporary Employment
Certification and job order would be
limited to multiple areas of intended
employment in one or more contiguous
States. Where a beekeeping operation
involves pollination or honey
production activities in non-contiguous
States, the employer would be required
to submit separate applications. For
example, a beekeeping employer could
not file an application including an
itinerary that begins and ends at a place
of employment in Texas and, in
between, list places of employment in
California, North Dakota, and South
Dakota. Instead, the employer could
submit two separate applications, one
with an itinerary including Texas and
California and the other with an
itinerary including Texas, North Dakota,
and South Dakota.
Under the proposed rule, an employer
would need to file one H–2A
application for each crew of itinerant
workers. This requirement is consistent
with current practice for all covered
occupations except reforestation, where
employers have been permitted to
submit one H–2A application covering
multiple itineraries. The Department
believes permitting multiple crews and
itineraries on a single application
undermines the integrity and efficacy of
U.S. worker recruitment. Therefore, to
promote the integrity of the application
process in these occupations, and
provide consistency across applications
in the H–2A program, the proposed rule
would require the employer to file one
application for each itinerant crew,
within the parameters of §§ 655.300
through 655.304.
Aside from these filing variances, the
usual H–2A filing requirements would
apply to job opportunities involving
animal shearing, custom combining,
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commercial beekeeping, and
reforestation. For example, all H–2ALCs
filing under the provisions of §§ 655.300
through 655.304 would be required to
comply with § 655.132(d). Thus,
employers in those occupations would
have to provide fully-executed contracts
for each anticipated work location on
the itinerary. See 20 CFR 655.132(d).
Such contracts would demonstrate to
the Department the work to be
performed along the itinerary with
sufficient specificity to allow the
Department to ensure compliance with
program requirements.
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5. Section 655.304, Standards for Mobile
Housing
Under the Department’s current and
proposed regulation at § 655.122(d), an
employer must provide housing at no
cost to H–2A workers and those workers
in corresponding employment who are
not reasonably able to return to their
residence within the same day.
Additionally, employer-provided
housing must meet applicable safety
and health standards.102 Due to the
unique nature of animal shearing and
custom combining occupations,
however, the Department has
historically permitted the use of mobile
housing for workers engaged in these
occupations,103 the standards for which
are found in the TEGLs. The proposed
rule continues this longstanding
practice, and includes proposed
standards for mobile housing for
workers engaged in these occupations.
The proposed standards largely
incorporate the housing standards in the
TEGLs, with two key exceptions. First,
the TEGL for workers engaged in animal
shearing occupations expressly provides
that an animal shearing contractor may
lease a mobile unit owned by a crew
member or other person or make some
other type of ‘‘allowance’’ to the owner.
Under the proposed rule, such an
arrangement is not permitted. Upon
further consideration of this practice,
the Department concludes that this type
of arrangement is inconsistent with the
employer’s obligation to provide
housing at no cost to all H–2A workers
and those non-H–2A workers in
102 Specifically, employer-provided housing must
meet the OSHA standards at 29 CFR 1910.142, or
the ETA standards at §§ 654.404 through 654.417 of
this chapter, whichever standards are applicable
under § 654.401 of this chapter.
103 See Department of Labor, Employment and
Training Administration, Training and Employment
Guidance Letter No. 17–06, Change 1, Attachment
B (June 14, 2011), https://wdr.doleta.gov/directives/
attach/TEGL/TEGL17-06-Ch1.pdf; Department of
Labor, Employment and Training Administration,
Training and Employment Guidance Letter No. 16–
06, Change 1, Attachment A (June 14, 2011), https://
wdr.doleta.gov/directives/attach/TEGL/TEGL16-06Ch1.pdf.
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corresponding employment who are not
reasonably able to return to their
residences within the same day. See
section 218(c)(4) of the INA, 8 U.S.C.
1188(c)(4); 20 CFR 655.122(d)(1).
Allowing an employer to compensate a
worker for housing the worker owns or
secures inappropriately shifts at least
part of this obligation from the employer
to the worker. By requiring animal
shearing employers to independently
secure sufficient housing in advance of
the start date, as required of all other H–
2A employers, this change ensures that
all housing (including mobile units) has
been inspected and certified as meeting
housing standards before a temporary
labor certification is issued. This change
further ensures that all prospective
applicants have access to the job
opportunity without preference for
applicants who possess their own units.
Second, the proposed standards align
less closely than the TEGLs with the
standards for range housing found at
§ 655.235. Although, historically, the
animal shearing and custom combining
TEGLs set out the same or similar
mobile housing standards as the
standards applicable to range housing,
there are important differences in these
occupations that necessitate different
standards for range housing (for workers
engaged in herding or the range
production of livestock) and mobile
housing (for itinerant workers engaged
in animal shearing and custom
combining occupations). Specifically,
the standards for range housing
anticipate that workers generally will be
on call 24 hours per day, 7 days a week
in uniquely remote, isolated areas.
Animal shearing and custom combining
workers, on the other hand, though
itinerant, typically work in less isolated
areas with greater access to facilities,
and generally there is no expectation
that these workers continuously be on
call.
The Department recognizes that
itinerant workers engaged in the animal
shearing and custom combining
occupations may work in locations that
meet the definition of range in § 655.201
and, therefore, requires use of housing
that meets only the standards for range
housing in § 655.235 for some portion of
the period of employment. In these
situations, the Department proposes that
mobile housing must be inspected to
ensure that it meets the standards for
range housing, and that it needs to meet
the standards for range housing in
§ 655.235 only during the period in
which the housing is located on the
range to enable work to be performed on
the range. The applicability of the
standards for range housing or mobile
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36225
housing depends on the sites where
mobile housing units are parked. This
provision intends to address the fact
that itinerant workers in the animal
shearing and custom combining
occupations may, on occasion, be
working in areas so remote that it is not
feasible for the employer to provide
certain amenities, such as hot and cold
water under pressure. However, once
the mobile housing unit is moved to a
location off of the range, the mobile
housing standards in § 655.304 are once
again applicable. Therefore, a mobile
housing unit that the employer
anticipates using both on and off the
range is subject to both the procedure
for securing and submitting a range
housing inspection approval in
§ 655.230(b) and (c) and the procedure
for securing and submitting an
inspection approval of the mobile
housing unit as proposed in
§ 655.122(d)(6).
The Department recognizes that the
mobile housing units Canadian
employers use to perform custom
combining operations in the United
States are typically located in Canada
when not in use, making it unfeasible
for these employers to secure preoccupancy housing inspection and
approval from a SWA. Therefore, the
Department proposes to continue the
longstanding practice reflected in the
TEGL of permitting these employers to
secure approval of each mobile unit
from an authorized representative of the
Federal or provincial government of
Canada, in accordance with inspection
procedures and applicable standards for
such housing under Canadian law or
regulation.
The proposed standards for mobile
housing are for use only for itinerant
workers engaged in the animal shearing
and custom combining occupations.
Although the commercial beekeeping 104
and reforestation 105 occupations are
also frequently itinerant, the TEGLs for
these occupations historically have not
allowed for mobile housing, and
employers in these occupations tend to
house their workers in fixed-site
housing, hotels, and motels. The
Department invites comment from
employers engaged in commercial
beekeeping and reforestation regarding
104 See Department of Labor, Employment and
Training Administration, Training and Employment
Guidance Letter No. 33–10 (June 14, 2011), https://
wdr.doleta.gov/directives/attach/TEGL/TEGL3310.pdf.
105 See Department of Labor, Employment and
Training Administration, Training and Employment
Guidance Letter No. 27–06 (June 12, 2007), https://
wdr.doleta.gov/directives/attach/TEGL/TEGL2706.pdf.
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the current practices and their specific
housing needs.
a. Paragraph (b)
As proposed, the standards for mobile
housing combine certain provisions
from the standards for range housing at
§ 655.235 and the ETA housing
standards at §§ 654.404 through
654.417, as did the TEGLs. The
proposed standards are intended to
protect the health and safety of workers
engaged in animal shearing and custom
combining occupations, while also
being sufficiently flexible to apply to a
variety of mobile housing units. In its
enforcement experience, the Department
has seen a variety of mobile housing
units used by workers engaged in these
occupations, including RVs, trailers,
and custom bunk-houses built in the
back of tractor-trailers. Some mobile
housing units are complete with
functioning bathrooms, showers,
generators, and washer/dryers, while
others are smaller and simpler.
Consequently, the Department proposes
to allow mobile housing units without
certain facilities (e.g., showers and
laundry facilities) as long as the
employer otherwise supplements these
facilities. For example, if the mobile
housing unit does not contain bathing
facilities, facilities with hot and cold
water under pressure must be provided
at least once per day. This standard
contemplates that some mobile housing
units may not include showers, but the
mobile housing sites, such as farms,
ranches, campgrounds, RV parks, or
cities and towns, should have bathing
facilities, and workers must be afforded
access to these facilities. The
Department requests comments on the
feasibility of these standards in the
animal shearing and custom combining
occupations, as well as if any additional
standards for mobile housing should be
incorporated.
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b. Paragraph (c), Housing Site
The proposed rule incorporates the
standards for the housing site from the
range housing standards and the TEGLs.
Specifically, the Department proposes
that mobile housing sites must be well
drained and free from depressions
where water may stagnate.106 In
addition, the Department proposes that
mobile housing sites shall be located
where the disposal of sewage is
provided in a manner that neither
creates, nor is likely to create a nuisance
or a hazard to health; and shall not be
106 This
provision is similar to standards for range
housing found at § 655.235(a)(1) and for mobile
housing found in TEGL 16–06–CH–1 Attachment B
and TEGL 17–06–CH–1 Attachment B.
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in proximity to conditions that create or
are likely to create offensive odors, flies,
noise, traffic, or any similar hazards.
Mobile housing sites shall also be free
from debris, noxious plants (e.g., poison
ivy, etc.), and uncontrolled weeds or
brush.107 The Department has
determined that employers will not find
it overly burdensome to place mobile
housing units at sites that comply with
these provisions.
c. Paragraph (d), Drinking Water Supply
Similar to the TEGLs for these
occupations, the Department proposes
that an adequate and convenient supply
of potable water that meets the
standards of the local or state health
authority must be provided, as well as
individual drinking cups.108 The
Department also proposes to require
employers to provide a cold water tap
within a reasonable distance from each
individual living unit when water is not
provided in the unit. Itinerant workers
engaged in animal shearing and custom
combining occupations may stay in
mobile housing units with water tanks
or water hookups that provide water in
the unit. If no water is available in the
unit, workers may park the mobile
housing unit within a reasonable
distance of a cold water tap.109
Additionally, adequate drainage
facilities for overflow and spillage must
be provided.
d. Paragraph (e), Excreta and Liquid
Waste Disposal
The Department proposes to require
that toilet facilities, such as portable
toilets, RV or trailer toilets, privies, or
flush toilets, must be provided and
maintained for effective disposal of
excreta and liquid waste in accordance
with the requirements of the applicable
local, state, or federal health authority,
whichever is most stringent. Many
mobile housing units are equipped with
toilet facilities that would comply with
these standards. Where mobile housing
107 These provisions are similar to the ETA
housing standards found at § 654.404, but exclude
the provision that requires that the housing site
must provide a space for recreation reasonably
related to the size of the facility and the type of
occupancy. See 20 CFR 654.404(d).
108 These proposed standards are similar to the
standards for range housing found at § 655.235(b);
however, these standards exclude the provision for
delivery of water. These provisions are also similar
to the standards found in TEGL 16–06–CH–1
Attachment B and TEGL 17–06–CH–1 Attachment
B.
109 Unlike the ETA housing standards, which
requires that a cold water tap be provided within
100 feet of each living unit, the Department’s
proposal does not require the water tap to be
located within a certain number of feet of the
mobile housing unit because some campgrounds
may not comply with these specific standards. See
20 CFR 654.405(b).
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units are not equipped with toilet
facilities, the employer must provide
access to toilet facilities.
Where mobile housing units contain
toilet facilities, the employer must
provide access to sewage hookups
whenever feasible. Some campgrounds
or RV parks have sewage hookups; the
employer must place workers at these
locations if feasible. If wastewater tanks
are used because such access to sewage
hookups is unavailable or the mobile
housing units have toilet facilities but
are not designed to connect to sewage
hookups, the employer must make
provision to regularly empty the
wastewater tanks. Consistent with the
TEGLs, if pits are used for disposal by
burying of excreta and liquid waste,
they shall be kept fly-tight when not
filled in completely after each use.110
The maintenance of disposal pits must
be in accordance with local and state
health and sanitation requirements.
The proposed mobile housing
standards for excreta and liquid waste
disposal deviate from the standards for
range housing in § 655.235 and the
TEGLs for these occupations, which do
not require toilet facilities. Itinerant
workers in the animal shearing and
custom combining occupations
frequently work in relatively more
populated areas that provide easy access
to running water, indoor plumbing,
sewage hookups, vault toilets, and/or
portable toilets. The Department,
therefore, concludes that it is reasonable
and necessary to require employers to
provide toilet facilities. The Department
invites comment on whether any
additional standards (i.e., specific toilet
facilities, a specific number of toilet
facilities, etc.) should be included.
e. Paragraph (f), Housing Structure
Consistent with the TEGLs, the
Department proposes to require that
housing be structurally sound, in good
repair, in a sanitary condition and must
provide shelter against the elements to
occupants. Similarly, the housing must
have flooring constructed of rigid
materials easy to clean and so located as
to prevent ground and surface water
from entering, and each housing unit
must have at least one window or a
skylight that can be opened directly to
the outdoors.111 Acknowledging the
variety of possible mobile housing units,
the Department has not proposed
specific measurements for windows, but
invites comment on whether specific
measurements should be required.
110 TEGL 16–06–CH–1 Attachment B and TEGL
17–06–CH–1 Attachment B.
111 These standards are also identical to those
included in the standards for range housing in
§ 655.235(d).
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Housing standards for fire, safety, and
first aid discuss a second means of
escape, which may be a window if the
window is sufficiently large to allow for
escape.
f. Paragraph (g), Heating
The Department proposes to fully
incorporate the heating standards from
§ 655.235(e). These standards are also
substantially the same as those
contained in the TEGLs for these
occupations.112
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g. Paragraph (h), Electricity and Lighting
The Department proposes that,
barring unusual circumstances that
prevent access, electrical service or
generators must be provided. This may
include an electrical hookup, solar
panel, battery generator, or other type of
device that provides electrical service.
This provision differs from the
standards for range housing
promulgated in § 655.235(f) and existing
standards for mobile housing contained
in the TEGLs, which require only that
lanterns be provided if it is not feasible
to provide electrical service to mobile
housing. The Department has
determined that, in the majority of
circumstances, workers in animal
shearing and custom combining
occupations will be in areas with access
to electrical service; therefore, it is
necessary and reasonable to require that
it be accessible to workers in mobile
housing units. Many mobile housing
units, such as some RVs, will comply
with this requirement. In the rare
circumstances in which it is not feasible
to provide electrical service, lanterns
must be provided to each unit, one per
occupant of each unit.113
h. Paragraph (i), Bathing, Laundry, and
Hand Washing
The Department proposes that bathing
facilities, supplied with hot and cold
water under pressure, shall be provided
to all occupants no less frequently than
once per day. Some mobile housing
units may contain functioning showers
with hot and cold water under pressure;
in which case, the employer has
complied with this provision as long as
all workers have access to the bathing
facilities. If the mobile housing units do
not have bathing facilities, workers
should have access to facilities no less
frequently than once per day. There are
no restrictions on how the employer
112 TEGL 16–06–CH–1 Attachment B and TEGL
17–06–CH–1 Attachment B.
113 This proposed standard is similar to the
standards for range housing found at § 655.235(f)(2)
and for mobile housing found in TEGL 16–06–CH–
1 Attachment B and TEGL 17–06–CH–1 Attachment
B.
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may provide access to these facilities
(e.g., at a campground, RV park, ranch
bunkhouse, temporary labor camp,
motel, etc.).
Similarly, the Department proposes
that the employer must provide access
to laundry facilities, supplied with hot
and cold water under pressure, at no
cost to all occupants no less frequently
than once per week. The Department
anticipates that most mobile housing
units will not include laundry facilities;
therefore, the employer must
supplement its mobile housing units
with laundry facilities.
The Department also proposes that
alternative bathing and laundry
facilities, such as washtubs, must be
available to all occupants at all times
when water under pressure is
unavailable. For example, if a worker
needs to bathe or launder clothes, but is
hours away from being provided access
to a shower or days away from being
provided access to a laundry facility, a
washtub must be available so that the
worker is able to bathe or launder
clothes without water under pressure.
Finally, the Department proposes that
hand washing facilities must be
available to all occupants at all times,
even when water under pressure is not
available.
These proposed standards differ from
the standards for range housing
promulgated in § 655.235(g) and the
existing standards for mobile housing in
the TEGLs, which require that mobile
bathing, laundry, and handwashing
facilities must be provided when it is
not feasible to provide hot and cold
water under pressure. However,
itinerant workers in the animal shearing
and custom combining occupations
frequently work in relatively more
populated areas that provide easy access
to running water with hot and cold
water under pressure, and the
Department therefore concludes that it
is necessary and reasonable to provide
periodic, if not constant, access to these
amenities.
i. Paragraph (j), Food Storage
The Department proposes that
provisions for mechanical refrigeration
of food at a temperature of not more
than 45 degrees Fahrenheit must be
provided.114 When mechanical
refrigeration of food is not feasible, the
employer must provide another means
of keeping food fresh and preventing
spoilage, such as a butane or propane
gas refrigerator.115
114 This proposed standard is similar to the ETA
housing standards found at § 654.413(a)(3).
115 This proposed standard is similar to the
standards for range housing found at § 655.235(h)
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j. Paragraph (k), Cooking and Eating
Facilities
The proposed standards for cooking
and eating facilities are nearly identical
to those in the TEGLs. The Department
proposes that, when workers or their
families are permitted or required to
cook in their individual unit, a space
must be provided with adequate lighting
and ventilation, and stoves or hotplates.
The Department also proposes that wall
surfaces next to all food preparation and
cooking areas must be of nonabsorbent,
easy to clean material. Wall surfaces
next to cooking areas must be made of
fire-resistant material.116
k. Paragraph (l), Garbage and Other
Refuse
The proposed standards for garbage
and refuse are substantially the same as
those in the TEGLs. The Department
proposes that durable, fly-tight, clean
containers must be provided to each
housing unit for storing garbage and
other refuse. Provision must be made for
collecting refuse, which includes
garbage, at least twice a week or more
often if necessary for proper disposal.117
The Department also proposes that the
disposal of refuse, which includes
garbage, shall be in accordance with
applicable local, state, and federal law,
whichever is most stringent.118
l. Paragraph (m), Insect and Rodent
Control
With minor revisions, the proposed
standards for insect and rodent control
are the same as those in the TEGLs. The
Department proposes that appropriate
materials, including sprays, and sealed
containers for storing food, must be
provided to aid housing occupants in
combating insects, rodents, and other
vermin.119
m. Paragraph (n), Sleeping Facilities
The Department proposes that a
separate comfortable and clean bed, cot,
and for mobile housing found in TEGL 16–06–CH–
1 Attachment B and TEGL 17–06–CH–1 Attachment
B, but excludes references to dehydrating or salting
foods.
116 These proposed provisions are similar to the
standards for range housing found at § 655.235(i)
and for mobile housing found in TEGL 16–06–CH–
1 Attachment B and TEGL 17–06–CH–1 Attachment
B.
117 These proposed provisions are similar to the
standards for range housing found at § 655.235(j)
and for mobile housing found in TEGL 16–06–CH–
1 Attachment B and TEGL 17–06–CH–1 Attachment
B.
118 This proposed provision is similar to ETA
housing standards found at § 654.414.
119 This proposed provision is similar to the
standards for range housing found at § 655.235(k)
and for mobile housing found in TEGL 16–06–CH–
1 Attachment B and TEGL 17–06–CH–1 Attachment
B.
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or bunk, with a clean mattress, must be
provided for each person, except in a
family arrangement.120 This proposed
provision is similar to the standards for
range housing found in § 655.235(l) and
in the current TEGLs for animal
shearing and custom combining
occupations, excluding the variance that
allows for workers to share beds in
certain circumstances. The range
housing standards allow workers to
share a bed for a short period of time,
so long as separate bedding is provided,
while transitioning from one herder
tending the livestock on the range to
another herder. However, the
Department concludes that such a
variance is not necessary, and therefore
not appropriate, for mobile housing
units for workers engaged in custom
combining and animal shearing not
located on the range. Clean and sanitary
bedding must be provided to for each
person. The Department also proposes
that no more than double deck bunks
are permissible.121
n. Paragraph (o), Fire, Safety, and First
Aid
This standard is also substantially the
same as the ones in the TEGLs. The
Department proposes that all units in
which people sleep or eat must be
constructed and maintained according
to applicable local or state fire and
safety law; no flammable or volatile
liquid or materials may be stored in or
next to rooms used for living purposes,
except for those needed for current
household use; mobile housing units
must have a second means of escape
through which the worker can exit the
unit without difficulty; and adequate,
accessible fire extinguishers in good
working condition and first aid kits
must be provided in the mobile
housing.122
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o. Paragraph (p), Maximum Occupancy
The Department proposes that the
number of occupants housed in each
mobile housing unit must not surpass
the occupancy limitations set forth in
the manufacturer specifications for the
unit. The Department recognizes that
implementing space standards in mobile
housing is difficult because mobile
120 This proposed provision is similar to the
standards for range housing found in § 655.235(l),
excluding the variance that allows for workers
sharing beds in certain circumstances. The
proposed provision is also similar to the standards
for mobile housing found in TEGL 16–06–CH–1
Attachment B and TEGL 17–06–CH–1 Attachment
B.
121 This proposal is similar to the ETA standards
at § 654.416(c).
122 These proposed provisions are also similar to
those found in the standards for range housing at
§ 655.235(m).
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housing is, by its nature, compact. Many
RVs and trailers incorporate beds in
unexpected places. However, workers
should be able to live comfortably in the
space provided, and the employer must
not house more workers than that for
which such space is designed. For
example, an RV intended for 5 people
must not be used to house more than 5
workers. Similarly, if the mobile
housing unit in which the employer
houses 20 workers has 1 shower facility,
not all workers may have access to the
shower facility. The Department
welcomes comment on whether specific
space standards should be incorporated.
K. Terminology and Technical Changes
The Department proposes to revise
various terms and phrases used
throughout the regulation. These
modifications would improve the
regulation’s internal consistency, or
correct or update the relevant terms or
titles. These modifications are explained
below.
• The Department proposes to use the
term ‘‘Application for Temporary
Employment Certification’’ throughout
the regulation when referring to Form
ETA–9142A for clarity and to improve
the regulation’s internal consistency.
• The Department proposes to use the
term ‘‘agricultural association’’ in place
of ‘‘association’’ to ensure consistency
with the terms defined in § 655.103(b).
• The Department proposes to change
the term ‘‘worksite’’ to ‘‘place of
employment’’ throughout the regulation
to ensure consistency with the terms
defined in § 655.103(b).
• The Department proposes to add
the word ‘‘calendar’’ before the word
‘‘days’’ in a number of provisions, to
clarify that the timeframe or deadline in
question is based on calendar days, not
business days.
• The Department proposes to change
the term ‘‘temporary labor certification’’
to ‘‘temporary agricultural labor
certification’’ to ensure consistency
throughout the regulation and with the
definition of ‘‘temporary agricultural
labor certification’’ in § 655.103(b).
• The name of the U.S. Department of
Justice, Civil Rights Division, Office of
Special Counsel for Unfair Immigration
Related Employment Practices, has been
changed to the U.S. Department of
Justice, Civil Rights Division, Immigrant
and Employee Rights Section, to reflect
its current name.
• The Department proposes
additional changes throughout the text
to correct typographical errors and
improve clarity and readability. Such
changes are nonsubstantive and do not
change the meaning of the current text.
Substantive changes to the current
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regulatory text are discussed in the
corresponding section of the preamble.
III. Discussion of Proposed Revisions to
29 CFR Part 501
The Department proposes revisions to
the regulations at 29 CFR part 501,
which set forth the responsibilities of
WHD to enforce the legal, contractual,
and regulatory obligations of employers
under the H–2A program. WHD has a
statutory mandate to protect U.S.
workers and H–2A workers. The
Department proposes these amendments
concurrent with and in order to
complement the changes ETA proposes
to its certification procedures.
A. Conforming Changes
Where discussed and noted above in
the Section-by-Section Analysis of 20
CFR part 655, the Department proposes
various revisions to 29 CFR part 501,
which will conform to revisions the
Department is proposing to 20 CFR part
655. These proposed conforming
revisions include, among others, to add
or revise (including technical revisions)
the following definitions of terms in
§ 501.3, to conform to proposed changes
to 20 CFR 655.103(b): Act,
Administrator, adverse effect wage rate,
agent, agricultural association,
agricultural labor, applicant,
Application for Temporary Employment
Certification, area of intended
employment, attorney, Certifying
Officer, Chief Administrative Law
Judge, corresponding employment,
Department of Homeland Security,
employer, Employment and Training
Administration, first date of need, H–2A
petition, job order, joint employment,
logging employment, maximum period
of employment, metropolitan statistical
area, National Processing Center, Office
of Foreign Labor Certification, OFLC
Administrator, period of employment,
piece rate, pine straw activities, place of
employment, reforestation activities,
Secretary of Labor, successor in interest,
temporary agricultural labor
certification, United States, U.S.
Citizenship and Immigration Services,
U.S. worker, wages, Wage and Hour
Division, WHD Administrator, and work
contract.
B. Section 501.9, Surety Bond
The Department proposes revisions to
WHD’s surety bond provision at 29 CFR
501.9 as described fully in the
discussion of proposed 20 CFR 655.132
above.
C. Section 501.20, Debarment and
Revocation
The Department proposes revisions to
WHD’s debarment provisions at 29 CFR
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A. Executive Order 12866: Regulatory
Planning and Review; Executive Order
13563: Improving Regulation and
Regulatory Review; and Executive Order
13771: Reducing Regulation and
Controlling Regulatory Costs
Under E.O. 12866, the OMB’s Office
of Information and Regulatory Affairs
(OIRA) determines whether a regulatory
action is significant and, therefore,
subject to the requirements of the E.O.
and review by OMB. 58 FR 51735.
Section 3(f) of E.O. 12866 defines a
‘‘significant regulatory action’’ as an
action that is likely to result in a rule
that: (1) Has an annual effect on the
economy of $100 million or more, or
adversely affects in a material way a
sector of the economy, productivity,
competition, jobs, the environment,
public health or safety, or state, local, or
tribal governments or communities (also
referred to as economically significant);
(2) creates serious inconsistency or
otherwise interferes with an action
taken or planned by another agency; (3)
materially alters the budgetary impacts
of entitlement grants, user fees, or loan
programs, or the rights and obligations
of recipients thereof; or (4) raises novel
legal or policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in the E.O. Id.
This proposed rule is an economically
significant regulatory action under this
section and was reviewed by OIRA.
E.O. 13563 directs agencies to propose
or adopt a regulation only upon a
reasoned determination that its benefits
justify its costs; the regulation is tailored
to impose the least burden on society,
consistent with achieving the regulatory
objectives; and in choosing among
alternative regulatory approaches, the
agency has selected those approaches
that maximize net benefits. E.O. 13563
recognizes that some benefits are
difficult to quantify and provides that,
where appropriate and permitted by
law, agencies may consider and discuss
qualitatively values that are difficult or
impossible to quantify, including
equity, human dignity, fairness, and
distributive impacts.
E.O. 13771 directs agencies to reduce
regulation and control regulatory costs
by eliminating at least two existing
regulations for each new regulation, and
by controlling the cost of planned
regulations through the budgeting
process. See 82 FR 9339. In relevant
part, OMB defines an ‘‘E.O. 13771
regulatory action’’ as ‘‘a significant
regulatory action as defined in section
3(f) of E.O. 12866 that has been finalized
and that imposes total costs greater than
zero.’’ 123 By contrast, an ‘‘E.O. 13771
deregulatory action’’ is defined as ‘‘an
action that has been finalized and has
total costs less than zero.’’ 124 For the
purpose of E.O. 13771, this proposed
rule, if finalized as proposed, is
expected to be an E.O. 13771
deregulatory action because while the
quantifiable rule familiarization, surety
bond, and recordkeeping costs
associated with the rule are larger than
the quantifiable cost savings, the
Department expects the total annualized
cost savings of this proposed rule would
outweigh the total annualized costs.
However, the final designation of this
rule’s E.O. 13711 status will be
determined in any final rule. In the
interim, the Department requests public
comments regarding this determination.
123 Office of Information and Regulatory Affairs,
Guidance Implementing Executive Order 13771,
Titled ‘‘Reducing Regulation and Controlling
Regulatory Costs’’ (Apr. 5, 2017), https://
www.whitehouse.gov/sites/whitehouse.gov/files/
omb/memoranda/2017/M-17-21-OMB.pdf.
501.20 to maintain consistency with the
proposed changes to 20 CFR 655.182(a).
The Department has long had concerns
about the role of agents in the program,
and has questioned whether the
participation of agents in the H–2A
labor certification process is
undermining compliance with program
requirements. Under the current
debarment provision, however, the
Department can debar agents and
attorneys only for their participation in
the employer’s substantial violations.
Thus, to increase program integrity and
promote compliance with program
requirements, the Department proposes
to permit the debarment of agents and
attorneys for their own misconduct,
rather than solely for participating in
the employer’s violations. Proposed 29
CFR 501.20 would permit WHD to debar
an agent or employer for substantially
violating a term or condition of the
temporary agricultural labor
certification. The Department is
otherwise retaining 29 CFR 501.20 as in
the current regulation.
D. Terminology and Technical Changes
In addition to proposed revisions to
conform to the terminology and
technical changes proposed to 20 CFR
part 655, subpart B, the Department
proposes minor changes throughout part
501 to correct typographical errors and
improve clarity and readability. Such
changes are nonsubstantive and do not
change the meaning of the current text.
For example, the Department proposes
throughout part 501 to replace the
phrase ‘‘the regulations in this part’’
with the phrase ‘‘this part.’’
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IV. Administrative Information
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36229
The cost savings associated with the
rule will result from the proposed
electronic processing of applications,
digitized application signatures, the
ability to stagger entry of workers under
a single Application for Temporary
Employment Certification, and the
electronic sharing of job orders
submitted to the NPC with the SWAs
(655.150).
Outline of the Analysis
Section V.A.1 describes the need for
the proposed rule, and section V.A.2
describes the process used to estimate
the costs of the rule and the general
inputs used, such as wages and number
of affected entities. Section V.A.3
explains how the provisions of the
proposed rule will result in quantifiable
costs, cost savings, and transfer
payments, and presents the calculations
the Department used to estimate them.
In addition, section V.A.3 describes the
qualitative costs, cost-savings, transfer
payments, and benefits of the proposed
rule. Section V.A.4 summarizes the
estimated first-year and 10-year total
and annualized costs, cost savings, net
costs, perpetuated net costs, and transfer
payments of the proposed rule. Finally,
section V.A.5 describes the regulatory
alternatives that were considered during
the development of the proposed rule.
Summary of the Analysis
The Department estimates that the
proposed rule will result in costs, cost
savings, and transfer payments. As
shown in Exhibit 1, the proposed rule
is expected to have an average annual
quantifiable cost of $4.01 million and a
total 10-year quantifiable cost of $28.18
million at a discount rate of 7 percent.
The proposed rule is estimated to have
annual quantifiable cost savings of $1.32
million and total 10-year quantifiable
cost savings of $10.39 million at a
discount rate of 7 percent. Also, the
proposed rule is estimated to result in
annual transfer payments of $95.28
million and total 10-year transfer
payments of $673.07 million at a
discount rate of 7 percent. The
Department estimates that the proposed
rule would result in total annualized net
quantifiable costs of $2.62 million at a
discount rate of 3 percent and $2.53
million at a discount rate of 7 percent,
both expressed in 2017 dollars. The
Department was unable to quantify cost
savings resulting from fewer incomplete
or incorrect applications due to lack of
data. The Department invites comments
124 Id.
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regarding how this impact may be
estimated.
EXHIBIT 1—ESTIMATED MONETIZED COSTS, COST SAVINGS, NET COSTS, AND TRANSFER PAYMENTS OF THE PROPOSED
RULE
[2017 $millions]
Costs
Undiscounted 10-Year Total ............................................................................
10-Year Total with a Discount Rate of 3% ......................................................
10-Year Total with a Discount Rate of 7% ......................................................
10-Year Average ..............................................................................................
Annualized at a Discount Rate of 3% .............................................................
Annualized with at a Discount Rate of 7% ......................................................
Cost
savings
$40.11
34.21
28.18
4.01
4.01
4.01
$13.21
11.85
10.39
1.32
1.39
1.48
Perpetuated Net Costs * with a Discount Rate of 7% .................................................................
Net
costs *
$26.89
22.36
17.79
2.69
2.62
2.53
Transfer
payments
$952.83
803.57
673.07
95.28
94.20
114.41
3.24
* Net Costs = [Total Costs]¥[Total Cost Savings].
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The total cost of the proposed rule is
associated with rule familiarization and
recordkeeping requirements for all H–
2A employers,125 as well as increases in
the amount of surety bonds required for
H–2ALCs. The two largest contributors
to the cost savings of the proposed rule
are the electronic submission of
applications and application signatures,
including the use of electronic surety
bonds, and the electronic sharing of job
orders submitted to the NPC with the
SWAs. Transfer payments are the results
of changes to the AEWR and changes to
the requirement that employers provide
or pay for transportation and
subsistence for certain workers for the
trips between the worker’s place of
recruitment and the place of
employment. See the costs, cost savings,
and transfer payments subsections of
section V.A.3 (Subject-by-Subject
Analysis) below for a detailed
explanation.
The Department was unable to
quantify some cost, cost-savings,
transfer payments, and the benefits of
the proposed rule. The Department
describes them qualitatively in section
V.A.3 (Subject-by-Subject Analysis).
The Department invites comments
regarding the assumptions, data sources,
and methodologies used to estimate the
costs, cost savings, and transfer
payments from this proposed rule.
1. Need for Regulation
The Department has determined that
new rulemaking is necessary for the H–
2A program and furthers the goals of
E.O. 13788, Buy American and Hire
American. See 82 FR 18837. The ‘‘Hire
125 The
Department does not consider the cost of
H–2A employers learning how to e-file. Based on
H–2A Certification data from FY 2019, 94.1 percent
of applications are submitted electronically. Almost
of all the remaining 5.9% of H–2A applicants have
access to email, so very few applicants will need
to learn how to e-file.
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American’’ directive of the E.O.
articulates the executive branch policy
to rigorously enforce and administer the
laws governing entry of nonimmigrant
workers into the United States in order
to create higher wages and employment
rates for U.S. workers and to protect
their economic interests. Id. sec. 2(b). It
directs federal agencies, including the
Department, to propose new rules and
issue new guidance to prevent fraud and
abuse in nonimmigrant visa programs,
thereby protecting U.S. workers. Id. sec.
5.
It is the policy of the Department to
increase protections of U.S. workers and
vigorously enforce all laws within its
jurisdiction governing the
administration and enforcement of
nonimmigrant visa programs. This
includes the coordination of the
administration and enforcement
activities of ETA, WHD, and the Office
of the Solicitor in the promotion of the
hiring of U.S. workers and the
safeguarding of working conditions in
the United States.126
Consistent with the E.O.’s mandate,
the Department’s policy, and the goal of
modernizing the H–2A program, the
Department proposes to update its
regulations to ensure that employers can
access legal agricultural labor, without
undue cost or administrative burden,
while maintaining the program’s strong
protections for the U.S. workforce. The
changes proposed in this NPRM would
streamline the Department’s review of
H–2A applications and enhance WHD’s
enforcement capabilities, thereby
removing workforce instability that
hinders the growth and productivity of
our nation’s farms, while allowing
126 See News Release, U.S. Secretary of Labor
Protects Americans, Directs Agencies to
Aggressively Confront Visa Program Fraud and
Abuse (June 6, 2017), https://www.dol.gov/
newsroom/releases/opa/opa20170606.
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aggressive enforcement against program
fraud and abuse that undermine the
interests of U.S. workers. Among other
proposals to achieve these goals, the
Department proposes to: (1) Require
mandatory e-filing and accept electronic
signatures; (2) revise the current wage
methodology so that the AEWR better
protects against adverse effect on an
occupation-specific basis and to
modernize the prevailing wage
methodology to provide accurate and
reliable prevailing wage rates consistent
with modern budget realities; (3) update
surety bond and clarify recordkeeping
requirements; (4) expand the definition
of ‘‘agricultural labor or services’’ such
that ‘‘reforestation activities’’ and ‘‘pine
straw activities’’ are included in the H–
2A program; (5) authorize SWAs (or
other appropriate authorities) to inspect
and certify employer-provided housing
for up to 24 months; (6) permit the
staggering of H–2A workers; (7) replace
the current 50 percent rule, which
requires employers of H–2A workers to
hire any qualified, eligible U.S. worker
who applies to the employer during the
first 50 percent of the work contract
period, with a requirement to hire such
workers through 30 days of the contract
period, unless the employer chooses to
stagger the entry of H–2A workers, in
which case a longer hiring obligation
applies; and (8) revise the debarment
provisions to allow the Department to
debar agents and attorneys, and their
successors in interest, based on their
own substantial violations.
2. Analysis Considerations
The Department estimated the costs,
cost savings, and transfer payments of
the proposed rule relative to the existing
baseline (i.e., the current practices for
complying, at a minimum, with the H–
2A program as currently codified at 20
CFR part 655, subpart B).
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In accordance with the regulatory
analysis guidance articulated in OMB’s
Circular A–4 and consistent with the
Department’s practices in previous
rulemakings, this regulatory analysis
focuses on the likely consequences of
the proposed rule (i.e., costs, cost
savings, and transfer payments that
accrue to entities affected). The analysis
covers 10 years (from 2020 through
2029) to ensure it captures major costs,
cost savings, and transfer payments that
accrue over time. The Department
expresses all quantifiable impacts in
2017 dollars and uses discount rates of
3 and 7 percent, pursuant to Circular
A–4.
Exhibit 2 presents the number of
affected entities that are expected to be
affected by the proposed rule. The
number of affected entities is calculated
using data from the OFLC certification
data from 2016 and 2017. The
Department provides these estimates
and uses them throughout this analysis
to estimate the costs, cost savings, and
transfer payments of the proposed rule.
EXHIBIT 2—NUMBER OF AFFECTED
ENTITIES BY TYPE
[FY 2016–2017 average]
Entity type
H–2A Applications Processed ..
Unique H–2A Applicants ..........
Certified H–2A Employers ........
Certified H–2A Workers ............
Number
9,391
127 7,282
128 7,023
129 187,740
Growth Rate
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The Department estimates a 14
percent annual growth rate in the
number of certified applications and in
applications processed based on
historical H–2A program data on labor
127 This average includes 103 unique H–2B
applicants that will now be considered H–2A.
128 This average includes 55 certified H–2B
employers that will now be considered H–2A. 3,990
workers were estimated from FY 2016–2017
program data.
129 This average includes 3,990 certified H–2B
workers that will now be considered H–2A.
130 The projected growth rate for the agricultural
sector was obtained from BLS’s Industrial
Employment Projections and Output, which may be
accessed at https://www.bls.gov/emp/data/industryout-and-emp.htm.
131 The total unique H–2A applicants in 2016 and
2017 were 7,560 and 7,004, respectively. The total
certified H–2A employers in 2016 and 2017 were
6,780 and 7,265, respectively. This includes H–2B
applicants and employers that will now be
considered H–2A.
132 Bureau of Labor Statistics. (2018). May 2017
National Occupational Employment and Wage
Estimates: 13–1071—Human Resources Specialist.
Retrieved from: https://www.bls.gov/oes/current/
oes131071.htm.
133 Office of Personnel Management, Salary Table
2018—CHI Incorporating the 1.4% General
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certifications for FY 2012–2018. The
Department also estimates a 19 percent
geometric growth rate in certified H–2A
workers, a 4 percent growth rate in H–
2A certified employers, and a 16 percent
growth rate in H–2A certified labor
contractors. The average annual growth
rates were applied to the estimated
costs, cost savings, and transfer
payments of the proposed rule to forcast
participation in the H–2A program.
Employment projections from BLS
forecast that cumulative employment in
the agriculture sector will not change
through FY 2026.130 As such, the
growth rates presented in this rule are
the upmost upper bounds of certified
H–2A workers in the 10-year analysis
time-frame.
36231
Compensation Rates
In section V.A.3 (Subject-by-Subject
Analysis), the Department presents the
costs, including labor, associated with
the implementation of the provisions of
the proposed rule. Exhibit 3 presents the
hourly compensation rates for the
occupational categories expected to
experience a change in the number of
hours necessary to comply with the
proposed rule. The Department used the
mean hourly wage rate for private sector
human resources specialists 132 and the
wage rate for federal employees at the
NPC (Grade 12, Step 5).133 To account
for fringe benefits and overhead costs,
the mean hourly wage rate has been
doubled.134 The Department adjusted
these base wage rates using a loaded
wage factor to reflect total
compensation, which includes nonwage factors such as health and
retirement benefits. First, the
Department calculated a loaded wage
rate of 1.44 for private industry workers
by calculating the ratio of average total
compensation 135 to average wages and
salaries in 2017 for the private sector.136
In addition, the Department added 56
percent to account for overhead costs.
For the Federal Government, the
Department multiplied the loaded wage
rate for private workers (1.44) by the
ratio of the loaded wage factors for
Federal workers to private workers
(1.13) using data from a Congressional
Budget Office report 137 to estimate the
2017 loaded wage rate for Federal
workers of 1.63. The Department then
multiplied the loaded wage factor by the
corresponding occupational category’s
wage rate to calculate an hourly
compensation rate. In addition, the
Department added 37 percent to account
for overhead costs.
The Department used the hourly
compensation rates presented in Exhibit
3 throughout this analysis to estimate
the labor costs for each provision.
Schedule Increase and a Locality Payment of
27.47% for the Locality Pay Area of ChicagoNaperville, IL–IN–WI (Jan. 2018), https://
www.opm.gov/policy-data-oversight/pay-leave/
salaries-wages/salary-tables/pdf/2018/CHI_h.pdf.
134 Source: U.S. Department of Health and Human
Services, Guidelines for Regulatory Impact Analysis
(2016), https://aspe.hhs.gov/system/files/pdf/
242926/HHS_RIAGuidance.pdf. In its guidelines,
HHS states, ‘‘as an interim default, while HHS
conducts more research, analysts should assume
overhead costs (including benefits) are equal to 100
percent of pre-tax wages.’’ HHS explains that 100
percent is roughly the midpoint between 46 and
150 percent, with 46 percent based on ECEC data
that suggest benefits average 46 percent of wages
and salaries, and 150 percent based on the private
sector ‘‘rule of thumb’’ that fringe benefits plus
overhead equal 150 percent of wages. To isolate the
overhead costs from HHS’s 100 percent assumption.
135 Bureau of Labor Statistics, 2017 Employer
Costs for Employee Compensation, https://
www.bls.gov/ncs/ect/data.htm. Total compensation
for all workers. Average Series ID
CMU2010000000000D, CMU2010000000000P. To
calculate the average total compensation in 2017,
the Department averaged the total compensation for
all workers for quarters 1–4.
136 Bureau of Labor Statistics, 2017 Employer
Costs for Employee Compensation, https://
www.bls.gov/ncs/ect/data.htm. Wages and salaries
for all workers. Average Series ID
CMU2020000000000D, CMU2020000000000P. To
calculate the average wage and salary in 2017, the
Department averaged the wages and salaries for all
workers for quarters 1–4.
137 Congressional Budget Office. (2012).
Comparing the compensation of federal and
private-sector employees. Tables 2 and 4. Retrieved
from https://www.cbo.gov/sites/default/files/112thcongress-2011-2012/reports/01-30-FedPay_0.pdf.
The Department calculated the loaded wage rate for
Federal workers of all education levels of 1.64 by
dividing total compensation by wages (1.63 =
$52.50/$32.30). The Department then calculated the
loaded wage rate for private sector workers of all
educations levels of 1.44 by dividing total
compensation by wages (1.44 = $45.40/$31.60).
Finally, the Department calculated the ratio of the
loaded wage factors for Federal to private sector
works of 1.13 (1.13 = 1.63/1.44).
Estimated Number of Workers and
Change in Hours
The Department presents the
estimated average number of workers
and the change in hours required to
comply with the proposed rule per
worker for each activity in section V.A.3
(Subject-by-Subject Analysis). For some
activities, such as rule familiarization
and application submission, all
applicants will experience a change. For
other activities, the proposed will only
affect certified H–2A employers. These
numbers are derived from OFLC
certification data for the years 2016 and
2017 and represent an average of the
two FYs.131 To calculate these
estimates, the Department estimated the
average amount of time (in hours)
needed for each activity to meet the new
requirements relative to the baseline.
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EXHIBIT 3—COMPENSATION RATES
[2017 dollars]
Grade
level
Position
Base hourly
wage rate
Loaded wage factor
Overhead costs
Hourly
compensation
rate
(a)
(b)
(c)
d=a+b+c
$14.01 ($31.84 × 0.44)
$17.83 ($31.84 × 0.56)
$63.68
$16.29 ($44.02 × 0.37)
$88.04
Private Sector Employees
HR Specialist .........................................
N/A
$31.84
Federal Government Employees
12
3. Subject-by-Subject Analysis
The Department’s analysis below
covers the estimated costs, cost savings,
and transfer payments of the proposed
rule. In accordance with Circular A–4,
the Department considers transfer
payments as payments from one group
to another that do not affect total
resources available to society.
The Department emphasizes that
many of the provisions in the proposed
rule are existing requirements in the
statute, regulations, or regulatory
guidance. The proposed rule codifies
these practices under one set of rules;
therefore, they are not considered
‘‘new’’ burdens resulting from the
proposed rule. Accordingly, the
regulatory analysis focuses on the costs,
cost savings, and transfer payments that
can be attributed exclusively to the new
requirements in the proposed rule.
multiplied by the hourly compensation
rate of Human Resources Specialists
($63.68 per hour). This calculation
results in a one-time undiscounted cost
of $1,053,057 in the first year after the
proposed rule takes effect. This onetime cost yields a total average annual
undiscounted cost of $105,306. The
annualized cost over the 10-year period
is $123,450 and $149,932 at discount
rates of 3 and 7 percent, respectively.
The Department invites comments
regarding the assumptions and data
sources used to estimate the costs
resulting from this provision.
Costs
The following sections describe the
costs of the proposed rule.
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Quantifiable Costs
a. Rule Familiarization
When the proposed rule takes effect,
H–2A employers will need to
familiarize themselves with the new
regulations. Consequently, this will
impose a one-time cost in the first year.
To estimate the first-year cost of rule
familiarization, the Department applied
the geometric average growth rate of H–
2A applications (14 percent) to the
number of unique H–2A applications
(7,282) to determine the annual number
H–2A applications impacted in the first
year. The number of H–2A applications
(8,268) was multiplied by the estimated
amount of time required to review the
rule (2 hours).138 This number was then
138 This estimate reflects the nature of the
proposal. As a proposal to amend to parts of an
existing regulation, rather than to create a new rule,
the 2-hour estimate assumes a high number of
readers familiar with the existing regulation.
Further, portions of this proposal (e.g., portions of
§§ 655.200 through 655.235) reprint existing
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$44.02
$27.73 ($44.02 × 0.63)
National Processing Center Staff ..........
b. Surety Bond Amounts
An H–2ALC is required to submit
with its Application for Temporary
Employment Certification proof of its
ability to discharge its financial
obligations under the H–2A program in
the form of a surety bond.139 Based on
the Department’s experience
implementing the bonding requirement
and its enforcement experience with H–
2ALCs, the Department proposes
updates to the regulations. These
updates are intended to clarify and
streamline the existing requirement and
to strengthen the Department’s ability to
collect on such bonds. Further, the
Department proposes adjustments to the
required bond amounts to reflect annual
increases in the AEWR and to address
the increasing number of certifications
that cover a significant number of
workers under a single application and
surety bond.
Currently, the required bond amounts
range from $5,000 to $75,000,
depending on the number of H–2A
workers employed by the H–2ALC
under the labor certification. For less
regulatory provisions for ease of reference only. In
addition, a major component of the Department’s
H–2A regulations—employer-conducted
recruitment—is excluded from this proposal; they
are the subject of a separate rulemaking. See
Modernizing Recruitment Requirements for the
Temporary Employment of H–2A Foreign Workers
in the United States. 83 FR 55985 (Nov. 9, 2018).
139 See 20 CFR 655.132(b)(3); 29 CFR 501.9.
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than 25 workers, the required bond
amount is currently $5,000. These
amounts increase to $10,000, $20,000,
$50,000, and $75,000 for 25 to 49
workers, 50 and 74 workers, 75 to 100
workers, and more than 100 workers,
respectively. The Department proposes
to adjust the existing required bond
amounts proportionally, on an annual
basis, to the degree that a national
average AEWR exceeds $9.25. The
Department will calculate and publish
an average AEWR annually when it
calculates and publishes AEWRs in
accordance with § 655.120(b). The
average AEWR will be calculated as a
simple average of these AEWRs. To
calculate the updated bond amounts,
the Department will use the current
bond amounts as a base, multiply the
base by the average AEWR, and divide
that number by $9.25. Until the
Department publishes an average
AEWR, the updated amount will be
based on a simple average of the 2018
AEWRs, which the Department
calculates to be $12.20. For instance, for
a certification covering 100 workers, the
required bond amount would be
calculated by the Department using the
following formula:
$75,000 (base amount) × $12.20 ÷ $9.25
= $98,918.92 (updated bond
amount).
In subsequent years, the 2018 average
AEWR of $12.20 would be replaced in
this calculation by the average AEWR
calculated and published in that year.
The Department also proposes to
increase the required bond amounts for
certifications covering 150 or more
workers. For such certifications, the
bond amount applicable to certifications
covering 100 or more workers is used as
a starting point and is increased for each
additional 50 workers. The interval by
which the bond amount increases will
be updated annually to reflect increases
in the AEWR. This value will be based
on the amount of wages earned by 50
workers over a 2-week period and, in its
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initial implementation, would be
calculated using the 2018 average
AEWR as demonstrated:
$12.20 (2018 Average AEWR) × 80 hours ×
50 workers = $48,800 in additional bond
for each additional 50 workers over 100.
For example, a certification covering
a crew of 150 workers would require
additional surety in the amount of
$48,800 (150¥100 = 50; 1 additional set
of 50 workers). For a crew of 275
workers, additional surety of $146,400
would be required (275¥100 = 175; 175
÷ 50 = 3.5; this is 3 additional sets of
50 workers). As explained above, this
additional surety is added to the bond
amount required for certifications of 100
or more workers.
While this may represent a significant
increase in the face value of the required
bond, the Department understands that
employer premiums for farm labor
contractor surety bonds generally range
from 1 to 4 percent on the standard
bonding market (i.e., contractors with
fair/average credit or better).140
For this analysis, the Department
assumes that the bond premium faced
by H–2ALCs will be 4 percent. To
calculate the costs of the proposed
increase in the required bond amounts,
the Department first calculated the
36233
average number of H–2ALCs (including
those labor contractors in the H–2B
program that are becoming H–2A) in
FYs 2016 and 2017 and the current
required bond amounts. Also, the
Department calculated the average
number of additional sets of 50 workers
in FYs 2016 and 2017. Next, the
Department calculated the proposed
required bond amounts for each
category of number of workers using the
2018 national average AEWR of $12.20,
as well as the proposed bond amount for
each set of additional 50 workers per H–
2ALC. Exhibit 4 presents these
calculations.
EXHIBIT 4—COST INCREASES DUE TO CHANGES IN REQUIRED BOND AMOUNTS
Number of workers
Existing
required bond
amount
Average
number of
H–2ALCs in
FYs 16 and 17
Proposed
required bond
amount
Change in
required bond
amount
$5,000
10,000
20,000
50,000
75,000
N/A
295
88
54.5
38
147
a 667.5
$6,594.59
13,189.19
26,378.38
65,945.95
98,918.92
48,800.00
$1,594.59
3,189.19
6,378.38
15,945.95
23,918.92
48,800.00
Fewer than 25 ......................................................................
25–49 ...................................................................................
50–74 ...................................................................................
75–100 .................................................................................
More than 100 ......................................................................
Each Additional Set of 50 Workers Greater than 100 .........
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a This
Cost
increase
$63.78
127.57
255.14
637.84
956.76
1,952.00
value represents the total number of additional sets of 50 for H–2ALCs with more than 100 workers.
The Department calculated the firstyear cost for H–2ALCs with fewer than
25 workers by multiplying the average
number of H–2ALCs in FYs 2016 and
2017 with fewer than 25 workers (295
H–2ALCs) by the change in the required
bond amount ($1,594.59) and the
assumed bond premium (4 percent). The
Department calculated this for each
category of number of workers.
Additionally, the Department calculated
the total cost due to the proposed
required bond amounts for additional
sets of 50 workers by multiplying the
average additional sets of 50 workers
(667.5 H–2ALCs) in the FYs 2016 and
2017 by the required bond amount
($48,800.00) and the assumed bond
premium (4 percent). The geometric
growth rate of H–2A labor contractors
(16 percent) was applied to account for
anticipated increased H–2A applicants.
These costs were then summed to obtain
the total annual costs resulting from the
increase in bond premiums. This
calculation yields an average annual
undiscounted cost of $3.74 million.
The total cost from the proposed
required bond amounts over the 10-year
period is estimated at $37.36 million
undiscounted, or $31.69 million and
$25.89 million at discount rates of 3 and
7 percent, respectively. The annualized
cost of the 10-year period is $3.72
million and $3.69 million at discount
rates of 3 and 7 percent, respectively.
The Department invites comments
regarding the assumptions and data
sources used to estimate the costs
resulting from this provision.
140 The Department reviewed premium rates
provided on the websites of companies that offer
farm labor contractor bonds and, as noted in the
discussion of sections 655.132 and 29 CFR 501.9,
above, found that employer premiums generally
range from 1 to 4 percent on the standard bonding
market (i.e., contractors with fair/average credit or
better). The Department assumed contractors would
have fair/average credit and so used a premium of
4 percent to approximate the rate on the high side
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c. Recordkeeping
i. Earnings Records
The Department is considering
whether to require an employer to
maintain a worker’s email address and
phone number(s) in the worker’s home
country when available. This
information would greatly assist the
Department in contacting an H–2A
worker in the worker’s home country,
should the Department need to do so to
conduct employee interviews as part of
an investigation, to secure employee
testimony during litigation, or to
distribute back wages.
To calculate the estimated
recordkeeping costs associated with
collecting and maintaining this
information, the Department first
multiplied the number of certified H–2A
employers (7,023 employers) by the 4-
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percent annual growth rate of ceritifed
H–2A employers to determine the
annual impacted population of H–2A
employers. The impacted number was
then multiplied by the estimated time
required to collect and maintain this
information (2 minutes) to obtain the
total amount of recordkeeping time
required. The Department then
multiplied this estimate by the hourly
compensation rate for Human Resources
Specialists ($63.68 per hour). This
yields an annual cost ranging from
$15,557 in 2020 to $22,839 in 2029. The
Department invites comments regarding
the assumptions and data sources used
to estimate the costs resulting from this
provision.
ii. Housing
The Department proposes to authorize
the SWAs (or other appropriate
authorities) to inspect and issue an
employer-provided housing certification
valid for up to 24 months. Under the
proposal, an employer must self-certify
that the employer-provided housing
remains in compliance for a subsequent
Application for Temporary Employment
Certification filed during the validity
for premiums on the standard bond market. The
Department seeks comments on the impact of the
proposed updates to the required bond amounts.
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period of the official housing
certification.
To calculate the estimated
recordkeeping costs associated with
maintaining records of these
certifications, the Department first
multiplied the number of certified H–2A
employers (7,023 employers) by the 4
percent annual growth rate of ceritifed
H–2A employers to determine the
annual impacted population of H–2A
employers. The impacted number was
then multiplied by the assumed
percentage of employers per year that
will self-certify each year (100 percent).
This amount was then multiplied by the
estimated time required to maintain this
information (2 minutes) to calculate the
total amount of recordkeeping time
required. This total time was then
multiplied by the hourly compensation
rate for Human Resources Specialists
($63.68 per hour). This yields an annual
cost ranging from $15,557 in 2020 to
$22,839 in 2029. This assumes that the
SWAs will exercise their right to certify
housing for more than 1 year. Some
SWAs do not issue housing
certifications valid for more than 1 year
as a rule; others do not on a case-by-case
basis. It would be accurate to say that
employers would be assumed to selfcertify 100 percent whenever the SWA’s
certification permitted it. The
Department invites comments regarding
the assumptions and data sources used
to estimate the costs resulting from this
provision.
iii. Abandonment of Employment or
Termination for Cause
The Department proposes to revise
§ 655.122(n) to require an employer to
maintain records of notification detailed
in the same section for not less than 3
years from the date of the certification.
An employer is relieved from the
requirements relating to return
transportation and subsistence costs and
three-fourth guarantee when the
employer notifies the NPC (and the DHS
in case of an H–2A worker), in a timely
manner, if a worker voluntarily
abandons employment before the end of
the contract period or is terminated for
cause. Additionally, the employer is not
required to contact its former U.S.
workers, who abandoned employment
or were terminated for cause, to solicit
their return to the job.
To estimate the recordkeeping costs
associated with maintaining records of
these notifications, the Department first
multiplied the number of certified H–2A
employers (7,023) by the 4 percent
annual growth rate of ceritifed H–2A
employers to determine the annual
impacted population of H–2A
employers. The impacted number was
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then multiplied by the assumed
percentage of employers per year that
will have 1 or more workers abandon
employment or be terminated for cause
(70 percent). This amount was then
multiplied by the estimated time
required to maintain these records (2
minutes) to estimate the total amount of
recordkeeping time required. This total
time was then multiplied by the hourly
compensation rate for Human Resources
Specialists ($63.68 per hour). This
yields an annual cost ranging from
$10,890 in 2020 to 15,988 in 2029. The
Department invites comments regarding
the assumptions and data sources used
to estimate the costs resulting from this
provision.
mutlipled by the amount of time spent
reviewing an application (1 hour), the
hourly wage for DOL staff ($44.02), and
the sum of the loaded wage factor and
overhead cost for the federal
government (2.00). Costs to employers
and DOL were then summed. This
calculation yields an average annual
undiscounted cost of $117,676.
The total cost from the proposed
increase in forestry applications over
the 10-year period is estimated at $1.18
million undiscounted, or $1,023,229
and $863,624 at discount rates of 3 and
7 percent, respectively. The annualized
cost of the 10-year period is $119,954
and $122,961 at discount rates of 3 and
7 percent, respectively.
iv. Total Recordkeeping Costs
Non-Quantifiable Costs and Transfers
The total cost from the proposed
recordkeeping requirements over the 10year period is estimated at $0.51 million
undiscounted, or $0.45 million and
$0.38 million at discount rates of 3 and
7 percent, respectively. The annualized
cost of the 10-year period is $0.052
million and $0.054 million at discount
rates of 3 and 7 percent, respectively.
a. Definition of Agriculture
d. Reforestation Applications
The proposed rule mandates all
forestry employers reclassified as H–2A
employers must now submit an
application per each crew, rather than
one application for multiple crews. The
Department estimates that this will
increase the number of applications
required from each forestry employer by
two. The change impacts the average of
75.5 forestry employers.141 The
Department applied the growth rate of
H–2A certified employers (4 percent) to
determine the annual number of forestry
employers impacted. The annual
number of forestry employers was then
multiplied by the increase in
applications (2) to determine the annual
number of increased applications. To
estimate the costs to forestry employers,
the Department multiplied the annual
number of applications by the cost per
application ($460).142 The Department
also multiplied the annual number of
applications by the number of hours it
takes for a Human Resources Specialist
to file the application (1), the Human
Resources Specialist’s compensation
rate ($31.84 per hour), and the sum of
the loaded wage factor and overhead
cost for the private sector (2.00). To
determine the cost to DOL staff to
review increased applications, the
annual number of applications was
If finalized as proposed, the proposed
rule would expand the regulatory
definition of agriculture labor or
services pursuant to 8 U.S.C.
1011(a)(15)(H)(ii)(1) to include
reforestation and pine straw activities.
Consequently, nonimmigrant workers
engaged in reforestation and pine straw
activities, who historically have been
and are currently admitted under the H–
2B visa program, will be included in the
H–2A program.
As described earlier, the Department
believes that such transfer would not
impose significant burdens for the
employers. Protections that currently
apply to H–2A workers are generally
comparable to the protections afforded
to H–2B workers engaged in
reforestation and pine straw
activities.143 Additionally, work in both
the reforestation and pine straw
industries, as defined in the proposed
rule, often meets the definition of
agricultural employment under the
MSPA.144 In the Department’s
experience in the administration and
enforcement of the H–2B visa program,
the pine straw industry is not an active
user of the H–2B program, as workers
engaged in pine straw activities are
frequently local seasonal agricultural
workers. Consequently, the proposed
rule would not have significant effects
in that industry. Based on OFLC
performance data from FY 2016 and FY
2017, 3,990 represents the average
amount of reforestation and pinestraw
workers that receive H–2B visas per
year. The growth rates were applied to
143 See
80 FR 24041.
Morante-Navarro v. T & Y Pine Straw,
Inc., 350 F.3d 1163, 1170–72 (11th Cir. 2003);
Bresgal v. Brock, 843 F.2d 1163, 1171–72 (9th Cir.
1987); Davis Forestry Corp. v. Smith, 707 F.2d 1325,
1328 n.3 (11th Cir. 1983).
144 See
141 Average annual number of unique certified
forestry employers for FY16–17 from H–2B dataset.
142 Cost per USDA, see https://www.farmers.gov/
manage/h2a.
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project their numbers over the course of
the 10-year analysis timeframe.
The Department believes that there
are three potential transfer payments
from employers to workers—transfers
that result from potential expenses
workers would no longer need to bear—
under the proposed expanded definition
of agricultural labor or services. First,
under the H–2A program, an employer
must provide housing at no cost to all
H–2A workers. The employer must also
provide housing at no cost to those nonH–2A workers in corresponding
employment who are not reasonably
able to return to their residence within
the same day.145 Additionally, H–2A
employer-provided housing must be
inspected and certified, and rental and/
or public accommodations must meet
certain local, state, or federal
standards.146 Under the H–2B program,
however, an employer is not generally
required to pay for housing unless the
housing is primarily for the benefit or
convenience of the employer. For
example, an H–2B employer is required
to provide housing to itinerant workers
engaged in reforestation activities at no
cost to the workers due to the transient
nature of the occupation.147 In the
Department’s experience in the
administration and enforcement of the
H–2B program, itinerant workers
engaged in reforestation activities are
more likely to be provided with public
accommodations.
The Department believes workers
engaged in pine straw activities for H–
2B employers tend to be local workers,
and typically need not be provided with
housing because they stay in their own
homes. But, under the MSPA, if an
employer provides housing to workers,
the employer may charge the cost for
housing to the workers, if properly
disclosed.148 Consequently, the
Department believes that the H–2A
requirement at § 655.122(d)(1) would
result in transfer payments from
employers to nonimmigrant workers
engaged in the pine straw activities, due
to a shift in the cost of such housing.
Second, the Department’s H–2A
regulation at § 655.122(h)(3) requires an
employer to provide transportation for
workers between employer-provided
housing and the employer’s worksite at
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145 See
8 U.S.C. 1188(c)(4); 20 CFR 655.122(d)(1).
146 Id.
147 See
80 FR at 24063.
CFR 500.75–500.76 require an employer to
disclose to each worker in writing any benefits,
including transportation and housing, and any costs
to be charged for each of them. Additionally, 29
CFR 500.130 requires that a facility or real property
used as housing for any migrant agricultural worker
must comply with state and federal safety and
health standards applicable to such housing.
148 29
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no cost to the workers. Additionally, the
employer is required to provide
transportation between the employer’s
worksites, if there is more than one
worksite, at no cost to the workers.
Providing such transportation is
generally not a requirement under the
H–2B program. However, H–2B
employers of itinerant workers, many of
whom work in the reforestation
industry, must provide such
transportation because of the transient
nature of these itinerant workers.149
Consequently, the Department believes
that the H–2A requirement at
§ 655.122(h)(3) would impact only
employers in the pine straw industry
that are currently charging their workers
for the cost of transportation, since
employers would pay for such
transportation under this rule.150
Finally, the Department’s H–2A
regulation at § 655.122(g) requires an
employer to provide each worker with
three meals a day or furnish free and
convenient cooking and kitchen
facilities so that the workers can prepare
their own meals. Where an employer
provides the meals, the job offer must
state the charge, if any, to the worker for
such meals; the employer may deduct
any disclosed allowable meal charges
from the worker’s pay.151 In contrast,
the employer may not pass on to the
worker any additional costs that the
employer incurs for the provision of
meals that exceed the allowable meal
charge, unless a petition for higher meal
charge was submitted and granted.152
There is no similar meal requirement
under the H–2B program. Consequently,
the Department believes that the H–2A
requirement at § 655.122(g) would lead
to transfer payments from employers to
nonimmigrant workers engaged in the
reforestation and pine straw activities
under circumstances in which the
employer spends more than the
maximum allowable meal charge to
provide three meals a day.
The Department is unable to quantify
the estimated transfers described in this
section due to a lack of data regarding
the amount, if any, charged to
nonimmigrant workers by employers for
housing, transportation, and meals, and
wide variations nationally in the costs
associated with providing housing,
transportation, and meals. The
Department also proposes to codify
existing mobile housing standards for
workers engaged in animal shearing and
80 FR 24041 at 24063.
CFR 500.75–500.76 require an employer to
disclose to each worker in writing any benefits,
including transportation and housing, and any costs
to be charged for each of them.
151 See 20 CFR 655.173(a).
152 See 20 CFR 655.173(b).
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149 See
150 29
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36235
custom combining occupations, with
some modifications. The proposed
modifications include removing the
authority for an animal sheering
contractor to lease a mobile unit owned
by a crew member or other person or
make some other type of ‘‘allowance’’ to
the owner. The proposed standards
would also limit the circumstances
under which an employer’s mobile
housing unit can comply with range
housing standards, rather than the
mobile housing or standard housing
regulations, to those periods when the
work is performed on the range. The
proposed standards would provide
flexibility for employers to use existing
mobile housing units that may not fully
comply with the modified standards at
all times by allowing the employer to
supplement mobile units with required
facilities (e.g., access to showers at a
fixed-site such as an RV park) in order
to comply fully with all proposed
requirements. The Department is unable
to quantify the costs of these
modifications because it lacks data on
the number of animal shearing
employers that currently lease a mobile
unit or make some other ‘‘allowance’’
under the current TEGLs, the number of
employers who will supplement
existing mobile units with additional
facilities and to what extent, as well as
on the amount of time that workers
engaged in these occupations spend on
the range. Consequently, the
Department invites comment on this
analysis, including any relevant data or
information that might allow for a
quantitative analysis of possible transfer
effects described in this section.
b. Housing
If adopted without change, the
proposed rule includes potential costs
to H–2A employers that elect to secure
rental and/or public accommodations
for workers to meet their H–2A housing
obligations. Specifically, the proposal
requires that, in the absence of
applicable local standards addressing
those health or safety concerns
otherwise addressed by the OSHA
temporary labor camp standards at 29
CFR 1910.142(b)(2) (‘‘each room used
for sleeping purposes shall contain at
least 50 square feet for each occupant’’),
§ 1910.142(b)(3) (‘‘beds . . . shall be
provided in every room used for
sleeping purposes’’); § 1910.142(b)(9)
(‘‘In a room where workers cook, live,
and sleep a minimum of 100 square feet
per person shall be provided. Sanitary
facilities shall be provided for storing
and preparing food.’’); § 1910.142(b)(11)
(heating, cooking, and water heating
equipment installed properly);
§ 1910.142(c) (water supply);
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§ 1910.142(f) (laundry, handwashing,
and bathing facilities); and § 1910.142(j)
(insect and rodent control), the relevant
state standards will apply; in the
absence of applicable state standards
addressing such concerns, the relevant
OSHA temporary labor camp standards
will apply. Employers that currently
provide rental and/or public
accommodations that do not meet such
standards will be required to provide
different or additional accommodations.
For example, employers that currently
require workers to share beds will be
required to provide each worker with a
separate bed. To comply with the
proposal, such employers may be
required to book additional rooms or
provide different housing.
The Department is unable to quantify
an estimated cost due to a lack of data
as to the number of employers that
would be required to change current
practices under this proposal.
Consequently, the Department invites
comment on this analysis, including any
relevant data or information that might
allow for a quantitative analysis of
possible costs in the final rule.
c. Requirement To File Electronically
Currently, about six percent of
employers choose not to file
electronically. Under the proposed rule,
these employers would have two
options—to file electronically or to file
a request for accommodation because
they are unable or limited in their
ability to use or access electronic forms
as result of a disability or lack of access
to e-filing. The Department has not
estimated costs for employers’ time and
travel to file electronically when they
otherwise would not have. The
Department believes these costs will be
small.
The Department also has not
estimated any costs for accommodation
requests. The Department expects to
receive very few mailed-in
accommodation requests. In its H–1B
program, which has mandatory efiling—albeit from a very different set of
industry—the Department has not
received any requests for
accommodation due to a disability. Of
the handful of internet access requests
received annually, none were approved,
as the requestors had public access
nearby. For those requesting an
accommodation in H–2A, the
Department estimates that the cost to
apply would be de minimis, consisting
of the time and cost of a letter and
printing out forms.
Cost Savings
The following sections describe the
cost savings of the proposed rule.
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Quantifiable Cost Savings
a. Electronic Processing and Process
Streamlining
The Department proposes to
modernize and clarify the procedures by
which an employer files a job order and
an Application for Temporary
Employment Certification for H–2A
workers under §§ 655.121 and 655.130
through 655.132. The NPC will
electronically share job orders with
SWAs, which will result in both a
material cost and a time cost savings for
employers.
To ensure the most efficient
processing of all applications, the
Department must receive a complete
application for review. Based on the
Department’s experience administering
the H–2A program under the current
rule, a common reason for issuing a
NOD on an employer’s application
includes failure to complete all required
fields on a form, failure to submit one
or more supporting documents required
by the regulation at the time of filing, or
both. These incomplete applications
create unnecessary processing delays for
both the NPC and employers. In order
to address this concern, the Department
proposes to require an employer to
submit the Application for Temporary
Employment Certification and all
required supporting documentation
using an electronic method(s)
designated by the OFLC Administrator,
unless the employer cannot file
electronically due to disability or lack of
internet access. The technology system
used by the OFLC will not permit an
employer to submit an application until
the employer completes all required
fields on the forms and uploads and
saves to the pending application an
electronic copy of all required
documentation, including a copy of the
job order submitted in accordance with
§ 655.121. The Department estimates
that 80 percent of applications are
currently filed electronically and that
this proposed rule would significantly
increase the number of employers who
submit electronic applications. This
would result in material and time cost
savings for employers. Electronic
processing would also result in a time
cost savings for the NPC. The
Department also proposes that
employers may file only one
Application for Temporary Employment
Certification for place(s) of employment
contained within a single area of
intended employment covering the
same occupation or comparable work by
an employer for each period of
employment, which will reduce the
number of overall applications
submitted. Finally, the Department
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proposes to the use of electronic
signatures as a valid form of the
employer’s original signature and, if
applicable, the original signature of the
employer’s authorized attorney or agent.
To estimate the material cost savings
to employers due to electronic
processing, the Department assumed
that the proposed rule would result in
6 percent of H–2A employers switching
to electronic processing of applications.
Initially the Department reduced the
number of H–2A applications processed
(9,391) by the number of applications
made unnecessary by the staggering rule
(8,444) to determine an impacted
population of H–2A applications (947).
The growth rate of H–2A applications
(14 percent) was then applied to
determine the annual impacted number
of applications. The Department then
multiplied the percentage estimated to
switch to electronic processing of
applications (6 percent) by the annual
number of impacted H–2A applications
to obtain the number of employers who
would no longer be submitting by mail.
For each application, a material cost
was calculated by summing the price of
a stamp ($0.50), the price of an envelope
($0.04), and the total cost of paper. The
total cost of paper was calculated by
multiplying the cost of a sheet of paper
($0.02) by the number of pages in the
application (100 pages). The perapplication costs were then multiplied
by the number of applications who
would no longer be submitting by mail.
This yields average annual
undiscounted cost savings of $304.62.
The total material cost savings from
electronic processing over the 10-year
period is estimated at $43,046
undiscounted, or $24,596 and $20,135
at discount rates of 3 and 7 percent,
respectively. The annualized cost
savings over the 10-year period is
$304.36 and $303.91 at discount rates of
3 and 7 percent, respectively.
To estimate the time cost savings to
employers due to electronic processing,
the Department again estimated the
number of affected applications by
multiplying the assumed percentage of
employers that would switch to
electronic applications (6 percent) by
the total number of annually impacted
H–2A applications. The Department
assumed that the time savings due to
electronic submission (rather than
sealing and mailing an envelope) would
be 5 minutes. The time cost savings
were calculated by multiplying 5
minutes (0.083 hours) by the hourly
compensation rate for Human Resources
Specialists ($63.68 per hour). This time
cost savings was then multiplied by the
estimated number of applications
expected to switch to electronic
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submission. This yields average annual
undiscounted cost savings of $633.87.
The total time cost savings from
electronic processing over the 10-year
period is estimated at $6,339
undiscounted, or $5,403 and $4,442 at
discount rates of 3 and 7 percent,
respectively. The annualized cost
savings over the 10-year period is
$633.34 and $632.39 at discount rates of
3 and 7 percent, respectively.
To estimate the material cost savings
to employers due to the NPC sharing job
orders with the SWAs electronically, the
Department assumed that 100 percent of
unique H–2A applicants would be
affected. For each annually impacted H–
2A application, a material cost was
calculated by summing the price of a
stamp ($0.50), the price of an envelope
($0.04), and the total cost of paper. The
total cost of paper was calculated by
multiplying the cost of a sheet of paper
($0.02) by the number of pages in the
application (100 pages). The perapplication costs were then multiplied
by the number of applications who
would no longer be submitting by mail.
This yields average annual
undiscounted cost savings of $5,163.
The total material cost savings over
the 10-year period is estimated at
$51,630 undiscounted, or $44,004 and
$36,178 at discount rates of 3 and 7
percent, respectively. The annualized
cost savings over the 10-year period is
$5,159 and $5,151 at discount rates of
3 and 7 percent, respectively.
To estimate the time cost savings to
employers resulting from the NPC
electronically sharing job orders with
the SWAs, the Department again
assumed that 100 percent of unique H–
2A applicants would be affected. For
each annually impacted H–2A
application, the Department assumed
that the time savings due to electronic
submission (rather than sealing and
mailing an envelope) would be 5
minutes. The time cost savings were
calculated by multiplying 5 minutes in
hours (0.083 hours) by the hourly
compensation rate for Human Resources
Specialists ($63.68 per hour). This cost
savings was then multiplied by the
estimated number of applications
switching to electronic submission. This
yields average annual undiscounted cost
savings of $10,744.
The total time cost savings over the
10-year period is estimated at $107,436
undiscounted, or $91,568 and $75,283
at discount rates of 3 and 7 percent,
respectively. The annualized cost
savings over the 10-year period is
$10,735 and $10,719 at discount rates of
3 and 7 percent, respectively.
The Department assumes that the
DOL staff will save approximately 1
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hour for each application that is now
submitted electronically. To calculate
the time cost savings to the Federal
Government due to electronic
processing, the Department first
calculated the number of employers that
would now submit electronically by
multiplying the assumed percentage
(6percent) by the total number of
annually impacted H–2A applications.
This cost savings was then multiplied
by the per-application time cost savings,
calculated by multiplying the time
savings (1 hour) by the hourly
compensation rate for DOL staff ($88.04
per hour). This yields average annual
undiscounted cost savings of $10,558.
The total time cost savings over the
10-year period is estimated at $105,585
undiscounted, or $89,990 and $73,985
at discount rates of 3 and 7 percent,
respectively. The annualized cost
savings over the 10-year period is
$10,550 and $10,554 at discount rates of
3 and 7 percent, respectively. The
Department invites comments regarding
the assumptions and data sources used
to estimate the cost savings resulting
from this provision.
b. Staggering Worker Entry
The Department proposes to permit
the staggered entry of H–2A workers
into the United States. This proposal
permits an employer that receives a
temporary agricultural labor
certification and an approved H–2A
Petition to bring nonimmigrant workers
into the United States at any time
during the 120-day period after the first
date of need identified on the certified
Application for Temporary Employment
Certification without filing another H–
2A Petition. An employer that chooses
to stagger the entry of its workers must
notify the NPC electronically, or by mail
if permitted to do so, of its intent to
stagger and identify the period of time,
up to 120 days, during which the
staggering will take place. An
agricultural association filing as a joint
employer with its members need only
make a single request on behalf of its
members duly named on the application
and provide the NPC with the maximum
staggered entry timeframe.
Employers that wish to stagger the
entry of their workers must continue to
accept referrals of U.S. workers and hire
those who are qualified and eligible
through the period of staggering or the
first 30 days after the first date of need
identified on the certified Application
for Temporary Employment
Certification, whichever is longer.
Employers must also comply with the
requirement to update their recruitment
reports.
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36237
The Department expects the above
proposal will result in cost savings to
the employer. This is because currently,
an employer that needs agricultural
workers at different points of a season
must file separate Applications for
Temporary Employment Certification
containing a new start date for each
group of job opportunities. In addition,
an agricultural association filing as a
joint employer with a number of its
employer-members must currently
coordinate the amount and timing of
labor needed across numerous
employer-members growing a wide
array of different crops under the same
start date of work. The same agricultural
association must then file numerous
master applications, often one every
calendar month, covering substantially
the same employer-members that need
workers to perform work in the same
occupational classification based on a
different start date of work. Because the
proposal will reduce the number of
Applications for Temporary
Employment Certification an employer
that wishes to stagger must file and
decrease the time and expense of
coordinating master applications for
agricultural associations, the
Department expects this proposed
change to produce cost savings for the
employer. Some of these cost savings
may be offset by the time and expense
it will take for the employer to notify
the NPC of its intent to stagger, but the
Department expects this cost to be
minimal and the overall impact of its
proposal to be one of cost savings.
To estimate employer time cost
savings associated with the staggered
entry of workers into the United States,
the Department first calculated the total
number of employers eligible for
staggering (4,926) and applied the
annual growth rate of H–2A
applications certified (14 percent) and
the total number of certifications for the
same SOC, state, and employer (13,370)
and applied the H–2A certified
employer growth rate (4 percent). The
Department subtracts the number of
eligible employers from the total
number of duplicate certifications to
estimate the total number of repeat
applications annually that would no
longer be necessary under the proposed
rule (8,444). This number was then
multiplied by the assumed net time
savings (1.77 hours) and the total loaded
wage rate for employers ($63.68). This
yields average annual undiscounted cost
savings of $726,493.
The total time cost savings to
employers due over the 10-year period
is estimated at $7.26 million
undiscounted, or $6.52 million and
$5.73 million at discount rates of 3 and
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7 percent, respectively. The annualized
cost savings over the 10-year period is
$764,689 and $815,570 at discount rates
of 3 and 7 percent, respectively. The
Department invites comments regarding
the assumptions and data sources used
to estimate the cost savings resulting
from this provision.
To estimate time cost savings to the
Federal government associated with the
staggered entry of workers into the
United States, the Department
multiplied the total number of annual
repeat applications that would no longer
by necessary (8,444) by the assumed
time to review each repeat application
(1 hour) and the loaded wage rate for
Federal employees ($88.04). This yields
average annual undiscounted cost
savings of $567,460.
The total time cost savings to the
Federal government over the 10-year
period is estimated at $5.67 million
undiscounted, or $5.10 million and
$4.47 million at discount rates of 3 and
7 percent, respectively. The annualized
cost savings over the 10-year period is
$597,295 and $637,038 at discount rates
of 3 and 7 percent, respectively. The
Department invites comments regarding
the assumptions and data sources used
to estimate the cost savings resulting
from this provision.
Non-Quantifiable Cost Savings
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a. Cost Savings From Modernizing the
H–2A Program To Provide Employers
With Timely Access to Legal
Agricultural Labors
The Department proposes to institute
changes to modernize the H–2A
program and eliminate inefficiencies,
which will help ensure that employers
can access legal agricultural labor,
without undue cost or administrative
burden, while maintaining the
program’s strong protections for the U.S.
workforce. Among other proposals to
achieve these goals, the Department
proposes to (1) allow employers to start
work within a 14 calendar day period
after the anticipated start date of work
and stagger the entry of H–2A workers
to account for factors such as travel
delays and changing climatic conditions
that impact farm operations and costs;
(2) facilitate employers—especially
small growers who are unable to
individually offer full-time work—
jointly employing workers to perform
the same services or labor during the
same period of employment; (3)
streamline application processing by
providing employers who file compliant
job orders with the option to begin
positive recruitment of U.S. workers
prior to filing the H–2A application; (4)
increase the stability of any given
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employer’s workforce by replacing the
current 50 percent rule with a
requirement to hire workers through 30
days of the contract period; and (5)
expand the H–2A program to employers
performing ‘‘reforestation activities’’
and ‘‘pine straw activities’’ to reflect
how their workers share many of the
same characteristics as traditional
agricultural crews.
Through such changes, the rule would
reduce costly workforce instability that
hinders the growth and productivity of
our nation’s farms. The Department
believes such changes will result in cost
savings from a more viable and
productive workforce alternative. At the
same time, an H–2A program that is
more functional and reliable as a whole
would also reduce costs associated with
available but displaced U.S. workers, or
adverse effects to their wages and
working conditions.
b. Cost Savings From Efficiencies
Associated With Receiving More
Complete and Accurate Applications
The Department proposes to
modernize the process by which H–2A
employers submit job orders to the
SWAs and applications to the
Department through e-filing and
requiring the designation of a valid
email address for sending and receiving
official correspondence during
application processing, except where
the employer is unable or limited in its
ability to use or access electronic forms
as result of a disability, or lacks access
to e-filing.
The Department believes that
transitioning to electronic submissions
would result in cost savings to
employers and to the NPC. Currently,
submissions that are incomplete or
obviously inaccurate upon their receipt
result in a NOD on the employer’s
application. As a result, employers who
submit incomplete applications must
start the submission process from the
beginning. This can lead to costly delays
for employers, as well as costly
processing time for the NPC.
The requirement for electronic
submissions would reduce the number
of instances where incomplete
applications are submitted because
employers have not fully completed the
form prior to submitting it. E-filing
permits automatic notification that an
application is incomplete or obviously
inaccurate and provides employers with
an immediate opportunity to correct the
errors or upload missing
documentation. Additionally, the
adoption of electronic submissions
should reduce the amount of time it
takes to correct errors because entries
can simply be deleted, rather than
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requiring the production of new copies
of the form after an error is detected.
For the NPC, electronic filing and
communications will improve the
quality of information collected from
employers, reduce unnecessary costs of
communicating with employers to
resolve obvious errors or receive
complete information, and reduce the
frequency of delays related to
application processing.
c. Cost Savings From Efficiencies
Created by Acceptance of Electronic
Signatures
The Department also proposes to
enable employers, agents, and attorneys
to use electronic methods to sign or
certify any document required under
this subpart using a valid electronic
signature method. The current practice
of accepting electronic (scanned) copies
of original signatures on documents has
generated efficiencies in the application
process, and the Department believes
leveraging modern technologies to
accept electronic signature methods can
achieve even greater efficiencies and
result in cost savings to employers and
the NPC.
Accepting electronic signature
methods as a means of complying with
original signature requirements for the
H–2A program will reduce the costs for
employers associated with printing,
mailing, or delivering original signed
paper documents or scanned copies of
original signatures on documents to the
NPC. Additionally, electronic signature
methods provide employers and their
authorized attorneys or agents with
greater flexibility to conduct business
with the Department—at any time and
at any location with an internet
connection—rather than needing to be
located in a physical office. This frees
valuable time for conducting other
business tasks.
The NPC anticipates additional cost
savings from use of electronic signature
methods. The acceptance of documents
containing electronic signatures will
facilitate the NPC’s use of a more
centralized document storage capability
to more efficiently access documents
during application processing, saving
time and expense.
d. Cost Savings From Efficiencies
Created by the Use of Electronic Surety
Bonds
The Department also proposes to
develop a process for accepting
electronic surety bonds through the
iCERT system and to require the use of
a standardized bond form. The
Department believes that these proposed
changes will result in a cost savings to
H–2ALCs and the NPC. Currently all H–
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2ALCs, even the majority that submit
other components of their applications
electronically, have to submit original
paper surety bonds before the labor
certifications can be issued. Accepting
original electronic surety bonds will
reduce the costs associated with mailing
or delivering the original surety bonds
to the NPC and the costs for NPC to
transfer these bonds to WHD for
enforcement purposes. Additionally,
using a standardized bond form will
reduce the likelihood of errors and the
amount of time required for the NPC to
review the bonds for compliance.
The Department seeks comments from
the public regarding any additional nonquantifiable cost savings that are not
included in this analysis.
Transfer Payments
Quantifiable Transfer Payments
This section discusses the
quantifiable transfer payments related to
transportation and subsistence costs and
the revisions to the wage structure.
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a. Transportation and Subsistence Costs
The Department proposes to revise
the beginning and end points from and
to which an employer must provide or
pay for transportation and subsistence
costs for certain H–2A workers. An
employer must pay a worker for the
reasonable transportation and
subsistence costs incurred when
traveling to the employer’s place of
employment, provided that the worker
completes at least 50 percent of the
work contract period and the employer
has not previously advanced or
otherwise provided such transportation
and subsistence. Specifically, an
employer must provide or pay for
transportation and daily subsistence
from ‘‘the place from which the worker
has come to work for the employer.’’
Under the proposed rule, for an H–2A
worker that requires a visa departing to
work for the employer from a location
outside of the United States, ‘‘the place
from which the worker departed’’ will
mean the appropriate U.S. Consulate or
Embassy. This change will result in
transfer payments from workers to
employers. The Department first
calculated the transfer payment for
transportation and then calculated such
transfer payment for subsistence cost.
Transportation-related transfer
payments were calculated by
multiplying the total number of certified
H–2A workers (187,740 workers) by the
growth rate of H–2A certified workers
(19 percent) to determine the annual
number of certified workers. The annual
number of certified H–2A workers was
then multiplied by the number of one-
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way trips per worker (2 trips). This was
then multiplied by the cost of a one-way
bus ticket ($59.00) between Oaxaca,
Mexico and Monterrey, Mexico. In the
Department’s enforcement experience,
H–2A workers are predominantly from
Mexico. Additionally, in the
Department’s experience, the majority of
H–2A workers from Mexico arrive in
Monterrey, Mexico for visa processing
prior to arriving at the appropriate port
of entry to seek admission to the United
States. This yields average annual
undiscounted transfers of $65.38
million. The total transfer over the 10year period is estimated at $653.76
million undiscounted, or $551.35
million and $446.92 million at discount
rates of 3 and 7 percent, respectively.
The annualized transfer over the 10-year
period is $64.63 million and $78.50
million at discount rates of 3 and 7
percent, respectively.
Subsistence-related transfer payments
were also calculated by multiplying the
total annual number of certified H–2A
workers (187,740 workers) by the
number of one-way trips per worker (2
trips). This amount was then multiplied
by the minimum daily subsistence
amount for workers traveling
($12.26),153 resulting in average annual
undiscounted transfers of $13.58
million. The total transfer over the 10year period is estimated at $135.85
million undiscounted, or $114.57
million and $92.87 million at discount
rates of 3 and 7 percent, respectively.
The annualized transfer over the 10-year
period is $13.43 million and $16.31
million at discount rates of 3 and 7
percent, respectively. The Department
invites comments regarding the
assumptions and data sources used to
estimate the transfers resulting from this
provision.
b. Revisions to Wage Structure
Section 218(a)(1) of the INA, 8 U.S.C.
1188(a)(1), provides that an H–2A
worker is admissible only if the
Secretary of Labor determines that
‘‘there are not sufficient workers who
are able, willing, and qualified, and who
will be available at the time and place
needed, to perform the labor or services
involved in the petition, and the
employment of the alien in such labor
or services will not adversely affect the
wages and working conditions of
workers in the United States similarly
employed.’’ In 20 CFR 655.120(a), the
Department currently meets this
statutory requirement by requiring the
153 Department of Labor, Employment and
Training Administration, Allowable Meal Charges
and Reimbursements for Daily Subsistence (Mar.
21, 2018), https://www.foreignlaborcert.doleta.gov/
meal_travel_subsistence.cfm.
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36239
employer to offer, advertise in its
recruitment, and pay a wage that is the
highest of the AEWR, the prevailing
wage, the agreed-upon collective
bargaining wage, the Federal minimum
wage, or the State minimum wage. The
Department proposes to maintain this
general wage-setting structure with only
minor revisions, but, as discussed
below, proposes to modify the
methodology by which it establishes the
AEWRs and prevailing wages.
Specifically, the Department proposes
to modify the AEWR methodology so
that it is based on data more specific to
the agricultural occupation of workers
in the United States similarly employed.
The Department currently sets the
AEWR at the annual average hourly
gross wage for field and livestock
workers (combined) for the State or
region from the FLS conducted by the
USDA’s NASS, which results in a single
AEWR for all agricultural workers in a
State or region. As discussed in depth
in the preamble, the Department is
concerned that the current AEWR
methodology may have an adverse effect
on the wages of workers in higher paid
agricultural occupations, such as
supervisors of farmworkers and
construction laborers on farms, whose
wages may be inappropriately lowered
by an AEWR established from the wages
of field and livestock workers
(combined), an occupational category
from the FLS that does not include
those workers. In addition, the use of
generalized data for other agricultural
occupations could produce a wage rate
that is not sufficiently tailored to the
occupation, as necessary to protect
against adverse effect for those
occupations.
The Department proposes to set the
AEWR at the annual average hourly
gross wage for the State or region and
particular SOC applicable to the work
performed from the USDA’s FLS. The
Department proposes to use the FLS to
establish the AEWR for the SOC, where
such a wage is available, rather than an
alternative wage source, because the
FLS is the only comprehensive wage
survey of wages paid by farmers and
ranchers. When FLS State or regional
data is not available for the SOC,
however, the Department proposes to
set the AEWR based on BLS’s OES
average wage for the SOC and the State
because the OES is a comprehensive
and valid source of wage data that can
be useful when USDA cannot produce
valid FLS wage data for the agricultural
occupation and geographic area. Next, if
OES State data is not available, the
Department would be set the AEWR
based on FLS national data for the SOC.
Lastly, if all prior data sources do not
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have an hourly wage available, then the
AEWR would be determined by OES
National data.
The Department calculated the impact
on wages that would occur from the
implementation of the proposed AEWR
methodology. For each H–2A
Certification in 2016 and 2017, the
Department used the difference between
the projected AEWR under the proposed
given year that the employees worked,
and the annual average hourly gross
wage for the State or region and
particular SOC applicable to the work
performed from the USDA FLS (FLS
regional SOC wage).154 This example
sets forth how the Department
calculated the proposed wage impact for
an individual case.
rule and estimated wages under the
current AEWR baseline to establish the
wage impact of the proposed AEWR
methodology.
For an illustrative example in Exhibit
5, to calculate projected AEWRs under
the proposed rule, the Department
multiplied the number of certified
workers by the number of hours worked
each week, the number of weeks in a
EXHIBIT 5—AEWR WAGE UNDER THE PROPOSED RULE
[Example case]
Number
of certified
workers
Basic number
of hours
Number of days
worked in 2016
Number of days
worked in 2017
FLS regional
SOC wage
2016
FLS regional
SOC wage
2017
Total AEWR
wages 2016
Total AEWR
wages 2017
(a)
(b)
(c)
(d)
(e)
(f)
(a * b * (c/7) * e)
(a * b * (d/7) * f)
14
35
306
1
$10.43
$10.44
$223,410.60
$730.80
After the total AEWR for the proposed
rule was determined, the wage
calculation under the current AEWR
was calculated. The methodology is
similar to that used to estimate the
projected AEWR under the proposed
rule: The number of workers certified is
multiplied by the number of hours
worked each week, the number of weeks
in a given year that the employees
worked, and the AEWR baseline for the
year(s) in which the work occurred
(Exhibit 6 provides an example of the
calculation of the AEWR baseline for the
same case as in Exhibit 5).
EXHIBIT 6—CURRENT AEWR
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(Example Case)
Number of
certified
workers
Basic number
of hours
Number of days
worked in 2016
Number of days
worked in 2017
AEWR
(baseline)
2016
AEWR
(baseline)
2017
AEWR
wages
2016
AEWR
wages
2017
(a)
(b)
(c)
(d)
(e)
(f)
(a * b * (c/7) * e)
(a * b * (d/7) * f)
14
35
..........................
306
..........................
1
$10.69
$10.38
$228,979.80
$726.60
Once the wage for the AEWR baseline
was obtained, the Department estimated
the wage impact of the new proposed
AEWR by subtracting the baseline
AEWR wage for 2016 from the proposed
wage for 2016 to determine the AEWR
wage impact ($223,410.60¥$228,979,80
= ¥$5,569.20). This was repeated for
2017 ($730.80¥$726.60 = $4.20). The
Department also applied the growth rate
of certified H–2A workers (19 percent)
to determine the annual transfer.
Forestry and conservation workers
(45–4011) previously classified as H–2B
workers were segregated in the analysis
from all other H–2A workers. For these
workers, a proposed AEWR was
determined using the BLS’ OES average
wage by SOC and State, where available,
or OES national Data if a State wage was
not available for the SOC because there
is no FLS State or regional data
available for SOC 45–4011.
Unfortunately, no baseline data was
available to compare the proposed
wages to for these forestry workers.
Because of this, the Department was
unable to determine wage impacts of the
proposed rule for forestry workers, and
they are not included in the total impact
for FY 2016 or 2017.155
The Department determined the total
impact of the proposed AEWR for each
year, excluding forest and conservation
workers, by summing the AEWR
impacts for all certifications in each
year and these totals were then averaged
to produce an annual estimate of the
proposed AEWR impacts.
The changes in AEWR rates constitute
a transfer payment from employers to
employees. The Department estimates
average annual undiscounted transfers
of $16.32 million. The total transfer over
the 10-year period is estimated at
$163.22 million undiscounted, or
$137.65 million and $111.58 million at
discount rates of 3 and 7 percent,
respectively. The annualized transfer
over the 10-year period is $16.14
million and $19.60 million at discount
rates of 3 and 7 percent, respectively.
The Department invites comments
regarding the assumptions and data
sources used to estimate the transfers
resulting from this provision.
In addition to the proposed changes to
the AEWR methodology discussed
above, the Department also proposes to
modernize the methodology currently
set in sub-regulatory guidance for stateconducted prevailing wage surveys.
This proposal would likely result in a
transfer from employers to workers. The
Department expects the proposal to
allow SWAs and other state agencies to
conduct prevailing wage surveys using
standards that are realistic in a modern
budget environment would allow the
154 When the USDA survey did not produce an
FLS regional SOC wage, the Department utilized a
wage determination hierarchy of OES State data
followed by FLS national SOC data, then OES
national SOC data in the event that the previously
mentioned wage sources were not available.
155 In FY 2016 and FY 2017 there were 12,638
forestry workers, compared to 375,480 H–2A
workers overall. While the Department expects their
wages to go up, the Department does not expect a
significant impact relative to the total overall
impacts of the proposed rule.
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Department to establish a greater
number of reliable and accurate
prevailing wage rates for workers and
employers. However, under the
proposal, the Department would require
an employer to pay a prevailing wage
rate only if a prevailing wage rate
published by the OFLC Administrator is
the highest applicable wage. Because
the Department cannot estimate the
extent of the increase in the number of
prevailing wage determinations that
would be issued as the highest
applicable wage under the proposed
methodology, the Department is not able
to quantify these transfer payments. The
Department invites comments on the
economic impacts of these proposals.
Unquantifiable Transfer Payments
a. Revisions to Wage Structure
The increase (or decrease) in the wage
rates for H–2A workers represents an
important transfer from agricultural
employers to corresponding U.S.
workers, not just H–2A workers. The
higher (or lower) wages for H–2A
workers associated with the proposed
rule’s methodology for determining the
monthly AEWR will also result in wage
changes to corresponding U.S. workers.
However, the Department does not have
sufficient information about the number
of corresponding U.S. workers affected
and their wage structure to reasonably
measure the wage transfer to
corresponding U.S workers. The
Department invites comments regarding
how this impact can be calculated.
Qualitative Benefits Discussion
a. Housing
In association with the [benefits/
savings] outlined above, the proposed
rule has unquantifiable benefits as well.
First, if finalized as proposed, the
proposed rule would authorize the
SWAs (or other appropriate authorities)
to inspect and certify employerprovided housing for a period of up to
24 months.156 The SWAs and other
appropriate authorities would thus be
required to conduct fewer inspections of
H–2A employer-provided housing
annually, permitting these authorities to
more efficiently allocate and prioritize
resources. Moreover, the proposal
would result in more timely
certifications of employer-provided
housing, reducing delays in the H–2A
labor certification process. The Federal
Government, employers, and workers
alike would benefit from such reduction
in delays.
The Department is unable to quantify
these estimated benefits, given the
discretion afforded the SWAs (or other
appropriate authorities) under the
proposed rule to determine the exact
length of a housing inspection
certification. Consequently, the
Department invites comments on this
analysis, including any relevant data or
information that might allow for a
quantitative analysis of possible benefits
in the final rule resulting from the
housing inspection proposals.
b. Thirty-Day Rule
The Department’s analysis of
recruitment report data indicate that
many U.S. workers hired pursuant to
the 50 percent rule voluntarily resigned
or abandoned the job shortly after
beginning work; therefore, employers
who choose to displace an H–2A worker
when hiring a U.S. worker may find
themselves without enough workers to
fulfill their staffing needs. However,
employers who choose to retain both the
H–2A worker and the U.S. worker to
prevent potential disruption to work
flow must incur the expense of doing so.
36241
The changes proposed in this NPRM
would improve the process of
submitting and reviewing H–2A
applications, which would directly
enhance WHD’s enforcement
capabilities. This would result in the
reduction of workforce instability that
hinders the growth and productivity of
our nation’s farms while allowing
aggressive enforcement against program
fraud and abuse that undermine the
interests of U.S. workers.
c. Surety Bonds
The proposed changes to the surety
bond requirement, including the use of
electronic surety bonds and a
standardized bond form, will also result
in unquantifiable benefits to the H–
2ALCs in the form of a more
streamlined application process with
fewer delays. Accepting electronic
surety bonds will mean that the NPC
receives the required original bond with
the rest of the application and it will no
longer be necessary to wait for the bond
to arrival via mail or other delivery
before issuing the certification.
Further, these changes and the
changes to the required bond amounts
will enhance WHD’s enforcement
capabilities by making it more certain
that there will be a sufficient, compliant
bond available to redress potential
violations. This will advance the
Department’s goal of aggressively
enforcing against program fraud and
abuse that undermine the interests of
U.S. workers.
4. Summary of the Analysis
Exhibit 4 summarizes the estimated
total costs, cost savings, and transfer
payments of the proposed rule over the
10-year analysis period. The
transportation and daily subsistence has
the largest effect as a transfer cost.
EXHIBIT 4—ESTIMATED 10-YEAR MONETIZED COSTS, COST SAVINGS, NET COSTS, AND TRANSFER PAYMENTS OF THE
PROPOSED RULE BY PROVISION
jbell on DSK3GLQ082PROD with PROPOSALS2
[2017 $millions]
Provision
Total cost
Total cost
savings
Total transfer
Transportation and Daily Subsistence .........................................................................................
Proposed Wage Option ...............................................................................................................
Surety Bond .................................................................................................................................
Record Keeping ...........................................................................................................................
Rule Familiarization .....................................................................................................................
Reforestation Applications ...........................................................................................................
Electronic Processing and Process Streamlining Cost Savings .................................................
Staggered Entry ...........................................................................................................................
Undiscounted 10-Year Total ........................................................................................................
10-Year Total with a Discount Rate of 3% ..................................................................................
........................
........................
$37.36
0.51
1.05
1.18
........................
........................
40.11
34.21
........................
........................
........................
........................
........................
........................
$0.27
12.94
13.21
11.85
$789.61
163.22
........................
........................
........................
........................
........................
........................
952.83
803.57
156 As described above, 24-month certification
would be subject to appropriate criteria and prior
notice to the Department by the certifying authority.
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EXHIBIT 4—ESTIMATED 10-YEAR MONETIZED COSTS, COST SAVINGS, NET COSTS, AND TRANSFER PAYMENTS OF THE
PROPOSED RULE BY PROVISION—Continued
[2017 $millions]
Provision
Total cost
10-Year Total with a Discount Rate of 7% ..................................................................................
Exhibit 5 summarizes the estimated
total costs, cost savings, and transfer
payments of the proposed rule over the
10-year analysis period.
The Department estimates the
annualized costs of the proposed rule at
$4.01 million, the annualized cost
savings at $1.48 million, and the
annualized transfer payments (from H–
2A employers to workers) at $114.41
million, at a discount rate of 7 percent.
For the purpose of E.O. 13771, even
though the annualized net quantifiable
cost, when perpetuated, is $3.24 million
at a discount rate of 7 percent, the
Department expects that the total
annualized cost-savings of this proposed
28.18
Total cost
savings
10.39
Total transfer
673.07
rule would outweigh the total
annualized costs, resulting in a net cost
savings due to large non-quantifiable
cost savings. The Department seeks
comment on this expectation.
The Department estimates the total
net cost of the proposed rule at $17.79
million at a discount rate of 7 percent.
EXHIBIT 5—ESTIMATED MONETIZED COSTS, COST SAVINGS, NET COSTS, AND TRANSFER PAYMENTS OF THE PROPOSED
RULE
[2017 $millions]
Costs
2020 .................................................................................................................
2021 .................................................................................................................
2022 .................................................................................................................
2023 .................................................................................................................
2024 .................................................................................................................
2025 .................................................................................................................
2026 .................................................................................................................
2027 .................................................................................................................
2028 .................................................................................................................
2029 .................................................................................................................
Undiscounted 10-Year Total ............................................................................
10-Year Total with a Discount Rate of 3% ......................................................
10-Year Total with a Discount Rate of 7% ......................................................
10-Year Average ..............................................................................................
Annualized with a Discount Rate of 3% ..........................................................
Annualized with a Discount Rate of 7% ..........................................................
Cost
savings
$2.94
2.18
2.51
2.89
3.34
3.85
4.45
5.14
5.94
6.87
40.11
34.21
28.18
4.01
4.01
4.01
$1.69
1.66
1.62
1.56
1.48
1.37
1.24
1.08
0.87
0.63
13.21
11.85
10.39
1.32
1.39
1.48
Perpetuated Net Costs with a Discount Rate of 7% ...................................................................
jbell on DSK3GLQ082PROD with PROPOSALS2
5. Regulatory Alternatives
The Department considered two
alternatives to the proposal to establish
the AEWR at the annual average hourly
gross wage for the State or region and
SOC from the FLS where USDA reports
such a wage. First, the Department
considered using the current FLS
occupational classifications of field and
livestock workers for each State or
region to set a separate AEWR for field
workers and another AEWR for
livestock workers at the annual average
hourly gross wage from the FLS for
workers covered by those
classifications. Under this alternative,
the Department would use the OES
average hourly wage for the SOC and
State if either: (1) The occupation
covered by the job order is not included
in the current FLS occupational
classifications of field or livestock
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workers; 157 or (2) workers within the
occupations classifications of field or
livestock workers but in a region or
State where USDA cannot produce a
wage for that classification, which is
expected to occur only in Alaska.
Finally, under this alternative where
both OES State data is not available, and
the work performed is not covered by
the field or livestock worker categories
of the FLS, the Department would use
the OES national average hourly wage
for the SOC.
The total impact of the first regulatory
alternative was calculated in the same
manner as the proposed wage. The
157 Among the workers excluded from the field
and livestock worker categories of the FLS are
workers in the following SOCs: Farmers, Ranchers
and Other Agricultural Managers (SOC 11–9013)
and First Line Supervisors of Farm Workers (SOC
45–1011), Forest and Conservation Workers (SOC
45–4011), Logging Workers (SOC 45–4020), and
Construction Laborers (SOC 47–2061).
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Net
costs*
$1.25
0.51
0.89
1.33
1.86
2.48
3.21
4.06
5.06
6.24
26.89
22.36
17.79
2.69
2.62
2.53
Transfer
payments
$38.44
45.77
54.50
64.88
77.25
91.98
109.51
130.39
155.25
184.84
952.83
803.57
673.07
95.28
94.20
114.41
$3.24
Department estimated average annual
undiscounted transfers of $23.88
million. The total transfer over the 10year period was estimated at $238.76
million undiscounted, or $201.36
million and $163.23 million at discount
rates of 3 and 7 percent, respectively.
The annualized transfer over the 10-year
period was $23.61 million and $28.67
million at discount rates of 3 and 7
percent, respectively.
Under the second regulatory
alternative considered by the
Department, the Department would set
the AEWR using the OES average hourly
wage for the SOC and State. When OES
State data is not available, the
Department would set the AEWR at the
OES national average hourly wage for
the SOC under this alternative. The
Department again used the same method
to calculate the total impact of the
proposed regulatory alternative. The
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Department estimated average annual
undiscounted transfers of $106.20
million. The total transfer over the 10year period was estimated at $1.06
billion undiscounted, or $895.61
million and $725.98 million at discount
rates of 3 and 7 percent, respectively.
The annualized transfer over the 10-year
period was $104.99 million and $127.51
million at discount rates of 3 and 7
percent, respectively.
Exhibit 6 summarizes the estimated
transfer payments associated with the
three considered revised wage
structrues over the 10-year analysis
period. The Department prefers the
proposed methodology, under which
the Department would establish the
AEWR at the annual average hourly
gross wage for the State or region and
SOC from the FLS where the FLS
produces such a wage, to the two
regulatory alternatives for the reasons
discussed more fully in the preamble.
Among those reasons, the Department
prefers the proposal to the first
regulatory alternative because the
proposal provides data that is more
specific to the agricultural occupation
and does not combine workers
performing dissimilar duties, as might
36243
be the case if the Department used the
more general categories of field and
livestock workers from the FLS to
establish the AEWR. The Department
prefers the proposal to the second
regulatory alternative because the
Department generally finds the FLS to
be a superior wage source to the OES for
establishing the AEWR where both
surveys produce an occupation-specific
wage because only the FLS directly
surveys farmers and ranchers and the
FLS is recognized by the BLS as the
authoritative source for data on
agricultural wages.
EXHIBIT 6—ESTIMATED MONETIZED WAGE STRUCTURE TRANSFER PAYMENTS AND COSTS OF THE PROPOSED RULE,
UNDISCOUNTED
[2017 $millions]
Proposed
rule
Total 10-Year Transfer ................................................................................................................
Total with 3% Discount ................................................................................................................
Total with 7% Discount ................................................................................................................
Annualized Undiscounted Transfer .............................................................................................
Annualized Transfer with 3% Discount .......................................................................................
Annualized Transfer with 7% Discount .......................................................................................
$163.22
137.65
111.58
16.32
16.14
19.60
Regulatory
alternative 1
$238,76
201.36
163.23
23.88
26.61
28.67
Regulatory
alternative 2
$1,061.96
895.61
725.98
106.20
105.00
127.51
Costs for Regulatory Alternative 3
jbell on DSK3GLQ082PROD with PROPOSALS2
Total 10-Year Cost ......................................................................................................................
Total with 3% Discount ................................................................................................................
Total with 7% Discount ................................................................................................................
Annualized Undiscounted Cost ...................................................................................................
Annualized Cost with 3% Discount .............................................................................................
Annualized Cost with 7% Discount .............................................................................................
The Department also considered a
third regulatory alternative regarding
required surety bond amounts that
relied on the proposed revisions to the
wage structure. Under this regulatory
alternative, the revisions to the wage
structure would be the same as the
proposed rule and would be used in the
formula to calculate bond amounts. This
formula is the most specific to factors
that affect the likely amount of back
wages owed, including crew size and
duration of certification and therefore
produces the most variability in bond
amounts. It was calculated based on
information already required on the job
offer: The number of H–2A workers
(‘‘Workers’’), the applicable AEWR from
the proposed wage structure, the
number of hours to be worked per week
(‘‘Hours’’), and the duration of the
certification (‘‘Weeks’’). Each of these
variables were multiplied to get the
bond amount required for certification.
The total cost to the employer was
calculated by multiplying the required
bond amount by the assumed bond
premium (0.04). This formula is the
simplest for the employer because the
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values are readily accessible. Because
the current bond amounts increase
based on crew size in a non-linear
fashion, switching to this formula will
mean the certifications for certain crew
sizes will be affected differently, with
certifications for 25 to 74 workers
having the biggest increases.
The Department used the OFLC
certification data to calculate required
bond amounts under this alternative for
all certified H–2A employers for FYs
2016 and 2017. These amounts were
then multiplied by the assumed bond
premium (0.04) and the growth rate of
H–2A certified labor contractors (16
percent), summed by year, and averaged
to generate an estimated undiscounted
annual cost due to bond amount
increases of $58.77 million. The total
cost from the alternative required bond
amounts over the 10-year period is
estimated at $587.72 million
undiscounted, or $498.51 million and
$407.22 million at discount rates of 3
and 7 percent, respectively. The
annualized cost of the 10-year period is
$58.44 million and $57.98 million at
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$587.72
498.51
407.22
58.77
58.44
57.98
discount rates of 3 and 7 percent,
respectively.
The Department prefers the proposed
methodology for surety bonds because
the proposal is easier to understand and
administer and is likely to result in less
variability in the bond amounts than the
regulatory alternatives.
A. Regulatory Flexibility Analysis and
Small Business Regulatory Enforcement
Fairness Act and Executive Order
13272: Proper Consideration of Small
Entities in Agency Rulemaking
The Regulatory Flexibility Act of 1980
(RFA), 5 U.S.C. 601 et seq., as amended
by the Small Business Regulatory
Enforcement Fairness Act of 1996,
Public Law 104–121 (March 29, 1996),
requires federal agencies engaged in
rulemaking to consider the impact of
their proposals on small entities,
consider alternatives to minimize that
impact, and solicit public comment on
their analyses. The RFA requires the
assessment of the impact of a regulation
on a wide range of small entities,
including small businesses, not-forprofit organizations, and small
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governmental jurisdictions. Agencies
must perform a review to determine
whether a proposed or final rule would
have a significant economic impact on
a substantial number of small entities. 5
U.S.C. 603, 604. If the determination is
that it would, the agency must prepare
a regulatory flexibility analysis as
described in the RFA. Id.
However, if an agency determines that
a proposed or final rule is not expected
to have a significant economic impact
on a substantial number of small
entities, the RFA provides that the head
of the agency may so certify and a
regulatory flexibility analysis is not
required. See 5 U.S.C. 605. The
certification must include a statement
providing the factual basis for this
determination, and the reasoning should
be clear.
The Department believes that this
proposed rule will not have a significant
economic impact on a substantial
number of small entities. Despite this, it
is the Department’s view that due to
stakeholder interest in this proposed
rule an initial regulatory flexibility
analysis should be published to aid
stakeholders in understanding the small
entity impacts of the proposed rule and
to obtain additional information on the
small entity impacts. The Department
invites interested persons to submit
comments on the following estimates,
including the number of small entities
affected by the proposed rule, the
compliance cost estimates, and whether
alternatives exist that will reduce the
burden on small entities while still
remaining consistent with the objectives
of the proposed rule.
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1. Why the Department Is Considering
Action
The Department has concluded that
efforts to protect workers and enforce
laws governing the administration of
nonimmigrant visa programs requires
additional notice and comment
rulemaking regarding the certification of
temporary employment of
nonimmigrant workers through the H–
2A program, and the enforcement of the
contractual obligations applicable to
employers of such nonimmigrant
workers. The Department also seeks to
further the goals of E.O. 13788, Buy
American and Hire American, by
rigorously enforcing applicable laws in
order to create higher wages and
employment rates for workers in the
158 Of the 2,514 small H–2A unique employers in
2016 and 2017, 20 entities are employers of
reforestation and pinestraw workers that are
currently under the H–2B program and would be
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U.S. and protect their economic
interests. As a result, the Department
publishes this NPRM developing
standards related to mandatory
electronic filing and electronic
signatures, revising the adverse effect
wage rate and prevailing wage
methodologies, incorporating certain
training and employment guidance
letters into the H–2A regulatory
structure, and expanding the definition
of agriculture under the H–2A program,
and seeks public input on all aspects of
the proposals presented here.
2A program. Secretary’s Order 01–2014
(Dec. 19, 2014).
3. Estimating the Number of Small
Businesses Affected by the Rulemaking
The Department is proposing to
amend current regulations related to the
H–2A program in a manner that
modernizes and eliminates
inefficiencies in the process by which
employers obtain a temporary
agricultural labor certification for use in
petitioning DHS to employ a
nonimmigrant worker in H–2A status.
Sections 101(a)(15)(H)(ii)(a) and
218(a)(1) of the INA, 8 U.S.C.
1101(a)(15)(H)(ii)(a) and 1188(a)(1),
establish the H–2A nonimmigrant
worker visa program which enables U.S.
agricultural employers to employ
foreign workers to perform temporary or
seasonal agricultural labor or services
where the Secretary of DOL certifies (1)
there are not sufficient U.S. workers
who are able, willing, and qualified, and
who will be available at the time and
place needed to perform the labor or
services involved in the petition; and (2)
the employment of the aliens in such
labor or services will not adversely
affect the wages and working conditions
of workers in the United States similarly
employed. The standard and procedures
for the certification and employment of
workers under the H–2A program are
found in 20 CFR part 655 and 29 CFR
part 501.
The Secretary has delegated his
authority to issue temporary agricultural
labor certifications to the Assistant
Secretary, ETA, who in turn has
delegated that authority to ETA’s OFLC.
Secretary’s Order 06–2010 (Oct. 20,
2010). In addition, the Secretary has
delegated to WHD the responsibility
under section 218(g)(2) of the INA, 8
U.S.C. 1188(g)(2), to assure employer
compliance with the terms and
conditions of employment under the H–
The Department collected
employment and annual revenue data
from the business information provider
InfoUSA and merged those data into the
H–2A disclosure data for FYs 2015,
2016, and 2017. Disclosure data for 2015
was included for cases that have
certified workers in both 2015 and 2016.
This process allowed the Department to
identify the number and type of small
entities in the H–2A disclosure data as
well as their annual revenues. The
Department was able to obtain data
matches for 5,329 H–2A cases with
work in 2016 and 2017, including
employers of reforestation workers that
would be classified as H–2A employers
under the proposed rule.158 Next, the
Department used the SBA size standards
to classify 4,320 of these employers (or
81.1 percent) as small.159 Labor
contractors determined to be small
entities were removed from the RFA
analysis because their revenue is not
related to the number of temporary H–
2A workers certified. This resulted in
3,600 small, certified cases. Because a
single employer can apply for temporary
H–2A workers multiple times, unique
employers had to be identified.
Additionally, duplicate cases that
appeared multiple times within the
dataset were removed (i.e., the same
employer applying for the same number
of workers in the same occupation, in
the same state, during the same work
period). Based on employer name, city,
and state, the Department determined
that there were 2,514 unique employers
with work in 2016 and 2017. These
unique small employers had an average
of 12 employees and average annual
revenue of approximately $3.54 million.
Of these unique employers, 2,465 of
them had revenue data available from
InfoUSA. The Department’s analysis of
the impact of this proposed rule on
small businesses is based on the number
of small unique employers (2,465 with
revenue data).
To provide clarity on the agricultural
industries impacted by this regulation,
exhibit 7 shows the number of unique
H–2A small entity employers 160 with
certifications in 2016 and 2017 within
each NAICS code at the 6-digit and 4digit level.
reclassified under the H–2A program in this
proposal.
159 Small Business Administration, Table of
Small Business Size Standards Matched to North
American Industry Classification System Codes.
(Oct. 2017), https://www.naics.com/wp-content/
uploads/2017/10/SBA_Size_Standards_Table.pdf.
160 This table is not inclusive of H–2B employers
reclassificed as H–2A employers. There are 18
unique small entity H–2B employers in 2017.
2. Objectives of and Legal Basis for the
Proposed Rule
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EXHIBIT 7—NUMBER OF H–2A SMALL EMPLOYERS BY NAICS CODE
2016
2017
6-Digit
NAICS
6-Digit
NAICS
Description
Description
111421 .....
111998 .....
111219 .....
134
103
68
111331 .....
115113 .....
Nursery and Tree Production .................
All Other Miscellaneous Crop Farming ..
Other Vegetable (except Potato) and
Melon Farming.
Crop Harvesting, Primarily by Machine
Apple Orchards ......................................
12
9
6
111421 .....
111998 .....
115113 .....
Nursery and Tree Production .................
All Other Miscellaneous Crop Farming ..
Crop Harvesting, Primarily by Machine
136
102
72
11
8
6
59
58
5
5
111331 .....
111219 .....
65
65
5
5
Beef Cattle Ranching and Farming ........
Oilseed and Grain Combination Farming
Business Associations ............................
Other Noncitrus Fruit Farming ...............
42
27
25
23
4
2
2
2
112111
111191
111339
115112
41
32
26
23
3
3
2
2
Soil Preparation, Planting, and Cultivating.
18
2
111211 .....
Apple Orchards ......................................
Other Vegetable (except Potato) and
Melon Farming.
Beef Cattle Ranching and Farming ........
Oilseed and Grain Combination Farming
Other Noncitrus Fruit Farming ...............
Soil Preparation, Planting, and Cultivating.
Potato Farming .......................................
112111
111191
813910
111339
19
2
Other NAICS codes
No NAICS code available
573
4
51
0.4
Other NAICS codes
No NAICS code available
603
51
49
4
4-Digit
NAICS
Description
Number of
employers
4-Digit
NAICS
Description
Number of
employers
1119 .........
1114 .........
Other Crop Farming ...............................
Greenhouse, Nursery, and Floriculture
Production.
Vegetable and Melon Farming ...............
Fruit and Tree Nut Farming ...................
Support Activities for Crop Production ...
Oilseed and Grain Farming ....................
Cattle Ranching and Farming ................
Other Animal Production ........................
Aquaculture ............................................
Business, Professional, Labor, Political,
and Similar Organizations.
Other Crop Farming ...............................
Greenhouse, Nursery, and Floriculture
Production.
Fruit and Tree Nut Farming ...................
Vegetable and Melon Farming ...............
Support Activities for Crop Production ...
Oilseed and Grain Farming ....................
Cattle Ranching and Farming ................
Other Animal Production ........................
Aquaculture ............................................
Agriculture, Construction, and Mining
Machinery Manufacturing.
.....
.....
.....
.....
115112 .....
1113
1112
1151
1111
1121
1129
1125
8139
.........
.........
.........
.........
.........
.........
.........
.........
Number of
employers
Other NAICS codes
No NAICS code available
Exhibit 8 shows the number of H–2B
small entity employers that would be
classified as H–2A employers under the
Percent
Percent
.....
.....
.....
.....
385
152
34
13
1119 .........
1114 .........
121
121
99
68
61
33
29
25
11
11
9
6
5
3
3
2
1113
1112
1151
1111
1121
1129
1125
3331
36
4
3
0
.........
.........
.........
.........
.........
.........
.........
.........
Number of
employers
Other NAICS codes
No NAICS code available
proposed rule. These employers are
classified as support activities for
Percent
Percent
408
156
33
13
149
127
110
67
55
34
24
14
12
10
9
5
4
3
2
1
40
51
3
4
forestry under the 4-digit NAICS code
1153.
EXHIBIT 8—NUMBER OF H–2B SMALL EMPLOYERS BY NAICS CODE
NAICS description
115310 ....................
1153 ........................
Support Activities for Forestry ................................................................
Support Activities for Forestry ................................................................
4. Compliance Requirements of the
Proposed Rule, Including Reporting and
Recordkeeping
jbell on DSK3GLQ082PROD with PROPOSALS2
2016
number of
employers
NAICS code
The Department has estimated the
incremental costs for small businesses
from the baseline (i.e., the 2010 Final
Rule: Temporary Agricultural
Employment of H–2A Aliens in the
United States; TEGL 17–06, Change 1;
TEGL 33–10, and TEGL 16–06, Change
1) to this proposed rule. We estimated
the costs of (a) new surety bond
amounts required for H–2A labor
contractors based on the number of H–
2A employees as well as the
proportional adjustment of surety bond
rates on an annual basis; (b)
recordkeeping costs associated with
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maintaining records of employee’s home
address in their respective home
countries; (c) recordkeeping costs
incurred by the abandonment or
dismissal with cause of employees; (d)
time to read and review the proposed
rule; (e) reforestation applications; and
(f) wage costs (or cost-savings). The cost
estimates included in this analysis for
the provisions of the proposed rule are
consistent with those presented in the
E.O. 12866 section.
The Department identified the
following provisions of the proposed
rule to have an impact on industry but
was not able to quantify the impacts due
to data limitations: An expansion of the
regulatory definition of agriculture as to
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2017
number of
employers
2
2
18
18
Percent
100
100
include reforestation and pine straw
workers; and housing requirements
(securing rentals or public
accommodations for H–2A employees).
5. Calculating the Impact of the
Proposed Rule on Small Business Firms
The Department estimates that small
businesses not classified as H–2ALCs,
2,514 unique employers,161 would incur
a one-time cost of $127.36 to familiarize
themselves with the rule and an annual
cost of $5.67 associated with
161 The 2,514 unique small employers includes
employers of reforestation and pine straw workers
that would be classified as H–2A employers under
the proposed rule, and excludes all labor
contractors.
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recordkeeping requirements.162 While
the Department estimates that small
businesses would also incur annual cost
savings associated with the electronic
processing of applications, the
Department ignores those cost savings
for purposes of the RFA analysis. In
total, the Department estimates that
small businesses not classified as labor
contractors will incur a total first-year
cost of $133.03 (= $127.36 + $5.67). The
Department uses the first-year cost
estimate because it is the highest cost
incurred by businesses over the analysis
timeframe. Additionally, employers of
reforestation and pine straw workers
(currently under the H–2B program) that
would be classified as H–2A employers
under the proposed rule will incur H–
2A labor certification filing fee costs,
not applicable under the H–2B program.
The Department estimates this cost to be
$551.70 per employer, and is incurred
annually. Therefore, for reforestation
and pine straw employers, the total firstyear cost is $684.73, and total secondyear cost is $551.70.
The proposed rule includes the
provision pertaining to surety bonds
that applies to only H–2ALCs, so the
Department estimates the impact on
those entities separately. See 20 CFR
655.132(c). To estimate the impact of
the proposed rule on these entities, the
Department used the SBA size standards
to classify an average of 81 H–2ALCs as
small employers. These small entities
had an average of 54 employees and
average annual revenues of
approximately $12.09 million in FYs
2016 and 2017.
The Department estimates that the
average small H–2A labor contractor
would incur a one-time cost of $127.36
to familiarize themselves with the rule,
annual costs of $5.67 associated with
recordkeeping requirements, and
$255.14 associated with an increase in
the required surety bond amounts.163
While the Department estimates that
small businesses would also incur
annual cost savings associated with the
electronic processing of applications,
the Department ignores those cost
savings for purposes of the RFA
analysis. In total, the Department
estimates that small businesses
classified as H–2ALCs will incur a total
first-year cost of $388.17 (= $127.36 +
$5.67 + $255.14).
In addition to the total first- and
second-year costs above, each small
entity will have an increase (or
decrease) in the wage costs (or costsavings) due to the revisions to the wage
structure. For each small business, the
estimated wage cost (or cost-savings)
was calculated as the sum of the
proposed total wage minus the total
baseline wage for each small business
identified from the H–2A disclosure
data in FYs 2016 and 2017. This change
in the wage costs was added to the total
first-year costs to measure the total
impact of the proposed rule on the small
business.
The Department determined the
proportion of each small entities’ total
revenue that would be impacted by the
costs of the proposed rule to determine
if the proposed rule would have a
significant and substantial impact on
small business. The cost impacts
included estimated first year costs and
the wage burden cost introduced by the
proposed rule. The Department used a
total cost estimate of 3 percent of
revenue as the threshold for a
significant individual impact and set a
total of 15 percent of small businesses
incurring a significant impact as the
threshold for a substantial impact on
small business.
A threshold of 3 percent of revenues
has been used in prior rulemakings for
the definition of significant economic
impact. See, e.g., 79 FR 60634 (October
7, 2014, Establishing a Minimum Wage
for Contractors) and 81 FR 39108 (June
15, 2016, Discrimination on the Basis of
Sex). This threshold is also consistent
with that sometimes used by other
agencies. See, e.g., 79 FR 27106 (May
12, 2014, Department of Health and
Human Services rule stating that under
its agency guidelines for conducting
regulatory flexibility analyses, actions
that do not negatively affect costs or
revenues by more than three percent
annually are not economically
significant). The Department also
believes that its use of a 20 percent of
affected small business entities
substantiality criterion is appropriate.
The Department has used a threshold of
15 percent of small entities in prior
rulemakings for the definition of
substantial number of small entities.
See, e.g., 79 FR 60633 (October 7, 2014,
Establishing a Minimum Wage for
Contractors).
Of the 2,514 unique small employers
with work occurring in 2016 and 2017
and revenue data,164 94.4 percent of
employers had less than 3 percent of
their total revenue impacted. Exhibit 9
provides a breakdown of small
employers by the proportion of revenue
affected by the costs of the proposed
rule.
EXHIBIT 9—COST IMPACTS AS A PROPORTION OF TOTAL REVENUE FOR SMALL ENTITIES
2016
Employers
Proportion of revenue impacted
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<1% ..................................................................................................................
1%–2% .............................................................................................................
2%–3% .............................................................................................................
3%–4% .............................................................................................................
4%–5% .............................................................................................................
>5% ..................................................................................................................
162 $127.36 = 2 hrs × $63.68, where $63.68 =
$31.84 + ($31.84 × 44%) + ($31.84 × 56%). These
recordkeeping requirements include the following:
$2.12 to collect and maintain records of workers’
email address and phone number(s) home, $2.12 to
maintain records for the self-certification of
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2,182
101
43
27
14
98
housing, and $2.12 to maintain records of
notification to the NPC (and DHS) of employment
abandonment or termination for cause.
163 $255.14 is the annual incremental cost per H–
2ALC with additional 50 to 75 workers.
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2016
Percentage
89
4
2
1
1
4
2017
Employers
2,182
101
42
31
27
82
2017
Percentage
89
4
2
1
1
3
164 The 2,514 unique small employers includes
employers of reforestation workers that would be
classified as H–2A employers under the proposed
rule, and excludes all labor contractors.
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6. Relevant Federal Rules Duplicating,
Overlapping, or Conflicting With the
Proposed Rule
The Department is not aware of any
relevant Federal rules that conflict with
this NPRM.
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7. Alternative to the Proposed Rule
The RFA directs agencies to assess the
impacts that various regulatory
alternatives would have on small
entities and to consider ways to
minimize those impacts. Accordingly,
the Department considered two
regulatory alternatives related to the
third cost component: Employers’
recordkeeping for abandonment of
employment or termination for cause.
See proposed 20 CFR 655.122(n) and
655.167(c)(7). Under the first
alternative, small businesses would not
need to provide notice to the NPC
within two working days of each
occurrence of abandonment of
employment or termination for cause
during the certification period in order
to be relieved of certain H–2A
obligations (i.e., return transportation
and subsistence costs for the worker;
three-fourths guarantee to the worker;
and, for U.S. workers, contact in
subsequent seasons to solicit the
worker’s return to the job). Rather, these
small businesses could wait until the
end of the certification period to
provide this notice; the employer could
amass all such notifications into one
package to submit to the NPC at the end
of the certification period. This
alternative differs from the Department’s
proposal related to § 655.122(n) by
providing flexibility in the timing of the
notice to the NPC. This first alternative
would slightly decrease the burden of
small businesses having to potentially
prepare and submit multiple
notifications to NPC throughout the
certification period.
The Department decided not to
pursue this alternative for two reasons.
First, DHS regulations require
employers to notify DHS within two
work days if an H–2A worker: Fails to
report to work within 5 workdays of the
employment start date; absconds from
the worksite (i.e., fails to report for work
for a period of 5 consecutive workdays
without the consent of the
employer; 165) or is terminated prior to
the completion of agricultural labor or
services for which he or she was hired.
Under this first regulatory alternative,
small businesses would need to submit
the same notification to two different
agencies at two different reporting
cycles, rather than on the same
165 8
CFR 214.2(h)(5)(vi)(E).
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reporting cycle. The employer would
have to submit potentially multiple
notifications to DHS regarding H–2A
workers, each within two work days of
a triggering event, while separately
amassing all notifications regarding both
H–2A workers and U.S. workers in
corresponding employment for a single
submission to ETA’s NPC at a later date.
This bifurcation of the reporting cycle
would not relieve employers of a
contemporaneous notification
requirement for H–2A workers to one
agency (i.e., DHS) and could create
confusion, which could negatively
impact employers’ compliance with
DHS notification requirements, thereby
undermining DHS’ ability to identify of
H–2A workers who had been, but may
no longer be in the United States legally,
as discussed above in the section-bysection analysis of this notification
requirement. Second, in its experience
of administering and enforcing the H–
2A program, the Department has found
that employers are better able to prepare
such notification contemporaneous to
the triggering event. Notification that
does not occur contemporaneously is
more likely to be less detailed, possibly
inaccurate and incomplete, as
employers’ recollections and memories
of specific circumstances for
abandonment of employment or
termination for cause may diminish
over a period of time, even as short as
a few weeks or months. The quality of
such notifications is important to the
employer, not only the Department. The
notifications both support program
integrity and serve to relieve the
employer of financial burdens, if they
provide adequate information. While
potentially reducing burden for
compliance with DOL regulations, this
first regulatory alternative would not be
less burdensome for small businesses
because they still have to meet DHS
requirements for timely notification
regarding abandonment of employment
or termination for cause for H–2A
workers and could increase confusion
and overall burden by imposing
disparate reporting cycles.
Under the second regulatory
alternative related to the third cost
component, employers’ recordkeeping
for abandonment of employment or
termination for cause, the Department
would not require employers to submit
to the NPC the notice described in
§ 655.122(n) with regard to U.S. workers
who abandoned employment or were
terminated for cause within two
working days of the triggering event.
Rather, the employers would only need
to prepare and maintain records of these
notices for not less than 3 years from the
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36247
date of the certification, as proposed in
§ 655.167(c)(7).
This alternative would reduce small
businesses’ cost and burden of
preparing and submitting this
documentation to the NPC. The
Department decided not to pursue this
alternative because the reduction of cost
and burden to small businesses is
negligible, as it would not affect such
notifications for H–2A workers and
would relieve the employer only of
notice submission to the Department,
not preparation, for U.S. workers in
corresponding employment. As with the
alternative discussed above, bifurcating
notice requirements into separate
categories (i.e., notification prepared
and submitted within two working days
for H–2A workers, but prepared and
retained for U.S. workers in
corresponding employment) is ripe for
confusion and allowing delayed
notification preparation may result in
less detailed, accurate, and complete
notification documentation, to the
employer’s detriment. Further, the
negligible reduction of cost and burden
is outweighed by the value of
affirmative, contemporaneous
notification to maintaining program
integrity. Absent timely notification, the
Department would only be made aware
of U.S. worker abandonment under
limited circumstances (e.g., an audit),
not in all cases. This would limit the
Department’s ability to identify patterns
of U.S. worker abandonment, which
could suggest involuntary
abandonment, as discussed in the
section-by-section analysis of proposed
changes. The Department’s ability to
assure program integrity would be
greatly diminished in exchange for a
relatively minor reduction reporting
requirements.
The Department invites public
comment on these alternatives and
whether other alternatives exist that
would reduce the burden on small
entities while still remaining consistent
with the objectives of the proposed rule.
B. Paperwork Reduction Act
In order to meet its statutory
responsibilities under the INA, the
Department collects information
necessary to render determinations on
requests for temporary agricultural labor
certification, which allow employers to
bring foreign labor to the United States
on a seasonal or other temporary basis
under the H–2A program. The
Department uses the collected
information to determine if employers
are meeting their statutory and
regulatory obligations. This information
collection is subject to the PRA, 44
U.S.C. 3501 et seq. A Federal agency
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generally cannot conduct or sponsor a
collection of information, and the public
is generally not required to respond to
an information collection, unless it is
approved by OMB under the PRA and
displays a currently valid OMB Control
Number. In addition, notwithstanding
any other provisions of law, no person
shall generally be subject to penalty for
failing to comply with a collection of
information that does not display a
valid Control Number. See 5 CFR
1320.5(a), 1320.6. The Department
obtained OMB approval for this
information collection under Control
Number 1205–0466.
This information collection request
(ICR), concerning OMB Control No.
1205–0466, includes the collection of
information related to the Department’s
temporary agricultural labor
certification determination process in
the H–2A program. The PRA helps
ensure that requested data is provided
in the desired format, reporting burden
(time and financial resources) is
minimized, collection instruments are
clearly understood, and the impact of
collection requirements on respondents
can be properly assessed.
On October 25, 2018, the Department
published a 60-day notice announcing
its proposed revisions to the collection
of information under OMB Control
Number 1205–0466 in the Federal
Register as part of its ongoing effort to
streamline information collection,
clarify statutory and regulatory
requirements, and provide greater
oversight in the H–2A program. See 83
FR 53911. In accordance with the PRA,
the Department provided the public
with a notice and the opportunity to
comment on proposed revisions to the
application (Form ETA–9142A, H–2A
Application for Temporary Employment
Certification; Form ETA–9142A,
Appendix A; and the general
instructions to those forms); to the
method of issuing temporary
agricultural labor certifications, from
paper-based issuance to a new one-page
electronically-issued Form ETA–9142A,
H–2A Approval Final Determination:
Temporary Labor Certification
Approval; and to the agricultural
clearance order.166 The Department
166 The proposed Form ETA–790/790A, H–2A
Agricultural Clearance Order, and addenda, provide
language to employers to disclose necessary
information regarding the material terms and
conditions of the job opportunity. A copy of Form
ETA–790/790A will be integrated with the Form
ETA–9142A for purposes of the Department’s
temporary agricultural labor certification
determination; the CO will review the Form ETA–
790/790A in combination with Form ETA–9142A,
when the employer submits Form ETA–9142A to
the NPC. This proposal will consolidate
information collected through the agricultural
VerDate Sep<11>2014
18:27 Jul 25, 2019
Jkt 247001
instructed the public to submit written
comments on those proposed revisions
following the instructions provided in
that Federal Register notice on or before
December 24, 2018.
The Department now proposes
additional revisions to this information
collection, covered under OMB Control
No. 1205–0466, to further revise the
information collection tools, based on
regulatory changes proposed in this
NPRM. The additional proposed
revisions to Forms ETA–9142A and
appendices and Form ETA–790/790A
and addenda will align information
collection requirements with the
Department’s proposed regulatory
framework and continue the ongoing
efforts to provide greater clarity to
employers on regulatory requirements,
standardize and streamline information
collection to reduce employer time and
burden preparing applications, and
promote greater efficiency and
transparency in the review and issuance
of labor certification decisions under the
H–2A visa program. For example, the
Department proposes a new Form ETA–
9142A, Appendix B, H–2A Labor
Contractor Surety Bond, to facilitate
satisfaction of this filing requirement for
H–2A Labor Contractor employers and a
field for an employer to indicate it
conducted pre-filing recruitment under
proposed § 655.123. The Department
also proposes to implement a revised
ETA–232, Domestic Agricultural InSeason Wage Report, and eliminate the
current ETA–232A, Wage Survey
Interview Record, for SWA use to
modernize the survey process and to
reflect the prevailing wage survey
methodology proposed in this proposed
rule at § 655.120(c).167
Overview of Information Collection
Proposed by This NPRM
Title: H–2A Temporary Agricultural
Employment Certification Program.
Type of Review: Revision of a
Currently Approved Information
Collection.
clearance order Form ETA–790, which is currently
authorized under OMB Control Number 1205–0134,
into the agency’s primary H–2A information
collection requirements under OMB Control
Number 1205–0466. This consolidation and
revision will align all data collection for the H–2A
program under a single OMB-approved ICR.
167 This is a collection of information from SWAs,
not employers, that is separately authorized under
OMB Control Number 1205–0017. The Department
proposes to revise and consolidate the collection
under OMB Control Number 1205–0466. The SWAs
will use the new Form ETA–232, Domestic
Agricultural In-Season Wage Report, to report to
OFLC the results of wage surveys in compliance
with the revised prevailing wage determination
methodology in the proposed rule, which OFLC
will use to establish prevailing wage rates for the
H–2A program.
PO 00000
Frm 00082
Fmt 4701
Sfmt 4702
OMB Number: 1205–0466.
Affected Public: Individuals or
Households, Private Sector—businesses
or other for-profits, Government, State,
Local and Tribal Governments.
Form(s): ETA–9142A, H–2A
Application for Temporary Employment
Certification; ETA–9142A—Appendix
A; ETA–9142A—Appendix B, H–2A
Labor Contractor Surety Bond; ETA–
9142A—H–2A Approval Final
Determination: Temporary Agricultural
Labor Certification; ETA–790/790A, H–
2A Agricultural Clearance Order; ETA–
790/790A—Addendum A; ETA–790/
790A—Addendum B; ETA–790/790A—
Addendum C; ETA–232, Domestic
Agricultural In-Season Wage Report.
Total Annual Respondents: 8,982.
Annual Frequency: On Occasion.
Total Annual Responses: 290,824.45.
Estimated Time per Response
(averages):
—Forms ETA 9142A, Appendix A,
Appendix B—3.68 hours per
response.
—Forms ETA 790/790A/790B—.75
hours per response.
—Form ETA–232—3.30 hours per
response.
—Administrative Appeals—18.48 hours
per response.
Estimated Total Annual Burden
Hours: 56,862.86.
Total Annual Burden Cost for
Respondents: $0.
The Department invites comments on
all aspects of the PRA analysis.
Comments that are related to a specific
form or a specific form’s instructions
should identify the form or form’s
instructions using the form number, e.g.,
ETA–9142A or Form ETA–790/790A,
and should identify the particular area
of the form for comment. A copy of the
proposed revised information collection
tools can be obtained by contacting the
office listed below in the addresses
section of this notice. Written comments
must be submitted on or before
September 24, 2019.
The Department is particularly
interested in comments that:
• Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information will have
practical utility;
• evaluate the accuracy of the
agency’s estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used,
and the agency’s estimates associated
with the annual burden cost incurred by
respondents and the government cost
associated with this collection of
information;
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• enhance the quality, utility, and
clarity of the information to be
collected; and
• minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submissions
of responses.
Comments submitted in response to
this notice will be considered,
summarized and/or included in the ICR
the Department will submit to OMB for
approval; they will also become a matter
of public record. Commenters are
encouraged not to submit sensitive
information (e.g., confidential business
information or personally identifiable
information such as a social security
number).
C. Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995 (UMRA) is intended, among
other things, to curb the practice of
imposing unfunded Federal mandates
on State, local, and tribal governments.
Title II of the UMRA requires each
Federal agency to prepare a written
statement assessing the effects of any
Federal mandate in a proposed or final
agency rule that may result in $100
million or more expenditure (adjusted
annually for inflation) in any 1 year by
State, local, and tribal governments, in
the aggregate, or by the private sector.
The value equivalent of $100 million in
1995 adjusted for inflation to 2017
levels by the Consumer Price Index for
All Urban Consumer (CPI–U) is $161
million.
This NPRM, if finalized as proposed,
does not exceed the $100 million
expenditure in any 1 year when
adjusted for inflation ($161 million in
2017 dollars), and this rulemaking does
not contain such a mandate. The
requirements of Title II of the UMRA,
therefore, do not apply, and the
Department has not prepared a
statement under the UMRA.
D. Executive Order 13132: Federalism
This NPRM, if finalized as proposed,
does not have federalism implications
because it does not have substantial
direct effects on the states, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Accordingly, E.O.
13132 requires no further agency action
or analysis.
E. Executive Order 13175, Consultation
and Coordination With Indian Tribal
Governments
This NPRM, if finalized as proposed,
does not have ‘‘tribal implications’’
because it does not have substantial
direct effects on one or more Indian
tribes, on the relationship between the
Federal Government and Indian tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian tribes.
Accordingly, E.O. 13175 requires no
further agency action or analysis.
Appendix A
TABLE 1—HOURLY AEWRS BY REGION OR STATE UNDER CURRENT
REGULATION
Region or state
2016
2017
2018
Appalachian I ..............
Appalachian II .............
California .....................
Cornbelt I .....................
Cornbelt II ....................
Delta ............................
Florida .........................
Hawaii ..........................
Lake .............................
Mountain I ...................
Mountain II ..................
Mountain III .................
Northeast I ...................
Northeast II ..................
Northern Plains ...........
Pacific ..........................
Southeast ....................
Southern Plains ...........
$10.72
10.85
11.89
12.07
12.17
10.69
10.70
12.64
12.02
11.75
11.27
11.20
11.74
11.66
13.80
12.69
10.59
11.15
$11.27
10.92
12.57
13.01
13.12
10.38
11.12
13.14
12.75
11.66
11.00
10.95
12.38
12.19
13.79
13.38
10.62
11.59
$11.46
11.19
13.18
12.93
13.42
10.73
11.29
14.37
13.06
11.63
10.69
10.46
12.83
12.05
13.64
14.12
10.95
11.87
TABLE 2—AVERAGE HOURLY STATEWIDE WAGES AND THEIR SOURCES UNDER THE PROPOSED RULE
2016
Region
State
SOC
jbell on DSK3GLQ082PROD with PROPOSALS2
Wage
Appalachian I .....
NC
11–9013
Appalachian I .....
NC
45–1011
Appalachian I .....
NC
45–2041
Appalachian I .....
Appalachian I .....
NC
NC
45–2091
45–2092
Appalachian I .....
NC
45–2093
Appalachian I .....
Appalachian I .....
Appalachian I .....
NC
NC
VA
45–2099
53–7064
11–9013
Appalachian I .....
Appalachian I .....
Appalachian I .....
VA
VA
VA
35–2012
35–2015
45–1011
Appalachian I .....
VA
45–2041
Appalachian I .....
Appalachian I .....
VA
VA
45–2091
45–2092
Appalachian I .....
VA
45–2093
Appalachian I .....
Appalachian I .....
VA
VA
45–2099
53–7064
VerDate Sep<11>2014
18:27 Jul 25, 2019
2017
2018
Title
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
Cooks, Institution and Cafeteria ..
Cooks, Short Order .....................
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Jkt 247001
PO 00000
Frm 00083
Source
Wage
Source
Wage
Source.
$27.93
OES State .........
$31.43
OES State .........
$45.08
OES State.
25.73
OES State .........
28.10
OES State .........
30.90
OES State.
10.55
FLS Regional ....
13.29
FLS Regional ....
11.07
FLS Regional.
11.30
10.46
OES State .........
FLS Regional ....
12.42
10.96
OES State .........
FLS Regional ....
12.34
11.48
FLS Regional.
FLS Regional.
12.46
OES State .........
12.94
OES State .........
13.22
OES State.
13.13
9.67
20.96
OES State .........
FLS Regional ....
FLS National .....
12.42
11.00
35.16
OES State .........
FLS Regional ....
OES State .........
12.53
10.29
40.07
OES State.
FLS Regional.
OES State.
12.80
10.66
27.13
OES State .........
OES State .........
OES State .........
13.49
10.88
26.03
OES State .........
OES State .........
OES State .........
13.67
10.72
25.93
OES State.
OES State.
OES State.
10.55
FLS Regional ....
13.29
FLS Regional ....
11.07
FLS Regional.
12.20
10.46
OES State .........
FLS Regional ....
12.89
10.96
OES State .........
FLS Regional ....
12.34
11.48
FLS Regional.
FLS Regional.
12.41
OES State .........
12.25
OES State .........
12.90
OES State.
15.31
9.67
OES National ....
FLS Regional ....
16.88
11.00
OES National ....
FLS Regional ....
13.36
10.29
FLS National.
FLS Regional.
Fmt 4701
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Federal Register / Vol. 84, No. 144 / Friday, July 26, 2019 / Proposed Rules
TABLE 2—AVERAGE HOURLY STATEWIDE WAGES AND THEIR SOURCES UNDER THE PROPOSED RULE—Continued
2016
Region
State
SOC
jbell on DSK3GLQ082PROD with PROPOSALS2
Wage
Appalachian II ....
KY
11–9013
Appalachian II ....
KY
45–1011
Appalachian II ....
Appalachian II ....
KY
KY
45–2021
45–2041
Appalachian II ....
Appalachian II ....
KY
KY
45–2091
45–2092
Appalachian II ....
KY
45–2093
Appalachian II ....
Appalachian II ....
Appalachian II ....
KY
KY
TN
45–2099
53–7064
11–9013
Appalachian II ....
TN
45–1011
Appalachian II ....
TN
45–2041
Appalachian II ....
Appalachian II ....
TN
TN
45–2091
45–2092
Appalachian II ....
TN
45–2093
Appalachian II ....
Appalachian II ....
Appalachian II ....
TN
TN
WV
45–2099
53–7064
11–9013
Appalachian II ....
WV
45–1011
Appalachian II ....
WV
45–2041
Appalachian II ....
Appalachian II ....
WV
WV
45–2091
45–2092
Appalachian II ....
WV
45–2093
Appalachian II ....
Appalachian II ....
California ...........
WV
WV
CA
45–2099
53–7064
11–9013
California ...........
CA
19–4011
California ...........
California ...........
California ...........
CA
CA
CA
35–2012
35–2021
45–1011
California ...........
CA
45–2041
California ...........
California ...........
CA
CA
45–2091
45–2092
California ...........
CA
45–2093
California ...........
California ...........
Cornbelt I ...........
CA
CA
IL
45–2099
53–7064
11–9013
Cornbelt I ...........
IL
45–1011
Cornbelt I ...........
Cornbelt I ...........
IL
IL
45–2021
45–2041
Cornbelt I ...........
Cornbelt I ...........
IL
IL
45–2091
45–2092
Cornbelt I ...........
IL
45–2093
Cornbelt I ...........
IL
45–2099
VerDate Sep<11>2014
18:27 Jul 25, 2019
2017
2018
Title
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Animal Breeders ..........................
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
Agricultural and Food Science
Technicians.
Cooks, Institution and Cafeteria ..
Food Preparation Workers ..........
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Animal Breeders ..........................
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Jkt 247001
PO 00000
Frm 00084
Source
Wage
Source
Wage
Source.
31.32
OES State .........
37.75
OES State .........
41.50
OES State.
22.87
OES State .........
23.97
OES State .........
22.83
OES State.
17.97
11.42
OES State .........
OES State .........
24.45
11.64
OES State .........
OES State .........
20.89
10.02
OES National.
FLS Regional.
10.78
13.43
OES State .........
OES State .........
10.85
10.44
OES State .........
FLS Regional ....
12.10
10.77
FLS Regional.
FLS Regional.
12.03
OES State .........
12.75
OES State .........
11.10
FLS Regional.
14.73
10.53
22.14
OES State .........
FLS Regional ....
OES State .........
15.06
10.50
25.57
OES State .........
FLS Regional ....
OES State .........
15.36
12.13
29.28
OES State.
OES State.
OES State.
23.93
OES State .........
20.61
OES State .........
20.14
OES State.
12.27
OES State .........
11.65
FLS National .....
10.02
FLS Regional.
12.12
10.14
OES State .........
OES State .........
13.26
10.44
OES State .........
FLS Regional ....
12.10
10.77
FLS Regional.
FLS Regional.
10.56
OES State .........
10.90
OES State .........
11.10
FLS Regional.
15.31
10.53
20.96
OES National ....
FLS Regional ....
FLS National .....
18.57
10.50
21.98
OES State .........
FLS Regional ....
FLS National .....
14.54
11.46
22.67
OES State.
OES State.
FLS National.
25.09
OES State .........
23.39
OES State .........
24.66
OES State.
11.18
OES National ....
11.65
FLS National .....
10.02
FLS Regional.
12.38
10.10
FLS National .....
OES State .........
12.85
10.44
FLS National .....
FLS Regional ....
12.10
10.77
FLS Regional.
FLS Regional.
12.06
OES State .........
14.17
OES State .........
11.10
FLS Regional.
11.73
10.53
26.01
OES State .........
FLS Regional ....
FLS Regional ....
13.22
10.50
27.05
OES State .........
FLS Regional ....
FLS Regional ....
13.36
11.51
30.18
FLS National.
OES State.
FLS Regional.
20.07
OES State .........
20.40
OES State .........
20.80
OES State.
14.99
11.17
19.48
OES State .........
OES State .........
FLS Regional ....
15.75
12.19
20.38
OES State .........
OES State .........
FLS Regional ....
16.61
12.82
22.11
OES State.
OES State.
FLS Regional.
12.34
FLS Regional ....
12.37
FLS Regional ....
13.53
FLS Regional.
12.27
11.49
FLS Regional ....
FLS Regional ....
12.95
12.33
FLS Regional ....
FLS Regional ....
13.53
12.92
FLS Regional.
FLS Regional.
12.74
FLS Regional ....
13.15
FLS Regional ....
13.96
FLS Regional.
12.08
11.72
31.92
FLS Regional ....
FLS Regional ....
OES State .........
12.93
11.79
33.27
FLS Regional ....
FLS Regional ....
OES State .........
14.40
12.85
32.66
FLS Regional.
FLS Regional.
OES State.
22.01
OES State .........
20.29
OES State .........
20.45
OES State.
21.47
13.08
OES National ....
FLS Regional ....
20.35
13.55
OES National ....
FLS Regional ....
20.89
10.43
OES National.
FLS Regional.
15.83
11.93
OES State .........
FLS Regional ....
16.60
12.80
OES State .........
FLS Regional ....
14.76
11.53
FLS Regional.
FLS Regional.
11.85
OES State .........
12.27
OES State .........
13.80
OES State.
14.51
OES State .........
14.14
OES State .........
14.19
OES State.
Fmt 4701
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TABLE 2—AVERAGE HOURLY STATEWIDE WAGES AND THEIR SOURCES UNDER THE PROPOSED RULE—Continued
2016
Region
State
SOC
jbell on DSK3GLQ082PROD with PROPOSALS2
Wage
Cornbelt I ...........
Cornbelt I ...........
Cornbelt I ...........
IL
IL
IN
47–2061
53–7064
11–9013
Cornbelt I ...........
IN
45–1011
Cornbelt I ...........
IN
45–2041
Cornbelt I ...........
Cornbelt I ...........
IN
IN
45–2091
45–2092
Cornbelt I ...........
IN
45–2093
Cornbelt I ...........
Cornbelt I ...........
Cornbelt I ...........
IN
IN
OH
45–2099
53–7064
11–9013
Cornbelt I ...........
OH
45–1011
Cornbelt I ...........
OH
45–2041
Cornbelt I ...........
Cornbelt I ...........
OH
OH
45–2091
45–2092
Cornbelt I ...........
OH
45–2093
Cornbelt
Cornbelt
Cornbelt
Cornbelt
OH
OH
OH
IA
45–2099
47–2061
53–7064
11–9013
Cornbelt II ..........
IA
45–1011
Cornbelt II ..........
Cornbelt II ..........
IA
IA
45–2021
45–2041
Cornbelt II ..........
Cornbelt II ..........
IA
IA
45–2091
45–2092
Cornbelt II ..........
IA
45–2093
Cornbelt II ..........
Cornbelt II ..........
Cornbelt II ..........
IA
IA
MO
45–2099
53–7064
11–9013
Cornbelt II ..........
MO
45–1011
Cornbelt II ..........
MO
45–2041
Cornbelt II ..........
Cornbelt II ..........
MO
MO
45–2091
45–2092
Cornbelt II ..........
MO
45–2093
Cornbelt II ..........
Cornbelt II ..........
Cornbelt II ..........
Delta ..................
MO
MO
MO
AR
45–2099
47–2061
53–7064
11–9013
Delta ..................
AR
45–1011
Delta ..................
AR
45–2041
Delta ..................
Delta ..................
AR
AR
45–2091
45–2092
Delta ..................
AR
45–2093
Delta ..................
AR
45–2099
I ...........
I ...........
I ...........
II ..........
VerDate Sep<11>2014
18:27 Jul 25, 2019
2017
2018
Title
Construction Laborers .................
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Construction Laborers .................
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Animal Breeders ..........................
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Construction Laborers .................
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Jkt 247001
PO 00000
Frm 00085
Source
Wage
Source
Wage
Source.
25.07
12.31
31.54
OES State .........
OES State .........
OES State .........
27.01
11.91
21.98
OES State .........
OES State .........
FLS National .....
27.55
12.31
30.10
OES State.
OES State.
OES State.
20.98
OES State .........
22.70
OES State .........
22.46
OES State.
13.08
FLS Regional ....
13.55
FLS Regional ....
10.43
FLS Regional.
17.41
11.93
OES State .........
FLS Regional ....
17.42
12.80
OES State .........
FLS Regional ....
14.76
11.53
FLS Regional.
FLS Regional.
12.90
OES State .........
12.31
OES State .........
12.29
OES State.
15.31
11.36
32.14
OES National ....
OES State .........
OES State .........
16.88
11.31
40.03
OES National ....
OES State .........
OES State .........
10.12
11.96
39.74
OES State.
OES State.
OES State.
25.27
OES State .........
25.33
OES State .........
23.15
OES State.
13.08
FLS Regional ....
13.55
FLS Regional ....
10.43
FLS Regional.
16.22
11.93
OES State .........
FLS Regional ....
16.76
12.80
OES State .........
FLS Regional ....
14.76
11.53
FLS Regional.
FLS Regional.
12.84
OES State .........
13.68
OES State .........
13.92
OES State.
13.65
18.93
11.46
37.05
OES
OES
OES
OES
.........
.........
.........
.........
16.88
19.20
11.66
37.28
OES
OES
OES
OES
National ....
State .........
State .........
State .........
13.36
20.27
11.99
34.50
FLS National.
OES State.
OES State.
OES State.
26.09
OES State .........
27.52
OES State .........
27.02
OES State.
15.74
13.73
OES State .........
OES State .........
15.52
13.56
OES State .........
OES State .........
14.86
14.24
OES State.
OES State.
17.08
13.73
OES State .........
OES State .........
17.07
13.12
OES State .........
OES State .........
16.93
11.82
OES State.
FLS Regional.
12.55
FLS Regional ....
13.24
FLS Regional ....
13.57
FLS Regional.
13.37
11.14
27.68
OES State .........
OES State .........
OES State .........
14.70
11.72
30.33
OES State .........
OES State .........
OES State .........
15.56
12.38
28.72
OES State.
FLS Regional.
OES State.
21.63
OES State .........
22.34
OES State .........
23.37
OES State.
11.25
OES State .........
12.63
OES State .........
13.35
OES State.
13.51
10.59
OES State .........
OES State .........
14.10
11.80
OES State .........
OES State .........
15.46
11.82
OES State.
FLS Regional.
12.55
FLS Regional ....
13.24
FLS Regional ....
13.57
FLS Regional.
13.09
19.86
11.42
42.35
OES
OES
OES
OES
.........
.........
.........
.........
14.64
20.51
11.36
41.44
OES
OES
OES
OES
.........
.........
.........
.........
14.44
21.90
12.38
17.95
OES State.
OES State.
FLS Regional.
FLS Regional.
22.05
OES State .........
21.37
OES State .........
16.25
FLS Regional.
10.61
FLS Regional ....
9.19
FLS Regional ....
11.57
OES State.
10.61
10.43
FLS Regional ....
FLS Regional ....
10.27
10.44
FLS Regional ....
FLS Regional ....
10.77
10.40
FLS Regional.
FLS Regional.
10.27
FLS Regional ....
10.33
FLS Regional ....
11.41
FLS Regional.
12.37
OES State .........
15.29
OES State .........
15.38
OES State.
Fmt 4701
State
State
State
State
State
State
State
State
Sfmt 4702
E:\FR\FM\26JYP2.SGM
State
State
State
State
26JYP2
36252
Federal Register / Vol. 84, No. 144 / Friday, July 26, 2019 / Proposed Rules
TABLE 2—AVERAGE HOURLY STATEWIDE WAGES AND THEIR SOURCES UNDER THE PROPOSED RULE—Continued
2016
Region
State
SOC
jbell on DSK3GLQ082PROD with PROPOSALS2
Wage
Delta ..................
AR
49–3041
Delta ..................
Delta ..................
AR
LA
53–7064
11–9013
Delta ..................
LA
45–1011
Delta ..................
LA
45–2041
Delta ..................
Delta ..................
LA
LA
45–2091
45–2092
Delta ..................
LA
45–2093
Delta ..................
Delta ..................
Delta ..................
LA
LA
MS
45–2099
53–7064
11–9013
Delta ..................
MS
45–1011
Delta ..................
MS
45–2041
Delta ..................
Delta ..................
MS
MS
45–2091
45–2092
Delta ..................
MS
45–2093
Delta ..................
Delta ..................
Florida ................
MS
MS
FL
45–2099
53–7064
11–9013
Florida ................
Florida ................
FL
FL
13–1074
45–1011
Florida ................
FL
45–2041
Florida ................
Florida ................
FL
FL
45–2091
45–2092
Florida ................
FL
45–2093
Florida ................
Florida ................
FL
FL
45–2099
49–3041
Florida ................
FL
53–3032
Florida ................
Hawaii ................
FL
HI
53–7064
11–9013
Hawaii ................
HI
45–1011
Hawaii ................
HI
45–2041
Hawaii ................
Hawaii ................
HI
HI
45–2091
45–2092
Hawaii ................
HI
45–2093
Hawaii ................
Hawaii ................
Lake ...................
HI
HI
MI
45–2099
53–7064
11–9013
Lake ...................
MI
45–1011
Lake ...................
MI
45–2041
Lake ...................
Lake ...................
MI
MI
45–2091
45–2092
VerDate Sep<11>2014
18:27 Jul 25, 2019
2017
2018
Title
Farm Equipment Mechanics and
Service Technicians.
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
Farm Labor Contractors ..............
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Farm Equipment Mechanics and
Service Technicians.
Heavy and Tractor-Trailer Truck
Drivers.
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Jkt 247001
PO 00000
Frm 00086
Source
Wage
Source
Wage
Source.
16.42
OES State .........
16.33
OES State .........
17.20
OES State.
10.19
30.80
FLS Regional ....
OES State .........
10.21
30.70
FLS Regional ....
OES State .........
10.61
17.95
FLS Regional.
FLS Regional.
26.52
OES State .........
27.24
OES State .........
16.25
FLS Regional.
10.61
FLS Regional ....
9.19
FLS Regional ....
16.15
OES State.
10.61
10.43
FLS Regional ....
FLS Regional ....
10.27
10.44
FLS Regional ....
FLS Regional ....
10.77
10.40
FLS Regional.
FLS Regional.
10.27
FLS Regional ....
10.33
FLS Regional ....
11.41
FLS Regional.
20.04
10.19
23.51
OES State .........
FLS Regional ....
OES State .........
26.79
10.21
21.98
OES State .........
FLS Regional ....
FLS National .....
24.13
10.61
17.95
OES State.
FLS Regional.
FLS Regional.
22.15
OES State .........
20.71
OES State .........
16.25
FLS Regional.
10.61
FLS Regional ....
9.19
FLS Regional ....
11.41
OES State.
10.61
10.43
FLS Regional ....
FLS Regional ....
10.27
10.44
FLS Regional ....
FLS Regional ....
10.77
10.40
FLS Regional.
FLS Regional.
10.27
FLS Regional ....
10.33
FLS Regional ....
11.41
FLS Regional.
11.38
10.19
46.15
OES State .........
FLS Regional ....
OES State .........
14.54
10.21
50.97
OES State .........
FLS Regional ....
OES State .........
13.36
10.61
41.57
FLS National.
FLS Regional.
OES State.
20.26
22.67
OES State .........
OES State .........
22.74
22.56
OES National ....
OES State .........
11.51
22.95
OES State.
OES State.
10.75
FLS Regional ....
10.91
FLS Regional ....
9.29
OES State.
13.09
10.66
OES State .........
FLS Regional ....
14.50
10.95
OES State .........
FLS Regional ....
11.75
11.21
FLS Regional.
FLS Regional.
11.71
FLS Regional ....
12.80
FLS Regional ....
11.98
FLS Regional.
15.31
17.42
OES National ....
OES State .........
16.48
18.27
OES State .........
OES State .........
10.40
19.28
FLS Regional.
OES State.
18.19
OES State .........
18.91
OES State .........
19.78
OES State.
9.59
20.96
FLS Regional ....
FLS National .....
9.92
21.98
FLS Regional ....
FLS National .....
10.87
22.67
OES State.
FLS National.
21.71
OES State .........
24.83
OES State .........
24.60
OES State.
11.18
OES National ....
11.65
FLS National .....
12.43
FLS National.
14.94
11.37
FLS Regional ....
FLS Regional ....
15.92
12.44
FLS Regional ....
FLS Regional ....
12.86
15.13
FLS National.
OES State.
13.99
FLS Regional ....
16.54
FLS Regional ....
16.16
OES State.
18.56
11.90
28.73
OES State .........
OES State .........
OES State .........
18.17
12.00
31.75
OES State .........
OES State .........
OES State .........
19.17
12.31
31.02
OES State.
OES State.
OES State.
24.34
OES State .........
20.83
OES State .........
21.27
OES State.
11.34
OES State .........
10.85
OES State .........
11.34
OES State.
12.94
11.55
FLS Regional ....
FLS Regional ....
16.33
11.43
FLS Regional ....
FLS Regional ....
15.37
12.47
FLS Regional.
FLS Regional.
Fmt 4701
Sfmt 4702
E:\FR\FM\26JYP2.SGM
26JYP2
36253
Federal Register / Vol. 84, No. 144 / Friday, July 26, 2019 / Proposed Rules
TABLE 2—AVERAGE HOURLY STATEWIDE WAGES AND THEIR SOURCES UNDER THE PROPOSED RULE—Continued
2016
Region
State
SOC
jbell on DSK3GLQ082PROD with PROPOSALS2
Wage
Lake ...................
MI
45–2093
Lake
Lake
Lake
Lake
...................
...................
...................
...................
MI
MI
MI
MN
45–2099
47–2061
53–7064
11–9013
Lake ...................
MN
45–1011
Lake ...................
MN
45–2041
Lake ...................
Lake ...................
MN
MN
45–2091
45–2092
Lake ...................
MN
45–2093
Lake ...................
Lake ...................
Lake ...................
MN
MN
WI
45–2099
53–7064
11–9013
Lake ...................
Lake ...................
WI
WI
35–1011
45–1011
Lake ...................
WI
45–2041
Lake ...................
Lake ...................
WI
WI
45–2091
45–2092
Lake ...................
WI
45–2093
Lake ...................
Lake ...................
Mountain I ..........
WI
WI
ID
45–2099
53–7064
11–9013
Mountain I ..........
ID
45–1011
Mountain I ..........
Mountain I ..........
ID
ID
45–2021
45–2041
Mountain I ..........
Mountain I ..........
ID
ID
45–2091
45–2092
Mountain I ..........
ID
45–2093
Mountain I ..........
Mountain I ..........
ID
ID
45–2099
49–9071
Mountain I ..........
Mountain I ..........
ID
MT
53–7064
11–9013
Mountain I ..........
MT
45–1011
Mountain I ..........
MT
45–2041
Mountain I ..........
Mountain I ..........
MT
MT
45–2091
45–2092
Mountain I ..........
MT
45–2093
Mountain I ..........
Mountain I ..........
Mountain I ..........
MT
MT
WY
45–2099
53–7064
11–9013
Mountain I ..........
WY
45–1011
Mountain I ..........
WY
45–2041
Mountain I ..........
Mountain I ..........
WY
WY
45–2091
45–2092
VerDate Sep<11>2014
18:27 Jul 25, 2019
2017
2018
Title
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Construction Laborers .................
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
Chefs and Head Cooks ...............
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Animal Breeders ..........................
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Maintenance and Repair Workers, General.
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Jkt 247001
PO 00000
Frm 00087
Source
Wage
Source
Wage
Source.
11.80
FLS Regional ....
12.23
FLS Regional ....
12.56
FLS Regional.
11.53
18.15
11.86
35.92
FLS Regional ....
OES State .........
OES State .........
OES State .........
13.18
18.31
12.27
38.70
FLS Regional ....
OES State .........
OES State .........
OES State .........
14.87
18.56
11.30
38.56
OES State.
OES State.
FLS Regional.
OES State.
24.51
OES State .........
25.19
OES State .........
29.18
OES State.
14.84
OES State .........
15.44
OES State .........
16.26
OES State.
12.94
11.55
FLS Regional ....
FLS Regional ....
16.33
11.43
FLS Regional ....
FLS Regional ....
15.37
12.47
FLS Regional.
FLS Regional.
11.80
FLS Regional ....
12.23
FLS Regional ....
12.56
FLS Regional.
11.53
11.91
31.18
FLS Regional ....
OES State .........
OES State .........
13.18
12.58
31.01
FLS Regional ....
OES State .........
OES State .........
23.52
11.30
35.25
OES State.
FLS Regional.
OES State.
18.95
23.99
OES State .........
OES State .........
22.71
24.88
OES State .........
OES State .........
22.85
25.20
OES State.
OES State.
13.41
OES State .........
13.77
OES State .........
14.54
OES State.
12.94
11.55
FLS Regional ....
FLS Regional ....
16.33
11.43
FLS Regional ....
FLS Regional ....
15.37
12.47
FLS Regional.
FLS Regional.
11.80
FLS Regional ....
12.23
FLS Regional ....
12.56
FLS Regional.
11.53
12.43
37.97
FLS Regional ....
OES State .........
OES State .........
13.18
12.99
35.39
FLS Regional ....
OES State .........
OES State .........
13.36
11.30
35.37
FLS National.
FLS Regional.
OES State.
19.60
OES State .........
20.49
OES State .........
21.61
OES State.
21.47
9.77
OES National ....
OES State .........
20.35
10.45
OES National ....
OES State .........
20.89
11.21
OES National.
FLS Regional.
12.41
11.51
FLS Regional ....
FLS Regional ....
12.60
12.05
FLS Regional ....
FLS Regional ....
15.38
10.82
OES State.
FLS Regional.
12.99
OES State .........
13.39
OES State .........
11.92
FLS Regional.
11.27
16.81
FLS Regional ....
OES State .........
11.84
17.15
FLS Regional ....
OES State .........
14.77
17.17
OES State.
OES State.
11.39
20.96
OES State .........
FLS National .....
11.80
21.98
OES State .........
FLS National .....
12.40
22.67
OES State.
FLS National.
17.78
OES State .........
17.33
OES State .........
18.69
OES State.
12.22
OES State .........
13.10
OES State .........
11.21
FLS Regional.
12.41
11.51
FLS Regional ....
FLS Regional ....
12.60
12.05
FLS Regional ....
FLS Regional ....
12.86
10.82
FLS National.
FLS Regional.
12.54
OES State .........
13.08
OES State .........
11.92
FLS Regional.
11.27
10.47
20.96
FLS Regional ....
OES State .........
FLS National .....
11.84
11.48
21.98
FLS Regional ....
OES State .........
FLS National .....
17.77
11.68
22.67
OES State.
OES State.
FLS National.
20.49
FLS National .....
19.55
FLS National .....
20.10
FLS National.
11.18
OES National ....
11.65
FLS National .....
11.21
FLS Regional.
12.41
11.51
FLS Regional ....
FLS Regional ....
12.60
12.05
FLS Regional ....
FLS Regional ....
12.86
10.82
FLS National.
FLS Regional.
Fmt 4701
Sfmt 4702
E:\FR\FM\26JYP2.SGM
26JYP2
36254
Federal Register / Vol. 84, No. 144 / Friday, July 26, 2019 / Proposed Rules
TABLE 2—AVERAGE HOURLY STATEWIDE WAGES AND THEIR SOURCES UNDER THE PROPOSED RULE—Continued
2016
Region
State
SOC
jbell on DSK3GLQ082PROD with PROPOSALS2
Wage
Mountain I ..........
WY
45–2093
Mountain I ..........
Mountain I ..........
Mountain II .........
WY
WY
CO
45–2099
53–7064
11–9013
Mountain II .........
CO
45–1011
Mountain II .........
CO
45–2041
Mountain II .........
Mountain II .........
CO
CO
45–2091
45–2092
Mountain II .........
CO
45–2093
Mountain II .........
Mountain II .........
Mountain II .........
CO
CO
NV
45–2099
53–7064
11–9013
Mountain II .........
NV
45–1011
Mountain II .........
NV
45–2041
Mountain II .........
Mountain II .........
NV
NV
45–2091
45–2092
Mountain II .........
NV
45–2093
Mountain II .........
Mountain II .........
Mountain II .........
NV
NV
UT
45–2099
53–7064
11–9013
Mountain II .........
UT
45–1011
Mountain II .........
UT
45–2041
Mountain II .........
Mountain II .........
UT
UT
45–2091
45–2092
Mountain II .........
UT
45–2093
Mountain II .........
Mountain II .........
Mountain III ........
UT
UT
AZ
45–2099
53–7064
11–9013
Mountain III ........
Mountain III ........
AZ
AZ
35–2021
45–1011
Mountain III ........
AZ
45–2041
Mountain III ........
Mountain III ........
AZ
AZ
45–2091
45–2092
Mountain III ........
AZ
45–2093
Mountain III ........
Mountain III ........
Mountain III ........
AZ
AZ
NM
45–2099
53–7064
11–9013
Mountain III ........
NM
45–1011
Mountain III ........
NM
45–2041
Mountain III ........
Mountain III ........
NM
NM
45–2091
45–2092
Mountain III ........
NM
45–2093
Mountain III ........
NM
45–2099
VerDate Sep<11>2014
18:27 Jul 25, 2019
2017
2018
Title
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
Food Preparation Workers ..........
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Jkt 247001
PO 00000
Frm 00088
Source
Wage
Source
Wage
Source.
13.10
OES State .........
14.13
OES State .........
11.92
FLS Regional.
11.27
13.68
21.24
FLS Regional ....
OES State .........
OES State .........
11.84
13.48
27.99
FLS Regional ....
OES State .........
OES State .........
13.36
10.94
16.62
FLS National.
OES State.
FLS Regional.
25.95
OES State .........
24.63
OES State .........
25.47
OES State.
9.48
OES State .........
9.56
OES State .........
10.60
FLS Regional.
12.06
10.96
FLS Regional ....
FLS Regional ....
11.40
11.14
FLS Regional ....
FLS Regional ....
10.85
10.02
FLS Regional.
FLS Regional.
9.84
FLS Regional ....
10.71
FLS Regional ....
15.14
OES State.
11.94
11.26
20.96
FLS Regional ....
OES State .........
FLS National .....
12.64
11.56
44.22
FLS Regional ....
OES State .........
OES State .........
18.77
12.29
16.62
OES State.
OES State.
FLS Regional.
22.28
OES State .........
23.46
OES State .........
23.93
OES State.
12.66
OES State .........
11.65
FLS National .....
12.43
FLS National.
12.06
10.96
FLS Regional ....
FLS Regional ....
11.40
11.14
FLS Regional ....
FLS Regional ....
10.85
10.02
FLS Regional.
FLS Regional.
9.84
FLS Regional ....
10.71
FLS Regional ....
15.09
OES State.
11.94
11.08
20.96
FLS Regional ....
OES State .........
FLS National .....
12.64
10.68
21.98
FLS Regional ....
OES State .........
FLS National .....
19.27
10.81
16.62
OES State.
OES State.
FLS Regional.
21.76
OES State .........
22.51
OES State .........
22.98
OES State.
11.18
OES National ....
11.65
FLS National .....
12.43
FLS National.
12.06
10.96
FLS Regional ....
FLS Regional ....
11.40
11.14
FLS Regional ....
FLS Regional ....
10.85
10.02
FLS Regional.
FLS Regional.
9.84
FLS Regional ....
10.71
FLS Regional ....
13.22
OES State.
11.94
10.77
31.37
FLS Regional ....
OES State .........
OES State .........
12.64
11.17
39.04
FLS Regional ....
OES State .........
OES State .........
13.36
11.74
17.17
FLS National.
OES State.
FLS Regional.
10.33
21.32
OES State .........
OES State .........
10.63
23.48
OES State .........
OES State .........
11.42
24.14
OES State.
OES State.
11.33
OES State .........
11.99
OES State .........
11.29
OES State.
11.10
9.17
FLS Regional ....
OES State .........
11.06
9.97
FLS Regional ....
OES State .........
10.65
10.23
FLS Regional.
FLS Regional.
11.57
FLS Regional ....
11.10
FLS Regional ....
15.83
OES State.
12.90
10.99
21.63
FLS Regional ....
OES State .........
OES State .........
12.02
11.35
22.44
FLS Regional ....
OES State .........
OES State .........
17.79
10.02
17.17
OES State.
FLS Regional.
FLS Regional.
19.54
OES State .........
17.69
OES State .........
20.71
OES State.
14.19
OES State .........
14.54
OES State .........
12.32
OES State.
11.10
9.64
FLS Regional ....
OES State .........
11.06
10.41
FLS Regional ....
OES State .........
10.65
10.23
FLS Regional.
FLS Regional.
11.57
FLS Regional ....
11.10
FLS Regional ....
12.03
OES State.
12.90
FLS Regional ....
12.02
FLS Regional ....
15.54
OES State.
Fmt 4701
Sfmt 4702
E:\FR\FM\26JYP2.SGM
26JYP2
36255
Federal Register / Vol. 84, No. 144 / Friday, July 26, 2019 / Proposed Rules
TABLE 2—AVERAGE HOURLY STATEWIDE WAGES AND THEIR SOURCES UNDER THE PROPOSED RULE—Continued
2016
Region
State
SOC
jbell on DSK3GLQ082PROD with PROPOSALS2
Wage
Mountain III ........
NM
47–2073
Mountain III ........
NM
53–7062
Mountain III ........
North Plains .......
NM
KS
53–7064
11–9013
North Plains .......
KS
45–1011
North Plains .......
KS
45–2041
North Plains .......
North Plains .......
KS
KS
45–2091
45–2092
North Plains .......
KS
45–2093
North Plains .......
North Plains .......
North Plains .......
KS
KS
ND
45–2099
53–7064
11–9013
North Plains .......
ND
45–1011
North Plains .......
ND
45–2041
North Plains .......
North Plains .......
ND
ND
45–2091
45–2092
North Plains .......
ND
45–2093
North Plains .......
North Plains .......
North Plains .......
ND
ND
NE
45–2099
53–7064
11–9013
North Plains .......
NE
45–1011
North Plains .......
NE
45–2041
North Plains .......
North Plains .......
NE
NE
45–2091
45–2092
North Plains .......
NE
45–2093
North Plains .......
North Plains .......
North Plains .......
NE
NE
SD
45–2099
53–7064
11–9013
North Plains .......
SD
45–1011
North Plains .......
North Plains .......
SD
SD
45–2021
45–2041
North Plains .......
North Plains .......
SD
SD
45–2091
45–2092
North Plains .......
SD
45–2093
North Plains .......
North Plains .......
SD
SD
45–2099
53–3032
North Plains .......
Northeast I .........
SD
CT
53–7064
11–9013
Northeast I .........
Northeast I .........
CT
CT
35–2012
45–1011
Northeast I .........
CT
45–2041
Northeast I .........
CT
45–2091
VerDate Sep<11>2014
18:27 Jul 25, 2019
2017
2018
Title
Operating Engineers and Other
Construction Equipment Operators.
Laborers and Freight, Stock, and
Material Movers, Hand.
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Animal Breeders ..........................
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Heavy and Tractor-Trailer Truck
Drivers.
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
Cooks, Institution and Cafeteria ..
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Jkt 247001
PO 00000
Frm 00089
Source
Wage
Source
Wage
Source.
20.93
OES State .........
21.05
OES State .........
20.77
OES State.
12.76
OES State .........
13.08
OES State .........
13.39
OES State.
9.86
20.96
OES State .........
FLS National .....
10.21
21.98
OES State .........
FLS National .....
10.02
22.67
FLS Regional.
FLS National.
23.30
OES State .........
24.91
OES State .........
25.13
OES State.
15.04
OES State .........
15.70
OES State .........
16.25
OES State.
14.43
11.89
FLS Regional ....
OES State .........
14.91
12.58
FLS Regional ....
OES State .........
17.45
12.83
OES State.
OES State.
13.83
FLS Regional ....
12.43
FLS Regional ....
12.41
FLS Regional.
15.31
10.80
36.04
OES National ....
OES State .........
OES State .........
15.15
11.58
21.98
OES State .........
OES State .........
FLS National .....
16.31
12.61
22.67
OES State.
OES State.
FLS National.
25.04
OES State .........
25.40
OES State .........
20.10
FLS National.
14.50
OES State .........
17.07
OES State .........
19.15
OES State.
14.43
12.82
FLS Regional ....
OES State .........
14.91
12.89
FLS Regional ....
OES State .........
18.16
14.11
OES State.
OES State.
13.83
FLS Regional ....
12.43
FLS Regional ....
12.41
FLS Regional.
15.36
11.46
20.96
OES State .........
OES State .........
FLS National .....
18.91
12.18
21.98
OES State .........
OES State .........
FLS National .....
13.36
12.80
24.38
FLS National.
OES State.
OES State.
24.23
OES State .........
24.85
OES State .........
26.68
OES State.
14.47
OES State .........
14.52
OES State .........
15.15
OES State.
14.43
15.67
FLS Regional ....
OES State .........
14.91
16.01
FLS Regional ....
OES State .........
18.01
17.59
OES State.
OES State.
13.83
FLS Regional ....
12.43
FLS Regional ....
12.41
FLS Regional.
15.31
11.30
20.96
OES National ....
OES State .........
FLS National .....
16.88
11.65
21.98
OES National ....
OES State .........
FLS National .....
13.36
12.41
22.67
FLS National.
OES State.
FLS National.
20.49
FLS National .....
19.55
FLS National .....
20.14
OES State.
21.19
12.62
OES State .........
OES State .........
20.35
13.18
OES National ....
OES State .........
17.35
13.23
OES State.
OES State.
14.43
10.96
FLS Regional ....
OES State .........
14.91
10.79
FLS Regional ....
OES State .........
15.62
12.59
OES State.
OES State.
13.83
FLS Regional ....
12.43
FLS Regional ....
12.41
FLS Regional.
15.31
18.83
OES National ....
OES State .........
16.88
19.27
OES National ....
OES State .........
13.36
19.64
FLS National.
OES State.
11.11
20.96
OES State .........
FLS National .....
11.41
21.98
OES State .........
FLS National .....
11.76
36.43
OES State.
OES State.
16.41
23.97
OES State .........
OES State .........
16.73
22.81
OES State .........
OES State .........
17.57
23.79
OES State.
OES State.
11.18
OES National ....
11.65
FLS National .....
13.38
FLS Regional.
13.07
FLS Regional ....
12.97
FLS Regional ....
13.85
FLS Regional.
Fmt 4701
Sfmt 4702
E:\FR\FM\26JYP2.SGM
26JYP2
36256
Federal Register / Vol. 84, No. 144 / Friday, July 26, 2019 / Proposed Rules
TABLE 2—AVERAGE HOURLY STATEWIDE WAGES AND THEIR SOURCES UNDER THE PROPOSED RULE—Continued
2016
Region
State
SOC
jbell on DSK3GLQ082PROD with PROPOSALS2
Wage
Northeast I .........
CT
45–2092
Northeast I .........
CT
45–2093
Northeast I .........
Northeast I .........
CT
CT
45–2099
49–3041
Northeast I .........
CT
51–9012
Northeast I .........
CT
53–3032
Northeast I .........
Northeast I .........
CT
MA
53–7064
11–9013
Northeast I .........
MA
45–1011
Northeast I .........
MA
45–2041
Northeast I .........
Northeast I .........
MA
MA
45–2091
45–2092
Northeast I .........
MA
45–2093
Northeast I .........
Northeast I .........
Northeast I .........
MA
MA
ME
45–2099
53–7064
11–9013
Northeast I .........
ME
45–1011
Northeast I .........
ME
45–2041
Northeast I .........
Northeast I .........
ME
ME
45–2091
45–2092
Northeast I .........
ME
45–2093
Northeast I .........
Northeast I .........
Northeast I .........
ME
ME
ME
45–2099
45–4022
47–2073
Northeast I .........
ME
49–3041
Northeast I .........
ME
49–3042
Northeast I .........
ME
51–7041
Northeast I .........
ME
51–9021
Northeast I .........
ME
53–3032
Northeast I .........
Northeast I .........
Northeast I .........
ME
ME
NH
53–7041
53–7064
11–9013
Northeast I .........
NH
45–1011
Northeast I .........
NH
45–2041
Northeast I .........
Northeast I .........
NH
NH
45–2091
45–2092
Northeast I .........
NH
45–2093
Northeast I .........
Northeast I .........
Northeast I .........
NH
NH
NY
45–2099
53–7064
11–9013
Northeast I .........
Northeast I .........
NY
NY
35–2012
35–2019
VerDate Sep<11>2014
18:27 Jul 25, 2019
2017
2018
Title
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Farm Equipment Mechanics and
Service Technicians.
Separating, Filtering, Clarifying,
Precipitating, and Still Machine
Setters, Operators, and
Tenders.
Heavy and Tractor-Trailer Truck
Drivers.
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Logging Equipment Operators ....
Operating Engineers and Other
Construction Equipment Operators.
Farm Equipment Mechanics and
Service Technicians.
Mobile Heavy Equipment Mechanics, Except Engines.
Sawing Machine Setters, Operators, and Tenders, Wood.
Crushing, Grinding, and Polishing
Machine Setters, Operators,
and Tenders.
Heavy and Tractor-Trailer Truck
Drivers.
Hoist and Winch Operators .........
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
Cooks, Institution and Cafeteria ..
Cooks, All Other ..........................
Jkt 247001
PO 00000
Frm 00090
Source
Wage
Source
Wage
Source.
12.01
OES State .........
13.19
FLS Regional ....
13.11
FLS Regional.
14.35
OES State .........
11.17
FLS Regional ....
11.81
FLS Regional.
15.31
19.87
OES National ....
OES State .........
16.88
20.19
OES National ....
OES State .........
13.36
20.33
FLS National.
OES State.
12.92
OES State .........
15.12
OES State .........
15.88
OES State.
22.37
OES State .........
22.80
OES State .........
23.33
OES State.
13.72
20.96
OES State .........
FLS National .....
14.53
21.98
OES State .........
FLS National .....
15.43
31.23
OES State.
OES State.
25.91
OES State .........
26.35
OES State .........
25.45
OES State.
10.70
OES State .........
11.96
OES State .........
13.38
FLS Regional.
13.07
12.82
FLS Regional ....
OES State .........
12.97
13.19
FLS Regional ....
FLS Regional ....
13.85
13.11
FLS Regional.
FLS Regional.
12.56
OES State .........
11.17
FLS Regional ....
11.81
FLS Regional.
15.31
11.89
20.96
OES National ....
OES State .........
FLS National .....
16.88
12.52
21.98
OES National ....
OES State .........
FLS National .....
13.36
13.15
22.67
FLS National.
OES State.
FLS National.
21.27
OES State .........
25.77
OES State .........
25.85
OES State.
11.69
OES State .........
13.56
OES State .........
13.38
FLS Regional.
13.07
12.72
FLS Regional ....
OES State .........
12.97
13.19
FLS Regional ....
FLS Regional ....
13.85
13.11
FLS Regional.
FLS Regional.
13.04
OES State .........
11.17
FLS Regional ....
11.81
FLS Regional.
15.31
17.70
17.70
OES National ....
OES State .........
OES State .........
16.88
17.91
18.53
OES National ....
OES State .........
OES State .........
13.36
18.00
19.13
FLS National.
OES State.
OES State.
15.34
OES State .........
18.26
OES State .........
19.60
OES State.
21.26
OES State .........
21.31
OES State .........
20.98
OES State.
14.20
OES State .........
15.32
OES State .........
16.06
OES State.
19.17
OES State .........
20.67
OES State .........
18.49
OES State.
18.53
OES State .........
19.29
OES State .........
19.55
OES State.
24.37
10.99
20.96
OES National ....
OES State .........
FLS National .....
24.05
11.43
21.98
OES National ....
OES State .........
FLS National .....
26.40
12.36
22.67
OES National.
OES State.
FLS National.
24.78
OES State .........
25.44
OES State .........
25.68
OES State.
11.18
OES National ....
11.65
FLS National .....
13.38
FLS Regional.
13.07
13.15
FLS Regional ....
OES State .........
12.97
13.19
FLS Regional ....
FLS Regional ....
13.85
13.11
FLS Regional.
FLS Regional.
12.80
OES State .........
11.17
FLS Regional ....
11.81
FLS Regional.
15.31
11.58
32.90
OES National ....
OES State .........
OES State .........
16.88
11.26
36.23
OES National ....
OES State .........
OES State .........
13.36
11.82
41.46
FLS National.
OES State.
OES State.
15.14
13.66
OES State .........
OES State .........
15.70
13.44
OES State .........
OES State .........
16.09
15.08
OES State.
OES State.
Fmt 4701
Sfmt 4702
E:\FR\FM\26JYP2.SGM
26JYP2
36257
Federal Register / Vol. 84, No. 144 / Friday, July 26, 2019 / Proposed Rules
TABLE 2—AVERAGE HOURLY STATEWIDE WAGES AND THEIR SOURCES UNDER THE PROPOSED RULE—Continued
2016
Region
State
SOC
jbell on DSK3GLQ082PROD with PROPOSALS2
Wage
Northeast I .........
NY
45–1011
Northeast I .........
NY
45–2041
Northeast I .........
Northeast I .........
NY
NY
45–2091
45–2092
Northeast I .........
NY
45–2093
Northeast I .........
Northeast I .........
Northeast I .........
NY
NY
RI
45–2099
53–7064
11–9013
Northeast I .........
RI
45–1011
Northeast I .........
RI
45–2041
Northeast I .........
Northeast I .........
RI
RI
45–2091
45–2092
Northeast I .........
RI
45–2093
Northeast I .........
Northeast I .........
Northeast I .........
RI
RI
VT
45–2099
53–7064
11–9013
Northeast I .........
Northeast I .........
VT
VT
35–2012
45–1011
Northeast I .........
VT
45–2041
Northeast I .........
Northeast I .........
VT
VT
45–2091
45–2092
Northeast I .........
VT
45–2093
Northeast I .........
Northeast I .........
VT
VT
45–2099
51–3022
Northeast I .........
Northeast II ........
VT
DE
53–7064
11–9013
Northeast II ........
DE
45–1011
Northeast II ........
DE
45–2041
Northeast II ........
Northeast II ........
DE
DE
45–2091
45–2092
Northeast II ........
DE
45–2093
Northeast II ........
Northeast II ........
Northeast II ........
DE
DE
MD
45–2099
53–7064
11–9013
Northeast II ........
MD
45–1011
Northeast II ........
MD
45–2041
Northeast II ........
Northeast II ........
MD
MD
45–2091
45–2092
Northeast II ........
MD
45–2093
Northeast II ........
Northeast II ........
Northeast II ........
MD
MD
NJ
45–2099
53–7064
11–9013
VerDate Sep<11>2014
18:27 Jul 25, 2019
2017
2018
Title
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
Cooks, Institution and Cafeteria ..
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Meat, Poultry, and Fish Cutters
and Trimmers.
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
Jkt 247001
PO 00000
Frm 00091
Source
Wage
Source
Wage
Source.
27.53
OES State .........
27.70
OES State .........
28.82
OES State.
10.74
OES State .........
11.35
OES State .........
13.38
FLS Regional.
13.07
12.56
FLS Regional ....
OES State .........
12.97
13.19
FLS Regional ....
FLS Regional ....
13.85
13.11
FLS Regional.
FLS Regional.
15.11
OES State .........
11.17
FLS Regional ....
11.81
FLS Regional.
15.31
12.20
20.96
OES National ....
OES State .........
FLS National .....
16.88
12.19
21.98
OES National ....
OES State .........
FLS National .....
13.36
12.80
22.67
FLS National.
OES State.
FLS National.
20.49
FLS National .....
19.55
FLS National .....
20.10
FLS National.
11.18
OES National ....
11.65
FLS National .....
13.38
FLS Regional.
13.07
12.91
FLS Regional ....
OES State .........
12.97
13.19
FLS Regional ....
FLS Regional ....
13.85
13.11
FLS Regional.
FLS Regional.
11.81
FLS National .....
11.17
FLS Regional ....
11.81
FLS Regional.
15.31
10.83
20.96
OES National ....
OES State .........
FLS National .....
16.88
12.06
21.98
OES National ....
OES State .........
FLS National .....
13.36
12.35
22.67
FLS National.
OES State.
FLS National.
14.00
22.00
OES State .........
OES State .........
14.57
21.17
OES State .........
OES State .........
14.65
23.81
OES State.
OES State.
11.70
OES State .........
12.66
OES State .........
13.38
FLS Regional.
13.07
13.35
FLS Regional ....
OES State .........
12.97
13.19
FLS Regional ....
FLS Regional ....
13.85
13.11
FLS Regional.
FLS Regional.
15.64
OES State .........
11.17
FLS Regional ....
11.81
FLS Regional.
15.31
14.56
OES National ....
OES State .........
16.88
15.23
OES National ....
OES State .........
13.36
16.28
FLS National.
OES State.
12.07
20.96
OES State .........
FLS National .....
12.39
21.98
OES State .........
FLS National .....
13.22
22.67
OES State.
FLS National.
25.75
OES State .........
25.70
OES State .........
27.07
OES State.
11.09
FLS Regional ....
12.18
FLS Regional ....
13.89
FLS Regional.
13.27
11.90
OES State .........
FLS Regional ....
12.85
11.91
FLS National .....
FLS Regional ....
12.86
12.05
FLS National.
FLS Regional.
11.82
OES State .........
13.28
OES State .........
11.36
FLS Regional.
15.31
12.55
20.96
OES National ....
OES State .........
FLS National .....
16.88
11.47
21.98
OES National ....
OES State .........
FLS National .....
13.36
11.68
22.67
FLS National.
OES State.
FLS National.
24.95
OES State .........
27.22
OES State .........
25.64
OES State.
11.09
FLS Regional ....
12.18
FLS Regional ....
13.89
FLS Regional.
18.40
11.90
OES State .........
FLS Regional ....
20.31
11.91
OES State .........
FLS Regional ....
20.30
12.05
OES State.
FLS Regional.
14.10
OES State .........
13.34
OES State .........
11.36
FLS Regional.
17.44
11.19
40.26
OES State .........
OES State .........
OES State .........
17.92
11.85
39.45
OES State .........
OES State .........
OES State .........
13.36
12.20
39.49
FLS National.
OES State.
OES State.
Fmt 4701
Sfmt 4702
E:\FR\FM\26JYP2.SGM
26JYP2
36258
Federal Register / Vol. 84, No. 144 / Friday, July 26, 2019 / Proposed Rules
TABLE 2—AVERAGE HOURLY STATEWIDE WAGES AND THEIR SOURCES UNDER THE PROPOSED RULE—Continued
2016
Region
State
SOC
jbell on DSK3GLQ082PROD with PROPOSALS2
Wage
Northeast II ........
NJ
45–1011
Northeast II ........
NJ
45–2041
Northeast II ........
Northeast II ........
NJ
NJ
45–2091
45–2092
Northeast II ........
NJ
45–2093
Northeast II ........
Northeast II ........
Northeast II ........
NJ
NJ
PA
45–2099
53–7064
11–9013
Northeast II ........
PA
45–1011
Northeast II ........
PA
45–2041
Northeast II ........
Northeast II ........
PA
PA
45–2091
45–2092
Northeast II ........
PA
45–2093
Northeast II ........
Northeast II ........
Pacific ................
PA
PA
OR
45–2099
53–7064
11–9013
Pacific ................
OR
45–1011
Pacific ................
OR
45–2041
Pacific ................
Pacific ................
OR
OR
45–2091
45–2092
Pacific ................
OR
45–2093
Pacific ................
Pacific ................
Pacific ................
OR
OR
WA
45–2099
53–7064
11–9013
Pacific ................
WA
45–1011
Pacific ................
WA
45–2041
Pacific ................
Pacific ................
WA
WA
45–2091
45–2092
Pacific ................
WA
45–2093
Pacific ................
Pacific ................
Southeast ..........
WA
WA
AL
45–2099
53–7064
11–9013
Southeast ..........
AL
45–1011
Southeast ..........
AL
45–2041
Southeast ..........
Southeast ..........
AL
AL
45–2091
45–2092
Southeast ..........
AL
45–2093
Southeast ..........
Southeast ..........
AL
AL
45–2099
53–3032
Southeast ..........
Southeast ..........
AL
GA
53–7064
11–9013
Southeast ..........
GA
45–1011
VerDate Sep<11>2014
18:27 Jul 25, 2019
2017
2018
Title
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Heavy and Tractor-Trailer Truck
Drivers.
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Jkt 247001
PO 00000
Frm 00092
Source
Wage
Source
Wage
Source.
21.24
OES State .........
21.37
OES State .........
21.23
OES State.
11.09
FLS Regional ....
12.18
FLS Regional ....
13.89
FLS Regional.
16.33
11.90
OES State .........
FLS Regional ....
12.85
11.91
FLS National .....
FLS Regional ....
11.27
12.05
OES State.
FLS Regional.
13.43
OES State .........
13.53
OES State .........
11.36
FLS Regional.
13.09
10.72
42.44
OES State .........
OES State .........
OES State .........
13.11
11.15
41.83
OES State .........
OES State .........
OES State .........
11.88
11.64
43.16
OES State.
OES State.
OES State.
25.48
OES State .........
24.83
OES State .........
26.49
OES State.
11.09
FLS Regional ....
12.18
FLS Regional ....
13.89
FLS Regional.
13.60
11.90
OES State .........
FLS Regional ....
15.43
11.91
OES State .........
FLS Regional ....
18.81
12.05
OES State.
FLS Regional.
13.56
OES State .........
13.19
OES State .........
11.36
FLS Regional.
15.31
12.13
28.68
OES National ....
OES State .........
OES State .........
16.88
12.53
26.10
OES National ....
OES State .........
OES State .........
13.36
13.32
29.89
FLS National.
OES State.
OES State.
26.95
OES State .........
25.50
OES State .........
24.49
OES State.
10.84
OES State .........
11.43
OES State .........
11.90
OES State.
15.12
13.08
FLS Regional ....
FLS Regional ....
14.55
13.30
FLS Regional ....
FLS Regional ....
14.38
14.32
FLS Regional.
FLS Regional.
12.08
FLS Regional ....
13.71
FLS Regional ....
14.47
FLS Regional.
15.38
12.84
34.58
OES State .........
FLS Regional ....
OES State .........
16.40
11.26
38.36
OES State .........
FLS Regional ....
OES State .........
18.08
13.48
41.15
OES State.
OES State.
OES State.
26.75
OES State .........
27.55
OES State .........
25.34
OES State.
13.60
OES State .........
14.40
OES State .........
14.22
OES State.
15.12
13.08
FLS Regional ....
FLS Regional ....
14.55
13.30
FLS Regional ....
FLS Regional ....
14.38
14.32
FLS Regional.
FLS Regional.
12.08
FLS Regional ....
13.71
FLS Regional ....
14.47
FLS Regional.
16.06
12.84
20.96
OES State .........
FLS Regional ....
FLS National .....
17.36
11.26
21.98
OES State .........
FLS Regional ....
FLS National .....
15.78
13.94
22.67
OES State.
OES State.
FLS National.
23.23
OES State .........
26.41
OES State .........
28.46
OES State.
11.11
OES State .........
11.16
OES State .........
11.04
OES State.
12.80
10.83
OES State .........
FLS Regional ....
15.80
10.93
OES State .........
FLS Regional ....
11.05
11.01
OES State.
FLS Regional.
11.22
OES State .........
11.99
OES State .........
13.41
OES State.
12.01
19.28
FLS Regional ....
OES State .........
13.14
18.77
OES State .........
OES State .........
13.90
19.27
OES State.
OES State.
10.10
20.96
FLS Regional ....
FLS National .....
10.31
21.98
FLS Regional ....
FLS National .....
10.92
31.51
FLS Regional.
OES State.
23.79
OES State .........
23.42
OES State .........
23.14
OES State.
Fmt 4701
Sfmt 4702
E:\FR\FM\26JYP2.SGM
26JYP2
36259
Federal Register / Vol. 84, No. 144 / Friday, July 26, 2019 / Proposed Rules
TABLE 2—AVERAGE HOURLY STATEWIDE WAGES AND THEIR SOURCES UNDER THE PROPOSED RULE—Continued
2016
Region
State
SOC
jbell on DSK3GLQ082PROD with PROPOSALS2
Wage
Wage
Source
2018
Wage
Source.
OES State .........
10.53
OES State .........
10.44
OES State.
10.86
10.83
OES State .........
FLS Regional ....
11.54
10.93
OES State .........
FLS Regional ....
12.48
11.01
OES State.
FLS Regional.
11.52
OES State .........
12.77
OES State .........
13.27
OES State.
12.01
10.10
36.96
FLS Regional ....
FLS Regional ....
OES State .........
19.49
10.31
40.39
OES State .........
FLS Regional ....
OES State .........
18.29
10.92
35.55
OES State.
FLS Regional.
OES State.
25.84
OES State .........
27.24
OES State .........
27.08
OES State.
11.23
OES State .........
10.50
OES State .........
10.92
OES State.
12.30
10.83
OES State .........
FLS Regional ....
15.13
10.93
OES State .........
FLS Regional ....
16.52
11.01
OES State.
FLS Regional.
11.97
OES State .........
12.94
OES State .........
13.71
OES State.
12.01
10.10
23.66
FLS Regional ....
FLS Regional ....
FLS Regional ....
17.92
10.31
24.74
OES State .........
FLS Regional ....
OES State .........
13.36
10.92
27.39
FLS National.
FLS Regional.
OES State.
17.28
FLS Regional ....
18.06
FLS Regional ....
25.85
OES State.
11.17
OES State .........
12.09
OES State .........
11.70
FLS Regional.
11.59
FLS Regional ....
11.76
FLS Regional ....
11.28
FLS Regional.
11.60
OES State .........
11.53
FLS Regional ....
11.53
FLS Regional.
11.31
FLS Regional ....
11.66
FLS Regional ....
12.12
FLS Regional.
15.31
OES National ....
16.88
OES National ....
13.36
FLS National.
Heavy and Tractor-Trailer Truck
Drivers.
Packers and Packagers, Hand ...
20.27
OES State .........
20.21
OES State .........
20.74
OES State.
11.17
OES State .........
11.39
OES State .........
12.09
FLS Regional.
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
23.66
FLS Regional ....
41.28
OES State .........
37.67
OES State.
17.28
FLS Regional ....
18.06
FLS Regional ....
27.00
OES State.
11.10
OES State .........
11.07
OES State .........
11.70
FLS Regional.
11.59
FLS Regional ....
11.76
FLS Regional ....
11.28
FLS Regional.
9.54
OES State .........
11.53
FLS Regional ....
11.53
FLS Regional.
11.31
FLS Regional ....
11.66
FLS Regional ....
12.12
FLS Regional.
13.04
OES State .........
13.77
OES State .........
16.65
OES State.
Construction Laborers .................
14.07
OES State .........
14.62
OES State .........
15.02
OES State.
Electrical and Electronics Installers and Repairers, Transportation Equipment.
Packers and Packagers, Hand ...
27.34
OES State .........
29.88
OES State .........
28.40
OES State.
10.80
OES State .........
11.05
OES State .........
12.09
FLS Regional.
GA
45–2041
Southeast ..........
Southeast ..........
GA
GA
45–2091
45–2092
Southeast ..........
GA
45–2093
Southeast ..........
Southeast ..........
Southeast ..........
GA
GA
SC
45–2099
53–7064
11–9013
Southeast ..........
SC
45–1011
Southeast ..........
SC
45–2041
Southeast ..........
Southeast ..........
SC
SC
45–2091
45–2092
Southeast ..........
SC
45–2093
Southeast ..........
Southeast ..........
Southeastern
Plains.
Southeastern
Plains.
SC
SC
OK
45–2099
53–7064
11–9013
OK
45–1011
Southeastern
Plains.
Southeastern
Plains.
Southeastern
Plains.
OK
45–2041
OK
45–2091
OK
45–2092
Southeastern
Plains.
Southeastern
Plains.
Southeastern
Plains.
Southeastern
Plains.
Southeastern
Plains.
Southeastern
Plains.
OK
45–2093
OK
45–2099
OK
53–3032
OK
53–7064
TX
11–9013
TX
45–1011
Southeastern
Plains.
Southeastern
Plains.
Southeastern
Plains.
TX
45–2041
TX
45–2091
TX
45–2092
Southeastern
Plains.
Southeastern
Plains.
Southeastern
Plains.
Southeastern
Plains.
TX
45–2093
TX
45–2099
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
TX
47–2061
TX
49–2093
Southeastern
Plains.
TX
53–7064
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
Packers and Packagers, Hand ...
Farmers, Ranchers, and Other
Agricultural Managers.
First-Line Supervisors of Farming, Fishing, and Forestry
Workers.
Graders and Sorters, Agricultural
Products.
Agricultural Equipment Operators
Farmworkers and Laborers,
Crop, Nursery, and Greenhouse.
Farmworkers, Farm, Ranch, and
Aquacultural Animals.
Agricultural Workers, All Other ....
List of Subjects
Reporting and recordkeeping
requirements.
20 CFR Part 653
Agriculture, Employment, Equal
employment opportunity, Grant
programs—labor, Migrant labor,
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10.40
Southeast ..........
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20 CFR Part 655
Administrative practice and
procedure, Foreign workers,
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Employment, Employment and training,
Enforcement, Forest and forest products,
Fraud, Health professions, Immigration,
Labor, Passports and visas, Penalties,
Reporting and recordkeeping
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requirements, Unemployment, Wages,
Working conditions.
29 CFR Part 501
Administrative practice and
procedure, Agricultural, Aliens,
Employment, Housing, Housing
standards, Immigration, Labor, Migrant
labor, Penalties, Transportation, Wages.
For the reasons stated in the
preamble, the Department of Labor
proposes that 20 CFR parts 653 and 655
and 29 CFR part 501 be amended as
follows:
Title 20—Employees’ Benefits
PART 653—SERVICES OF THE
WAGNER-PEYSER ACT EMPLOYMENT
SERVICE SYSTEM
1. The authority citation for part 653
continues to read as follows:
■
Authority: Secs. 167, 189, 503, Pub. L.
113–128, 128 Stat. 1425 (Jul. 22, 2014); 29
U.S.C. chapter 4B; 38 U.S.C. part III, chapters
41 and 42.
2. Amend § 653.501 by revising the
first sentence of paragraph (c)(2)(i) to
read as follows:
■
§ 653.501 Requirements for processing
clearance orders.
*
*
*
*
*
(c) * * *
(2) * * *
(i) The wages and working conditions
offered are not less than the prevailing
wages, as defined in § 655.103(b), and
prevailing working conditions among
similarly employed farmworkers in the
area of intended employment or the
applicable Federal or State minimum
wage, whichever is higher. * * *
*
*
*
*
*
PART 655—TEMPORARY
EMPLOYMENT OF FOREIGN
WORKERS IN THE UNITED STATES
3. The authority citation for part 655
continues to read as follows:
jbell on DSK3GLQ082PROD with PROPOSALS2
■
Authority: Section 655.0 issued under 8
U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i)
and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n), and
(t), 1184(c), (g), and (j), 1188, and 1288(c) and
(d); sec. 3(c)(1), Pub. L. 101–238, 103 Stat.
2099, 2102 (8 U.S.C. 1182 note); sec. 221(a),
Pub. L. 101–649, 104 Stat. 4978, 5027 (8
U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102–
232, 105 Stat. 1733, 1748 (8 U.S.C. 1101
note); sec. 323(c), Pub. L. 103–206, 107 Stat.
2428; sec. 412(e), Pub. L. 105–277, 112 Stat.
2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L.
106–95, 113 Stat. 1312, 1316 (8 U.S.C. 1182
note); 29 U.S.C. 49k; Pub. L. 107–296, 116
Stat. 2135, as amended; Pub. L. 109–423, 120
Stat. 2900; 8 CFR 214.2(h)(4)(i); and 8 CFR
214.2(h)(6)(iii).
Subpart A issued under 8 CFR 214.2(h).
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Subpart B issued under 8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8
CFR 214.2(h).
Subparts F and G issued under 8 U.S.C.
1288(c) and (d); sec. 323(c), Pub. L. 103–206,
107 Stat. 2428; and 28 U.S.C. 2461 note, Pub.
L. 114–74 at section 701.
Subparts H and I issued under 8 U.S.C.
1101(a)(15)(H)(i)(b) and (b)(1), 1182(n) and
(t), and 1184(g) and (j); sec. 303(a)(8), Pub. L.
102–232, 105 Stat. 1733, 1748 (8 U.S.C. 1101
note); sec. 412(e), Pub. L. 105–277, 112 Stat.
2681; 8 CFR 214.2(h); and 28 U.S.C. 2461
note, Pub. L. 114–74 at section 701.
Subparts L and M issued under 8 U.S.C.
1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d),
Pub. L. 106–95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109–423, 120 Stat. 2900;
and 8 CFR 214.2(h).
655.155 Referrals of U.S. workers.
655.156 Recruitment report.
655.157 Withholding of U.S. workers
prohibited.
655.158 Duration of positive recruitment.
4. Revise subpart B to read as follows:
655.170 Extensions.
655.171 Appeals.
655.172 Post-certification withdrawals.
655.173 Setting meal charges; petition for
higher meal charges.
655.174 Public disclosure.
655.175 Post-certification amendments.
■
Subpart B—Labor Certification
Process for Temporary Agricultural
Employment in the United States (H–
2A Workers)
Sec.
655.100 Scope and purpose of this subpart.
655.101 Authority of the agencies, offices,
and divisions in the Department of
Labor.
655.102 Transition procedures.
655.103 Overview of this subpart and
definition of terms.
Prefiling Procedures
655.120 Offered wage rate.
655.121 Job order filing requirements.
655.122 Contents of job offers.
655.123 Positive recruitment of U.S.
workers.
655.124 Withdrawal of a job order.
Application for Temporary Employment
Certification Filing Procedures
655.130 Application filing requirements.
655.131 Agricultural association and joint
employer filing requirements.
655.132 H–2A labor contractor filing
requirements.
655.133 Requirements for agents.
655.134 Emergency situations.
655.135 Assurances and obligations of H–
2A employers.
655.136 Withdrawal of an Application for
Temporary Employment Certification
and job order.
Processing of Applications for Temporary
Employment Certification
655.140 Review of applications.
655.141 Notice of deficiency.
655.142 Submission of modified
applications.
655.143 Notice of acceptance.
655.144 Electronic job registry.
655.145 Amendments to Applications for
Temporary Employment Certification.
Post-Acceptance Requirements
655.150 Interstate clearance of job order.
655.151 Advertising in the area of intended
employment.
655.152 Advertising content requirements.
655.153 Contact with former U.S. workers.
655.154 Additional positive recruitment.
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Labor Certification Determinations
655.160 Determinations.
655.161 Criteria for certification.
655.162 Approved certification.
655.163 Certification fee.
655.164 Denied certification.
655.165 Partial certification.
655.166 Requests for determinations based
on nonavailability of U.S. workers.
655.167 Document retention requirements
of H–2A employers.
Post-Certification
Integrity Measures
655.180 Audit.
655.181 Revocation.
655.182 Debarment.
655.183 Less than substantial violations.
655.184 Applications involving fraud or
willful misrepresentation.
655.185 Job service complaint system;
enforcement of work contracts.
Labor Certification Process for Temporary
Agricultural Employment in Range Sheep
Herding, Goat Herding, and Production of
Livestock Occupations
655.200 Scope and purpose of herding and
range livestock regulations in §§ 655.200
through 655.235.
655.201 Definition of herding and range
livestock terms.
655.205 Herding and range livestock job
orders.
655.210 Contents of herding and range
livestock job orders.
655.211 Herding and range livestock wage
rate.
655.215 Procedures for filing herding and
range livestock Applications for
Temporary Employment Certification.
655.220 Processing herding and range
livestock Applications for Temporary
Employment Certification.
655.225 Post-acceptance requirements for
herding and range livestock.
655.230 Range housing.
655.235 Standards for range housing.
Labor Certification Process for Temporary
Agricultural Employment in Animal
Shearing, Commercial Beekeeping, Custom
Combining, and Reforestation Occupations
655.300 Scope and purpose.
655.301 Definition of terms.
655.302 Contents of job orders.
655.303 Procedures for filing Applications
for Temporary Employment
Certification.
655.304 Standards for mobile housing.
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§ 655.100
subpart.
Scope and purpose of this
(a) Purpose. (1) A temporary
agricultural labor certification issued
under this subpart reflects a
determination by the Secretary of Labor
(Secretary), pursuant to 8 U.S.C.
1188(a), that:
(i) There are not sufficient able,
willing, and qualified United States
(U.S.) workers available to perform the
temporary agricultural labor or services
for which an employer desires to hire
foreign workers; and
(ii) The employment of the H–2A
worker(s) will not adversely affect the
wages and working conditions of
workers in the United States similarly
employed.
(2) This subpart describes the process
by which the Department of Labor
(Department or DOL) makes such a
determination and certifies its
determination to the Department of
Homeland Security (DHS).
(b) Scope. This subpart sets forth the
procedures governing the labor
certification process for the temporary
employment of foreign workers in the
H–2A nonimmigrant classification, as
defined in 8 U.S.C. 1101(a)(15)(H)(ii)(a).
It also establishes standards and
obligations with respect to the terms
and conditions of the temporary
agricultural labor certification with
which H–2A employers must comply, as
well as the rights and obligations of H–
2A workers and workers in
corresponding employment.
Additionally, this subpart sets forth
integrity measures for ensuring
employers’ continued compliance with
the terms and conditions of the
temporary agricultural labor
certification.
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§ 655.101 Authority of the agencies,
offices, and divisions in the Department of
Labor.
(a) Authority and role of the Office of
Foreign Labor Certification. The
Secretary has delegated authority to the
Assistant Secretary for the Employment
and Training Administration (ETA),
who in turn has delegated that authority
to the Office of Foreign Labor
Certification (OFLC), to issue
certifications and carry out other
statutory responsibilities as required by
8 U.S.C. 1188. Determinations on an
Application for Temporary Employment
Certification are made by the OFLC
Administrator who, in turn, may
delegate this responsibility to
designated staff, e.g., a Certifying Officer
(CO).
(b) Authority of the Wage and Hour
Division. The Secretary has delegated
authority to the Wage and Hour Division
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Jkt 247001
(WHD) to conduct certain investigatory
and enforcement functions with respect
to terms and conditions of employment
under 8 U.S.C. 1188, 29 CFR part 501,
and this subpart (‘‘the H–2A program’’),
and to carry out other statutory
responsibilities required by 8 U.S.C.
1188. The regulations governing WHD’s
investigatory and enforcement
functions, including those related to the
enforcement of temporary agricultural
labor certifications issued under this
subpart, are in 29 CFR part 501.
(c) Concurrent authority. OFLC and
WHD have concurrent authority to
impose a debarment remedy pursuant to
§ 655.182 and 29 CFR 501.20.
§ 655.102
Transition procedures.
(a) The NPC shall continue to process
an Application for Temporary
Employment Certification submitted
prior to [effective date of the final rule]
in accordance with 20 CFR part 655,
subpart B, in effect as of [date 1 day
before the effective date of the final
rule].
(b) The NPC shall process an
Application for Temporary Employment
Certification submitted on or after
[effective date of the final rule], and that
has a first date of need no later than
[date 90 calendar days after the effective
date of the final rule], in accordance
with 20 CFR part 655, subpart B, in
effect as of [date 1 day before the
effective date of the final rule].
(c) The NPC shall process an
Application for Temporary Employment
Certification submitted on or after
[effective date of the final rule], and that
has a first date of need later than [date
90 calendar days after the effective date
of the final rule], in accordance with all
job order and application filing
requirements under this supbart.
§ 655.103 Overview of this subpart and
definition of terms.
(a) Overview. In order to bring
nonimmigrant workers to the United
States to perform agricultural work, an
employer must first demonstrate to the
Secretary that there are not sufficient
U.S. workers able, willing, and qualified
to perform the work in the area of
intended employment at the time
needed and that the employment of
foreign workers will not adversely affect
the wages and working conditions of
workers in the United States similarly
employed. This subpart describes a
process by which the Department of
Labor (Department or DOL) makes such
a determination and certifies its
determination to the Department of
Homeland Security (DHS).
(b) Definitions. For the purposes of
this subpart:
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36261
Act. The Immigration and Nationality
Act, as amended (INA), 8 U.S.C. 1101 et
seq.
Administrative Law Judge. A person
within the Department’s Office of
Administrative Law Judges appointed
pursuant to 5 U.S.C. 3105.
Administrator. See definitions of
OFLC Administrator and WHD
Administrator below.
Adverse effect wage rate. The wage
rate published by the OFLC
Administrator in the Federal Register
for the occupational classification and
state based on either the U.S.
Department of Agriculture’s (USDA’s)
Farm Labor Survey (FLS) or the Bureau
of Labor Statistics’ (BLS’) Occupational
Employment Statistics (OES) survey, as
set forth in § 655.120(b).
Agent. A legal entity or person, such
as an association of agricultural
employers, or an attorney for an
association, that:
(i) Is authorized to act on behalf of the
employer for temporary agricultural
labor certification purposes;
(ii) Is not itself an employer, or a joint
employer, as defined in this subpart
with respect to a specific application;
and
(iii) Is not under suspension,
debarment, expulsion, or disbarment
from practice before any court, the
Department, or the Executive Office for
Immigration Review or DHS under 8
CFR 292.3 or 1003.101.
Agricultural association. Any
nonprofit or cooperative association of
farmers, growers, or ranchers (including,
but not limited to, processing
establishments, canneries, gins, packing
sheds, nurseries, or other similar fixedsite agricultural employers),
incorporated or qualified under
applicable state law, that recruits,
solicits, hires, employs, furnishes,
houses, or transports any worker that is
subject to 8 U.S.C. 1188. An agricultural
association may act as the agent of an
employer, or may act as the sole or joint
employer of any worker subject to 8
U.S.C. 1188.
Applicant. A U.S. worker who is
applying for a job opportunity for which
an employer has filed an Application for
Temporary Employment Certification
and job order.
Application for Temporary
Employment Certification. The Office of
Management and Budget (OMB)approved Form ETA–9142A and
appropriate appendices submitted by an
employer to secure a temporary
agricultural labor certification
determination from DOL.
Area of intended employment. The
geographic area within normal
commuting distance of the place(s) of
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employment for which temporary
agricultural labor certification is sought.
There is no rigid measure of distance
that constitutes a normal commuting
distance or normal commuting area,
because there may be widely varying
factual circumstances among different
areas (e.g., average commuting times,
barriers to reaching the place(s) of
employment, or quality of the regional
transportation network). If a place of
employment is within a Metropolitan
Statistical Area (MSA), including a
multi-state MSA, any place within the
MSA is deemed to be within normal
commuting distance of the place of
employment. The borders of MSAs are
not controlling in the identification of
the normal commuting area; a place of
employment outside of an MSA may be
within normal commuting distance of a
place of employment that is inside (e.g.,
near the border of) the MSA.
Attorney. Any person who is a
member in good standing of the bar of
the highest court of any state,
possession, territory, or commonwealth
of the United States, or the District of
Columbia (DC). Such a person is also
permitted to act as an agent under this
subpart. No attorney who is under
suspension, debarment, expulsion, or
disbarment from practice before any
court, the Department, or the Executive
Office for Immigration Review or DHS
under 8 CFR 292.3 or 8 CFR 1003.101,
may represent an employer under this
subpart.
Average adverse effect wage rate. The
simple average of the first adverse effect
wage rates (AEWRs) applicable to the
SOC 45–2092 (Farmworkers and
Laborers, Crop, Nursery, and
Greenhouse) that the OFLC
Administrator publishes in a calendar
year in accordance with § 655.120(b).
Board of Alien Labor Certification
Appeals. The permanent Board
established by part 656 of this chapter,
chaired by the Chief Administrative
Law Judge (Chief ALJ), and consisting of
Administrative Law Judges (ALJs)
appointed pursuant to 5 U.S.C. 3105
and designated by the Chief ALJ to be
members of Board of Alien Labor
Certification Appeals (BALCA or
Board).
Certifying Officer. The person who
makes a determination on an
Application for Temporary Employment
Certification filed under the H–2A
program. The OFLC Administrator is the
national CO. Other COs may be
designated by the OFLC Administrator
to also make the determinations
required under this subpart.
Chief Administrative Law Judge. The
chief official of the Department’s Office
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of Administrative Law Judges or the
Chief ALJ’s designee.
Corresponding employment. The
employment of workers who are not H–
2A workers by an employer who has an
approved Application for Temporary
Employment Certification in any work
included in the job order, or in any
agricultural work performed by the H–
2A workers. To qualify as corresponding
employment, the work must be
performed during the validity period of
the job order, including any approved
extension thereof.
Department of Homeland Security.
The Federal department having
jurisdiction over certain immigrationrelated functions, acting through its
component agencies, including U.S.
Citizenship and Immigration Services
(USCIS).
Employee. A person who is engaged
to perform work for an employer, as
defined under the general common law
of agency. Some of the factors relevant
to the determination of employee status
include: The hiring party’s right to
control the manner and means by which
the work is accomplished; the skill
required to perform the work; the source
of the instrumentalities and tools for
accomplishing the work; the location of
the work; the hiring party’s discretion
over when and how long to work; and
whether the work is part of the regular
business of the hiring party. Other
applicable factors may be considered
and no one factor is dispositive.
Employer. A person (including any
individual, partnership, association,
corporation, cooperative, firm, joint
stock company, trust, or other
organization with legal rights and
duties) that:
(i) Has an employment relationship
(such as the ability to hire, pay, fire,
supervise, or otherwise control the work
of employee) with respect to an H–2A
worker or a worker in corresponding
employment; or
(ii) Files an Application for
Temporary Employment Certification
other than as an agent; or
(iii) A person on whose behalf an
Application for Temporary Employment
Certification is filed.
Employment and Training
Administration. The agency within the
Department that includes OFLC and has
been delegated authority by the
Secretary to fulfill the Secretary’s
mandate under the INA and DHS’
implementing regulations for the
administration and adjudication of an
Application for Temporary Employment
Certification and related functions.
Federal holiday. Legal public holiday
as defined at 5 U.S.C. 6103.
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Sfmt 4702
First date of need. The first date the
employer anticipates requiring the labor
or services of H–2A workers as
indicated in the Application for
Temporary Employment Certification.
Fixed-site employer. Any person
engaged in agriculture who meets the
definition of an employer, as those
terms are defined in this subpart; who
owns or operates a farm, ranch,
processing establishment, cannery, gin,
packing shed, nursery, or other similar
fixed-site location where agricultural
activities are performed; and who
recruits, solicits, hires, employs, houses,
or transports any worker subject to 8
U.S.C. 1188, 29 CFR part 501, or this
subpart as incident to or in conjunction
with the owner’s or operator’s own
agricultural operation.
H–2A labor contractor. Any person
who meets the definition of employer
under this subpart and is not a fixed-site
employer, an agricultural association, or
an employee of a fixed-site employer or
agricultural association, as those terms
are used in this subpart, who recruits,
solicits, hires, employs, furnishes,
houses, or transports any worker subject
to 8 U.S.C. 1188, 29 CFR part 501, or
this subpart.
H–2A worker. Any temporary foreign
worker who is lawfully present in the
United States and authorized by DHS to
perform agricultural labor or services of
a temporary or seasonal nature pursuant
to 8 U.S.C. 1101(a)(15)(H)(ii)(a), as
amended.
H–2A Petition. The USCIS Form I–
129, Petition for a Nonimmigrant
Worker, with H Supplement or
successor form or supplement, and
accompanying documentation required
by DHS for employers seeking to
employ foreign persons as H–2A
nonimmigrant workers.
Job offer. The offer made by an
employer or potential employer of H–2A
workers to both U.S. and H–2A workers
describing all the material terms and
conditions of employment, including
those relating to wages, working
conditions, and other benefits.
Job opportunity. Full-time
employment at a place in the United
States to which U.S. workers can be
referred.
Job order. The document containing
the material terms and conditions of
employment that is posted by the State
Workforce Agency (SWA) on its
interstate and intrastate job clearance
systems based on the employer’s
Agricultural Clearance Order (Form
ETA–790/ETA–790A and all
appropriate addenda), as submitted to
the NPC.
Joint employment. (i) Where two or
more employers each have sufficient
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definitional indicia of being a joint
employer of a worker under the
common law of agency, they are, at all
times, joint employers of that worker.
(ii) An agricultural association that
files an Application for Temporary
Employment Certification as a joint
employer is, at all times, a joint
employer of all the H–2A workers
sponsored under the Application for
Temporary Employment Certification
and all workers in corresponding
employment. An employer-member of
an agricultural association that files an
Application for Temporary Employment
Certification as a joint employer is a
joint employer of the H–2A workers
sponsored under the joint employer
Application for Temporary Employment
Certification along with the agricultural
association during the period that the
employer-member employs the H–2A
workers sponsored under the
Application for Temporary Employment
Certification.
(iii) Employers that jointly file a joint
employer Application for Temporary
Employment Certification under
§ 655.131(b) are, at all times, joint
employers of all the H–2A workers
sponsored under the Application for
Temporary Employment Certification
and all workers in corresponding
employment.
Master application. An Application
for Temporary Employment
Certification filed by an association of
agricultural producers as a joint
employer with its employer-members. A
master application must cover the same
occupations or comparable agricultural
employment; the first date of need for
all employer-members listed on the
Application for Temporary Employment
Certification may be separated by no
more than 14 calendar days; and may
cover multiple areas of intended
employment within a single state but no
more than two contiguous states.
Metropolitan Statistical Area. A
geographic entity defined by OMB for
use by Federal statistical agencies in
collecting, tabulating, and publishing
Federal statistics. A Metropolitan
Statistical Area contains a core urban
area of 50,000 or more population, and
a Micropolitan Statistical Area contains
an urban core of at least 10,000 (but
fewer than 50,000) population. Each
metropolitan or micropolitan area
consists of one or more counties and
includes the counties containing the
core urban area, as well as any adjacent
counties that have a high degree of
social and economic integration (as
measured by commuting to work) with
the urban core.
National Processing Center. The
offices within OFLC in which the COs
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operate and which are charged with the
adjudication of Applications for
Temporary Employment Certification.
Office of Foreign Labor Certification.
OFLC means the organizational
component of ETA that provides
national leadership and policy
guidance, and develops regulations and
procedures to carry out the
responsibilities of the Secretary under
the INA concerning the admission of
foreign workers to the United States to
perform work described in 8 U.S.C.
1101(a)(15)(H)(ii)(a).
OFLC Administrator. The primary
official of OFLC, or the OFLC
Administrator’s designee.
Period of employment. The time
during which the employer requires the
labor or services of H–2A workers as
indicated by the first and last dates of
need provided in the Application for
Temporary Employment Certification.
Piece rate. A form of wage
compensation based upon a worker’s
quantitative output or one unit of work
or production for the crop or
agricultural activity.
Place of employment. A worksite or
physical location where work under the
job order actually is performed by the
H–2A workers and workers in
corresponding employment.
Positive recruitment. The active
participation of an employer or its
authorized hiring agent, performed
under the auspices and direction of
OFLC, in recruiting and interviewing
individuals in the area where the
employer’s job opportunity is located,
and any other state designated by the
Secretary as an area of traditional or
expected labor supply with respect to
the area where the employer’s job
opportunity is located, in an effort to fill
specific job openings with U.S. workers.
Prevailing practice. A practice
engaged in by employers, that:
(i) Fifty percent or more of employers
in an area and for an occupation engage
in the practice or offer the benefit; and
(ii) This 50 percent or more of
employers also employs 50 percent or
more of U.S. workers in the occupation
and area (including H–2A and non-H–
2A employers) for purposes of
determinations concerning the
provision of family housing, and
frequency of wage payments, but nonH–2A employers only for
determinations concerning the
provision of advance transportation and
the utilization of labor contractors.
Prevailing wage. A wage rate
established by the OFLC Administrator
for a crop activity or agricultural activity
and geographic area based on a survey
conducted by a state that meets the
requirements in § 655.120(c).
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Secretary of Labor. The chief official
of the Department, or the Secretary’s
designee.
Secretary of Homeland Security. The
chief official of DHS or the Secretary of
Homeland Security’s designee.
State Workforce Agency. State
government agency that receives funds
pursuant to the Wagner-Peyser Act, 29
U.S.C. 49 et seq., to administer the
state’s public labor exchange activities.
Strike. A concerted stoppage of work
by employees as a result of a labor
dispute, or any concerted slowdown or
other concerted interruption of
operation (including stoppage by reason
of the expiration of a collective
bargaining agreement).
Successor in interest. (i) Where an
employer, agent, or attorney has
violated 8 U.S.C. 1188, 29 CFR part 501,
or this subpart, and has ceased doing
business or cannot be located for
purposes of enforcement, a successor in
interest to that employer, agent, or
attorney may be held liable for the
duties and obligations of the violating
employer, agent, or attorney in certain
circumstances. The following factors, as
used under Title VII of the Civil Rights
Act and the Vietnam Era Veterans’
Readjustment Assistance Act, may be
considered in determining whether an
employer, agent, or attorney is a
successor in interest; no one factor is
dispositive, but all of the circumstances
will be considered as a whole:
(A) Substantial continuity of the same
business operations;
(B) Use of the same facilities;
(C) Continuity of the work force;
(D) Similarity of jobs and working
conditions;
(E) Similarity of supervisory
personnel;
(F) Whether the former management
or owner retains a direct or indirect
interest in the new enterprise;
(G) Similarity in machinery,
equipment, and production methods;
(H) Similarity of products and
services; and
(I) The ability of the predecessor to
provide relief.
(ii) For purposes of debarment only,
the primary consideration will be the
personal involvement of the firm’s
ownership, management, supervisors,
and others associated with the firm in
the violation(s) at issue.
Temporary agricultural labor
certification. Certification made by the
OFLC Administrator, based on the
Application for Temporary Employment
Certification, job order, and all
supporting documentation, with respect
to an employer seeking to file with DHS
a visa petition to employ one or more
foreign nationals as an H–2A worker,
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pursuant to 8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184(a) and (c),
and 1188, and this subpart.
United States. The continental United
States, Alaska, Hawaii, the
Commonwealth of Puerto Rico, and the
territories of Guam, the U.S. Virgin
Islands, and the Commonwealth of the
Northern Mariana Islands.
U.S. Citizenship and Immigration
Services. The Federal agency within
DHS that makes the determination
under the INA whether to grant
petitions filed by employers seeking H–
2A workers to perform temporary or
seasonal agricultural labor or services in
the United States.
U.S. worker. A worker who is:
(i) A citizen or national of the United
States;
(ii) An individual who is lawfully
admitted for permanent residence in the
United States, is admitted as a refugee
under 8 U.S.C. 1157, is granted asylum
under 8 U.S.C. 1158, or is an immigrant
otherwise authorized by the INA or DHS
to be employed in the United States; or
(iii) An individual who is not an
unauthorized alien, as defined in 8
U.S.C. 1324a(h)(3), with respect to the
employment in which the worker is
engaging.
Wages. All forms of cash
remuneration to a worker by an
employer in payment for labor or
services.
Wage and Hour Division. The agency
within the Department with authority to
conduct certain investigatory and
enforcement functions, as delegated by
the Secretary, under 8 U.S.C. 1188, 29
CFR part 501, and this subpart.
WHD Administrator. The primary
official of WHD, or the WHD
Administrator’s designee.
Work contract. All the material terms
and conditions of employment relating
to wages, hours, working conditions,
and other benefits, including those
required by 8 U.S.C. 1188, 29 CFR part
501, or this subpart. The contract
between the employer and the worker
may be in the form of a separate written
document. In the absence of a separate
written work contract incorporating the
required terms and conditions of
employment, agreed to by both the
employer and the worker, the work
contract at a minimum will be the terms
and conditions of the job order and any
obligations required under 8 U.S.C.
1188, 28 CFR part 501, or this subpart.
(c) Definition of agricultural labor or
services. For the purposes of this
subpart, agricultural labor or services,
pursuant to 8 U.S.C.
1011(a)(15)(H)(ii)(a), is defined as:
agricultural labor as defined and
applied in section 3121(g) of the
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Internal Revenue Code of 1986 at 26
U.S.C. 3121(g); agriculture as defined
and applied in section 3(f) of the Fair
Labor Standards Act of 1938, as
amended (FLSA) at 29 U.S.C. 203(f); the
pressing of apples for cider on a farm;
logging employment; reforestation
activities; or pine straw activities. An
occupation included in either statutory
definition is agricultural labor or
services, notwithstanding the exclusion
of that occupation from the other
statutory definition. For informational
purposes, the statutory provisions are
listed in paragraphs (c)(1) thorough (6)
of this section.
(1) Agricultural labor. (i) For the
purpose of paragraph (c) of this section,
agricultural labor means all service
performed:
(A) On a farm, in the employ of any
person, in connection with cultivating
the soil, or in connection with raising or
harvesting any agricultural or
horticultural commodity, including the
raising, shearing, feeding, caring for,
training, and management of livestock,
bees, poultry, and fur-bearing animals
and wildlife;
(B) In the employ of the owner or
tenant or other operator of a farm, in
connection with the operation,
management, conservation,
improvement, or maintenance of such
farm and its tools and equipment, or in
salvaging timber or clearing land of
brush and other debris left by a
hurricane, if the major part of such
service is performed on a farm;
(C) In connection with the production
or harvesting of any commodity defined
as an agricultural commodity in section
15(g) of the Agricultural Marketing Act,
as amended, 12 U.S.C. 1141j, or in
connection with the ginning of cotton,
or in connection with the operation or
maintenance of ditches, canals,
reservoirs, or waterways, not owned or
operated for profit, used exclusively for
supplying and storing water for farming
purposes;
(D) In the employ of the operator of
a farm in handling, planting, drying,
packing, packaging, processing,
freezing, grading, storing, or delivering
to storage or to market or to a carrier for
transportation to market, in its
unmanufactured state, any agricultural
or horticultural commodity; but only if
such operator produced more than onehalf of the commodity with respect to
which such service is performed;
(E) In the employ of a group of
operators of farms (other than a
cooperative organization) in the
performance of service described in
paragraph (c)(1)(i)(D) of this section but
only if such operators produced all of
the commodity with respect to which
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such service is performed. For purposes
of this paragraph (c)(1)(i)(E), any
unincorporated group of operators shall
be deemed a cooperative organization if
the number of operators comprising
such group is more than 20 at any time
during the calendar year in which such
service is performed;
(F) The provisions of paragraphs
(c)(1)(i)(D) and (E) of this section shall
not be deemed to be applicable with
respect to service performed in
connection with commercial canning or
commercial freezing or in connection
with any agricultural or horticultural
commodity after its delivery to a
terminal market for distribution for
consumption; or
(G) On a farm operated for profit if
such service is not in the course of the
employer’s trade or business or is
domestic service in a private home of
the employer.
(ii) As used in this section, the term
‘‘farm’’ includes stock, dairy, poultry,
fruit, fur-bearing animal, and truck
farms, plantations, ranches, nurseries,
ranges, greenhouses, or other similar
structures used primarily for the raising
of agricultural or horticultural
commodities, and orchards.
(2) Agriculture. For purposes of
paragraph (c) of this section, agriculture
means farming in all its branches and
among other things includes the
cultivation and tillage of the soil,
dairying, the production, cultivation,
growing, and harvesting of any
agricultural or horticultural
commodities (including commodities
defined as agricultural commodities in
12 U.S.C. 1141j(g), the raising of
livestock, bees, fur-bearing animals, or
poultry, and any practices (including
any forestry or lumbering operations)
performed by a farmer or on a farm as
an incident to or in conjunction with
such farming operations, including
preparation for market, delivery to
storage or to market or to carriers for
transportation to market. See 29 U.S.C.
203(f), as amended. Under 12 U.S.C.
1141j(g), agricultural commodities
include, in addition to other agricultural
commodities, crude gum (oleoresin)
from a living tree, and the following
products as processed by the original
producer of the crude gum (oleoresin)
from which derived: Gum spirits of
turpentine and gum rosin. In addition,
as defined in 7 U.S.C. 92, gum spirits of
turpentine means spirits of turpentine
made from gum (oleoresin) from a living
tree and gum rosin means rosin
remaining after the distillation of gum
spirits of turpentine.
(3) Apple pressing for cider. The
pressing of apples for cider on a farm,
as the term farm is defined and applied
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in section 3121(g) of the Internal
Revenue Code at 26 U.S.C. 3121(g), or
as applied in section 3(f) of the FLSA at
29 U.S.C. 203(f), pursuant to 29 CFR
part 780, is agricultural labor or services
for purposes of paragraph (c) of this
section.
(4) Logging employment. Operations
associated with felling and moving trees
and logs from the stump to the point of
delivery, such as, but not limited to,
marking danger trees, marking trees or
logs to be cut to length, felling, limbing,
bucking, debarking, chipping, yarding,
loading, unloading, storing, and
transporting machines, equipment and
personnel to, from, and between logging
sites, is agricultural labor or services for
purposes of paragraph (c) of this section.
(5) Reforestation activities.
Reforestation activities are
predominantly manual forestry
operations associated with developing,
maintaining, or protecting forested
areas, including, but not limited to,
planting tree seedlings in specified
patterns using manual tools; and felling,
pruning, pre-commercial thinning, and
removing trees and brush from forested
areas. Reforestation activities may
include some forest fire prevention or
suppression duties, such as constructing
fire breaks or performing prescribed
burning tasks, when such duties are in
connection with and incidental to other
reforestation activities. Reforestation
activities do not include vegetation
management activities in and around
utility, highway, railroad, or other
rights-of-way.
(6) Pine straw activities. Operations
associated with clearing the ground of
underlying vegetation, pine cones, and
debris; and raking, lifting, gathering,
harvesting, baling, grading, and loading
of pine straw for transport from pine
forests, woodlands, pine stands, or
plantations, is agricultural labor or
services for purposes of paragraph (c) of
this section.
(d) Definition of a temporary or
seasonal nature. For the purposes of
this subpart, employment is of a
seasonal nature where it is tied to a
certain time of year by an event or
pattern, such as a short annual growing
cycle or a specific aspect of a longer
cycle, and requires labor levels far above
those necessary for ongoing operations.
Employment is of a temporary nature
where the employer’s need to fill the
position with a temporary worker will,
except in extraordinary circumstances,
last no longer than 1 year.
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Prefiling Procedures
§ 655.120
Offered wage rate.
(a) Employer obligation. Except for
occupations covered by §§ 655.200
through 655.235, to comply with its
obligation under § 655.122(l), an
employer must offer, advertise in its
recruitment, and pay a wage that is the
highest of:
(1) The AEWR;
(2) A prevailing wage rate, if the
OFLC Administrator has approved a
prevailing wage survey for the
applicable crop activity or agricultural
activity meeting the requirements of
paragraph (c) of this section;
(3) The agreed-upon collective
bargaining wage;
(4) The Federal minimum wage; or
(5) The state minimum wage.
(b) AEWR determinations. (1) The
OFLC Administrator will determine the
AEWR for each state and occupational
classification as follows:
(i) If an annual average hourly gross
wage for the occupational classification
in the State or region is reported by the
USDA’s FLS, that wage shall be the
AEWR for the occupational
classification and geographic area;
(ii) If an annual average hourly gross
wage for the occupational classification
in the state or region is not reported by
the FLS, the AEWR for the occupational
classification and state shall be the
statewide annual average hourly wage
for the standard occupational
classification (SOC) if one is reported by
the OES survey;
(iii) If only a national wage for the
occupational classification is reported
by both the FLS and OES survey for the
geographic area, the AEWR for the
geographic area shall be the national
annual average hourly gross wage for
the occupational classification from the
FLS; and
(iv) If only a national wage for the
SOC is reported by the OES survey for
the geographic area and no wage is
reported for the occupational
classification by the FLS, the AEWR for
the geographic area shall be the national
average hourly wage for the SOC from
the OES survey.
(2) The OFLC Administrator will
publish, at least once in each calendar
year, on a date to be determined by the
OFLC Administrator, an update to each
AEWR as a notice in the Federal
Register.
(3) If an updated AEWR for the
occupational classification and
geographic area is published in the
Federal Register during the work
contract, and the updated AEWR is
higher than the highest of the previous
AEWR, a prevailing wage for the crop
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activity or agricultural activity and
geographic area, the agreed-upon
collective bargaining wage, the Federal
minimum wage, or the state minimum
wage, the employer must pay the
updated AEWR not later than 14
calendar days after the updated AEWR
is published in the Federal Register.
(4) If an updated AEWR for the
occupational classification and
geographic area is published in the
Federal Register during the work
contract, and the updated AEWR is
lower than the rate guaranteed on the
job order, the employer must continue
to pay the rate guaranteed on the job
order.
(5) If the job duties on the Application
for Temporary Employment
Certification do not fall within a single
occupational classification, the CO will
determine the applicable AEWR based
on the highest AEWR for all applicable
occupational classifications.
(c) Prevailing wage determinations. (1)
The OFLC Administrator will issue a
prevailing wage for a crop activity or
agricultural activity if all of the
following requirements are met:
(i) The SWA submits to the
Department a wage survey for the crop
activity or agricultural activity and a
Form ETA–232 providing the
methodology of the survey;
(ii) The survey was independently
conducted by the state, including any
state agency, state college, or state
university;
(iii) The survey covers a distinct work
task or tasks performed in a single crop
activity or agricultural activity;
(iv) The surveyor either made a
reasonable, good faith attempt to contact
all employers employing workers
performing the work task(s) in the crop
activity or agricultural activity and
geographic area surveyed or conducted
a randomized sampling of such
employers;
(v) The survey reports the average
wage of U.S. workers in the crop activity
or agricultural activity and geographic
area using the unit of pay used to
compensate at least 50 percent of the
workers whose wages are surveyed;
(vi) The survey covers an appropriate
geographic area based on available
resources to conduct the survey, the size
of the agricultural population covered
by the survey, and any different wage
structures in the crop activity or
agricultural activity within the state;
(vii) The survey includes the wages of
at least 30 U.S. workers;
(viii) The survey includes wages of
U.S. workers employed by at least 5
employers; and
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(ix) The wages paid by a single
employer represent no more than 25
percent of the sampled wages.
(2) A prevailing wage issued by the
OFLC Administrator will remain valid
for 1 year after the wage is posted on the
OFLC website or until replaced with an
adjusted prevailing wage, whichever
comes first, except that if a prevailing
wage that was guaranteed on the job
order expires during the work contract,
the employer must continue to
guarantee at least the expired prevailing
wage rate.
(3) If a prevailing wage for the
geographic area and crop activity or
agricultural activity is adjusted during a
work contract, and is higher than the
highest of the AEWR, a previous
prevailing wage for the geographic area
and crop activity or agricultural activity,
the agreed-upon collective bargaining
wage, the Federal minimum wage, or
the state minimum wage, the employer
must pay that higher prevailing wage
not later than 14 calendar days after the
Department notifies the employer of the
new prevailing wage.
(4) If a prevailing wage for the
geographic area and crop activity or
agricultural activity is adjusted during a
work contract, and is lower than the rate
guaranteed on the job order, the
employer must continue to pay at least
the rate guaranteed on the job order.
(d) Appeals. (1) If the employer does
not include the appropriate offered
wage rate on the Application for
Temporary Employment Certification,
the CO will issue a Notice of Deficiency
(NOD) requiring the employer to correct
the wage rate.
(2) If the employer disagrees with the
wage rate required by the CO, the
employer may appeal only after the
Application for Temporary Employment
Certification is denied, and the
employer must follow the procedures in
§ 655.171.
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§ 655.121
Job order filing requirements.
(a) What to file. (1) Prior to filing an
Application for Temporary Employment
Certification, the employer must submit
a completed job order, Form ETA–790/
790A, including all required addenda,
to the NPC designated by the OFLC
Administrator, and must identify it as a
job order to be placed in connection
with a future Application for Temporary
Employment Certification for H–2A
workers. The employer must include in
its submission to the NPC a valid
Federal Employer Identification Number
(FEIN) as well as a valid place of
business (physical location) in the
United States and a means by which it
may be contacted for employment.
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(2) Where the job order is being
placed in connection with a future
master application to be filed by an
agricultural association as a joint
employer with its employer-members,
the agricultural association may submit
a single job order to be placed in the
name of the agricultural association on
behalf of all employers named on the
job order and the future Application for
Temporary Employment Certification.
(3) Where the job order is being
placed in connection with a future
application to be jointly filed by two or
more employers seeking to jointly
employ a worker(s) (but is not a master
application), any one of the employers
may submit a single job order to be
placed on behalf of all joint employers
named on the job order and the future
Application for Temporary Employment
Certification.
(4) The job order must satisfy the
requirements for agricultural clearance
orders set forth in 20 CFR part 653,
subpart F, and the requirements set
forth in § 655.122.
(b) Timeliness. The employer must
submit a completed job order to the NPC
no more than 75 calendar days and no
fewer than 60 calendar days before the
employer’s first date of need.
(c) Location and method of filing. The
employer must submit a completed job
order to the NPC using the electronic
method(s) designated by the OFLC
Administrator. The NPC will return
without review any job order submitted
using a method other than the
designated electronic method(s), unless
the employer submits the job order by
mail as set forth in § 655.130(c)(2) or
requests a reasonable accommodation as
set forth in § 655.130(c)(3).
(d) Original signature. The job order
must contain an electronic (scanned)
copy of the original signature of the
employer or a verifiable electronic
signature method, as directed by the
OFLC Administrator. If submitted by
mail, the Application for Temporary
Employment Certification must bear the
original signature of the employer and,
if applicable, the employer’s authorized
agent or attorney.
(e) SWA review. (1) Upon receipt of
the job order, the NPC will transmit an
electronic copy of the job order to the
SWA serving the area of intended
employment for intrastate clearance. If
the job opportunity is located in more
than one state within the same area of
intended employment, the NPC will
transmit the job order to any one of the
SWAs having jurisdiction over the
place(s) of employment.
(2) The SWA will review the contents
of the job order for compliance with the
requirements set forth in 20 CFR part
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653, subpart F, and this subpart, and
will work with the employer to address
any noted deficiencies. The SWA must
notify the employer in writing of any
deficiencies in its job order not later
than 7 calendar days from the date the
SWA received the job order. The SWA
notification will state the reason(s) the
job order fails to meet the applicable
requirements, state the modification(s)
needed for the SWA to accept the job
order, and offer the employer an
opportunity to respond to the
deficiencies within 5 calendar days
from the date the notification was
issued by the SWA. Upon receipt of a
response, the SWA will review the
response and notify the employer in
writing of its acceptance or denial of the
job order within 3 calendar days from
the date the response was received by
the SWA. If the employer’s response is
not received within 12 calendar days
after the notification was issued, the
SWA will notify the employer in writing
that the job order is deemed abandoned,
and the employer will be required to
submit a new job order to the NPC
meeting the requirements of this
section. Any notice sent by the SWA to
an employer that requires a response
must be sent using methods to assure
next day delivery, including email or
other electronic methods, with a copy to
the employer’s representative, as
applicable.
(3) If, after providing responses to the
deficiencies noted by the SWA, the
employer is not able to resolve the
deficiencies with the SWA, the
employer may file an Application for
Temporary Employment Certification
pursuant to the emergency filing
procedures contained in § 655.134, with
a statement describing the nature of the
dispute and demonstrating compliance
with its requirements under this section.
In the event the SWA does not respond
within the stated timelines, the
employer may use the emergency filing
procedures noted above. The CO will
process the emergency Application for
Temporary Employment Certification in
a manner consistent with the provisions
set forth in §§ 655.140 through 655.145
and make a determination on the
Application for Temporary Employment
Certification in accordance with
§§ 655.160 through 655.167.
(f) Intrastate and interstate clearance.
Upon its acceptance of the job order, the
SWA must promptly place the job order
in intrastate clearance, commence
recruitment of U.S. workers, and notify
the NPC that the approved job order
must be placed into interstate clearance.
Upon receipt of the SWA notification,
the NPC will promptly transmit an
electronic copy of the approved job
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order for interstate clearance to any
other SWAs in a manner consistent with
the procedures set forth in § 655.150.
(g) Duration of job order posting. The
SWA must keep the job order on its
active file until the end of the
recruitment period, as set forth in
§ 655.135(d), and must refer each U.S.
worker who applies (or on whose behalf
an application is made) for the job
opportunity.
(h) Modifications to the job order. (1)
Prior to the issuance of a final
determination on an Application for
Temporary Employment Certification,
the CO may require modifications to the
job order when the CO determines that
the offer of employment does not
contain all the minimum benefits,
wages, and working condition
provisions. Such modifications must be
made, or certification will be denied
pursuant to § 655.164.
(2) The employer may request a
modification of the job order, Form
ETA–790/790A, prior to the submission
of an Application for Temporary
Employment Certification. However, the
employer may not reject referrals against
the job order based upon a failure on the
part of the applicant to meet the
amended criteria, if such referral was
made prior to the amendment of the job
order. The employer may not request a
modification of the job order on or after
the date of filing an Application for
Temporary Employment Certification.
(3) The employer must provide all
workers recruited in connection with
the Application for Temporary
Employment Certification with a copy of
the modified job order or work contract
which reflects the amended terms and
conditions, on the first day of
employment, in accordance with
§ 655.122(q), or as soon as practicable,
whichever comes first.
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Contents of job offers.
(a) Prohibition against preferential
treatment of H–2A workers. The
employer’s job offer must offer to U.S.
workers no less than the same benefits,
wages, and working conditions that the
employer is offering, intends to offer, or
will provide to H–2A workers. Job offers
may not impose on U.S. workers any
restrictions or obligations that will not
be imposed on the employer’s H–2A
workers. This does not relieve the
employer from providing to H–2A
workers at least the same level of
minimum benefits, wages, and working
conditions that must be offered to U.S.
workers consistent with this section.
(b) Job qualifications and
requirements. Each job qualification and
requirement listed in the job offer must
be bona fide and consistent with the
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normal and accepted qualifications
required by employers that do not use
H–2A workers in the same or
comparable occupations and crops.
Either the CO or the SWA may require
the employer to submit documentation
to substantiate the appropriateness of
any job qualification specified in the job
offer.
(c) Minimum benefits, wages, and
working conditions. Every job order
accompanying an Application for
Temporary Employment Certification
must include each of the minimum
benefit, wage, and working condition
provisions listed in paragraphs (d)
through (q) of this section.
(d) Housing—(1) Obligation to provide
housing. The employer must provide
housing at no cost to the H–2A workers
and those workers in corresponding
employment who are not reasonably
able to return to their residence within
the same day. Housing must be
provided through one of the following
means:
(i) Employer-provided housing.
Employer-provided housing must meet
the full set of the DOL Occupational
Safety and Health Administration
(OSHA) standards set forth at 29 CFR
1910.142, or the full set of standards at
§§ 654.404 through 654.417 of this
chapter, whichever are applicable under
§ 654.401 of this chapter. Requests by
employers whose housing does not meet
the applicable standards for conditional
access to the interstate clearance system
will be processed under the procedures
set forth at § 654.403 of this chapter; or
(ii) Rental and/or public
accommodations. Rental or public
accommodations or other substantially
similar class of habitation must meet
local standards for such housing. In the
absence of applicable local standards
addressing those health or safety
concerns otherwise addressed by the
DOL OSHA standards at 29 CFR
1910.142(b)(2) (square footage per
occupant); § 1910.142(b)(3) (provision of
beds); § 1910.142(b)(9) (requirement for
rooms where wookers cook, live, and
sleep); § 1910.142(b)(11) (heating,
cooking, and water heating equipment
installed properly); § 1910.142(c) (water
supply); § 1910.142(f) (laundry,
handwashing, and bathing facilities);
and § 1910.142(j) (insect and rodent
control), state standards addressing such
concerns will apply. In the absence of
applicable local or state standards
addressing such concerns, the relevant
DOL OSHA standards at 29 CFR
1910.142(b)(2), (3), (9), and (11), (f), and
(j) will apply. Any charges for rental
housing must be paid directly by the
employer to the owner or operator of the
housing.
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(2) Standards for range housing. An
employer employing workers under
§§ 655.200 through 655.235 must
comply with the housing requirements
in §§ 655.230 and 655.235.
(3) Deposit charges. Charges in the
form of deposits for bedding or other
similar incidentals related to housing
must not be levied upon workers.
However, employers may require
workers to reimburse them for damage
caused to housing by the individual
worker(s) found to have been
responsible for damage that is not the
result of normal wear and tear related to
habitation.
(4) Charges for public housing. If
public housing provided for migrant
agricultural workers under the auspices
of a local, county, or state government
is secured by the employer, the
employer must pay any charges
normally required for use of the public
housing units directly to the housing’s
management.
(5) Family housing. When it is the
prevailing practice in the area of
intended employment and the
occupation to provide family housing, it
must be provided to workers with
families who request it.
(6) Compliance with applicable
standards—(i) Timeframe. The
determination as to whether housing
provided to workers under this section
meets the applicable standards must be
made not later than 30 calendar days
before the first date of need identified in
the Application for Temporary
Employment Certification.
(ii) Certification of employer-provided
housing. (A) Except as provided under
paragraph (d)(6)(ii)(B) of this section,
the SWA (or another local, state, or
Federal authority acting on behalf of the
SWA) with jurisdiction over the
location of the employer-provided
housing must inspect and provide to the
employer and CO documentation
certifying that the employer-provided
housing is sufficient to accommodate
the number of workers requested and
meets all applicable standards under
paragraph (d)(1)(i) of this section. The
inspector must indicate the validity
period of the housing certification.
Where appropriate, and only if the SWA
has notified the Department that the
SWA lacks resources to conduct timely,
preoccupancy inspections of all
employer-provided housing, the
inspector may certify the employerprovided housing for a period of up to
24 months.
(B) Where the employer-provided
housing has been previously inspected
and certified under paragraph
(d)(6)(ii)(A) of this section, the employer
may self-inspect and -certify the
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employer-provided housing. To selfinspect and -certify the employerprovided housing under this paragraph
(d)(6)(ii)(B), the employer must inspect
the housing and submit to the SWA and
the CO a copy of the currently valid
certification for the employer-provided
housing and a written statement, signed
and dated by the employer, attesting
that the employer has inspected the
housing, the housing is available and
sufficient to accommodate the number
of workers being requested, and
continues to meet all of the applicable
standards under paragraph (d)(1)(i) of
this section.
(iii) Certification of rental and/or
public accommodations. The employer
must provide to the CO a written
statement, signed and dated, that attests
that the accommodations are compliant
with the applicable standards under
paragraph (d)(1)(ii) of this section and
are sufficient to accommodate the
number of workers requested. This
statement must include the number of
bed(s) and room(s) that the employer
will secure for the worker(s). If
applicable local or state rental or public
accommodation standards under
paragraph (d)(1)(ii) of this section
require an inspection, the employer also
must submit a copy of the inspection
report or other official documentation
from the relevant authority. If the
applicable standards do not require an
inspection, the employer’s written
statement must confirm that no
inspection is required.
(iv) Certified housing that becomes
unavailable. If after a request to certify
housing, such housing becomes
unavailable for reasons outside the
employer’s control, the employer may
substitute other rental or public
accommodation housing that is in
compliance with the local, state, or
Federal housing standards applicable
under this section. The employer must
promptly notify the SWA in writing of
the change in accommodations and the
reason(s) for such change and provide
the SWA evidence of compliance with
the applicable local, state, or Federal
safety and health standards, in
accordance with the requirements of
this section. If, upon inspection, the
SWA determines the substituted
housing does not meet the applicable
housing standards, the SWA must
promptly provide written notification to
the employer to cure the deficiencies
with a copy to the CO. An employer’s
failure to provide housing that complies
with the applicable standards will result
in either a denial of a pending
Application for Temporary Employment
Certification or revocation of the
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temporary agricultural labor
certification granted under this subpart.
(e) Workers’ compensation. (1) The
employer must provide workers’
compensation insurance coverage in
compliance with state law covering
injury and disease arising out of and in
the course of the worker’s employment.
If the type of employment for which the
certification is sought is not covered by
or is exempt from the state’s workers’
compensation law, the employer must
provide, at no cost to the worker,
insurance covering injury and disease
arising out of and in the course of the
worker’s employment that will provide
benefits at least equal to those provided
under the state workers’ compensation
law for other comparable employment.
(2) Prior to issuance of the temporary
agricultural labor certification, the
employer must provide the CO with
proof of workers’ compensation
insurance coverage meeting the
requirements of this paragraph (e),
including the name of the insurance
carrier, the insurance policy number,
and proof of insurance for the entire
period of employment, or, if
appropriate, proof of state law coverage.
(f) Employer-provided items. The
employer must provide to the worker,
without charge or deposit charge, all
tools, supplies, and equipment required
to perform the duties assigned.
(g) Meals. The employer either must
provide each worker with three meals a
day or must furnish free and convenient
cooking and kitchen facilities to the
workers that will enable the workers to
prepare their own meals. Where the
employer provides the meals, the job
offer must state the charge, if any, to the
worker for such meals. The amount of
meal charges is governed by § 655.173.
(h) Transportation; daily
subsistence—(1) Transportation to place
of employment. If the employer has not
previously advanced such
transportation and subsistence costs to
the worker or otherwise provided such
transportation or subsistence directly to
the worker by other means, and if the
worker completes 50 percent of the
work contract period, the employer
must pay the worker for reasonable
costs incurred by the worker for
transportation and daily subsistence
from the place from which the worker
departed to the employer’s place of
employment. For an H–2A worker who
must obtain a visa departing to work for
the employer from a location outside of
the United States, ‘‘the place from
which the worker departed’’ will mean
the appropriate U.S. Consulate or
Embassy. When it is the prevailing
practice of non-H–2A agricultural
employers in the occupation in the area
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to do so, or when the employer extends
such benefits to similarly situated H–2A
workers, the employer must advance the
required transportation and subsistence
costs (or otherwise provide them) to
workers in corresponding employment
who are traveling to the employer’s
place of employment. The amount of the
transportation payment must be no less
(and is not required to be more) than the
most economical and reasonable
common carrier transportation charges
for the distances involved. The amount
of the daily subsistence payment must
be at least as much as the employer
would charge the worker for providing
the worker with three meals a day
during employment (if applicable), but
in no event less than the amount
permitted under § 655.173(a). Note that
the FLSA applies independently of the
H–2A requirements and imposes
obligations on employers regarding
payment of wages.
(2) Transportation from place of
employment. If the worker completes
the work contract period, or if the
employee is terminated without cause,
and the worker has no immediate
subsequent H–2A employment, the
employer must provide or pay for the
worker’s transportation and daily
subsistence from the place of
employment to the place from which
the worker, disregarding intervening
employment, departed to work for the
employer. If the worker has contracted
with a subsequent employer who has
not agreed in such work contract to
provide or pay for the worker’s
transportation and daily subsistence
expenses from the employer’s place of
employment to such subsequent
employer’s place of employment, the
employer must provide or pay for such
expenses. If the worker has contracted
with a subsequent employer who has
agreed in such work contract to provide
or pay for the worker’s transportation
and daily subsistence expenses from the
employer’s place of employment to such
subsequent employer’s place of
employment, the subsequent employer
must provide or pay for such expenses.
The employer is not relieved of its
obligation to provide or pay for return
transportation and subsistence if an H–
2A worker is displaced as a result of the
employer’s compliance with its
obligation to hire U.S. workers who
apply or are referred after the
employer’s date of need as described in
§ 655.135(d).
(3) Transportation between living
quarters and place of employment. The
employer must provide transportation
between housing provided or secured by
the employer and the employer’s place
of employment at no cost to the worker.
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(4) Employer-provided transportation.
All employer-provided transportation
must comply with all applicable
Federal, state, or local laws and
regulations, and must provide, at a
minimum, the same transportation
safety standards, driver licensure, and
vehicle insurance as required under 29
U.S.C. 1841, 29 CFR 500.104 through
500.105, and 29 CFR 500.120 through
500.128. If workers’ compensation is
used to cover transportation, in lieu of
vehicle insurance, the employer must
either ensure that the workers’
compensation covers all travel or that
vehicle insurance exists to provide
coverage for travel not covered by
workers’ compensation and it must have
property damage insurance.
(i) Three-fourths guarantee—(1) Offer
to worker. The employer must guarantee
to offer the worker employment for a
total number of work hours equal to at
least three-fourths of the workdays of
the total period beginning with the first
workday after the arrival of the worker
at the place of employment or the
advertised contractual first date of need,
whichever is later, and ending on the
expiration date specified in the work
contract or in its extensions, if any.
(i) For purposes of this paragraph
(i)(1) a workday means the number of
hours in a workday as stated in the job
order and excludes the worker’s Sabbath
and Federal holidays. The employer
must offer a total number of hours to
ensure the provision of sufficient work
to reach the three-fourths guarantee. The
work hours must be offered during the
work period specified in the work
contract, or during any modified work
contract period to which the worker and
employer have mutually agreed and that
has been approved by the CO.
(ii) The work contract period can be
shortened by agreement of the parties
only with the approval of the CO. In the
event the worker begins working later
than the specified beginning date of the
contract, the guarantee period begins
with the first workday after the arrival
of the worker at the place of
employment, and continues until the
last day during which the work contract
and all extensions thereof are in effect.
(iii) Therefore, if, for example, a work
contract is for a 10-week period, during
which a normal workweek is specified
as 6 days a week, 8 hours per day, the
worker would have to be guaranteed
employment for at least 360 hours (10
weeks × 48 hours/week = 480 hours ×
75 percent = 360). If a Federal holiday
occurred during the 10-week span, the
8 hours would be deducted from the
total hours for the work contract, before
the guarantee is calculated. Continuing
with the above example, the worker
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would have to be guaranteed
employment for 354 hours (10 weeks ×
48 hours/week = (480 hours ¥ 8 hours
(Federal holiday)) × 75 percent = 354
hours).
(iv) A worker may be offered more
than the specified hours of work on a
single workday. For purposes of meeting
the guarantee, however, the worker will
not be required to work for more than
the number of hours specified in the job
order for a workday, or on the worker’s
Sabbath or Federal holidays. However,
all hours of work actually performed
may be counted by the employer in
calculating whether the period of
guaranteed employment has been met. If
during the total work contract period
the employer affords the U.S. or H–2A
worker less employment than that
required under this paragraph (i)(1), the
employer must pay such worker the
amount the worker would have earned
had the worker, in fact, worked for the
guaranteed number of days. An
employer will not be considered to have
met the work guarantee if the employer
has merely offered work on threefourths of the workdays if each workday
did not consist of a full number of hours
of work time as specified in the job
order.
(2) Guarantee for piece rate paid
worker. If the worker is paid on a piece
rate basis, the employer must use the
worker’s average hourly piece rate
earnings or the required hourly wage
rate, whichever is higher, to calculate
the amount due under the guarantee.
(3) Failure to work. Any hours the
worker fails to work, up to a maximum
of the number of hours specified in the
job order for a workday, when the
worker has been offered an opportunity
to work in accordance with paragraph
(i)(1) of this section, and all hours of
work actually performed (including
voluntary work over 8 hours in a
workday or on the worker’s Sabbath or
Federal holidays), may be counted by
the employer in calculating whether the
period of guaranteed employment has
been met. An employer seeking to
calculate whether the number of hours
has been met must maintain the payroll
records in accordance with this subpart.
(4) Displaced H–2A worker. The
employer is not liable for payment of
the three-fourths guarantee to an H–2A
worker whom the CO certifies is
displaced because of the employer’s
compliance with its obligation to hire
U.S. workers who apply or are referred
after the employer’s date of need
described in § 655.135(d) with respect to
referrals made during that period.
(5) Obligation to provide housing and
meals. Notwithstanding the threefourths guarantee contained in this
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section, employers are obligated to
provide housing and meals in
accordance with paragraphs (d) and (g)
of this section for each day of the
contract period up until the day the
workers depart for other H–2A
employment, depart to the place outside
of the United States from which the
worker departed, or, if the worker
voluntarily abandons employment or is
terminated for cause, the day of such
abandonment or termination.
(j) Earnings records. (1) An employer
must keep accurate and adequate
records with respect to each worker’s
earnings, including, but not limited to,
field tally records, supporting summary
payroll records, and records showing
the nature and amount of the work
performed; the number of hours of work
offered each day by the employer
(broken out by hours offered both in
accordance with and over and above the
three-fourths guarantee at paragraph
(i)(3) of this section); the hours actually
worked each day by the worker; the
time the worker began and ended each
workday; the rate of pay (both piece rate
and hourly, if applicable); the worker’s
earnings per pay period; the worker’s
permanent address; and the amount of
and reasons for any and all deductions
taken from the worker’s wages. In the
case of H–2A workers, the permanent
address must be the worker’s permanent
address in the worker’s home country.
(2) Each employer must keep the
records required by paragraph (j) of this
section, including field tally records and
supporting summary payroll records,
safe and accessible at the place or places
of employment, or at one or more
established central recordkeeping
offices where such records are
customarily maintained. All records
must be available for inspection and
transcription by the Secretary or a duly
authorized and designated
representative, and by the worker and
representatives designated by the
worker as evidenced by appropriate
documentation (an Entry of Appearance
as Attorney or Representative, Form G–
28, signed by the worker, or an affidavit
signed by the worker confirming such
representation). Where the records are
maintained at a central recordkeeping
office, other than in the place or places
of employment, such records must be
made available for inspection and
copying within 72 hours following
notice from the Secretary, or a duly
authorized and designated
representative, and by the worker and
designated representatives as described
in this paragraph (j)(2).
(3) To assist in determining whether
the three-fourths guarantee in paragraph
(i) of this section has been met, if the
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number of hours worked by the worker
on a day during the work contract
period is less than the number of hours
offered, as specified in the job offer, the
records must state the reason or reasons
therefore.
(4) The employer must retain the
records for not less than 3 years after the
date of the certification.
(k) Hours and earnings statements.
The employer must furnish to the
worker on or before each payday in one
or more written statements the
following information:
(1) The worker’s total earnings for the
pay period;
(2) The worker’s hourly rate and/or
piece rate of pay;
(3) The hours of employment offered
to the worker (showing offers in
accordance with the three-fourths
guarantee as determined in paragraph (i)
of this section, separate from any hours
offered over and above the guarantee);
(4) The hours actually worked by the
worker;
(5) An itemization of all deductions
made from the worker’s wages;
(6) If piece rates are used, the units
produced daily;
(7) Beginning and ending dates of the
pay period; and
(8) The employer’s name, address,
and FEIN.
(l) Rates of pay. Except for
occupations covered by §§ 655.200
through 655.235, the employer must pay
the worker at least the AEWR, a
prevailing wage, if the OFLC
Administrator has approved a prevailing
wage survey for the applicable crop
activity or agricultural activity meeting
the requirements of § 655.120(c), the
agreed-upon collective bargaining rate,
the Federal minimum wage, or the state
minimum wage rate, whichever is
highest, for every hour or portion
thereof worked during a pay period.
(1) The offered wage may not be based
on commission, bonuses, or other
incentives, unless the employer
guarantees a wage paid on a weekly,
semi-monthly, or monthly basis that
equals or exceeds the AEWR, prevailing
wage rate, the Federal minimum wage,
the state minimum wage, or any agreedupon collective bargaining rate,
whichever is highest; or
(2) If the worker is paid on a piece rate
basis and at the end of the pay period
the piece rate does not result in average
hourly piece rate earnings during the
pay period at least equal to the amount
the worker would have earned had the
worker been paid at the appropriate
hourly rate:
(i) The worker’s pay must be
supplemented at that time so that the
worker’s earnings are at least as much
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as the worker would have earned during
the pay period if the worker had instead
been paid at the appropriate hourly
wage rate for each hour worked;
(ii) The piece rate must be no less
than the prevailing piece rate for the
crop activity or agricultural activity in
the geographic area if one has been
issued by the OFLC Administrator; and
(iii) If the employer who pays by the
piece rate requires one or more
minimum productivity standards of
workers as a condition of job retention,
such standards must be specified in the
job offer and be no more than those
required by the employer in 1977,
unless the OFLC Administrator
approves a higher minimum, or, if the
employer first applied for temporary
agricultural labor certification after
1977, such standards must be no more
than those normally required (at the
time of the first Application for
Temporary Employment Certification)
by other employers for the activity in
the area of intended employment.
(m) Frequency of pay. The employer
must state in the job offer the frequency
with which the worker will be paid,
which must be at least twice monthly or
according to the prevailing practice in
the area of intended employment,
whichever is more frequent. Employers
must pay wages when due.
(n) Abandonment of employment or
termination for cause. If a worker
voluntarily abandons employment
before the end of the contract period, or
is terminated for cause, and the
employer notifies the NPC, and DHS in
the case of an H–2A worker, in writing
or by any other method specified by the
Department or DHS in a manner
specified in a notice published in the
Federal Register not later than 2
working days after such abandonment
occurs, the employer will not be
responsible for providing or paying for
the subsequent transportation and
subsistence expenses of that worker
under this section, and that worker is
not entitled to the three-fourths
guarantee described in paragraph (i) of
this section. Abandonment will be
deemed to begin after a worker fails to
report to work at the regularly
scheduled time for 5 consecutive
working days without the consent of the
employer. The employer is required to
maintain records of such notification to
the NPC, and DHS in the case of an H–
2A worker, for not less than 3 years
from the date of the certification.
(o) Contract impossibility. If, before
the expiration date specified in the work
contract, the services of the worker are
no longer required for reasons beyond
the control of the employer due to fire,
weather, or other Act of God that makes
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the fulfillment of the contract
impossible, the employer may terminate
the work contract. Whether such an
event constitutes a contract
impossibility will be determined by the
CO. In the event of such termination of
a contract, the employer must fulfill a
three-fourths guarantee for the time that
has elapsed from the start of the work
contract to the time of its termination,
as described in paragraph (i)(1) of this
section. The employer must make efforts
to transfer the worker to other
comparable employment acceptable to
the worker, consistent with existing
immigration law, as applicable. If such
transfer is not affected, the employer
must:
(1) Return the worker, at the
employer’s expense, to the place from
which the worker (disregarding
intervening employment) departed to
work for the employer, or transport the
worker to the worker’s next certified H–
2A employer, whichever the worker
prefers;
(2) Reimburse the worker the full
amount of any deductions made from
the worker’s pay by the employer for
transportation and subsistence expenses
to the place of employment; and
(3) Pay the worker for any costs
incurred by the worker for
transportation and daily subsistence to
that employer’s place of employment.
Daily subsistence must be computed as
set forth in paragraph (h) of this section.
The amount of the transportation
payment must not be less (and is not
required to be more) than the most
economical and reasonable common
carrier transportation charges for the
distances involved.
(p) Deductions. (1) The employer
must make all deductions from the
worker’s paycheck required by law. The
job offer must specify all deductions not
required by law which the employer
will make from the worker’s paycheck.
All deductions must be reasonable. The
employer may deduct the cost of the
worker’s transportation and daily
subsistence expenses to the place of
employment which were borne directly
by the employer. In such circumstances,
the job offer must state that the worker
will be reimbursed the full amount of
such deduction upon the worker’s
completion of 50 percent of the work
contract period. However, an employer
subject to the FLSA may not make
deductions that would violate the FLSA.
(2) A deduction is not reasonable if it
includes a profit to the employer or to
any affiliated person. A deduction that
is primarily for the benefit or
convenience of the employer will not be
recognized as reasonable and therefore
the cost of such an item may not be
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included in computing wages. The wage
requirements of § 655.120 will not be
met where undisclosed or unauthorized
deductions, rebates, or refunds reduce
the wage payment made to the
employee below the minimum amounts
required under this subpart, or where
the employee fails to receive such
amounts free and clear because the
employee kicks back directly or
indirectly to the employer or to another
person for the employer’s benefit the
whole or part of the wage delivered to
the employee. The principles applied in
determining whether deductions are
reasonable and payments are received
free and clear, and the permissibility of
deductions for payments to third
persons are explained in more detail in
29 CFR part 531.
(q) Disclosure of work contract. The
employer must provide to an H–2A
worker not later than the time at which
the worker applies for the visa, or to a
worker in corresponding employment
not later than on the day work
commences, a copy of the work contract
between the employer and the worker in
a language understood by the worker as
necessary or reasonable. For an H–2A
worker going from an H–2A employer to
a subsequent H–2A employer, the copy
must be provided not later than the time
an offer of employment is made by the
subsequent H–2A employer. For an H–
2A worker that does not require a visa
for entry, the copy must be provided not
later than the time of an offer of
employment. At a minimum, the work
contract must contain all of the
provisions required by this section. In
the absence of a separate, written work
contract entered into between the
employer and the worker, the work
contract at a minimum will be the terms
of the job order and any obligations
required under 8 U.S.C. 1188, 28 CFR
part 501, or this subpart.
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§ 655.123
workers.
Positive recruitment of U.S.
(a) Employer obligations. Employers
must conduct recruitment of U.S.
workers within a multi-state region of
traditional or expected labor supply for
the place(s) of employment as
designated by the OFLC Administrator
under § 655.154(d) to ensure that there
are not able, willing, and qualified U.S.
workers who will be available for the
labor or services listed in the
Application for Temporary Employment
Certification. Positive recruitment under
this section is in addition to, and must
be conducted within the same time
period as, circulation of the job order
through the SWA interstate clearance
system.
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(b) Positive recruitment steps. Upon
acceptance of the job order and prior to
filing an Application for Temporary
Employment Certification, the employer
may commence the required positive
recruitment, as set forth in §§ 655.151
through 655.154.
(c) Positive recruitment period. Unless
otherwise instructed by the CO, if the
employer chooses to engage in pre-filing
positive recruitment, the employer must
begin the recruitment required by this
section within 7 calendar days of the
date on which the job order was
accepted. The positive recruitment
period will terminate on the date
specified in § 655.158.
(d) Interviewing U.S. workers.
Employers that wish to require
interviews must conduct those
interviews by phone or provide a
procedure for the interviews to be
conducted in the location where the
U.S. worker is being recruited so that
the worker incurs little or no cost due
to the interview. Employers cannot
provide potential H–2A workers with
more favorable treatment than U.S.
workers with respect to the requirement
for, and conduct of, interviews.
(e) Qualified and available U.S.
workers. The employer must consider
all U.S. applicants for the job
opportunity until the end of the
recruitment period, as set forth in
§ 655.135(d). The employer must accept
and hire all applicants who are qualified
and who will be available for the job
opportunity. U.S. applicants can be
rejected only for lawful, job-related
reasons, and those not rejected on this
basis will be hired.
(f) Pre-filing recruitment report. No
more than 50 calendar days before the
date of need and where positive
recruitment efforts have commenced,
the employer may prepare a recruitment
report, consistent with the requirements
set forth in § 655.156, for submission
with the Application for Temporary
Employment Certification.
§ 655.124
Withdrawal of a job order.
(a) The employer may withdraw a job
order if the employer no longer plans to
file an Application for Temporary
Employment Certification. However, the
employer is still obligated to comply
with the terms and conditions of
employment contained in the job order
with respect to all workers recruited in
connection with that job order.
(b) To request withdrawal, the
employer must submit a request in
writing to the NPC identifying the job
order and stating the reason(s) for the
withdrawal.
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Application for Temporary
Employment Certification Filing
Procedures
§ 655.130
Application filing requirements.
All employers who desire to hire H–
2A foreign agricultural workers must
apply for a certification from the
Secretary by filing an Application for
Temporary Employment Certification
with the NPC designated by the OFLC
Administrator. The following section
provides the procedures employers
must follow when filing.
(a) What to file. An employer that
desires to apply for temporary
agricultural labor certification of one or
more nonimmigrant workers must file a
completed Application for Temporary
Employment Certification, all
supporting documentation and
information required at the time of filing
under §§ 655.131 through 655.135, and,
unless a specific exemption applies, a
copy of Form ETA–790/790A, submitted
as set forth in § 655.121(a). The
Application for Temporary Employment
Certification must include a valid FEIN
as well as a valid place of business
(physical location) in the United States
and a means by which it may be
contacted for employment.
(b) Timeliness. A completed
Application for Temporary Employment
Certification must be filed no less than
45 calendar days before the employer’s
first date of need.
(c) Location and method of filing—(1)
E-filing. The employer must file the
Application for Temporary Employment
Certification and all required supporting
documentation with the NPC using the
electronic method(s) designated by the
OFLC Administrator. The NPC will
return without review any application
submitted using a method other than the
designated electronic method(s), unless
the employer submits the application in
accordance with paragraph (c)(2) or (3)
of this section.
(2) Filing by mail. Employers that lack
adequate access to electronic filing may
file the application by mail. The
employer must indicate that it is filing
by mail due to lack of adequate access
to electronic filing. The OFLC
Administrator will identify the address
to which such filing must be mailed by
public notice(s) and by instructions on
DOL’s website.
(3) Reasonable accommodation.
Employers who are unable or limited in
their ability to use and/or access the
electronic Application for Temporary
Employment Certification, or any other
form or documentation required under
this subpart, as a result of a disability
may request a reasonable
accommodation to enable them to
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participate in the H–2A program. An
employer in need of such an
accommodation may contact the NPC in
writing to the address designated in a
notice published in the Federal Register
or 202–513–7350 (this is not a toll-free
number), or for individuals with hearing
or speech impairments, 1–877–889–
5627 (this is the TTY toll-free Federal
Information Relay Service number) for
assistance in using, accessing, or filing
any form or documentation required
under this subpart, including the
Application for Temporary Employment
Certification. All requests for an
accommodation should include the
employer’s name, a detailed description
of the accommodation needed, and the
preferred method of contact. The NPC
will respond to the request for a
reasonable accommodation within 10
business days of the date of receipt.
(d) Original signature. The
Application for Temporary Employment
Certification must contain an electronic
(scanned) copy of the original signature
of the employer (and that of the
employer’s authorized attorney or agent
if the employer is represented by an
attorney or agent) or a verifiable
electronic signature method, as directed
by the OFLC Administrator. If submitted
by mail, the Application for Temporary
Employment Certification must bear the
original signature of the employer and,
if applicable, the employer’s authorized
attorney or agent.
(e) Scope of applications. Except as
otherwise permitted by this subpart, an
Application for Temporary Employment
Certification must be limited to places
of employment within a single area of
intended employment. An employer
may file only one Application for
Temporary Employment Certification
covering the same area of intended
employment, period of employment,
and occupation or comparable work to
be performed.
(f) Staggered entry of H–2A workers.
(1) If a petition for H–2A workers filed
by an employer, including a joint
employer filing an Application for
Temporary Employment Certification
under § 655.131(b), is granted, the
employer may bring those workers
described in the petition, who are
otherwise admissible, into the United
States at any time up to 120 days from
the first date of need stated on the
certified Application for Temporary
Employment Certification, including
any approved modifications, without
filing another H–2A petition with DHS.
(2) In order to comply with the
provision in paragraph (f)(1) of this
section, the employer must satisfy the
following obligations:
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(i) Notice. (A) At any time after the
Application for Temporary Employment
Certification is filed through 14 calendar
days after the first date of need, as
indicated in the certified Application
for Temporary Employment
Certification, notify the NPC
electronically, unless the employer was
permitted to file by mail as set forth in
§ 655.130(c), of its intent to stagger the
entry of its H–2A workers into the
United States, and the latest date on
which such workers will enter.
(B) An agricultural association filing
as a joint employer with its members
must provide a single notice on behalf
of all its members duly named on the
application and must provide the latest
date on which any of its members
expects H–2A workers to enter the
United States.
(ii) Recruitment. Comply with the
duty to accept and hire U.S. worker
applicants set forth in § 655.135(d)(2).
(iii) Records. Continue to maintain the
recruitment report until the end of the
additional recruitment period, as set
forth in § 655.135(d)(2), and retain all
recruitment documentation for a period
of 3 years from the date of certification,
consistent with the document retention
requirements under § 655.167. The
updated recruitment report and
recruitment documentation is not to be
submitted to the Department, unless
requested by the Department or as set
forth in § 655.156.
(3) Once the NPC receives the notice
described in paragraph (f)(2)(i) of this
section, it will inform all SWAs that
received a copy of the employer’s job
order to extend the period of
recruitment by the time period provided
in the employer’s written notice, if that
period exceeds 30 days. In accordance
with § 655.121(g), the SWA(s) will keep
the employer’s job order on its active
file and refer any U.S. worker who
applies for the job opportunity through
the end of the new recruitment period.
(g) Information dissemination.
Information received in the course of
processing Applications for Temporary
Employment Certification or in the
course of conducting program integrity
measures such as audits may be
forwarded from OFLC to WHD or any
other Federal agency, as appropriate, for
investigative or enforcement purposes.
§ 655.131 Agricultural association and
joint employer filing requirements.
(a) Agricultural association filing
requirements. If an agricultural
association files an Application for
Temporary Employment Certification,
in addition to complying with all the
assurances, guarantees, and other
requirements contained in this subpart
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and in part 653, subpart F, of this
chapter, the following requirements also
apply.
(1) The agricultural association must
identify in the Application for
Temporary Employment Certification
for H–2A workers whether it is filing as
a sole employer, a joint employer, or an
agent. The agricultural association must
retain documentation substantiating the
employer or agency status of the
agricultural association and be prepared
to submit such documentation in
response to a NOD from the CO prior to
issuing a Final Determination, or in the
event of an audit or investigation.
(2) The agricultural association may
file a master application on behalf of its
employer-members. The master
application is available only when the
agricultural association is filing as a
joint employer. An agricultural
association may submit a master
application covering the same
occupation or comparable work
available with a number of its employermembers in multiple areas of intended
employment, as long as the first dates of
need for each employer-member named
in the Application for Temporary
Employment Certification are separated
by no more than 14 calendar days and
all places of employment are located in
no more than two contiguous states. The
agricultural association must identify in
the Application for Temporary
Employment Certification by name,
address, total number of workers
needed, period of employment, first
date of need, and the crops and
agricultural work to be performed, each
employer-member that will employ H–
2A workers.
(3) An agricultural association filing a
master application as a joint employer
may sign the Application for Temporary
Employment Certification on behalf of
its employer-members. An agricultural
association filing as an agent may not
sign on behalf of its employer-members
but must obtain each employermember’s signature on the Application
for Temporary Employment
Certification prior to filing.
(4) If the application is approved, the
agricultural association, as appropriate,
will receive a Final Determination
certifying the Application for
Temporary Employment Certification in
accordance with the procedures
contained in § 655.162.
(b) Joint employer filing requirements.
(1) If an employer files an Application
for Temporary Employment
Certification on behalf of one or more
other employers seeking to jointly
employ H–2A workers in the same area
of intended employment, in addition to
complying with all the assurances,
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guarantees, and other requirements
contained in this subpart and in part
653, subpart F, of this chapter, the
following requirements also apply:
(i) The Application for Temporary
Employment Certification must identify
the name, address, and the crop(s) and
agricultural work to be performed for
each employer seeking to jointly employ
the H–2A workers;
(ii) All H–2A workers must work for
each employer for at least 1 workday, or
its equivalent, each workweek; and
(iii) The Application for Temporary
Employment Certification must be
signed and dated by each joint employer
named in the application, in accordance
with the procedures contained in
§ 655.130(e). By signing the Application
for Temporary Employment
Certification, each joint employer attests
to the conditions of employment
required of an employer participating in
the H–2A program, and assumes full
responsibility for the accuracy of the
representations made in the Application
for Temporary Employment
Certification and for compliance with
all of the assurances and obligations of
an employer in the H–2A program at all
times during the period of employment
on the Application for Temporary
Employment Certification; and
(2) If the application is approved, the
joint employer who submits the
Application for Temporary Employment
Certification will receive, on behalf of
the other joint employers, a Final
Determination certifying the
Application for Temporary Employment
Certification in accordance with the
procedures contained in § 655.162.
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§ 655.132 H–2A labor contractor filing
requirements.
An H–2ALC must meet all of the
requirements of the definition of
employer in § 655.103(b) and comply
with all the assurances, guarantees, and
other requirements contained in this
part, including § 655.135, and in part
653, subpart F, of this chapter. The H–
2ALC must include in or with its
Application for Temporary Employment
Certification at the time of filing the
following:
(a) The name and location of each
fixed-site agricultural business to which
the H–2ALC expects to provide H–2A
workers, the expected beginning and
ending dates when the H–2ALC will be
providing the workers to each fixed-site,
and a description of the crops and
activities the workers are expected to
perform at such fixed-site.
(b) A copy of the Migrant and
Seasonal Agricultural Worker Protection
Act (MSPA) Farm Labor Contractor
(FLC) Certificate of Registration, if
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required under MSPA at 29 U.S.C. 1801
et seq., identifying the specific farm
labor contracting activities the H–2ALC
is authorized to perform as an FLC.
(c) Proof of its ability to discharge
financial obligations under the H–2A
program by including with the
Application for Temporary Employment
Certification an original surety bond
meeting the following requirements.
(1) Requirements for the bond. The
bond must be payable to the
Administrator, Wage and Hour Division,
United States Department of Labor, 200
Constitution Avenue NW, Room S–
3502, Washington, DC 20210. Consistent
with the enforcement procedure set
forth at 29 CFR 501.9(b), the bond must
obligate the surety to pay any sums to
the WHD Administrator for wages and
benefits, including any assessment of
interest, owed to an H–2A worker or to
a worker engaged in corresponding
employment, or to a U.S. worker
improperly rejected or improperly laid
off or displaced, based on a final
decision finding a violation or
violations of this part or 29 CFR part
501 relating to the labor certification the
bond is intended to cover. The aggregate
liability of the surety shall not exceed
the face amount of the bond. The bond
must remain in full force and effect for
all liabilities incurred during the period
of the labor certification, including any
extension thereof. The bond may not be
cancelled absent a finding by the WHD
Administrator that the labor
certification has been revoked.
(2) Amount of the bond. Unless a
higher amount is sought by the WHD
Administrator pursuant to 29 CFR
501.9(a), the required bond amount is
the base amount adjusted to reflect the
average AEWR, as defined in § 655.103,
and any employment of 150 or more
workers.
(i) The base amounts are $5,000 for a
labor certification for which an H–2ALC
employs fewer than 25 workers; $10,000
for a labor certification for which an H–
2ALC employs 25 to 49 workers;
$20,000 for a labor certification for
which an H–2ALC employs 50 to 74
workers; $50,000 for a labor certification
for which an H–2ALC employs 75 to 99
workers; and $75,000 for a labor
certification for which an H–2ALC
employs 100 or more workers.
(ii) The bond amount is calculated by
multiplying the base amount by the
average AEWR and dividing by $9.25.
Thus, the required bond amounts will
vary annually based on changes in the
average AEWR.
(iii) For a labor certification for which
an H–2ALC employs 150 or more
workers, the bond amount applicable to
the certification of 100 or more workers
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36273
is further adjusted for each additional
50 workers as follows: The bond amount
is increased by a value which represents
2 weeks of wages for 50 workers,
calculated using the average AEWR (i.e.,
80 hours × 50 workers × Average
AEWR); this increase is applied to the
bond amount for each additional group
of 50 workers.
(iv) The required bond amounts shall
be calculated and published in the
Federal Register on an annual basis.
(3) Form of the bond and method of
filing. The bond shall consist of an
executed Form ETA–9142A—Appendix
B, and must contain the name, address,
phone number, and contact person for
the surety, and valid documentation of
power of attorney. The bond must be
filed using the method directed by the
OFLC Administrator at the time of
filing:
(i) Electronic surety bonds. When the
OFLC Administrator directs the use of
electronic surety bonds, this will be the
required method of filing bonds for all
applications subject to mandatory
electronic filing. Consistent with the
application filing requirements of
§ 655.130(c) and (d), the bond must be
completed, signed by the employer and
the surety using a verifiable electronic
signature method, and submitted
electronically with the Application for
Temporary Employment Certification
and supporting materials unless the
employer is permitted to file by mail or
a different accommodation under
§ 655.130(c)(2) or (3).
(ii) Electronic submission of copy.
Until such time as the OFLC
Administrator directs the use of
electronic surety bonds, employers may
submit an electronic (scanned) copy of
the surety bond with the application,
provided that the original bond is
received within 30 days of the date that
the certification is issued.
(iii) Mailing original bond with
application. For applications not subject
to mandatory electronic filing due under
§ 655.130(c)(2) or (3), employers may
submit the original bond as part of its
mailed, paper application package, or
consistent with the accommodation
provided.
(d) Copies of the fully-executed work
contracts with each fixed-site
agricultural business identified under
paragraph (a) of this section.
(e) Where the fixed-site agricultural
business will provide housing or
transportation to the workers, proof that:
(1) All housing used by workers and
owned, operated or secured by the
fixed-site agricultural business complies
with the applicable standards as set
forth in § 655.122(d) and certified by the
SWA; and
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(2) All transportation between all
places of employment and the workers’
living quarters that is provided by the
fixed-site agricultural business complies
with all applicable Federal, state, or
local laws and regulations and must
provide, at a minimum, the same
vehicle safety standards, driver
licensure, and vehicle insurance as
required under 29 U.S.C. 1841 and 29
CFR 500.104 through 500.105 and
500.120 through 500.128, except where
workers’ compensation is used to cover
such transportation as described in
§ 655.122(h).
§ 655.133
Requirements for agents.
(a) An agent filing an Application for
Temporary Employment Certification on
behalf of an employer must provide a
copy of the agent agreement or other
document demonstrating the agent’s
authority to represent the employer.
(b) In addition the agent must provide
a copy of the MSPA FLC Certificate of
Registration, if required under MSPA at
29 U.S.C. 1801 et seq., identifying the
specific farm labor contracting activities
the agent is authorized to perform.
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§ 655.134
Emergency situations.
(a) Waiver of time period. The CO may
waive the time period for filing for
employers who did not make use of
temporary foreign agricultural workers
during the prior year’s agricultural
season or for any employer that has
other good and substantial cause,
provided the CO has sufficient time to
test the domestic labor market on an
expedited basis to make the
determinations required by § 655.100.
(b) Employer requirements. The
employer requesting a waiver of the
required time period must submit to the
NPC all documentation required at the
time of filing by § 655.130(a) except
evidence of a job order submitted
pursuant to § 656.121 of this chapter, a
completed job order on the Form ETA–
790/790A and all required addenda, and
a statement justifying the request for a
waiver of the time period requirement.
The statement must indicate whether
the waiver request is due to the fact that
the employer did not use H–2A workers
during the prior year’s agricultural
season or whether the request is for
good and substantial cause. If the waiver
is requested for good and substantial
cause, the employer’s statement must
also include detailed information
describing the good and substantial
cause that has necessitated the waiver
request. Good and substantial cause may
include, but is not limited to, the
substantial loss of U.S. workers due to
Acts of God or similar unforeseeable
man-made catastrophic events (e.g., a
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hazardous materials emergency or
government-controlled flooding),
unforeseeable changes in market
conditions, pandemic health issues, or
similar conditions that are wholly
outside of the employer’s control.
(c) Processing of emergency
applications. (1) Upon receipt of a
complete emergency situation(s) waiver
request, the CO promptly will transmit
a copy of the job order to the SWA
serving the area of intended
employment. The SWA will review the
contents of the job order for compliance
with the requirements set forth in
§ 653.501(c) of this chapter and
§ 655.122. If the SWA determines that
the job order does not comply with the
applicable criteria, the SWA must
inform the CO of the noted deficiencies
within 5 calendar days of the date the
job order is received by the SWA.
(2) The CO will process emergency
Applications for Temporary
Employment Certification in a manner
consistent with the provisions set forth
in §§ 655.140 through 655.145 and make
a determination on the Application for
Temporary Employment Certification in
accordance with §§ 655.160 through
655.167. The CO may notify the
employer, in accordance with the
procedures contained in § 655.141, that
the application cannot be accepted
because, pursuant to paragraph (a) of
this section, the request for emergency
filing was not justified and/or there is
not sufficient time to test the availability
of U.S. workers such that the CO can
make a determination on the
Application for Temporary Employment
Certification in accordance with
§ 655.161. Such notification will so
inform the employer of the opportunity
to submit a modified Application for
Temporary Employment Certification
and/or job order in accordance with the
procedures contained in § 655.142.
§ 655.135 Assurances and obligations of
H–2A employers.
An employer seeking to employ H–2A
workers must agree as part of the
Application for Temporary Employment
Certification and job offer that it will
abide by the requirements of this
subpart and make each of the following
additional assurances:
(a) Non-discriminatory hiring
practices. The job opportunity is, and
through the period set forth in
paragraph (d) of this section must
continue to be, open to any qualified
U.S. worker regardless of race, color,
national origin, age, sex, religion,
handicap, or citizenship. Rejections of
any U.S. workers who applied or apply
for the job must be only for lawful, jobrelated reasons, and those not rejected
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on this basis have been or will be hired.
In addition, the employer has and will
continue to retain records of all hires
and rejections as required by § 655.167.
(b) No strike or lockout. The place(s)
of employment for which the employer
is requesting a temporary agricultural
labor certification does not currently
have employees on strike or being
locked out in the course of a labor
dispute.
(c) Recruitment requirements. The
employer has and will continue to
cooperate with the SWA by accepting
referrals of all eligible U.S. workers who
apply (or on whose behalf an
application is made) for the job
opportunity until the end of the period
as specified in paragraph (d) of this
section and must independently
conduct the positive recruitment
activities, as specified in §§ 655.123 and
655.154, until the date on which the H–
2A workers depart for the place of
employment. Unless the SWA is
informed in writing of a different date,
the date that is the third day preceding
the employer’s first date of need will be
determined to be the date the H–2A
workers departed for the employer’s
place of employment.
(d) Thirty-day rule. (1) Subject to
paragraph (d)(2) of this section, the
employer must provide employment to
any qualified, eligible U.S. worker who
applies for the job opportunity until 30
calendar days after the first date of need
stated on the Application for Temporary
Employment Certification under which
the H–2A worker who is in the job was
hired, including any approved
modifications.
(2) If an employer chooses to use the
procedures for the staggered entry of H–
2A workers at § 655.130(f), the employer
must provide employment to any
qualified, eligible U.S. worker who
applies for the job opportunity through
the date provided on the employer’s
notice described at § 655.130(f)(2) or the
end of the 30-day period described in
paragraph (d)(1) of this section,
whichever is longer.
(e) Compliance with applicable laws.
During the period of employment that is
the subject of the Application for
Temporary Employment Certification,
the employer must comply with all
applicable Federal, state, and local laws
and regulations, including health and
safety laws. In compliance with such
laws, including the William Wilberforce
Trafficking Victims Protection
Reauthorization Act of 2008, Public Law
110–457, 18 U.S.C. 1592(a), the
employer may not hold or confiscate
workers’ passports, visas, or other
immigration documents. H–2A
employers may also be subject to the
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FLSA. The FLSA operates
independently of the H–2A program and
has specific requirements that address
payment of wages, including deductions
from wages, the payment of Federal
minimum wage and payment of
overtime.
(f) Job opportunity is full-time. The
job opportunity is a full-time temporary
position, calculated to be at least 35
hours per workweek.
(g) No recent or future layoffs. The
employer has not laid off and will not
lay off any worker in the United States
similarly employed in the occupation
that is the subject of the Application for
Temporary Employment Certification in
the area of intended employment except
for lawful, job-related reasons within 60
days of the first date of need, or if the
employer has laid off such workers, it
has offered the job opportunity that is
the subject of the Application for
Temporary Employment Certification to
those laid-off U.S. worker(s) and the
U.S. worker(s) refused the job
opportunity, was rejected for the job
opportunity for lawful, job-related
reasons, or was hired. A layoff for
lawful, job-related reasons such as lack
of work or the end of the growing season
is permissible if all H–2A workers are
laid off before any U.S. worker in
corresponding employment.
(h) No unfair treatment. The employer
has not and will not intimidate,
threaten, restrain, coerce, blacklist,
discharge or in any manner discriminate
against, and has not and will not cause
any person to intimidate, threaten,
restrain, coerce, blacklist, or in any
manner discriminate against, any person
who has:
(1) Filed a complaint under or related
to 8 U.S.C. 1188, or this subpart or any
other Department regulation
promulgated under or related to 8 U.S.C.
1188;
(2) Instituted or caused to be
instituted any proceeding under or
related to 8 U.S.C. 1188 or this subpart
or any other Department regulation
promulgated under or related to 8 U.S.C.
1188;
(3) Testified or is about to testify in
any proceeding under or related to 8
U.S.C. 1188 or this subpart or any other
Department regulation promulgated
under or related to 8 U.S.C. 1188;
(4) Consulted with an employee of a
legal assistance program or an attorney
on matters related to 8 U.S.C. 1188 or
this subpart or any other Department
regulation promulgated under or related
to 8 U.S.C. 1188; or
(5) Exercised or asserted on behalf of
himself/herself or others any right or
protection afforded by 8 U.S.C. 1188 or
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regulation promulgated under or related
to 8 U.S.C. 1188.
(i) Notify workers of duty to leave
United States. (1) The employer must
inform H–2A workers of the
requirement that they leave the United
States at the end of the period certified
by the Department or separation from
the employer, whichever is earlier, as
required under paragraph (i)(2) of this
section, unless the H–2A worker is
being sponsored by another subsequent
H–2A employer.
(2) As defined further in the DHS
regulations, a temporary agricultural
labor certification limits the validity
period of an H–2A Petition, and
therefore, the authorized period of stay
for an H–2A worker. See 8 CFR
214.2(h)(5)(vii). A foreign worker may
not remain beyond his or her authorized
period of stay, as determined by DHS,
nor beyond separation from
employment prior to completion of the
H–2A contract, absent an extension or
change of such worker’s status under
the DHS regulations. See 8 CFR
214.2(h)(5)(viii)(B).
(j) Comply with the prohibition
against employees paying fees. The
employer and its agents have not sought
or received payment of any kind from
any employee subject to 8 U.S.C. 1188
for any activity related to obtaining H–
2A labor certification, including
payment of the employer’s attorney fees,
application fees, or recruitment costs.
For purposes of this paragraph (j),
payment includes, but is not limited to,
monetary payments, wage concessions
(including deductions from wages,
salary, or benefits), kickbacks, bribes,
tributes, in kind payments, and free
labor. The provision in this paragraph (j)
does not prohibit employers or their
agents from receiving reimbursement for
costs that are the responsibility and
primarily for the benefit of the worker,
such as government-required passport
fees.
(k) Contracts with third parties
comply with prohibitions. The employer
must contractually prohibit in writing
any foreign labor contractor or recruiter
(or any agent of such foreign labor
contractor or recruiter) whom the
employer engages, either directly or
indirectly, in international recruitment
of H–2A workers to seek or receive
payments or other compensation from
prospective employees. The contract
must include the following statement:
‘‘Under this agreement, [name of foreign
labor contractor or recruiter] and any
agent or employee of [name of foreign
labor contractor or recruiter] are
prohibited from seeking or receiving
payments from any prospective
employee of [employer name] at any
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36275
time, including before or after the
worker obtains employment. Payments
include but are not limited to any direct
or indirect fees paid by such employees
for recruitment, job placement,
processing, maintenance, attorney fees,
agent fees, application fees, or any other
fees related to obtaining H–2A labor
certification.’’ This documentation is to
be made available upon request by the
CO or another Federal party.
(l) Notice of worker rights. The
employer must post and maintain in a
conspicuous location at the place of
employment, a poster provided by the
Secretary in English, and, to the extent
necessary, any language common to a
significant portion of the workers if they
are not fluent in English, which sets out
the rights and protections for workers
employed pursuant to 8 U.S.C. 1188.
§ 655.136 Withdrawal of an Application
for Temporary Employment Certification
and job order.
(a) The employer may withdraw an
Application for Temporary Employment
Certification and the related job order at
any time before the CO makes a
determination under § 655.160.
However, the employer is still obligated
to comply with the terms and
conditions of employment contained in
the Application for Temporary
Employment Certification and job order
with respect to all workers recruited in
connection with that application and
job order.
(b) To request withdrawal, the
employer must submit a request in
writing to the NPC identifying the
Application for Temporary Employment
Certification and job order and stating
the reason(s) for the withdrawal.
Processing of Applications for
Temporary Employment Certification
§ 655.140
Review of applications.
(a) NPC review. The CO will promptly
review the Application for Temporary
Employment Certification and job order
for compliance with all applicable
program requirements, including
compliance with the requirements set
forth in this subpart, and make a
decision to issue a NOD under
§ 655.141, a Notice of Acceptance
(NOA) under § 655.143, or a Final
Determination under § 655.160.
(b) Mailing and postmark
requirements. Any notice or request sent
by the CO(s) to an employer requiring a
response will be sent electronically or
via traditional methods to assure next
day delivery using the address,
including electronic mail address,
provided on the Application for
Temporary Employment Certification.
The employer’s response to such a
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notice or request must be filed
electronically or via traditional methods
to assure next day delivery. The
employer’s response must be sent by the
date due or the next business day if the
due date falls on a Sunday or Federal
holiday.
§ 655.141
Notice of deficiency.
(a) Notification timeline. If the CO
determines the Application for
Temporary Employment Certification or
job order is incomplete, contains errors
or inaccuracies, or does not meet the
requirements set forth in this subpart,
the CO will notify the employer within
7 calendar days of the CO’s receipt of
the Application for Temporary
Employment Certification. A copy of
this notification will be sent to the SWA
serving the area of intended
employment.
(b) Notice content. The notice will:
(1) State the reason(s) the Application
for Temporary Employment
Certification or job order fails to meet
the criteria for acceptance;
(2) Offer the employer an opportunity
to submit a modified Application for
Temporary Employment Certification or
job order within 5 business days from
date of receipt stating the modification
that is needed for the CO to issue the
NOA;
(3) State that the CO’s determination
on whether to grant or deny the
Application for Temporary Employment
Certification will be made not later than
30 calendar days before the first date of
need, provided that the employer
submits the requested modification to
the Application for Temporary
Employment Certification or job order
within 5 business days and in a manner
specified by the CO; and
(4) State that if the employer does not
comply with the requirements of
§ 655.142, the CO will deny the
Application for Temporary Employment
Certification.
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§ 655.142 Submission of modified
applications.
(a) Submission requirements and
certification delays. If in response to a
NOD the employer chooses to submit a
modified Application for Temporary
Employment Certification or job order,
the CO’s Final Determination will be
postponed by 1 calendar day for each
day that passes beyond the 5-businessday period allowed under § 655.141(b)
to submit a modified Application for
Temporary Employment Certification or
job order, up to a maximum of 5
calendar days. The CO may issue one or
more additional NODs before issuing a
Final Determination. The Application
for Temporary Employment
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Certification will be deemed abandoned
if the employer does not submit a
modified Application for Temporary
Employment Certification or job order
within 12 calendar days after the NOD
was issued.
(b) Provisions for denial of modified
Application for Temporary Employment
Certification. If the modified
Application for Temporary Employment
Certification or job order does not cure
the deficiencies cited in the NOD(s) or
otherwise fails to satisfy the criteria
required for certification, the CO will
deny the Application for Temporary
Employment Certification in accordance
with the labor certification
determination provisions in § 655.164.
(c) Appeal from denial of modified
Application for Temporary Employment
Certification. The procedures for
appealing a denial of a modified
Application for Temporary Employment
Certification are the same as for a nonmodified Application for Temporary
Employment Certification as long as the
employer timely requests an expedited
administrative review or de novo
hearing before an ALJ by following the
procedures set forth in § 655.171.
§ 655.143
Notice of acceptance.
(a) Notification timeline. When the
CO determines the Application for
Temporary Employment Certification
and job order meet the requirements set
forth in this subpart, the CO will notify
the employer within 7 calendar days of
the CO’s receipt of the Application for
Temporary Employment Certification. A
copy of the notice will be sent to the
SWA serving the area of intended
employment.
(b) Notice content. The notice must:
(1) When recruitment of U.S. workers,
as specified in §§ 655.151 through
655.154, has not commenced prior to
the filing of the Application for
Temporary Employment Certification,
or when recruitment has commenced
but not concluded prior to the filing of
the Application for Temporary
Employment Certification, and the CO
has determined that the recruitment
activities undertaken are compliant with
positive recruitment requirements:
(i) Authorize conditional access to the
interstate clearance system and direct
each SWA receiving a copy of the job
order to commence recruitment of U.S.
workers as specified in § 655.150;
(ii) Direct the employer to engage in
positive recruitment of U.S. workers
under §§ 655.151 through 655.154 and
to submit a report of its positive
recruitment efforts meeting the
requirements of § 655.156; and
(iii) State that positive recruitment is
in addition to and will occur during the
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period of time that the job order is being
circulated by the SWA(s) for interstate
clearance under § 655.150 of this
subpart and will terminate on the date
specified in § 655.158.
(2) When recruitment of U.S. workers,
as specified in §§ 655.151 through
655.154, has commenced prior to the
filing of the Application for Temporary
Employment Certification, but the CO
has determined the employer failed to
comply with one or more of its positive
recruitment obligations:
(i) Direct the employer to engage in
corrective positive recruitment of U.S.
workers and submit proof of compliant
advertising concurrently with a report of
its positive recruitment efforts meeting
the requirements of § 655.156;
(ii) State that positive recruitment is
in addition to and will occur during the
period of time that the job order is being
circulated for interstate clearance under
§ 655.150 and will terminate on the date
specified in § 655.158;
(3) State any other documentation or
assurances needed for the Application
for Temporary Employment
Certification to meet the requirements
for certification under this subpart; and
(4) State that the CO will make a
determination either to grant or deny
the Application for Temporary
Employment Certification not later than
30 calendar days before the first date of
need, except as provided for under
§ 655.142 for modified Applications for
Temporary Employment Certification or
when the Application for Temporary
Employment Certification does not meet
the requirements for certification but is
expected to before the first date of need.
§ 655.144
Electronic job registry.
(a) Location of and placement in the
electronic job registry. Upon acceptance
of the Application for Temporary
Employment Certification under
§ 655.143, the CO will promptly place
for public examination a copy of the job
order on an electronic job registry
maintained by the Department,
including any required modifications
approved by the CO, as specified in
§ 655.142.
(b) Length of posting on electronic job
registry. Unless otherwise provided, the
Department will keep the job order
posted on the electronic job registry in
active status until the end of the
recruitment period, as set forth in
§ 655.135(d).
§ 655.145 Amendments to Applications for
Temporary Employment Certification.
(a) Increases in number of workers.
The Application for Temporary
Employment Certification may be
amended at any time before the CO’s
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certification determination to increase
the number of workers requested in the
initial Application for Temporary
Employment Certification by not more
than 20 percent (50 percent for
employers requesting less than 10
workers) without requiring an
additional recruitment period for U.S.
workers. Requests for increases above
the percent prescribed, without
additional recruitment, may be
approved by the CO only when the
employer demonstrates that the need for
additional workers could not have been
foreseen, and the crops or commodities
will be in jeopardy prior to the
expiration of an additional recruitment
period. All requests for increasing the
number of workers must be made in
writing.
(b) Minor changes to the period of
employment. The Application for
Temporary Employment Certification
may be amended to make minor changes
in the total period of employment.
Changes will not be effective until
submitted in writing and approved by
the CO. In considering whether to
approve the request, the CO will review
the reason(s) for the request, determine
whether the reason(s) are on the whole
justified, and take into account the
effect any change(s) would have on the
adequacy of the underlying test of the
domestic labor market for the job
opportunity. An employer must
demonstrate that the change to the
period of employment could not have
been foreseen, and the crops or
commodities will be in jeopardy prior to
the expiration of an additional
recruitment period. If the request is for
a delay in the first date of need and is
made after workers have departed for
the employer’s place of employment,
the CO may only approve the change if
the employer includes with the request
a written assurance signed and dated by
the employer that all workers who are
already traveling to the place of
employment will be provided housing
and subsistence, without cost to the
workers, until work commences. Upon
acceptance of an amendment, the CO
will submit to the SWA any necessary
modification to the job order.
Post-Acceptance Requirements
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§ 655.150
Interstate clearance of job order.
(a) CO approves for interstate
clearance. The CO will promptly
transmit a copy of the approved job
order for interstate clearance to all states
listed in the job order as anticipated
place(s) of employment and all other
states designated by the OFLC
Administrator as states of traditional or
expected labor supply for the
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anticipated place(s) of employment
under § 655.154(d).
(b) Duration of posting. Each of the
SWAs to which the CO transmits the job
order must keep the job order on its
active file until the end of the
recruitment period, as set forth in
§ 655.135(d), and must refer each
qualified U.S. worker who applies (or
on whose behalf an application is made)
for the job opportunity.
§ 655.151 Advertising in the area of
intended employment.
(a) The employer must place an
advertisement (in a language other than
English, where the CO determines
appropriate) on 2 separate days, which
may be consecutive, one of which must
be a Sunday (except as provided in
paragraph (b) of this section), in a
newspaper of general circulation serving
the area of intended employment and is
appropriate to the occupation and the
workers likely to apply for the job
opportunity. Newspaper advertisements
must satisfy the requirements set forth
in § 655.152.
(b) If the job opportunity is located in
a rural area that does not have a
newspaper with a Sunday edition, the
CO may direct the employer, in place of
a Sunday edition, to advertise in the
regularly published daily edition with
the widest circulation in the area of
intended employment.
§ 655.152 Advertising content
requirements.
All advertising conducted to satisfy
the required recruitment activities
under §§ 655.151 and 655.154 must
meet the requirements set forth in this
section and must contain terms and
conditions of employment which are
not less favorable than those offered to
the H–2A workers. All advertising must
contain the following information:
(a) The employer’s name, each joint
employer’s name, or in the event that a
master application will be filed by an
agricultural association, the agricultural
association’s name and a statement
indicating that the name and location of
each member of the agricultural
association can be obtained from the
SWA of the state in which the
advertisement is run;
(b) The geographic area of intended
employment with enough specificity to
apprise applicants of any travel
requirements and where applicants will
likely have to reside to perform the
labor or services;
(c) A description of the job
opportunity for which certification is
sought with sufficient information to
apprise U.S. workers of labor or services
to be performed and the anticipated
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start and end dates of employment of
the job opportunity;
(d) The wage offer, or in the event that
there are multiple wage offers (e.g.,
where a master application will be filed
by an agricultural association and/or
where there are multiple crop activities
for a single employer), the range of
applicable wage offers and, where a
master application will be filed by an
agricultural association, a statement
indicating that the rate(s) applicable to
each employer can be obtained from the
SWA of the State in which the
advertisement is run;
(e) The three-fourths guarantee
specified in § 655.122(i);
(f) If applicable, a statement that work
tools, supplies, and equipment will be
provided at no cost to the worker;
(g) A statement that housing will be
made available at no cost to workers,
including U.S. workers who cannot
reasonably return to their permanent
residence at the end of each working
day;
(h) A statement that transportation
and subsistence expenses to the place of
employment will be provided by the
employer or paid by the employer upon
completion of 50 percent of the work
contract, or earlier, if appropriate;
(i) A statement that the position is
temporary and a specification of the
total number of job openings the
employer intends to fill;
(j) A statement directing applicants to
apply for the job opportunity at the
nearest office of the SWA in the state in
which the advertisement appeared; and
(k) Contact information for the
applicable SWA and, if available, the
job order number.
§ 655.153
workers.
Contact with former U.S.
The employer must contact, by mail
or other effective means, U.S. workers
employed by the employer in the
occupation at the place of employment
during the previous year and solicit
their return to the job. This contact must
occur during the period of time that the
job order is being circulated by the
SWA(s) for interstate clearance under
§ 655.150 and before the date specified
in § 655.158. Documentation sufficient
to prove contact must be maintained in
the event of an audit or investigation.
An employer has no obligation to
contact U.S. workers it terminated for
cause or who abandoned employment at
any time during the previous year if the
employer provided timely notice to the
NPC of the termination or abandonment
in the manner described in § 655.122(n).
§ 655.154
Additional positive recruitment.
(a) Where to conduct additional
positive recruitment. The employer
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must conduct positive recruitment
within a multistate region of traditional
or expected labor supply where the
OFLC Administrator finds that there are
a significant number of qualified U.S.
workers who, if recruited, would be
willing to make themselves available for
work at the time and place needed.
(b) Additional requirements should be
comparable to non-H–2A employers in
the area. The CO will ensure that the
effort, including the location(s) and
method(s) of the positive recruitment
required of the employer must be no
less than the normal recruitment efforts
of non-H–2A agricultural employers of
comparable or smaller size in the area
of intended employment, and the kind
and degree of recruitment efforts which
the employer made to obtain foreign
workers.
(c) Nature of the additional positive
recruitment. The CO will describe the
precise nature of the additional positive
recruitment, but the employer will not
be required to conduct positive
recruitment in more than three states for
each area of intended employment
listed on the employer’s Application for
Temporary Employment Certification
and job order.
(d) Determination of labor supply
states. (1) The OFLC Administrator will
make an annual determination with
respect to each state whether there are
other traditional or expected labor
supply states in which there are a
significant number of qualified U.S.
workers who, if recruited, would be
willing to make themselves available for
work in that state. The OFLC
Administrator will publish the
determination annually on the OFLC’s
website. The traditional or expected
labor supply states designated by the
OFLC Administrator will become
effective on the date of publication on
the OFLC’s website for employers who
have not commenced positive
recruitment under this subpart and will
remain valid until the OFLC
Administrator publishes a new
determination.
(2) The determination as to whether
any state is a source of traditional or
expected labor supply to another state
will be based primarily upon
information provided by the SWAs to
the OFLC Administrator within 120
calendar days preceding the
determination.
§ 655.155
Referrals of U.S. workers.
SWAs may only refer for employment
individuals who have been apprised of
all the material terms and conditions of
employment and have indicated, by
accepting referral to the job opportunity,
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that they are qualified, able, willing, and
available for employment.
§ 655.156
Recruitment report.
(a) Requirements of a recruitment
report. The employer must prepare,
sign, and date a written recruitment
report. The recruitment report must
contain the following information:
(1) Identify the name of each
recruitment source and date of
advertisement;
(2) State the name and contact
information of each U.S. worker who
applied or was referred to the job
opportunity up to the date of the
preparation of the recruitment report,
and the disposition of each worker;
(3) Confirm that former U.S.
employees were contacted and by what
means or state there are no former U.S.
employees to contact; and
(4) If applicable, for each U.S. worker
who applied for the position but was
not hired, explain the lawful job-related
reason(s) for not hiring the U.S. worker.
(b) Duty to update recruitment report.
The employer must continue to update
the recruitment report until the end of
the recruitment period, as set forth in
§ 655.135(d). The updated report is not
to be submitted to the Department,
unless requested by the Department.
The updated report mustbe made
available in the event of a postcertification audit or upon request by
the Department or any other Federal
agency.
§ 655.157 Withholding of U.S. workers
prohibited.
(a) Filing a complaint. Any employer
who has reason to believe that a person
or entity has willfully and knowingly
withheld U.S. workers prior to the
arrival at the place of employment of H–
2A workers in order to force the hiring
of U.S. workers during the recruitment
period, as set forth in § 655.135(d), may
submit a written complaint to the CO.
The complaint must clearly identify the
person or entity who the employer
believes has withheld the U.S. workers,
and must specify sufficient facts to
support the allegation (e.g., dates,
places, numbers and names of U.S.
workers) which will permit an
investigation to be conducted by the CO.
(b) Duty to investigate. Upon receipt,
the CO must immediately investigate
the complaint. The investigation must
include interviews with the employer
who has submitted the complaint, the
person or entity named as responsible
for withholding the U.S. workers, and
the individual U.S. workers whose
availability has purportedly been
withheld.
(c) Duty to suspend the recruitment
period. Where the CO determines, after
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conducting the interviews required by
paragraph (b) of this section, that the
employer’s complaint is valid and
justified, the CO will immediately
suspend the applicable recruitment
period, as set forth in § 655.135(d), to
the employer. The CO’s determination is
the final decision of the Secretary.
§ 655.158
Duration of positive recruitment.
Except as otherwise noted, the
obligation to engage in positive
recruitment described in §§ 655.150
through 655.154 will terminate on the
date H–2A workers depart for the
employer’s place of employment. Unless
the SWA is informed in writing of a
different date, the date that is the third
day preceding the employer’s first date
of need will be determined to be the
date the H–2A workers departed for the
employer’s place of employment.
Labor Certification Determinations
§ 655.160
Determinations.
Except as otherwise noted in this
section, the CO will make a
determination either to grant or deny
the Application for Temporary
Employment Certification not later than
30 calendar days before the first date of
need identified in the Application for
Temporary Employment Certification.
An Application for Temporary
Employment Certification that is
modified under § 655.142 or that
otherwise does not meet the
requirements for certification in this
subpart is not subject to the 30-day
timeframe for certification.
§ 655.161
Criteria for certification.
(a) The criteria for certification
include whether the employer has
complied with the applicable
requirements of parts 653 and 654 of
this chapter, and all requirements of this
subpart, which are necessary to grant
the labor certification.
(b) In making a determination as to
whether there are insufficient U.S.
workers to fill the employer’s job
opportunity, the CO will count as
available any U.S. worker referred by
the SWA or any U.S. worker who
applied (or on whose behalf an
application is made) directly to the
employer, whom the employer has not
rejected for a lawful, job-related reason.
§ 655.162
Approved certification.
If temporary agricultural labor
certification is granted, the CO will send
a Final Determination notice and a copy
of the certified Application for
Temporary Employment Certification
and job order to the employer and a
copy, if applicable, to the employer’s
agent or attorney using an electronic
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method(s) designated by the OFLC
Administrator. For employers permitted
to file by mail as set forth in
§ 655.130(c), the CO will send the Final
Determination notice and a copy of the
certified Application for Temporary
Employment Certification and job order
by means normally assuring next day
delivery. The CO will send the certified
Application for Temporary Employment
Certification and job order, including
any approved modifications, on behalf
of the employer, directly to USCIS using
an electronic method(s) designated by
the OFLC Administrator.
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§ 655.163
Certification fee.
A determination by the CO to grant an
Application for Temporary Employment
Certification in whole or in part will
include a bill for the required
certification fees. Each employer of H–
2A workers under the Application for
Temporary Employment Certification
(except joint employer agricultural
associations, which may not be assessed
a fee in addition to the fees assessed to
the members of the agricultural
association) must pay in a timely
manner a non-refundable fee upon
issuance of the certification granting the
Application for Temporary Employment
Certification (in whole or in part), as
follows:
(a) Amount. The Application for
Temporary Employment Certification
fee for each employer receiving a
temporary agricultural labor
certification is $100 plus $10 for each
H–2A worker certified under the
Application for Temporary Employment
Certification, provided that the fee to an
employer for each temporary
agricultural labor certification received
will be no greater than $1,000. There is
no additional fee to the association
filing the Application for Temporary
Employment Certification. The fees
must be paid by check or money order
made payable to United States
Department of Labor. In the case of an
agricultural association acting as a joint
employer applying on behalf of its H–
2A employer-members, the aggregate
fees for all employers of H–2A workers
under the Application for Temporary
Employment Certification must be paid
by one check or money order.
(b) Timeliness. Fees must be received
by the CO no more than 30 calendar
days after the date of the certification.
Non-payment or untimely payment may
be considered a substantial violation
subject to the procedures in § 655.182.
§ 655.164
Denied certification.
If temporary agricultural labor
certification is denied, the CO will send
a Final Determination notice to the
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employer and a copy, if appropriate, to
the employer’s agent or attorney using
an electronic method(s) designated by
the OFLC Administrator. For employers
permitted to file by mail as set forth in
§ 655.130(c), the CO will send the Final
Determination notice by means
normally assuring next day delivery.
The Final Determination notice will:
(a) State the reason(s) certification is
denied, citing the relevant regulatory
standards;
(b) Offer the employer an opportunity
to request an expedited administrative
review or a de novo administrative
hearing before an ALJ of the denial
under § 655.171; and
(c) State that if the employer does not
request an expedited administrative
judicial review or a de novo hearing
before an ALJ in accordance with
§ 655.171, the denial is final, and the
Department will not accept any appeal
on that Application for Temporary
Employment Certification.
§ 655.165
Partial certification.
The CO may issue a partial
certification, reducing either the period
of employment or the number of H–2A
workers being requested or both for
certification, based upon information
the CO receives during the course of
processing the Application for
Temporary Employment Certification,
an audit, or otherwise. The number of
workers certified will be reduced by one
for each U.S. worker who is able,
willing, and qualified, and who will be
available at the time and place needed
and has not been rejected for lawful,
job-related reasons, to perform the labor
or services. If a partial labor certification
is issued, the CO will send the Final
Determination notice approving partial
certification using the procedures at
§ 655.162. The Final Determination
notice will:
(a) State the reason(s) the period of
employment and/or the number of H–
2A workers requested has been reduced,
citing the relevant regulatory standards;
(b) Offer the employer an opportunity
to request an expedited administrative
review or a de novo administrative
hearing before an ALJ of the partial
certification under § 655.171; and
(c) State that if the employer does not
request an expedited administrative
judicial review or a de novo hearing
before an ALJ in accordance with
§ 655.171, the partial certification is
final, and the Department will not
accept any appeal on that Application
for Temporary Employment
Certification.
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§ 655.166 Requests for determinations
based on nonavailability of U.S. workers.
(a) Standards for requests. If a
temporary agricultural labor
certification has been partially granted
or denied based on the CO’s
determination that able, willing,
available, eligible, and qualified U.S.
workers are available, and, on or after 30
calendar days before the first date of
need, some or all of those U.S. workers
are, in fact, no longer able, willing,
eligible, qualified, or available, the
employer may request a new temporary
agricultural labor certification
determination from the CO. Prior to
making a new determination, the CO
will promptly ascertain (which may be
through the SWA or other sources of
information on U.S. worker availability)
whether specific able, willing, eligible
and qualified replacement U.S. workers
are available or can be reasonably
expected to be present at the employer’s
establishment within 72 hours from the
date the employer’s request was
received. The CO will expeditiously, but
in no case later than 72 hours after the
time a complete request (including the
signed statement included in paragraph
(b) of this section) is received, make a
determination on the request under
paragraph (c) of this section. An
employer may appeal a denial of such
a determination in accordance with the
procedures contained in § 655.171.
(b) Unavailability of U.S. workers. The
employer’s request for a new
determination must be made directly to
the CO in writing using an electronic
method(s) designated by the OFLC
Administrator, unless the employer
requests to file the request by mail as set
forth in § 655.130(c). If the employer
requests the new determination by
asserting solely that U.S. workers have
become unavailable, the employer must
submit to the CO a signed statement
confirming such assertion. If such
signed statement is not received by the
CO within 72 hours of the CO’s receipt
of the request for a new determination,
the CO will deny the request.
(c) Notification of determination. If
the CO determines that U.S. workers
have become unavailable and cannot
identify sufficient available U.S.
workers who are able, willing, eligible,
and qualified or who are likely to
become available, the CO will grant the
employer’s request for a new
determination on the Application for
Temporary Employment Certification in
accordance with the procedures
contained in § 655.162 or § 655.165.
However, this does not preclude an
employer from submitting subsequent
requests for new determinations, if
warranted, based on subsequent facts
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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.
Post-Certification
§ 655.170
Extensions.
An employer may apply for
extensions of the period of employment
in the following circumstances.
§ 655.167 Document retention
(a) Short-term extension. Employers
requirements of H–2A employers.
seeking extensions of 2 weeks or less of
(a) Entities required to retain
the certified Application for Temporary
documents. All employers must retain
Employment Certification must apply
documents and records demonstrating
directly to DHS for approval. If granted,
compliance with this subpart.
the Application for Temporary
Employment Certification will be
(b) Period of required retention.
deemed extended for such period as is
Records and documents must be
retained for a period of 3 years from the approved by DHS.
(b) Long-term extension. Employers
date of certification of the Application
seeking extensions of more than 2 weeks
for Temporary Employment
may apply to the CO. Such requests
Certification or from the date of
must be related to weather conditions or
determination if the Application for
Temporary Employment Certification is other factors beyond the control of the
employer (which may include
denied or withdrawn.
unforeseen changes in market
(c) Documents and records to be
retained by all employers. All employers conditions). Such requests must be
supported in writing, with
must retain:
documentation showing that the
(1) Proof of recruitment efforts,
extension is needed and that the need
including:
could not have been reasonably foreseen
(i) Job order placement as specified in
by the employer. The CO will notify the
§ 655.121;
employer of the decision in writing if
(ii) Advertising as specified in
time allows, or will otherwise notify the
§ 655.152, or, if used, professional,
employer of the decision. The CO will
trade, or ethnic publications;
not grant an extension where the total
(iii) Contact with former U.S. workers work contract period under that
as specified in § 655.153; and
Application for Temporary Employment
Certification and extensions would last
(iv) Additional positive recruitment
longer than 1 year, except in
efforts (as specified in § 655.154).
extraordinary circumstances. The
(2) Substantiation of information
employer may appeal a denial of a
submitted in the recruitment report
request for an extension by following
prepared in accordance with § 655.156,
the procedures in § 655.171.
such as evidence of nonapplicability of
(c) Disclosure. The employer must
contact of former employees as specified
provide to the workers a copy of any
in § 655.153.
approved extension in accordance with
(3) The final recruitment report and
§ 655.122(q), as soon as practicable.
any supporting resumes and contact
information as specified in § 655.156(b). § 655.171 Appeals.
(4) Proof of workers’ compensation
(a) Request for review. Where
insurance or state law coverage as
authorized in this subpart, an employer
specified in § 655.122(e).
wishing review of a decision of the CO
(5) Records of each worker’s earnings
must request an administrative review
as specified in § 655.122(j).
or de novo hearing before an ALJ of that
(6) The work contract or a copy of the decision to exhaust its administrative
Application for Temporary Employment remedies. In such cases, the request for
Certification as defined in 29 CFR
review:
501.10 and specified in § 655.122(q).
(1) Must be received by the Chief ALJ,
and the CO who issued the decision,
(7) If applicable, records of notice to
within 10 business days from the date
the NPC and DHS of the abandonment
of employment or termination for cause of the CO’s decision;
of a worker as set forth in § 655.122(n).
(2) Must clearly identify the particular
decision for which review is sought;
(d) Additional retention requirement
(3) Must include a copy of the CO’s
for agricultural associations filing an
Application for Temporary Employment decision;
Certification. In addition to the
(4) Must clearly state whether the
documents specified in paragraph (c) of employer is seeking administrative
this section, associations must retain
review or a de novo hearing. If the
documentation substantiating their
request does not clearly state the
status as an employer or agent, as
employer is seeking a de novo hearing,
specified in § 655.131.
then the employer waives its right to a
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hearing, and the case will proceed as a
request for administrative review;
(5) Must set forth the particular
grounds for the request, including the
specific factual issues the requesting
party alleges needs to be examined in
connection with the CO’s decision in
question;
(6) May contain any legal argument
that the employer believes will rebut the
basis of the CO’s action, including any
briefing the employer wishes to submit
where the request is for administrative
review;
(7) May contain only such evidence as
was actually before the CO at the time
of the CO’s decision, where the request
is for administrative review; and
(8) May contain new evidence for the
ALJ’s consideration, where the request
is for a de novo hearing, provided that
the new evidence is introduced at the
hearing.
(b) Appeal file. After the receipt of the
request for review, the CO will send a
copy of the OFLC administrative file to
the Chief ALJ as soon as practicable by
means normally assuring next-day
delivery.
(c) Assignment. The Chief ALJ will
immediately assign an ALJ to consider
the particular case, which may be a
single member or a three-member panel
of the BALCA.
(d) Administrative review—(1)
Briefing schedule. If the employer
wishes to submit a brief on appeal, it
must do so as part of its request for
review. Within 7 business days of
receipt of the OFLC administrative file,
the counsel for the CO may submit a
brief in support of the CO’s decision
and, if applicable, in response to the
employer’s brief.
(2) Standard of review. The ALJ must
uphold the CO’s decision unless shown
by the employer to be arbitrary,
capricious, an abuse of discretion, or
otherwise not in accordance with the
law.
(3) Scope of review. The ALJ will
affirm, reverse, or modify the CO’s
decision, or remand to the CO for
further action. The ALJ will reach this
decision after due consideration of the
documents in the OFLC administrative
file that were before the CO at the time
of the CO’s decision and any written
submissions from the parties or amici
curiae that do not contain new
evidence. The ALJ may not consider
evidence not before the CO at the time
of the CO’s decision, even if such
evidence is in the administrative file.
(4) Decision. The decision of the ALJ
must specify the reasons for the action
taken and must be immediately
provided to the employer, the CO, and
counsel for the CO within 7 business
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days of the submission of the CO’s brief
or 10 business days after receipt of the
OFLC administrative file, whichever is
later, using means normally assuring
next-day delivery.
(e) De novo hearing—(1) Conduct of
hearing. Where the employer has
requested a de novo hearing the
procedures in 29 CFR part 18 apply to
such hearings, except that:
(i) The appeal will not be considered
to be a complaint to which an answer
is required;
(ii) The ALJ will ensure that the
hearing is scheduled to take place
within 14 business days after the ALJ’s
receipt of the OFLC administrative file,
if the employer so requests, and will
allow for the introduction of new
evidence during the hearing as
appropriate;
(iii) The ALJ may authorize discovery
and the filing of pre-hearing motions,
and so limit them to the types and
quantities which in the ALJ’s discretion
will contribute to a fair hearing without
unduly burdening the parties;
(iv) The ALJ’s decision must be
rendered within 10 calendar days after
the hearing; and
(v) If the employer waives the right to
a hearing, such as by asking for a
decision on the record, or if the ALJ
determines there are no disputed
material facts to warrant a hearing, then
the standard and scope of review for
administrative review applies.
(2) Standard and scope of review. The
ALJ will review the evidence presented
during the hearing and the CO’s
decision de novo. The ALJ may
determine that there is no genuine issue
covering some or all material facts and
limit the hearing to any issues of
material fact as to which there is a
genuine dispute. If new evidence is
submitted with a request for a de novo
hearing, and the ALJ subsequently
determines that a hearing is warranted,
the new evidence provided with the
request must be introduced at the
hearing to be considered by the ALJ.
After a de novo hearing, the ALJ must
affirm, reverse, or modify the CO’s
decision, or remand to the CO for
further action.
(3) Decision. The decision of the ALJ
must specify the reasons for the action
taken and must be immediately
provided to the employer, the CO, and
counsel for the CO by means normally
assuring next-day delivery.
§ 655.172
Post-certification withdrawals.
(a) The employer may withdraw an
Application for Temporary Employment
Certification and the related job order
after the CO grants certification under
§ 655.160. However, the employer is
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still obligated to comply with the terms
and conditions of employment
contained in the Application for
Temporary Employment Certification
and job order with respect to all workers
recruited in connection with that
application and job order.
(b) To request withdrawal, the
employer must submit a request in
writing to the NPC identifying the
certification and stating the reason(s) for
the withdrawal.
§ 655.173 Setting meal charges; petition
for higher meal charges.
(a) Meal charges. An employer may
only charge workers up to a maximum
amount per day for providing them with
three meals. The maximum charge
allowed by this paragraph (a) will begin
at $12.26 per day and will be updated
annually by the same percentage as the
12-month percentage change for the
Consumer Price Index for all Urban
Consumers for Food between December
of the year just concluded and
December of the year prior to that. The
annual adjustments will be effective not
later than 14 calendar days following
the date of their publication by the
OFLC Administrator of a document in
the Federal Register. When a charge or
deduction for the cost of meals would
bring the employee’s wage below the
minimum wage set by the FLSA at 29
U.S.C. 206, the charge or deduction
must meet the requirements of 29 U.S.C.
203(m) of the FLSA, including the
recordkeeping requirements found at 29
CFR 516.27.
(b) Petitions for higher meal charges.
The employer may file a petition with
the CO to request approval to charge
more than the applicable amount set
under paragraph (a) of this section, up
to $14.94, until a new maximum higher
meal charge is set. The maximum higher
meal charge allowed by this paragraph
(b) will be changed annually following
the same methodology and procedure as
paragraph (a).
(1) Filing higher meal charge request.
To request approval to charge up to the
maximum higher meal charge, the
employer must submit the
documentation required by either
paragraph (b)(1)(i) or (ii) of this section.
A higher meal charge request will be
denied, in whole or in part, if the
employer’s documentation does not
justify the higher meal charge requested,
if the amount requested exceeds the
current maximum higher meal charge
permitted, or both.
(i) Meals prepared directly by the
employer. Documentation submitted
must include only the cost of goods and
services directly related to the
preparation and serving of meals, the
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number of workers fed, the number of
meals served, and the number of days
meals were provided. The cost of the
following items may be included in the
employer’s charge to workers for
providing prepared meals: Food;
kitchen supplies other than food, such
as lunch bags and soap; labor costs that
have a direct relation to food service
operations, such as wages of cooks and
dining hall supervisors; fuel, water,
electricity, and other utilities used for
the food service operation; and other
costs directly related to the food service
operation. Charges for transportation,
depreciation, overhead, and similar
charges may not be included. Receipts
and other cost records for a
representative pay period must be
retained and must be available for
inspection for a period of 3 years.
(ii) Meals provided through a third
party. Documentation submitted must
identify each third party that the
employer will engage to prepare meals,
describe how the employer will fulfill
its obligation to provide three meals per
day to workers through its agreement
with the third party, and document the
third party’s charge(s) to the employer
for the meals to be provided. Neither the
third party’s charge(s) to the employer
nor the employer’s meal charge to
workers may include a profit, kick back,
or other direct or indirect benefit to the
employer, a person affiliated with the
employer, or to another person for the
employer’s benefit. Receipts and other
cost records documenting payments
made to the third party that prepared
the meals and meal charge deductions
from employee pay must be retained for
the period provided in § 655.167(b) and
must be available for inspection by the
CO and WHD during an investigation.
(2) Effective date and scope of validity
of a higher meal charge approval. The
employer may begin charging the higher
rate upon receipt of approval from the
CO, unless the CO sets a later effective
date in the decision, and after disclosing
to workers any change in the meal
charge or deduction. A favorable
decision from the CO is valid only for
the meal provision arrangement
documented under paragraph (b)(1) of
this section and the approved higher
meal charge amount. If the approved
meal provision arrangement changes,
the employer may charge no more than
the maximum permitted under
paragraph (a) of this section until a new
petition for a higher meal charge based
on the new arrangement is approved.
(3) Appeal rights. In the event the
employer’s petition for a higher meal
charge is denied in whole or in part, the
employer may appeal the denial.
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Appeals will be filed with the Chief
ALJ, pursuant to § 655.171.
§ 655.174
Public disclosure.
The Department will maintain an
electronic file accessible to the public
with information on all employers
applying for temporary agricultural
labor certifications. The database will
include such information as the number
of workers requested, the date filed, the
date decided, and the final disposition.
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§ 655.175
Post-certification amendments.
(a) Scope of post-certification
amendments. A certified Application
for Temporary Employment
Certification and job order may be
amended to make minor changes to the
certified place(s) of employment,
provided the employer has good and
substantial cause for the amendment
requested, the circumstance(s)
underlying the request for amendment
could not have been reasonably foreseen
before certification and is wholly
outside the employer’s control, the
material terms and conditions of the job
order are not affected, and the
amendment requested is within the
certified area(s) of intended
employment.
(b) Employer requirements. The
employer must submit to the NPC a
written request to amend the certified
place(s) of employment. The written
request must:
(1) Specify each place of employment
the employer requests to add to or
remove from the certified Application
for Temporary Employment
Certification and job order, the expected
beginning and ending dates of work at
each place of employment, and, if
applicable, the name of each fixed-site
agricultural business;
(2) Describe the good and substantial
cause justifying the need for the
requested amendment, as that term is
defined in § 655.134, and explain how
the circumstance could not have been
reasonably foreseen before certification
and is wholly outside the employer’s
control;
(3) Assure the amendment requested
will not change the material terms and
conditions of the job order;
(4) Assure the employer will provide
to the workers a copy of the amendment
as soon as practicable after receiving
notice that the requested amendment is
approved by the CO, consistent with
§ 655.122(q); and
(5) Assure the employer will retain
and make available all documentation
substantiating the requested
amendment, where approved by the CO
and required by § 655.167, in the event
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of a post-certification audit or upon
request by the Department.
(c) Processing and effective date of
amendments. The CO will
expeditiously, but in no case later than
3 business days after the date the
request is received, decide whether to
grant the requested amendment and
provide notification of the decision to
the employer. In considering whether to
approve the request, the CO will
determine whether the requested
amendment is sufficiently justified,
whether the employer has provided
assurances that it will satisfy all
program requirements and obligations to
workers, and how the amendment will
affect the underlying labor market test
for the job opportunity. Requests that do
not satisfy all requirements will not be
approved. Changes will not be effective
until approved by the CO. Upon
approval of an amendment, the CO will
submit to the SWA any necessary
changes to the job order.
Integrity Measures
§ 655.180
Audit.
The CO may conduct audits of
applications for which certifications
have been granted.
(a) Discretion. The CO has the sole
discretion to choose the certified
applications selected for audit.
(b) Audit letter. Where an application
is selected for audit, the CO will issue
an audit letter to the employer and a
copy, if appropriate, to the employer’s
agent or attorney. The audit letter will:
(1) Specify the documentation that
must be submitted by the employer;
(2) Specify a date, no more than 30
calendar days from the date the audit
letter is issued, by which the required
documentation must be sent to the CO;
and
(3) Advise that failure to fully comply
with the audit process may result in the
revocation of the certification or
program debarment.
(c) Supplemental information request.
During the course of the audit
examination, the CO may request
supplemental information and/or
documentation from the employer in
order to complete the audit. If
circumstances warrant, the CO can issue
one or more requests for supplemental
information.
(d) Potential referrals. In addition to
measures in this subpart, the CO may
decide to provide the audit findings and
underlying documentation to DHS,
WHD, or other appropriate enforcement
agencies. The CO may refer any findings
that an employer discouraged an eligible
U.S. worker from applying, or failed to
hire, discharged, or otherwise
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discriminated against an eligible U.S.
worker, to the Department of Justice,
Civil Rights Division, Immigrant and
Employee Rights Section.
§ 655.181
Revocation.
(a) Basis for DOL revocation. The
OFLC Administrator may revoke a
temporary agricultural labor
certification approved under this
subpart, if the OFLC Administrator
finds:
(1) The issuance of the temporary
agricultural labor certification was not
justified due to fraud or
misrepresentation in the application
process;
(2) The employer substantially
violated a material term or condition of
the approved temporary agricultural
labor certification, as defined in
§ 655.182;
(3) The employer failed to cooperate
with a DOL investigation or with a DOL
official performing an investigation,
inspection, audit (as discussed in
§ 655.180), or law enforcement function
under 8 U.S.C. 1188, 29 CFR part 501,
or this subpart; or
(4) The employer failed to comply
with one or more sanctions or remedies
imposed by WHD, or with one or more
decisions or orders of the Secretary or
a court order secured by the Secretary
under 8 U.S.C. 1188, 29 CFR part 501,
or this subpart.
(b) DOL procedures for revocation—
(1) Notice of Revocation. If the OFLC
Administrator makes a determination to
revoke an employer’s temporary
agricultural labor certification, the
OFLC Administrator will send to the
employer (and its attorney or agent) a
Notice of Revocation. The Notice will
contain a detailed statement of the
grounds for the revocation, and it will
inform the employer of its right to
submit rebuttal evidence or to appeal. If
the employer does not file rebuttal
evidence or an appeal within 14
calendar days of the date of the Notice
of Revocation, the Notice is the final
agency action and will take effect
immediately at the end of the 14-day
period.
(2) Rebuttal. The employer may
submit evidence to rebut the grounds
stated in the Notice of Revocation
within 14 calendar days of the date the
Notice is issued. If rebuttal evidence is
timely filed by the employer, the OFLC
Administrator will inform the employer
of the OFLC Administrator’s final
determination on the revocation within
14 calendar days of receiving the
rebuttal evidence. If the OFLC
Administrator determines that the
certification should be revoked, the
OFLC Administrator will inform the
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employer of its right to appeal according
to the procedures of § 655.171. If the
employer does not appeal the final
determination, it will become the final
agency action.
(3) Appeal. An employer may appeal
a Notice of Revocation, or a final
determination of the OFLC
Administrator after the review of
rebuttal evidence, according to the
appeal procedures of § 655.171. The
ALJ’s decision is the final agency action.
(4) Stay. The timely filing of rebuttal
evidence or an administrative appeal
will stay the revocation pending the
outcome of those proceedings.
(5) Decision. If the temporary
agricultural labor certification is
revoked, the OFLC Administrator will
send a copy of the final agency action
to DHS and the Department of State
(DOS).
(c) Employer’s obligations in the event
of revocation. If an employer’s
temporary agricultural labor
certification is revoked, the employer is
responsible for:
(1) Reimbursement of actual inbound
transportation and subsistence
expenses, as if the worker meets the
requirements for payment under
§ 655.122(h)(1);
(2) The worker’s outbound
transportation and subsistence
expenses, as if the worker meets the
requirements for payment under
§ 655.122(h)(2);
(3) Payment to the worker of the
amount due under the three-fourths
guarantee as required by § 655.122(i);
and
(4) Any other wages, benefits, and
working conditions due or owing to the
worker under this subpart.
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§ 655.182
Debarment.
(a) Debarment of an employer, agent,
or attorney. The OFLC Administrator
may debar an employer, agent, or
attorney, or any successor in interest to
that employer, agent, or attorney, from
participating in any action under 8
U.S.C. 1188, this subpart, or 29 CFR part
501 subject to the time limits set forth
in paragraph (c) of this section, if the
OFLC Administrator finds that the
employer, agent, or attorney
substantially violated a material term or
condition of the temporary agricultural
labor certification, with respect to H–2A
workers; workers in corresponding
employment; or U.S. workers
improperly rejected for employment, or
improperly laid off or displaced.
(b) Effect on future applications. No
application for H–2A workers may be
filed by a debarred employer, or by an
employer represented by a debarred
agent or attorney, or by any successor in
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interest to any debarred agent or
attorney, subject to the term limits set
forth in paragraph (c) of this section. If
such an application is filed, it will be
denied without review.
(c) Statute of limitations and period of
debarment. (1) The OFLC Administrator
must issue any Notice of Debarment not
later than 2 years after the occurrence of
the violation.
(2) No employer, agent, or attorney
may be debarred under this subpart for
more than 3 years from the date of the
final agency decision.
(d) Definition of violation. For the
purposes of this section, a violation
includes:
(1) One or more acts of commission or
omission on the part of the employer or
the employer’s agent which involve:
(i) Failure to pay or provide the
required wages, benefits, or working
conditions to the employer’s H–2A
workers and/or workers in
corresponding employment;
(ii) Failure, except for lawful, jobrelated reasons, to offer employment to
qualified U.S. workers who applied for
the job opportunity for which
certification was sought;
(iii) Failure to comply with the
employer’s obligations to recruit U.S.
workers;
(iv) Improper layoff or displacement
of U.S. workers or workers in
corresponding employment;
(v) Failure to comply with one or
more sanctions or remedies imposed by
the WHD Administrator for violation(s)
of contractual or other H–2A
obligations, or with one or more
decisions or orders of the Secretary or
a court under 8 U.S.C. 1188, 29 CFR part
501, or this subpart;
(vi) Impeding an investigation of an
employer under 8 U.S.C. 1188 or 29 CFR
part 501, or an audit under § 655.180;
(vii) Employing an H–2A worker
outside the area of intended
employment, in an activity/activities
not listed in the job order or outside the
validity period of employment of the job
order, including any approved
extension thereof;
(viii) A violation of the requirements
of § 655.135(j) or (k);
(ix) A violation of any of the
provisions listed in 29 CFR 501.4(a); or
(x) A single heinous act showing such
flagrant disregard for the law that future
compliance with program requirements
cannot reasonably be expected;
(2) The employer’s failure to pay a
necessary certification fee in a timely
manner;
(3) The H–2ALC’s failure to submit an
original surety bond meeting the
requirements of § 655.132(c) within 30
days of the date the temporary
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agricultural labor certification was
issued or failure to submit additional
surety within 30 days of a finding under
20 CFR 501.9(a) that the face value of
the bond is insufficient;
(4) Fraud involving the Application
for Temporary Employment
Certification; or
(5) A material misrepresentation of
fact during the application process.
(e) Determining whether a violation is
substantial. In determining whether a
violation is so substantial so as to merit
debarment, the factors the OFLC
Administrator may consider include,
but are not limited to, the following:
(1) Previous history of violation(s) of
8 U.S.C. 1188, 29 CFR part 501, or this
subpart;
(2) The number of H–2A workers,
workers in corresponding employment,
or U.S. workers who were and/or are
affected by the violation(s);
(3) The gravity of the violation(s);
(4) Efforts made in good faith to
comply with 8 U.S.C. 1188, 29 CFR part
501, and this subpart;
(5) Explanation from the person
charged with the violation(s);
(6) Commitment to future compliance,
taking into account the public health,
interest, or safety, and whether the
person has previously violated 8 U.S.C.
1188; or
(7) The extent to which the violator
achieved a financial gain due to the
violation(s), or the potential financial
loss or potential injury to the worker(s).
(f) Debarment procedure—(1) Notice
of Debarment. If the OFLC
Administrator makes a determination to
debar an employer, agent, or attorney,
the OFLC Administrator will send the
party a Notice of Debarment. The Notice
will state the reason for the debarment
finding, including a detailed
explanation of the grounds for and the
duration of the debarment, and it will
inform the party subject to the Notice of
its right to submit rebuttal evidence or
to request a debarment hearing. If the
party does not file rebuttal evidence or
request a hearing within 30 calendar
days of the date of the Notice of
Debarment, the Notice will be the final
agency action and the debarment will
take effect at the end of the 30-day
period.
(2) Rebuttal. The party who received
the Notice of Debarment may choose to
submit evidence to rebut the grounds
stated in the Notice within 30 calendar
days of the date the Notice is issued. If
rebuttal evidence is timely filed, the
OFLC Administrator will issue a final
determination on the debarment within
30 calendar days of receiving the
rebuttal evidence. If the OFLC
Administrator determines that the party
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should be debarred, the OFLC
Administrator will inform the party of
its right to request a debarment hearing
according to the procedures of
paragraph (f)(3) of this section. The
party must request a hearing within 30
calendar days after the date of the OFLC
Administrator’s final determination, or
the OFLC Administrator’s determination
will be the final agency action and the
debarment will take effect at the end of
the 30-calendar-day period.
(3) Hearing. The recipient of a Notice
of Debarment may request a debarment
hearing within 30 calendar days of the
date of a Notice of Debarment or the
date of a final determination of the
OFLC Administrator after review of
rebuttal evidence submitted pursuant to
paragraph (f)(2) of this section. To
obtain a debarment hearing, the
debarred party must, within 30 calendar
days of the date of the Notice or the
final determination, file a written
request to the Chief Administrative Law
Judge, United States Department of
Labor, 800 K Street NW, Suite 400–N,
Washington, DC 20001–8002, and
simultaneously serve a copy to the
OFLC Administrator. The debarment
will take effect 30 calendar days from
the date the Notice of Debarment or
final determination is issued, unless a
request for review is properly filed
within 30 calendar days from the
issuance of the Notice of Debarment or
final determination. The timely filing of
a request for a hearing stays the
debarment pending the outcome of the
hearing. Within 10 calendar days of
receipt of the request for a hearing, the
OFLC Administrator will send a
certified copy of the ETA case file to the
Chief ALJ by means normally assuring
next day delivery. The Chief ALJ will
immediately assign an ALJ to conduct
the hearing. The procedures in 29 CFR
part 18 apply to such hearings, except
that the request for a hearing will not be
considered to be a complaint to which
an answer is required.
(4) Decision. After the hearing, the
ALJ must affirm, reverse, or modify the
OFLC Administrator’s determination.
The ALJ will prepare the decision
within 60 calendar days after
completion of the hearing and closing of
the record. The ALJ’s decision will be
provided immediately to the parties to
the debarment hearing by means
normally assuring next day delivery.
The ALJ’s decision is the final agency
action, unless either party, within 30
calendar days of the ALJ’s decision,
seeks review of the decision with the
Administrative Review Board (ARB).
(5) Review by the ARB. (i) Any party
wishing review of the decision of an ALJ
must, within 30 calendar days of the
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decision of the ALJ, petition the ARB to
review the decision. Copies of the
petition must be served on all parties
and on the ALJ. The ARB will decide
whether to accept the petition within 30
calendar days of receipt. If the ARB
declines to accept the petition, or if the
ARB does not issue a notice accepting
a petition within 30 calendar days after
the receipt of a timely filing of the
petition, the decision of the ALJ will be
deemed the final agency action. If a
petition for review is accepted, the
decision of the ALJ will be stayed unless
and until the ARB issues an order
affirming the decision. The ARB must
serve notice of its decision to accept or
not to accept the petition upon the ALJ
and upon all parties to the proceeding.
(ii) Upon receipt of the ARB’s notice
to accept the petition, the Office of
Administrative Law Judges will
promptly forward a copy of the
complete hearing record to the ARB.
(iii) Where the ARB has determined to
review such decision and order, the
ARB will notify each party of the
issue(s) raised, the form in which
submissions must be made (e.g., briefs
or oral argument), and the time within
which such presentation must be
submitted.
(6) ARB decision. The ARB’s final
decision must be issued within 90
calendar days from the notice granting
the petition and served upon all parties
and the ALJ. If the ARB fails to provide
a decision within 90 calendar days from
the notice granting the petition, the
ALJ’s decision will be the final agency
decision.
(g) Concurrent debarment jurisdiction.
OFLC and WHD have concurrent
jurisdiction to impose a debarment
remedy under this section or under 29
CFR 501.20. When considering
debarment, OFLC and WHD may inform
one another and may coordinate their
activities. A specific violation for which
debarment is imposed will be cited in
a single debarment proceeding. Copies
of final debarment decisions will be
forwarded to DHS promptly.
(h) Debarment involving members of
agricultural associations. If the OFLC
Administrator determines that an
individual employer-member of an
agricultural association has committed a
substantial violation, the debarment
determination will apply only to that
member unless the OFLC Administrator
determines that the agricultural
association or another agricultural
association member participated in the
violation, in which case the debarment
will be invoked against the agricultural
association or other complicit
agricultural association member(s) as
well.
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(i) Debarment involving agricultural
associations acting as joint employers. If
the OFLC Administrator determines that
an agricultural association acting as a
joint employer with its members has
committed a substantial violation, the
debarment determination will apply
only to the agricultural association, and
will not be applied to any individual
employer-member of the agricultural
association. However, if the OFLC
Administrator determines that the
member participated in, had knowledge
of, or had reason to know of the
violation, the debarment may be
invoked against the complicit
agricultural association member as well.
An agricultural association debarred
from the H–2A temporary labor
certification program will not be
permitted to continue to file as a joint
employer with its members during the
period of the debarment.
(j) Debarment involving agricultural
associations acting as sole employers. If
the OFLC Administrator determines that
an agricultural association acting as a
sole employer has committed a
substantial violation, the debarment
determination will apply only to the
agricultural association and any
successor in interest to the debarred
agricultural association.
§ 655.183
Less than substantial violations.
(a) Requirement of special procedures.
If the OFLC Administrator determines
that a less than substantial violation has
occurred but has reason to believe that
past actions on the part of the employer
(or agent or attorney) may have had and
may continue to have a chilling or
otherwise negative effect on the
recruitment, employment, and retention
of U.S. workers, the OFLC
Administrator may require the employer
to conform to special procedures before
and after the temporary agricultural
labor certification determination. These
special procedures may include special
on-site positive recruitment and
streamlined interviewing and referral
techniques. The special procedures are
designed to enhance U.S. worker
recruitment and retention in the next
year as a condition for receiving a
temporary agricultural labor
certification. Such requirements will be
reasonable; will not require the
employer to offer better wages, working
conditions, and benefits than those
specified in § 655.122; and will be no
more than deemed necessary to assure
employer compliance with the test of
U.S. worker availability and adverse
effect criteria of this subpart.
(b) Notification of required special
procedures. The OFLC Administrator
will notify the employer (or agent or
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attorney) in writing of the special
procedures that will be required in the
coming year. The notification will state
the reasons for the imposition of the
requirements, state that the employer’s
agreement to accept the conditions will
constitute inclusion of them as bona
fide conditions and terms of a
temporary agricultural labor
certification, and will offer the employer
an opportunity to request an
administrative review or a de novo
hearing before an ALJ. If an
administrative review or de novo
hearing is requested, the procedures
prescribed in § 655.171 will apply.
(c) Failure to comply with special
procedures. If the OFLC Administrator
determines that the employer has failed
to comply with special procedures
required pursuant to paragraph (a) of
this section, the OFLC Administrator
will send a written notice to the
employer, stating that the employer’s
otherwise affirmative H–2A certification
determination will be reduced by 25
percent of the total number of H–2A
workers requested (which cannot be
more than those requested in the
previous year) for a period of 1 year.
Notice of such a reduction in the
number of workers requested will be
conveyed to the employer by the OFLC
Administrator in a written temporary
agricultural labor certification
determination. The notice will offer the
employer an opportunity to request
administrative review or a de novo
hearing before an ALJ. If administrative
review or a de novo hearing is
requested, the procedures prescribed in
§ 655.171 will apply, provided that if
the ALJ affirms the OFLC
Administrator’s determination that the
employer has failed to comply with
special procedures required by
paragraph (a) of this section, the
reduction in the number of workers
requested will be 25 percent of the total
number of H–2A workers requested
(which cannot be more than those
requested in the previous year) for a
period of 1 year.
granted, a finding under this paragraph
will be cause to revoke the certification.
The finding of fraud or willful
misrepresentation may also constitute a
debarrable violation under § 655.182.
§ 655.184 Applications involving fraud or
willful misrepresentation.
(a) Purpose. The purpose of
§§ 655.200 through 655.235 is to
establish certain procedures for
employers who apply to the Department
to obtain labor certifications to hire
temporary agricultural foreign workers
to perform herding or production of
livestock on the range, as defined in
§ 655.201. Unless otherwise specified in
§§ 655.200 through 655.235, employers
whose job opportunities meet the
qualifying criteria under §§ 655.200
through 655.235 must fully comply with
all of the requirements of §§ 655.100
through 655.185; part 653, subparts B
(a) Referral for investigation. If the CO
discovers possible fraud or willful
misrepresentation involving an
Application for Temporary Employment
Certification, the CO may refer the
matter to DHS and the Department’s
Office of the Inspector General for
investigation.
(b) Sanctions. If WHD, a court, or DHS
determines that there was fraud or
willful misrepresentation involving an
Application for Temporary Employment
Certification and certification has been
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§ 655.185 Job service complaint system;
enforcement of work contracts.
(a) Filing with DOL. Complaints
arising under this subpart must be filed
through the Job Service Complaint
System, as described in 20 CFR part
658, subpart E. Complaints involving
allegations of fraud or misrepresentation
must be referred by the SWA to the CO
for appropriate handling and resolution.
Complaints that involve work contracts
must be referred by the SWA to WHD
for appropriate handling and resolution,
as described in 29 CFR part 501. As part
of this process, WHD may report the
results of its investigation to the OFLC
Administrator for consideration of
employer penalties or such other action
as may be appropriate.
(b) Filing with the Department of
Justice. Complaints alleging that an
employer discouraged an eligible U.S.
worker from applying, failed to hire,
discharged, or otherwise discriminated
against an eligible U.S. worker, or
discovered violations involving the
same, will be referred to the U.S.
Department of Justice, Civil Rights
Division, Immigrant and Employee
Rights Section, in addition to any
activity, investigation, and/or
enforcement action taken by ETA or a
SWA. Likewise, if the Immigrant and
Employee Rights Section becomes aware
of a violation of the regulations in this
subpart, it may provide such
information to the appropriate SWA and
the CO.
Labor Certification Process for
Temporary Agricultural Employment in
Range Sheep Herding, Goat Herding,
and Production of Livestock
Occupations
§ 655.200 Scope and purpose of herding
and range livestock regulations in
§§ 655.200 through 655.235.
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and F, of this chapter; and part 654 of
this chapter.
(b) Jobs subject to §§ 655.200 through
655.235. The procedures in §§ 655.200
through 655.235 apply to job
opportunities with the following unique
characteristics:
(1) The work activities involve the
herding or production of livestock
(which includes work that is closely and
directly related to herding and/or the
production of livestock), as defined
under § 655.201;
(2) The work is performed on the
range for the majority (meaning more
than 50 percent) of the workdays in the
work contract period. Any additional
work performed at a place other than
the range must constitute the
production of livestock (which includes
work that is closely and directly related
to herding and/or the production of
livestock); and
(3) The work activities generally
require the workers to be on call 24
hours per day, 7 days a week.
§ 655.201 Definition of herding and range
livestock terms.
The following are terms that are not
defined in §§ 655.100 through 655.185
and are specific to applications for labor
certifications involving the herding or
production of livestock on the range.
Herding. Activities associated with
the caring, controlling, feeding,
gathering, moving, tending, and sorting
of livestock on the range.
Livestock. An animal species or
species group such as sheep, cattle,
goats, horses, or other domestic hooved
animals. In the context of §§ 655.200
through 655.235, livestock refers to
those species raised on the range.
Production of livestock. The care or
husbandry of livestock throughout one
or more seasons during the year,
including guarding and protecting
livestock from predatory animals and
poisonous plants; feeding, fattening, and
watering livestock; examining livestock
to detect diseases, illnesses, or other
injuries; administering medical care to
sick or injured livestock; applying
vaccinations and spraying insecticides
on the range; and assisting with the
breeding, birthing, raising, weaning,
castration, branding, and general care of
livestock. This term also includes duties
performed off the range that are closely
and directly related to herding and/or
the production of livestock. The
following are non-exclusive examples of
ranch work that is closely and directly
related: Repairing fences used to contain
the herd; assembling lambing jugs;
cleaning out lambing jugs; feeding and
caring for the dogs that the workers use
on the range to assist with herding or
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guarding the flock; feeding and caring
for the horses that the workers use on
the range to help with herding or to
move the sheep camps and supplies;
and loading animals into livestock
trucks for movement to the range or to
market. The following are examples of
ranch work that is not closely and
directly related: Working at feedlots;
planting, irrigating and harvesting
crops; operating or repairing heavy
equipment; constructing wells or dams;
digging irrigation ditches; applying
weed control; cutting trees or chopping
wood; constructing or repairing the
bunkhouse or other ranch buildings;
and delivering supplies from the ranch
to the herders on the range.
Range. The range is any area located
away from the ranch headquarters used
by the employer. The following factors
are indicative of the range: It involves
land that is uncultivated; it involves
wide expanses of land, such as
thousands of acres; it is located in a
remote, isolated area; and typically
range housing is required so that the
herder can be in constant attendance to
the herd. No one factor is controlling,
and the totality of the circumstances is
considered in determining what should
be considered range. The range does not
include feedlots, corrals, or any area
where the stock involved would be near
ranch headquarters. Ranch
headquarters, which is a place where
the business of the ranch occurs and is
often where the owner resides, is
limited and does not embrace large
acreage; it only includes the
ranchhouse, barns, sheds, pen,
bunkhouse, cookhouse, and other
buildings in the vicinity. The range also
does not include any area where a
herder is not required to be available
constantly to attend to the livestock and
to perform tasks, including but not
limited to, ensuring the livestock do not
stray, protecting them from predators,
and monitoring their health.
Range housing. Range housing is
housing located on the range that meets
the standards articulated under
§ 655.235.
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§ 655.205
orders.
Herding and range livestock job
An employer whose job opportunity
has been determined to qualify for the
procedures in §§ 655.200 through
655.235 is not required to comply with
the job order filing timeframe
requirements in § 655.121(a) and (b) or
the job order review process in
§ 655.121(e) and (f). Rather, the
employer must submit the job order
along with a completed Application for
Temporary Employment Certification,
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as required in § 655.215, to the
designated NPC for the NPC’s review.
§ 655.210 Contents of herding and range
livestock job orders.
(a) Content of job offers. Unless
otherwise specified in §§ 655.200
through 655.235, the employer must
satisfy the requirements for job orders
established under § 655.121 and for the
content of job offers established under
part 653, subpart F, of this chapter and
§ 655.122.
(b) Job qualifications and
requirements. The job offer must
include a statement that the workers are
on call for up to 24 hours per day, 7
days per week and that the workers
spend the majority (meaning more than
50 percent) of the workdays during the
contract period in the herding or
production of livestock on the range.
Duties may include activities performed
off the range only if such duties
constitute the production of livestock
(which includes work that is closely and
directly related to herding and/or the
production of livestock). All such duties
must be specifically disclosed on the job
order. The job offer may also specify
that applicants must possess up to 6
months of experience in similar
occupations involving the herding or
production of livestock on the range and
require reference(s) for the employer to
verify applicant experience. An
employer may specify other appropriate
job qualifications and requirements for
its job opportunity. Job offers may not
impose on U.S. workers any restrictions
or obligations that will not be imposed
on the employer’s H–2A workers
engaged in herding or the production of
livestock on the range. Any such
requirements must be applied equally to
both U.S. and foreign workers. Each job
qualification and requirement listed in
the job offer must be bona fide, and the
CO may require the employer to submit
documentation to substantiate the
appropriateness of any other job
qualifications and requirements
specified in the job offer.
(c) Range housing. The employer
must specify in the job order that range
housing will be provided. The range
housing must meet the requirements set
forth in § 655.235.
(d) Employer-provided items. (1) The
employer must provide to the worker,
without charge or deposit charge, all
tools, supplies, and equipment required
by law, by the employer, or by the
nature of the work to perform the duties
assigned in the job offer safely and
effectively. The employer must specify
in the job order which items it will
provide to the worker.
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(2) Because of the unique nature of
the herding or production of livestock
on the range, this equipment must
include effective means of
communicating with persons capable of
responding to the worker’s needs in case
of an emergency including, but not
limited to, satellite phones, cell phones,
wireless devices, radio transmitters, or
other types of electronic communication
systems. The employer must specify in
the job order:
(i) The type(s) of electronic
communication device(s) and that such
device(s) will be provided without
charge or deposit charge to the worker
during the entire period of employment;
and
(ii) If there are periods of time when
the workers are stationed in locations
where electronic communication
devices may not operate effectively, the
employer must specify in the job order,
the means and frequency with which
the employer plans to make contact
with the workers to monitor the
worker’s well-being. This contact must
include either arrangements for the
workers to be located, on a regular basis,
in geographic areas where the electronic
communication devices operate
effectively, or arrangements for regular,
pre-scheduled, in-person visits between
the workers and the employer, which
may include visits between the workers
and other persons designated by the
employer to resupply the workers’
camp.
(e) Meals. The employer must specify
in the job offer and provide to the
worker, without charge or deposit
charge:
(1) Either three sufficient meals a day,
or free and convenient cooking facilities
and adequate provision of food to
enable the worker to prepare his or her
own meals. To be sufficient or adequate,
the meals or food provided must
include a daily source of protein,
vitamins, and minerals; and
(2) Adequate potable water, or water
that can be easily rendered potable and
the means to do so. Standards governing
the provision of water to range workers
are also addressed in § 655.235(e).
(f) Hours and earnings statements. (1)
The employer must keep accurate and
adequate records with respect to the
worker’s earnings and furnish to the
worker on or before each payday a
statement of earnings. The employer is
exempt from recording the hours
actually worked each day, the time the
worker begins and ends each workday,
as well as the nature and amount of
work performed, but all other regulatory
requirements in § 655.122(j) and (k)
apply.
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(2) The employer must keep daily
records indicating whether the site of
the employee’s work was on the range
or off the range. If the employer prorates
a worker’s wage pursuant to paragraph
(g)(2) of this section because of the
worker’s voluntary absence for personal
reasons, it must also keep a record of the
reason for the worker’s absence.
(g) Rates of pay. The employer must
pay the worker at least the monthly
AEWR, as specified in § 655.211, the
agreed-upon collective bargaining wage,
or the applicable minimum wage
imposed by Federal or state law or
judicial action, in effect at the time work
is performed, whichever is highest, for
every month of the job order period or
portion thereof.
(1) The offered wage shall not be
based on commissions, bonuses, or
other incentives, unless the employer
guarantees a wage that equals or exceeds
the monthly AEWR, the agreed-upon
collective bargaining wage, or the
applicable minimum wage imposed by
Federal or state law or judicial action,
or any agreed-upon collective
bargaining rate, whichever is highest,
and must be paid to each worker free
and clear without any unauthorized
deductions.
(2) The employer may prorate the
wage for the initial and final pay
periods of the job order period if its pay
period does not match the beginning or
ending dates of the job order. The
employer also may prorate the wage if
a worker is voluntarily unavailable to
work for personal reasons.
(h) Frequency of pay. The employer
must state in the job offer the frequency
with which the worker will be paid,
which must be at least twice monthly.
Employers must pay wages when due.
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§ 655.211 Herding and range livestock
wage rate.
(a) Compliance with rates of pay. (1)
To comply with its obligation under
§ 655.210(g), an employer must offer,
advertise in its recruitment, and pay
each worker employed under §§ 655.200
through 655.235 a wage that is the
highest of the monthly AEWR
established under this section, the
agreed-upon collective bargaining wage,
or the applicable minimum wage
imposed by Federal or state law or
judicial action.
(2) If the monthly AEWR established
under this section is adjusted during a
work contract, and is higher than both
the agreed-upon collective bargaining
wage and the applicable minimum wage
imposed by Federal or state law or
judicial action in effect at the time the
work is performed, the employer must
pay that adjusted monthly AEWR not
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later than 14 calendar days following
the date of publication by the
Department in the Federal Register.
(b) Publication of the monthly AEWR.
The OFLC Administrator will publish,
at least once in each calendar year, on
a date to be determined by the OFLC
Administrator, an update to the monthly
AEWR as a notice in the Federal
Register.
(c) Monthly AEWR rate. (1) The
monthly AEWR shall be $7.25
multiplied by 48 hours, and then
multiplied by 4.333 weeks per month;
and
(2) Beginning for calendar year 2017,
the monthly AEWR shall be adjusted
annually based on the ECI for wages and
salaries published by BLS for the
preceding October—October period.
(d) Transition rates. (1) For the period
from November 16, 2015 through
calendar year 2016, the Department
shall set the monthly AEWR at 80
percent of the result of the formula in
paragraph (c) of this section.
(2) For calendar year 2017, the
Department shall set the monthly AEWR
at 90 percent of the result of the formula
in paragraph (c) of this section.
(3) For calendar year 2018 and
beyond, the Department shall set the
monthly AEWR at 100 percent of the
result of the formula in paragraph (c) of
this section.
§ 655.215 Procedures for filing herding
and range livestock Applications for
Temporary Employment Certification.
(a) Compliance with §§ 655.130
through 655.132. Unless otherwise
specified in §§ 655.200 through 655.235,
the employer must satisfy the
requirements for filing an Application
for Temporary Employment
Certification with the NPC designated
by the OFLC Administrator as required
under §§ 655.130 through 655.132.
(b) What to file. An employer must
file a completed Application for
Temporary Employment Certification
and job order.
(1) The Application for Temporary
Employment Certification and job order
may cover multiple areas of intended
employment and one or more
contiguous states.
(2) The period of need identified on
the Application for Temporary
Employment Certification and job order
for range sheep or goat herding or
production occupations must be no
more than 364 calendar days. The
period of need identified on the
Application for Temporary Employment
Certification and job order for range
herding or production of cattle, horses,
or other domestic hooved livestock,
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except sheep and goats, must be for no
more than 10 months.
(3) An agricultural association filing
as a joint employer may submit a single
job order and master Application for
Temporary Employment Certification on
behalf of its employer-members located
in more than two contiguous states with
different first dates of need. Unless
modifications to a sheep or goat herding
or production of livestock job order are
required by the CO or requested by the
employer, pursuant to § 655.121(h), the
agricultural association is not required
to re-submit the job order during the
calendar year with its Application for
Temporary Employment Certification.
§ 655.220 Processing herding and range
livestock Applications for Temporary
Employment Certification.
(a) NPC review. Unless otherwise
specified in §§ 655.200 through 655.235,
the CO will review and process the
Application for Temporary Employment
Certification and job order in
accordance with the requirements
outlined in §§ 655.140 through 655.145,
and will work with the employer to
address any deficiencies in the job order
in a manner consistent with §§ 655.140
through 655.141.
(b) Notice of acceptance. Once the job
order is determined to meet all
regulatory requirements, the NPC will
issue a NOA consistent with
§ 655.143(b), provide notice to the
employer authorizing conditional access
to the interstate clearance system, and
transmit an electronic copy of the
approved job order to each SWA with
jurisdiction over the anticipated place(s)
of employment. The CO will direct the
SWA to place the job order promptly in
clearance and commence recruitment of
U.S. workers. Where an agricultural
association files as a joint employer and
submits a single job order on behalf of
its employer-members, the CO will
transmit a copy of the job order to the
SWA having jurisdiction over the
location of the agricultural association,
those SWAs having jurisdiction over
other States where the work will take
place, and to the SWAs in all States
designated under § 655.154(d), directing
each SWA to place the job order in
intrastate clearance and commence
recruitment of U.S. workers.
(c) Electronic job registry. Under
§ 655.144(b), where a single job order is
approved for an agricultural association
filing as a joint employer on behalf of
its employer-members with different
first dates of need, the Department will
keep the job order posted on the OFLC
electronic job registry until the end of
the recruitment period, as set forth in
§ 655.135(d), has elapsed for all
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employer-members identified on the job
order.
§ 655.225 Post-acceptance requirements
for herding and range livestock.
(a) Unless otherwise specified in this
section, the requirements for recruiting
U.S. workers by the employer and SWA
must be satisfied, as specified in
§§ 655.150 through 655.158.
(b) Pursuant to § 655.150(b), where a
single job order is approved for an
agricultural association filing as a joint
employer on behalf of its employermembers with different first dates of
need, each of the SWAs to which the job
order was transmitted by the CO or the
SWA having jurisdiction over the
location of the agricultural association
must keep the job order on its active file
the end of the recruitment period, as set
forth in § 655.135(d), has elapsed for all
employer-members identified on the job
order, and must refer to the agricultural
association each qualified U.S. worker
who applies (or on whose behalf an
application is made) for the job
opportunity.
(c) Any eligible U.S. worker who
applies (or on whose behalf an
application is made) for the job
opportunity and is hired will be placed
at the location nearest to him or her
absent a request for a different location
by the U.S. worker. Employers must
make reasonable efforts to accommodate
such placement requests by the U.S.
worker.
(d) The employer will not be required
to place an advertisement in a
newspaper of general circulation serving
the area of intended employment, as
required in § 655.151.
(e) An agricultural association that
fulfills the recruitment requirements for
its members is required to maintain a
written recruitment report containing
the information required by § 655.156
for each individual employer-member
identified in the application or job
order, including any approved
modifications.
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§ 655.230
Range housing.
(a) Housing for work performed on the
range must meet the minimum
standards contained in §§ 655.235 and
655.122(d)(2).
(b) The SWA with jurisdiction over
the location of the range housing must
inspect and certify that such housing
used on the range is sufficient to
accommodate the number of certified
workers and meets all applicable
standards contained in § 655.235. The
SWA must conduct a housing
inspection no less frequently than once
every three calendar years after the
initial inspection and provide
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documentation to the employer
certifying the housing for a period
lasting no more than 36 months. If the
SWA determines that an employer’s
housing cannot be inspected within a 3year timeframe or, when it is inspected,
the housing does not meet all the
applicable standards, the CO may deny
the H–2A application in full or in part
or require additional inspections, to be
carried out by the SWA, in order to
satisfy the regulatory requirement.
(c)(1) The employer may self-certify
its compliance with the standards
contained in § 655.235 only when the
employer has received a certification
from the SWA for the range housing it
seeks to use within the past 36 months.
(2) To self-certify the range housing,
the employer must submit a copy of the
valid SWA housing certification and a
written statement, signed and dated by
the employer, to the SWA and the CO
assuring that the housing is available,
sufficient to accommodate the number
of workers being requested for
temporary agricultural labor
certification, and meets all the
applicable standards for range housing
contained in § 655.235.
(d) The use of range housing at a
location other than the range, where
fixed-site employer-provided housing
would otherwise be required, is
permissible only when the worker
occupying the housing is performing
work that constitutes the production of
livestock (which includes work that is
closely and directly related to herding
and/or the production of livestock). In
such a situation, workers must be
granted access to facilities, including
but not limited to toilets and showers
with hot and cold water under pressure,
as well as cooking and cleaning
facilities, that would satisfy the
requirements contained in
§ 655.122(d)(1)(i). When such work does
not constitute the production of
livestock, workers must be housed in
housing that meets all the requirements
of § 655.122(d).
§ 655.235
Standards for range housing.
An employer employing workers
under §§ 655.200 through 655.235 may
use a mobile unit, camper, or other
similar mobile housing vehicle, tents,
and remotely located stationary
structures along herding trails, which
meet the following standards:
(a) Housing site. Range housing sites
must be well drained and free from
depressions where water may stagnate.
(b) Water supply. (1) An adequate and
convenient supply of water that meets
the standards of the state or local health
authority must be provided.
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(2) The employer must provide each
worker at least 4.5 gallons of potable
water, per day, for drinking and
cooking, delivered on a regular basis, so
that the workers will have at least this
amount available for their use until this
supply is next replenished. Employers
must also provide an additional amount
of water sufficient to meet the laundry
and bathing needs of each worker. This
additional water may be non-potable,
and an employer may require a worker
to rely on natural sources of water for
laundry and bathing needs if these
sources are available and contain water
that is clean and safe for these purposes.
If an employer relies on alternate water
sources to meet any of the workers’
needs, it must take precautionary
measures to protect the worker’s health
where these sources are also used to
water the herd, dogs, or horses, to
prevent contamination of the sources if
they collect runoff from areas where
these animals excrete.
(3) The water provided for use by the
workers may not be used to water dogs,
horses, or the herd.
(4) In situations where workers are
located in areas that are not accessible
by motorized vehicle, an employer may
request a variance from the requirement
that it deliver potable water to workers,
provided the following conditions are
satisfied:
(i) It seeks the variance at the time it
submits its Application for Temporary
Employment Certification;
(ii) It attests that it has identified
natural sources of water that are potable
or may be easily rendered potable in the
area in which the housing will be
located, and that these sources will
remain available during the period the
worker is at that location;
(iii) It attests that it shall provide each
worker an effective means to test
whether the water is potable and, if not
potable, the means to easily render it
potable; and
(iv) The CO approves the variance.
(5) Individual drinking cups must be
provided.
(6) Containers appropriate for storing
and using potable water must be
provided and, in locations subject to
freezing temperatures, containers must
be small enough to allow storage in the
housing unit to prevent freezing.
(c) Excreta and liquid waste disposal.
(1) Facilities, including shovels, must be
provided and maintained for effective
disposal of excreta and liquid waste in
accordance with the requirements of the
state health authority or involved
Federal agency; and
(2) If pits are used for disposal by
burying of excreta and liquid waste,
they must be kept fly-tight when not
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filled in completely after each use. The
maintenance of disposal pits must be in
accordance with state and local health
and sanitation requirements.
(d) Housing structure. (1) Housing
must be structurally sound, in good
repair, in a sanitary condition and must
provide shelter against the elements to
occupants;
(2) Housing, other than tents, must
have flooring constructed of rigid
materials easy to clean and so located as
to prevent ground and surface water
from entering;
(3) Each housing unit must have at
least one window that can be opened or
skylight opening directly to the
outdoors; and
(4) Tents appropriate to weather
conditions may be used only where the
terrain and/or land use regulations do
not permit the use of other more
substantial housing.
(e) Heating. (1) Where the climate in
which the housing will be used is such
that the safety and health of a worker
requires heated living quarters, all such
quarters must have properly installed
operable heating equipment that
supplies adequate heat. Where the
climate in which the housing will be
used is mild and the low temperature
for any day in which the housing will
be used is not reasonably expected to
drop below 50 degrees Fahrenheit, no
separate heating equipment is required
as long as proper protective clothing
and bedding are made available, free of
charge or deposit charge, to the workers.
(2) Any stoves or other sources of heat
using combustible fuel must be installed
and vented in such a manner as to
prevent fire hazards and a dangerous
concentration of gases. If a solid or
liquid fuel stove is used in a room with
wooden or other combustible flooring,
there must be a concrete slab, insulated
metal sheet, or other fireproof material
on the floor under each stove, extending
at least 18 inches beyond the perimeter
of the base of the stove.
(3) Any wall or ceiling within 18
inches of a solid or liquid fuel stove or
stove pipe must be made of fireproof
material. A vented metal collar must be
installed around a stovepipe or vent
passing through a wall, ceiling, floor, or
roof.
(4) When a heating system has
automatic controls, the controls must be
of the type that cuts off the fuel supply
when the flame fails or is interrupted or
whenever a predetermined safe
temperature or pressure is exceeded.
(5) A heater may be used in a tent if
the heater is approved by a testing
service and if the tent is fireproof.
(f) Lighting. (1) In areas where it is not
feasible to provide electrical service to
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range housing units, including tents,
lanterns must be provided (kerosene
wick lights meet the definition of
lantern); and
(2) Lanterns, where used, must be
provided in a minimum ratio of one per
occupant of each unit, including tents.
(g) Bathing, laundry, and hand
washing. Bathing, laundry, and hand
washing facilities must be provided
when it is not feasible to provide hot
and cold water under pressure.
(h) Food storage. When mechanical
refrigeration of food is not feasible, the
worker must be provided with another
means of keeping food fresh and
preventing spoilage, such as a butane or
propane gas refrigerator. Other proven
methods of safeguarding fresh foods,
such as dehydrating or salting, are
acceptable.
(i) Cooking and eating facilities. (1)
When workers or their families are
permitted or required to cook in their
individual unit, a space must be
provided with adequate lighting and
ventilation; and
(2) Wall surfaces next to all food
preparation and cooking areas must be
of nonabsorbent, easy to clean material.
Wall surfaces next to cooking areas must
be made of fire-resistant material.
(j) Garbage and other refuse. (1)
Durable, fly-tight, clean containers must
be provided to each housing unit,
including tents, for storing garbage and
other refuse; and
(2) Provision must be made for
collecting or burying refuse, which
includes garbage, at least twice a week
or more often if necessary, except where
the terrain in which the housing is
located cannot be accessed by motor
vehicle and the refuse cannot be buried,
in which case the employer must
provide appropriate receptacles for
storing the refuse and for removing the
trash when the employer next transports
supplies to the location.
(k) Insect and rodent control.
Appropriate materials, including sprays,
and sealed containers for storing food,
must be provided to aid housing
occupants in combating insects, rodents
and other vermin.
(l) Sleeping facilities. A separate
comfortable and clean bed, cot, or bunk,
with a clean mattress, must be provided
for each person, except in a family
arrangement, unless a variance is
requested from and granted by the CO.
When filing an application for
certification and only where it is
demonstrated to the CO that it is
impractical to provide a comfortable
and clean bed, cot, or bunk, with a clean
mattress, for each range worker, the
employer may request a variance from
this requirement to allow for a second
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worker to join the range operation. Such
a variance must be used infrequently,
and the period of the variance will be
temporary (i.e., the variance shall be for
no more than 3 consecutive days).
Should the CO grant the variance, the
employer must supply a sleeping bag or
bed roll for the second occupant free of
charge or deposit charge.
(m) Fire, safety, and first aid. (1) All
units in which people sleep or eat must
be constructed and maintained
according to applicable state or local fire
and safety law.
(2) No flammable or volatile liquid or
materials may be stored in or next to
rooms used for living purposes, except
for those needed for current household
use.
(3) Housing units for range use must
have a second means of escape through
which the worker can exit the unit
without difficulty.
(4) Tents are not required to have a
second means of escape, except when
large tents with walls of rigid material
are used.
(5) Adequate, accessible fire
extinguishers in good working condition
and first aid kits must be provided in
the range housing.
Labor Certification Process for
Temporary Agricultural Employment in
Animal Shearing, Commercial
Beekeeping, Custom Combining, and
Reforestation Occupations
§ 655.300
Scope and purpose.
(a) Purpose. The purpose of
§§ 655.300 through 655.304 is to
establish certain procedures for
employers who apply to the Department
of Labor to obtain labor certifications to
hire temporary agricultural foreign
workers to perform animal shearing,
commercial beekeeping, custom
combining, and reforestation, as defined
in this subpart. Unless otherwise
specified in §§ 655.300 through 655.304,
employers whose job opportunities meet
the qualifying criteria under §§ 655.300
through 655.304 must fully comply with
all of the requirements of §§ 655.100
through 655.185; part 653, subparts B
and F, of this chapter; and part 654 of
this chapter.
(b) Jobs subject to §§ 655.300 through
655.304. The procedures in §§ 655.300
through 655.304 apply to job
opportunities for animal shearing,
commercial beekeeping, custom
combining, and reforestation as defined
under §§ 655.103 and 655.301, where
workers are required to perform
agricultural work on a scheduled
itinerary covering multiple areas of
intended employment in one or more
contiguous states.
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Definition of terms.
The following are terms that are not
defined in §§ 655.100 through 655.185
and are specific to applications for labor
certifications involving animal shearing,
commercial beekeeping, and custom
combining.
Animal shearing. Activities associated
with the shearing and crutching of
sheep, goats, or other animals producing
wool or fleece, including gathering,
moving, and sorting animals into
shearing yards, stations, or pens; placing
animals into position, whether loose,
tied, or otherwise immobilized, prior to
shearing; selecting and using suitable
handheld or power-driven equipment
and tools for shearing; shearing animals
with care according to industry
standards; marking, sewing, or
disinfecting any nicks and cuts on
animals due to shearing; cleaning and
washing animals after shearing is
complete; gathering, storing, loading,
and delivering wool or fleece to storage
yards, trailers or other containers; and
maintaining, oiling, sharpening, and
repairing equipment and other tools
used for shearing. Transporting
equipment and other tools used for
shearing qualifies as an activity
associated with animal shearing for the
purposes of this definition only where
such activities are performed by workers
who are employed by the same
employer as the animal shearing crew
and who travel and work with the
animal shearing crew. Wool or fleece
grading, which involve examining,
sorting, and placing unprocessed wool
or fleece into containers according to
government or industry standards,
qualify as activities associated with
animal shearing for the purposes of this
definition only where such activities are
performed by workers who are
employed by the same employer as the
animal shearing crew and who travel
and work with the animal shearing
crew.
Commercial beekeeping. Activities
associated with the care or husbandry of
bee colonies for producing and
collecting honey, wax, pollen, and other
products for commercial sale or
providing pollination services to
agricultural producers, including
assembling, maintaining, and repairing
hives, frames, or boxes; inspecting and
monitoring colonies to detect diseases,
illnesses, or other health problems;
feeding and medicating bees to maintain
the health of the colonies; installing,
raising, and moving queen bees;
splitting or dividing colonies, when
necessary, and replacing combs;
preparing, loading, transporting, and
unloading colonies and equipment;
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forcing bees from hives, inserting
honeycomb of bees into hives, or
inducing swarming of bees into hives of
prepared honeycomb frames;
uncapping, extracting, refining,
harvesting, and packaging honey,
beeswax, or other products for
commercial sale; cultivating bees to
produce bee colonies and queen bees for
sale; and maintaining and repairing
equipment and other tools used to work
with bee colonies.
Custom combining. Activities
associated with combining crops for
agricultural producers, including
operating self-propelled combine
equipment (i.e., equipment that reaps or
harvests, threshes, and swath or
winnow the crop); performing manual
or mechanical adjustments to cutters,
blowers and conveyers; performing
safety checks on harvesting equipment;
and maintaining and repairing
equipment and other tools used for
performing swathing or combining
work. Transporting harvested crops to
elevators, silos, or other storage areas,
and transporting combine equipment
and other tools used for custom
combining work from one field to
another, qualify as activities associated
with custom combining for the purposes
of this definition only where such
activities are performed by workers who
are employed by the same employer as
the custom combining crew and who
travel and work with the custom
combining crew. Component parts of
custom combining not performed by the
harvesting entity (e.g., grain cleaning),
are not eligible for the variance granted
by this provision. The planting and
cultivation of crops, and other related
activities, are not considered custom
combining or activities associated with
custom combining for the purposes of
this definition.
§ 655.302
Contents of job orders.
(a) Content of job offers. Unless
otherwise specified in §§ 655.300
through 655.304, the employer must
satisfy the requirements for job orders
established under § 655.121 and for the
content of job offers established under
part 653, subpart F, of this chapter and
§ 655.122.
(b) Job qualifications and
requirements. (1) For job opportunities
involving animal shearing, the job offer
may specify that applicants must
possess up to 6 months of experience in
similar occupations and require
reference(s) for the employer to verify
applicant experience. The job offer may
also specify that applicants must
possess experience with an industry
shearing method or pattern, must be
willing to join the employer at the time
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the job opportunity is available and at
the place the employer is located, and
must be available to complete the
scheduled itinerary under the job order.
U.S. applicants whose experience is
based on a similar or related industry
shearing method or pattern must be
afforded a break-in period of no less
than 5 working days to adapt to the
employer’s preferred shearing method
or pattern.
(2) For job opportunities involving
commercial beekeeping, the job offer
may specify that applicants must
possess up to 3 months of experience in
similar occupations and require
reference(s) for the employer to verify
applicant experience. The job offer may
also specify that applicants may not
have bee, pollen, or honey-related
allergies, must possess a valid
commercial U.S. driver’s license or be
able to obtain such license not later than
30 days after the first workday after the
arrival of the worker at the place of
employment, must be willing to join the
employer at the time and place the
employer is located, and must be
available to complete the scheduled
itinerary under the job order.
(3) For job opportunities involving
custom combining, the job offer may
specify that applicants must possess up
to 6 months of experience in similar
occupations and require reference(s) for
the employer to verify applicant
experience. The job offer may also
specify that applicants must be willing
to join the employer at the time and
place the employer is located and must
be available to complete the scheduled
itinerary under the job order.
(4) An employer may specify other
appropriate job qualifications and
requirements for its job opportunity,
subject to § 655.122(a) and (b).
(c) Employer-provided
communication devices. For job
opportunities involving animal shearing
and custom combining, the employer
must provide to the worker, without
charge or deposit charge, effective
means of communicating with persons
capable of responding to the worker’s
needs in case of an emergency,
including, but not limited to, satellite
phones, cell phones, wireless devices,
radio transmitters, or other types of
electronic communication systems. The
employer must specify in the job order
the type(s) of electronic communication
device(s) and that such devices will be
provided without charge or deposit
charge to the worker during the entire
period of employment.
(d) Housing. For job opportunities
involving animal shearing and custom
combining, the employer must specify
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in the job order that housing will be
provided as set forth in § 655.304.
§ 655.303 Procedures for filing
Applications for Temporary Employment
Certification.
(a) Compliance with §§ 655.130
through 655.132. Unless otherwise
specified in §§ 655.300 through 655.304
the employer must satisfy the
requirements for filing an Application
for Temporary Employment
Certification with the NPC designated
by the OFLC Administrator as required
under §§ 655.130 through 655.132.
(b) What to file. An employer must
file a completed Application for
Temporary Employment Certification.
The employer must identify each place
of employment with as much
geographic specificity as possible,
including the names of each farmer/
rancher, the names, physical locations
and estimated period of employment
where work will be performed under the
job order.
(1) The Application for Temporary
Employment Certification and job order
may cover multiple areas of intended
employment in one or more contiguous
states. An Application for Temporary
Employment Certification and job order
for opportunities involving commercial
beekeeping may include one
noncontiguous state at the beginning
and end of the period of employment for
the overwintering of bee colonies.
(2) An agricultural association filing
as a joint employer may submit a single
job order and master Application for
Temporary Employment Certification on
behalf of its employer-members located
in more than two contiguous states. An
agricultural association filing as a joint
employer may file an Application for
Temporary Employment Certification
and job order for opportunities
involving commercial beekeeping may
include one noncontiguous state at the
beginning and end of the period of
employment for the overwintering of
bee colonies.
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§ 655.304
Standards for mobile housing.
(a) Use of mobile housing. An
employer employing workers engaged in
animal shearing or custom combining,
as defined by § 655.301, may use a
mobile unit, camper, or other similar
mobile housing unit that complies with
all of the following standards, except as
provided in paragraph (a)(1) or (2) of
this section:
(1) When the mobile housing unit is
located on the range as defined in
§ 655.201 to enable work to be
performed on the range, the mobile
housing is subject only to the standards
for range housing in § 655.235. As soon
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as the mobile housing unit is moved to
a location off of the range, the mobile
housing standards in this section apply.
An employer whose mobile housing
unit is or will be located on the range
must have the housing unit inspected
and approved by an a SWA with
jurisdiction over the location of the
mobile unit when not in use, at least
once every 36 months, subject to the
procedures for range housing inspection
and self-certification in § 655.230(b) and
(c).
(2) A Canadian employer performing
custom combining operations in the
United States whose mobile housing
unit is located in Canada when not in
use must have the housing unit
inspected and approved by an
authorized representative of the federal
or provincial government of Canada, in
accordance with inspection procedures
and applicable standards for such
housing under Canadian law or
regulation.
(b) Compliance with mobile housing
standards. The employer may comply
with the standards for mobile housing
in this section in one of two ways:
(1) The employer may provide a
mobile housing unit that complies with
all applicable standards; or
(2) The employer may provide a
mobile housing unit and supplemental
facilities (e.g., located at a fixed housing
site) if workers are afforded access to all
facilities contained in these standards.
(c) Housing site. (1) Mobile housing
sites must be well drained and free from
depressions where water may stagnate.
They shall be located where the
disposal of sewage is provided in a
manner that neither creates, nor is likely
to create, a nuisance or a hazard to
health.
(2) Mobile housing sites shall not be
in proximity to conditions that create or
are likely to create offensive odors, flies,
noise, traffic, or any similar hazards.
(3) Mobile housing sites shall be free
from debris, noxious plants (e.g., poison
ivy, etc.), and uncontrolled weeds or
brush.
(d) Drinking water supply. (1) An
adequate and convenient supply of
potable water that meets the standards
of the local or state health authority
must be provided.
(2) Individual drinking cups must be
provided.
(3) A cold water tap shall be available
within a reasonable distance of each
individual living unit when water is not
provided in the unit.
(4) Adequate drainage facilities shall
be provided for overflow and spillage.
(e) Excreta and liquid waste disposal.
(1) Toilet facilities, such as portable
toilets, RV or trailer toilets, privies, or
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flush toilets, must be provided and
maintained for effective disposal of
excreta and liquid waste in accordance
with the requirements of the applicable
local, state, or Federal health authority,
whichever is most stringent.
(2) Where mobile housing units
contain RV or trailer toilets, such
facilities must be connected to sewage
hookups whenever feasible (i.e., in
campgrounds or RV parks).
(3) If wastewater tanks are used, the
employer must make provisions to
regularly empty the wastewater tanks.
(4) If pits are used for disposal by
burying of excreta and liquid waste,
they shall be kept fly-tight when not
filled in completely after each use. The
maintenance of disposal pits must be in
accordance with local and state health
and sanitation requirements.
(f) Housing structure. (1) Housing
must be structurally sound, in good
repair, in a sanitary condition, and must
provide shelter against the elements to
occupants.
(2) Housing must have flooring
constructed of rigid materials easy to
clean and so located as to prevent
ground and surface water from entering.
(3) Each housing unit must have at
least one window or a skylight that can
be opened directly to the outdoors.
(g) Heating. (1) Where the climate in
which the housing will be used is such
that the safety and health of a worker
requires heated living quarters, all such
quarters must have properly installed
operable heating equipment that
supplies adequate heat. Where the
climate in which the housing will be
used is mild and the low temperature
for any day in which the housing will
be used is not reasonably expected to
drop below 50 degrees Fahrenheit, no
separate heating equipment is required
as long as proper protective clothing
and bedding are made available, free of
charge or deposit charge, to the workers.
(2) Any stoves or other sources of heat
using combustible fuel must be installed
and vented in such a manner as to
prevent fire hazards and a dangerous
concentration of gases. If a solid or
liquid fuel stove is used in a room with
wooden or other combustible flooring,
there must be a concrete slab, insulated
metal sheet, or other fireproof material
on the floor under each stove, extending
at least 18 inches beyond the perimeter
of the base of the stove.
(3) Any wall or ceiling within 18
inches of a solid or liquid fuel stove or
stove pipe must be made of fireproof
material. A vented metal collar must be
installed around a stovepipe or vent
passing through a wall, ceiling, floor, or
roof.
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(4) When a heating system has
automatic controls, the controls must be
of the type that cuts off the fuel supply
when the flame fails or is interrupted or
whenever a predetermined safe
temperature or pressure is exceeded.
(h) Electricity and lighting. (1) Barring
unusual circumstances that prevent
access, electrical service or generators
must be provided.
(2) In areas where it is not feasible to
provide electrical service to mobile
housing units, lanterns must be
provided (e.g., battery operated lights).
(3) Lanterns, where used, must be
provided in a minimum ratio of one per
occupant of each unit.
(i) Bathing, laundry, and hand
washing. (1) Bathing facilities, supplied
with hot and cold water under pressure,
shall be provided to all occupants no
less frequently than once per day.
(2) Laundry facilities, supplied with
hot and cold water under pressure, shall
be provided to all occupants no less
frequently than once per week.
(3) Alternative bathing and laundry
facilities must be available to occupants
at all times when water under pressure
is unavailable.
(4) Hand washing facilities must be
available to all occupants at all times.
(j) Food storage. (1) Provisions for
mechanical refrigeration of food at a
temperature of not more than 45 degrees
Fahrenheit must be provided.
(2) When mechanical refrigeration of
food is not feasible, the employer must
provide another means of keeping food
fresh and preventing spoilage (e.g., a
butane or propane gas refrigerator).
(k) Cooking and eating facilities. (1)
When workers or their families are
permitted or required to cook in their
individual unit, a space must be
provided with adequate lighting and
ventilation, and stoves or hotplates.
(2) Wall surfaces next to all food
preparation and cooking areas must be
of nonabsorbent, easy to clean material.
Wall surfaces next to cooking areas must
be made of fire-resistant material.
(l) Garbage and other refuse. (1)
Durable, fly-tight, clean containers must
be provided to each housing unit, for
storing garbage and other refuse.
(2) Provision must be made for
collecting refuse, which includes
garbage, at least twice a week or more
often if necessary for proper disposal in
accordance with applicable local, state,
or Federal law, whichever is most
stringent.
(m) Insect and rodent control.
Appropriate materials, including sprays,
and sealed containers for storing food,
must be provided to aid housing
occupants in combating insects, rodents,
and other vermin.
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(n) Sleeping facilities. (1) A separate
comfortable and clean bed, cot, or bunk,
with a clean mattress, must be provided
for each person, except in a family
arrangement.
(2) Clean and sanitary bedding must
be provided for each person.
(3) No more than two deck bunks are
permissible.
(o) Fire, safety, and first aid. (1) All
units in which people sleep or eat must
be constructed and maintained
according to applicable local or state fire
and safety law.
(2) No flammable or volatile liquid or
materials may be stored in or next to
rooms used for living purposes, except
for those needed for current household
use.
(3) Mobile housing units must have a
second means of escape through which
the worker can exit the unit without
difficulty.
(4) Adequate, accessible fire
extinguishers in good working condition
and first aid kits must be provided in
the mobile housing.
(p) Maximum occupancy. The number
of occupants housed in each mobile
housing unit must not surpass the
occupancy limitations set forth in the
manufacturer specifications for the unit.
Title 29—Labor
■
5. Revise part 501 to read as follows:
PART 501—ENFORCEMENT OF
CONTRACTUAL OBLIGATIONS FOR
TEMPORARY AGRICULTURAL
WORKERS ADMITTED UNDER
SECTION 218 OF THE IMMIGRATION
AND NATIONALITY ACT
Subpart A—General Provisions
Sec.
501.0 Introduction.
501.1 Purpose and scope.
501.2 Coordination between Federal
agencies.
501.3 Definitions.
501.4 Discrimination prohibited.
501.5 Waiver of rights prohibited.
501.6 Investigation authority of the
Secretary.
501.7 Cooperation with Federal officials.
501.8 Accuracy of information, statements,
and data.
501.9 Enforcement of surety bond.
Subpart B—Enforcement
501.15 Enforcement.
501.16 Sanctions and remedies—general.
501.17 Concurrent actions.
501.18 Representation of the Secretary.
501.19 Civil money penalty assessment.
501.20 Debarment and revocation.
501.21 Failure to cooperate with
investigations.
501.22 Civil money penalties—payment
and collection.
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Subpart C—Administrative Proceedings
501.30 Applicability of procedures and
rules.
Procedures Relating to Hearing
501.31 Written notice of determination
required.
501.32 Contents of notice.
501.33 Request for hearing.
Rules of Practice
501.34 General.
501.35 Commencement of proceeding.
501.36 Caption of proceeding.
Referral for Hearing
501.37 Referral to Administrative Law
Judge.
501.38 Notice of docketing.
501.39 Service upon attorneys for the
Department of Labor—number of copies.
Procedures Before Administrative Law Judge
501.40 Consent findings and order.
Post-Hearing Procedures
501.41 Decision and order of
Administrative Law Judge.
Review of Administrative Law Judge’s
Decision
501.42 Procedures for initiating and
undertaking review.
501.43 Responsibility of the Office of
Administrative Law Judges.
501.44 Additional information, if required.
501.45 Final decision of the Administrative
Review Board.
Record
501.46 Retention of official record.
501.47 Certification.
Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a),
1184(c), and 1188.
Subpart A—General Provisions
§ 501.0
Introduction.
The regulations in this part cover the
enforcement of all contractual
obligations, including requirements
under 8 U.S.C. 1188 and 20 CFR part
655, subpart B, applicable to the
employment of H–2A workers and
workers in corresponding employment,
including obligations to offer
employment to eligible United States
(U.S.) workers and to not lay off or
displace U.S. workers in a manner
prohibited by the regulations in this part
or 20 CFR part 655, subpart B.
§ 501.1
Purpose and scope.
(a) Statutory standards. 8 U.S.C. 1188
provides that:
(1) A petition to import an H–2A
worker, as defined at 8 U.S.C. 1188, may
not be approved by the Secretary of the
Department of Homeland Security
(DHS) unless the petitioner has applied
for and received a temporary
agricultural labor certification from the
Secretary of Labor (Secretary). The
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temporary agricultural labor
certification establishes that:
(i) There are not sufficient workers
who are able, willing, and qualified, and
who will be available at the time and
place needed, to perform the labor or
services involved in the petition; and
(ii) The employment of the H–2A
worker in such labor or services will not
adversely affect the wages and working
conditions of workers in the United
States similarly employed.
(2) The Secretary is authorized to take
actions that assure compliance with the
terms and conditions of employment
under 8 U.S.C. 1188, the regulations at
20 CFR part 655, subpart B, or the
regulations in this part, including
imposing appropriate penalties, and
seeking injunctive relief and specific
performance of contractual obligations.
See 8 U.S.C. 1188(g)(2).
(b) Authority and role of the Office of
Foreign Labor Certification. The
Secretary has delegated authority to the
Assistant Secretary for the Employment
and Training Administration (ETA),
who in turn has delegated that authority
to the Office of Foreign Labor
Certification (OFLC), to issue
certifications and carry out other
statutory responsibilities as required by
8 U.S.C. 1188. Determinations on an
Application for Temporary Employment
Certification are made by the OFLC
Administrator who, in turn, may
delegate this responsibility to
designated staff, e.g., a Certifying Officer
(CO).
(c) Authority of the Wage and Hour
Division. The Secretary has delegated
authority to the Wage and Hour Division
(WHD) to conduct certain investigatory
and enforcement functions with respect
to terms and conditions of employment
under 8 U.S.C. 1188, 20 CFR part 655,
subpart B, and this part (‘‘the H–2A
program’’), and to carry out other
statutory responsibilities required by 8
U.S.C. 1188. Certain investigatory,
inspection, and law enforcement
functions to carry out the provisions
under 8 U.S.C. 1188 have been
delegated by the Secretary to the WHD.
In general, matters concerning the
obligations under a work contract
between an employer of H–2A workers
and the H–2A workers and workers in
corresponding employment are enforced
by WHD, including whether
employment was offered to U.S. workers
as required under 8 U.S.C. 1188 or 20
CFR part 655, subpart B, or whether
U.S. workers were laid off or displaced
in violation of program requirements.
Included within the enforcement
responsibility of WHD are such matters
as the payment of required wages,
transportation, meals, and housing
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provided during the employment. WHD
has the responsibility to carry out
investigations, inspections, and law
enforcement functions and in
appropriate instances to impose
penalties, to debar from future
certifications, to recommend revocation
of existing certification(s), and to seek
injunctive relief and specific
performance of contractual obligations,
including recovery of unpaid wages and
reinstatement of laid off or displaced
U.S. workers.
(d) Concurrent authority. OFLC and
WHD have concurrent authority to
impose a debarment remedy pursuant to
20 CFR 655.182 and § 501.20.
(e) Effect of regulations. The
enforcement functions carried out by
WHD under 8 U.S.C. 1188, 20 CFR part
655, subpart B, and this part apply to
the employment of any H–2A worker
and any other worker in corresponding
employment as the result of any
Application for Temporary Employment
Certification processed under 20 CFR
655.102(c).
§ 501.2 Coordination between Federal
agencies.
(a) Complaints received by ETA or
any State Workforce Agency (SWA)
regarding contractual H–2A labor
standards between the employer and the
worker will be immediately forwarded
to the appropriate WHD office for
appropriate action under the regulations
in this part.
(b) Information received in the course
of processing applications, program
integrity measures, or enforcement
actions may be shared between OFLC
and WHD or, where applicable to
employer enforcement under the H–2A
program, other Departments or agencies
as appropriate, including the
Department of State (DOS) and DHS.
(c) A specific violation for which
debarment is imposed will be cited in
a single debarment proceeding. OFLC
and WHD may coordinate their
activities to achieve this result. Copies
of final debarment decisions will be
forwarded to DHS promptly.
§ 501.3
Definitions.
(a) Definitions of terms used in this
part. The following defined terms apply
to this part: Act. The Immigration and
Nationality Act, as amended (INA), 8
U.S.C. 1101 et seq.
Administrative Law Judge. A person
within the Department’s Office of
Administrative Law Judges (OALJ)
appointed pursuant to 5 U.S.C. 3105.
Administrator. See definitions of
OFLC Administrator and WHD
Administrator in this section.
Adverse effect wage rate. The wage
rate published by the OFLC
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Administrator in the Federal Register
for the occupational classification and
State based on either the U.S.
Department of Agriculture’s Farm Labor
Survey or the Bureau of Labor Statistics’
Occupational Employment Statistics
survey, as set forth in 20 CFR
655.120(b).
Agent. A legal entity or person, such
as an association of agricultural
employers, or an attorney for an
association, that:
(i) Is authorized to act on behalf of the
employer for temporary agricultural
labor certification purposes;
(ii) Is not itself an employer, or a joint
employer, as defined in this part with
respect to a specific application; and
(iii) Is not under suspension,
debarment, expulsion, or disbarment
from practice before any court, the
Department, the Executive Office for
Immigration Review, or DHS under 8
CFR 292.3 or 1003.101.
Agricultural association. Any
nonprofit or cooperative association of
farmers, growers, or ranchers (including,
but not limited to, processing
establishments, canneries, gins, packing
sheds, nurseries, or other similar fixedsite agricultural employers),
incorporated or qualified under
applicable State law, that recruits,
solicits, hires, employs, furnishes,
houses, or transports any worker that is
subject to 8 U.S.C. 1188. An agricultural
association may act as the agent of an
employer, or may act as the sole or joint
employer of any worker subject to 8
U.S.C. 1188.
Applicant. A U.S. worker who is
applying for a job opportunity for which
an employer has filed an Application for
Temporary Employment Certification
and job order.
Application for Temporary
Employment Certification. The Office of
Management and Budget (OMB)approved Form ETA–9124A and
appropriate appendices submitted by an
employer to secure a temporary
agricultural labor certification
determination from DOL.
Area of intended employment. The
geographic area within normal
commuting distance of the place(s) of
employment for which the temporary
agricultural labor certification is sought.
There is no rigid measure of distance
that constitutes a normal commuting
distance or normal commuting area,
because there may be widely varying
factual circumstances among different
areas (e.g., average commuting times,
barriers to reaching the place(s) of
employment, or quality of the regional
transportation network). If a place of
employment is within a Metropolitan
Statistical Area (MSA), including a
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multi-State MSA, any place within the
MSA is deemed to be within normal
commuting distance of the place of
employment. The borders of MSAs are
not controlling in the identification of
the normal commuting area; a place of
employment outside of an MSA may be
within normal commuting distance of a
place of employment that is inside (e.g.,
near the border of) the MSA.
Attorney. Any person who is a
member in good standing of the bar of
the highest court of any State,
possession, territory, or commonwealth
of the United States, or the District of
Columbia (DC). Such a person is also
permitted to act as an agent under this
part. No attorney who is under
suspension, debarment, expulsion, or
disbarment from practice before any
court, the Department, the Executive
Office for Immigration Review under 8
CFR 1003.101, or DHS under 8 CFR
292.3 may represent an employer under
this part.
Certifying Officer. The person who
makes a determination on an
Application for Temporary Employment
Certification filed under the H–2A
program. The OFLC Administrator is the
National CO. Other COs may be
designated by the OFLC Administrator
to also make the determination required
under 20 CFR part 655, subpart B.
Chief Administrative Law Judge. The
chief official of the Department’s OALJ
or the Chief ALJ’s designee.
Corresponding employment. The
employment of workers who are not H–
2A workers by an employer who has an
approved Application for Temporary
Employment Certification in any work
included in the job order, or in any
agricultural work performed by the H–
2A workers. To qualify as corresponding
employment, the work must be
performed during the validity period of
the job order, including any approved
extension thereof.
Department of Homeland Security.
The Federal department having
jurisdiction over certain immigrationrelated functions, acting through its
component agencies, including U.S.
Citizenship and Immigration Services
(USCIS).
Employee. A person who is engaged
to perform work for an employer, as
defined under the general common law
of agency. Some of the factors relevant
to the determination of employee status
include: The hiring party’s right to
control the manner and means by which
the work is accomplished; the skill
required to perform the work; the source
of the instrumentalities and tools for
accomplishing the work; the location of
the work; the hiring party’s discretion
over when and how long to work; and
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whether the work is part of the regular
business of the hiring party. Other
applicable factors may be considered
and no one factor is dispositive.
Employer. A person (including any
individual, partnership, association,
corporation, cooperative, firm, joint
stock company, trust, or other
organization with legal rights and
duties) that:
(i) Has an employment relationship
(such as the ability to hire, pay, fire,
supervise, or otherwise control the work
of employee) with respect to an H–2A
worker or a worker in corresponding
employment; or
(ii) Files an Application for
Temporary Employment Certification
other than as an agent; or
(iii) A person on whose behalf an
Application of Temporary Employment
Certification is filed.
Employment and Training
Administration. The agency within the
Department that includes OFLC and has
been delegated authority by the
Secretary to fulfill the Secretary’s
mandate under the INA and DHS’
implementing regulations from the
administration and adjudication of an
Application for Temporary Employment
Certification and related functions.
Federal holiday. Legal public holiday
as defined at 5 U.S.C. 6103.
First date of need. The first date the
employer anticipates requiring the labor
or services of H–2A workers as
indicated in the Application for
Temporary Employment Certification.
Fixed-site employer. Any person
engaged in agriculture who meets the
definition of an employer, as those
terms are defined in this part; who owns
or operates a farm, ranch, processing
establishment, cannery, gin, packing
shed, nursery, or other similar fixed-site
location where agricultural activities are
performed; and who recruits, solicits,
hires, employs, houses, or transports
any worker subject to 8 U.S.C. 1188, 20
CFR part 655, subpart B, or this part as
incident to or in conjunction with the
owner’s or operator’s own agricultural
operation.
H–2A labor contractor. Any person
who meets the definition of employer
under this part and is not a fixed-site
employer, an agricultural association, or
an employee of a fixed-site employer or
agricultural association, as those terms
are used in this part, who recruits,
solicits, hires, employs, furnishes,
houses, or transports any worker subject
to 8 U.S.C. 1188, 20 CFR part 655,
subpart B, or this part.
H–2A worker. Any temporary foreign
worker who is lawfully present in the
United States and authorized by DHS to
perform agricultural labor or services of
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a temporary or seasonal nature pursuant
to 8 U.S.C. 1101(a)(15)(H)(ii)(a), as
amended.
H–2 A Petition. The USCIS Form I–
129, Petition for a Nonimmigrant
Worker, with H Supplement or
successor form or supplement, and
accompanying documentation required
by DHS for employers seeking to
employ foreign persons as H–2A
nonimmigrant workers.
Job offer. The offer made by an
employer or potential employer of H–2A
workers to both U.S. and H–2A workers
describing all the material terms and
conditions of employment, including
those relating to wages, working
conditions, and other benefits.
Job opportunity. Full-time
employment at a place in the United
States to which U.S. workers can be
referred.
Job order. The document containing
the material terms and conditions of
employment that is posted by the SWA
on its interstate and intrastate job
clearance systems based on the
employer’s Agricultural Clearance
Order (Form ETA–790/ETA–790A and
all appropriate addenda), as submitted
to the National Processing Center.
Joint employment. (i) Where two or
more employers each have sufficient
definitional indicia of being a joint
employer of a worker under the
common law of agency, they are, at all
times, joint employers of that worker.
(ii) An agricultural association that
files an Application for Temporary
Employment Certification as a joint
employer is, at all times, a joint
employer of all the H–2A workers
sponsored under the Application for
Temporary Employment Certification
and all workers in corresponding
employment. An employer-member of
an agricultural association that files an
Application for Temporary Employment
Certification as a joint employer is a
joint employer of the H–2A workers
sponsored under the joint employer
Application for Temporary Employment
Certification along with the agricultural
association during the period that the
employer-member employs the H–2A
workers sponsored under the
Application for Temporary Employment
Certification.
(iii) Employers that jointly file a joint
employer Application for Temporary
Employment Certification under 20 CFR
655.131(b) are, at all times, joint
employers of all H–2A workers
sponsored under the Application for
Temporary Employment Certification
and all workers in corresponding
employment.
Metropolitan Statistical Area. A
geographic entity defined by OMB for
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use by Federal statistical agencies in
collecting, tabulating, and publishing
Federal statistics. A Metropolitan
Statistical Area contains a core urban
area of 50,000 or more population, and
a Micropolitan Statistical Area contains
an urban core of at least 10,000 (but
fewer than 50,000) population. Each
metropolitan or micropolitan area
consists of one or more counties and
includes the counties containing the
core urban area, as well as any adjacent
counties that have a high degree of
social and economic integration (as
measured by commuting to work) with
the urban core.
National Processing Center. The
offices within OFLC in which the COs
operate and which are charged with the
adjudication of Applications for
Temporary Employment Certification.
Office of Foreign Labor Certification.
OFLC means the organizational
component of ETA that provides
national leadership and policy
guidance, and develops regulations and
procedures to carry out the
responsibilities of the Secretary under
the INA concerning the admission of
foreign workers to the United States to
perform work described in 8 U.S.C.
1101(a)(15)(H)(ii)(a).
OFLC Administrator. The primary
official of OFLC, or the OLFC
Administrator’s designee.
Period of employment. The time
during which the employer requires the
labor or services of H–2A workers as
indicated by the first and last dates of
need provided in the Application for
Temporary Employment Certification.
Piece rate. A form of wage
compensation based upon a worker’s
quantitative output or one unit of work
or production for the crop or
agricultural activity.
Place of employment. A worksite or
physical location where work under the
job order actually is performed by the
H–2A workers and workers in
corresponding employment.
Secretary of Labor. The chief official
of the Department, or the Secretary’s
designee.
State Workforce Agency. State
government agency that receives funds
pursuant to the Wagner-Peyser Act, 29
U.S.C. 49 et seq., to administer the
state’s public labor exchange activities.
Successor in interest. (i) Where an
employer, agent, or attorney has
violated 8 U.S.C. 1188, 20 CFR part 655,
subpart B, or this part, and has ceased
doing business or cannot be located for
purposes of enforcement, a successor in
interest to that employer, agent, or
attorney may be held liable for the
duties and obligations of the violating
employer, agent, or attorney in certain
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circumstances. The following factors, as
used under Title VII of the Civil Rights
Act and the Vietnam Era Veterans’
Readjustment Assistance Act, may be
considered in determining whether an
employer, agent, or attorney is a
successor in interest; no one factor is
dispositive, but all of the circumstances
will be considered as a whole:
(A) Substantial continuity of the same
business operations;
(B) Use of the same facilities;
(C) Continuity of the work force;
(D) Similarity of jobs and working
conditions;
(E) Similarity of supervisory
personnel;
(F) Whether the former management
or owner retains a direct or indirect
interest in the new enterprise;
(G) Similarity in machinery,
equipment, and production methods;
(H) Similarity of products and
services; and
(I) The ability of the predecessor to
provide relief.
(ii) For purposes of debarment only,
the primary consideration will be the
personal involvement of the firm’s
ownership, management, supervisors,
and others associated with the firm in
the violation(s) at issue.
Temporary agricultural labor
certification. Certification made by the
OFLC Administrator, based on the
Application for Temporary Employment
Certification, job order, and all
supporting documentation, with respect
to an employer seeking to file with DHS
a visa petition to employ one or more
foreign nationals as an H–2A worker,
pursuant to 8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184(a) and (c),
and 1188, and 20 CFR part 655, subpart
B.
United States. The continental United
States, Alaska, Hawaii, the
Commonwealth of Puerto Rico, and the
territories of Guam, the U.S. Virgin
Islands, and the Commonwealth of the
Northern Mariana Islands.
U.S. Citizenship and Immigration
Services. The Federal agency within
DHS that makes the determination
under the INA whether to grant
petitions filed by employers seeking H–
2A workers to perform temporary or
seasonal agricultural labor or services in
the United States.
U.S. worker. A worker who is:
(i) A citizen or national of the United
States;
(ii) An individual who is lawfully
admitted for permanent residence in the
United States, is admitted as a refugee
under 8 U.S.C. 1157, is granted asylum
under 8 U.S.C. 1158, or is an immigrant
otherwise authorized by the INA or DHS
to be employed in the United States; or
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(iii) An individual who is not an
unauthorized alien, as defined in 8
U.S.C. 1324a(h)(3), with respect to the
employment in which the worker is
engaging.
Wages. All forms of cash
remuneration to a worker by an
employer in payment for labor or
services.
Wage and Hour Division. The agency
within the Department with authority to
conduct certain investigatory and
enforcement functions, as delegated by
the Secretary, under 8 U.S.C. 1188, 20
CFR part 655, subpart B, and this part.
WHD Administrator. The primary
official of the WHD, or the WHD
Administrator’s designee.
Work contract. All the material terms
and conditions of employment relating
to wages, hours, working conditions,
and other benefits, including those
required by 8 U.S.C. 1188, 20 CFR part
655, subpart B, or this part. The contract
between the employer and the worker
may be in the form of a separate written
document. In the absence of a separate
written work contract incorporating the
required terms and conditions of
employment, agreed to by both the
employer and the worker, the work
contract at a minimum will be the terms
and conditions of the job order and any
obligations required under 8 U.S.C.
1188, 20 CFR part 655, subpart B, or this
part.
(b) Definition of agricultural labor or
services. For the purposes of this part,
agricultural labor or services, pursuant
to 8 U.S.C. 1101(a)(15)(H)(ii)(a), is
defined as: Agricultural labor as defined
and applied in section 3121(g) of the
Internal Revenue Code of 1986 at 26
U.S.C. 3121(g); agriculture as defined
and applied in section 3(f) of the Fair
Labor Standards Act of 1938, as
amended (FLSA) at 29 U.S.C. 203(f); the
pressing of apples for cider on a farm;
logging employment; reforestation
activities; or pine straw activities. An
occupation included in either statutory
definition is agricultural labor or
services, notwithstanding the exclusion
of that occupation from the other
statutory definition. For informational
purposes, the statutory provisions are
listed in paragraphs (b)(1) through (6) of
this section.
(1) Agricultural labor. (i) For the
purpose of paragraph (b) of this section,
agricultural labor means all service
performed:
(A) On a farm, in the employ of any
person, in connection with cultivating
the soil, or in connection with raising or
harvesting any agricultural or
horticultural commodity, including the
raising, shearing, feeding, caring for,
training, and management of livestock,
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bees, poultry, and fur-bearing animals
and wildlife;
(B) In the employ of the owner or
tenant or other operator of a farm, in
connection with the operation,
management, conservation,
improvement, or maintenance of such
farm and its tools and equipment, or in
salvaging timber or clearing land of
brush and other debris left by a
hurricane, if the major part of such
service is performed on a farm;
(C) In connection with the production
or harvesting of any commodity defined
as an agricultural commodity in section
15(g) of the Agricultural Marketing Act,
as amended, 12 U.S.C. 1141j, or in
connection with the ginning of cotton,
or in connection with the operation or
maintenance of ditches, canals,
reservoirs, or waterways, not owned or
operated for profit, used exclusively for
supplying and storing water for farming
purposes;
(D) In the employ of the operator of
a farm in handling, planting, drying,
packing, packaging, processing,
freezing, grading, storing, or delivering
to storage or to market or to a carrier for
transportation to market, in its
unmanufactured state, any agricultural
or horticultural commodity; but only if
such operator produced more than onehalf of the commodity with respect to
which such service is performed;
(E) In the employ of a group of
operators of farms (other than a
cooperative organization) in the
performance of service described in
paragraph (b)(1)(i)(D) of this section but
only if such operators produced all of
the commodity with respect to which
such service is performed. For purposes
of this paragraph, any unincorporated
group of operators shall be deemed a
cooperative organization if the number
of operators comprising such group is
more than 20 at any time during the
calendar year in which such service is
performed;
(F) The provisions of paragraphs
(b)(1)(i)(D) and (E) of this section shall
not be deemed to be applicable with
respect to service performed in
connection with commercial canning or
commercial freezing or in connection
with any agricultural or horticultural
commodity after its delivery to a
terminal market for distribution for
consumption; or
(G) On a farm operated for profit if
such service is not in the course of the
employer’s trade or business or is
domestic service in a private home of
the employer.
(ii) As used in this section, the term
‘‘farm’’ includes stock, dairy, poultry,
fruit, fur-bearing animal, and truck
farms, plantations, ranches, nurseries,
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ranges, greenhouses, or other similar
structures used primarily for the raising
of agricultural or horticultural
commodities, and orchards.
(2) Agriculture. For purposes of
paragraph (b) of this section, agriculture
means farming in all its branches and
among other things includes the
cultivation and tillage of the soil,
dairying, the production, cultivation,
growing, and harvesting of any
agricultural or horticultural
commodities (including commodities
defined as agricultural commodities in
12 U.S.C. 1141j(g), the raising of
livestock, bees, fur-bearing animals, or
poultry, and any practices (including
any forestry or lumbering operations)
performed by a farmer or on a farm as
an incident to or in conjunction with
such farming operations, including
preparation for market, delivery to
storage or to market or to carriers for
transportation to market. See 29 U.S.C.
203(f), as amended. Under 12 U.S.C.
1141j(g), agricultural commodities
include, in addition to other agricultural
commodities, crude gum (oleoresin)
from a living tree, and the following
products as processed by the original
producer of the crude gum (oleoresin)
from which derived: Gum spirits of
turpentine and gum rosin. In addition,
as defined in 7 U.S.C. 92, gum spirits of
turpentine means spirits of turpentine
made from gum (oleoresin) from a living
tree and gum rosin means rosin
remaining after the distillation of gum
spirits of turpentine.
(3) Apple pressing for cider. The
pressing of apples for cider on a farm,
as the term farm is defined and applied
in section 3121(g) of the Internal
Revenue Code at 26 U.S.C. 3121(g), or
as applied in section 3(f) of the FLSA at
29 U.S.C. 203(f), pursuant to 29 CFR
part 780, is agricultural labor or services
for purposes of paragraph (b) of this
section.
(4) Logging employment. Operations
associated with felling and moving trees
and logs from the stump to the point of
delivery, such as, but not limited to,
marking danger trees, marking trees or
logs to be cut to length, felling, limbing,
bucking, debarking, chipping, yarding,
loading, unloading, storing, and
transporting machines, equipment and
personnel to, from, and between logging
sites, is agricultural labor or services for
purposes of paragraph (b) of this
section.
(5) Reforestation activities.
Reforestation activities are
predominantly manual forestry
operations associated with developing,
maintaining, or protecting forested
areas, including, but not limited to,
planting tree seedlings in specified
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patterns using manual tools; and felling,
pruning, pre-commercial thinning, and
removing trees and brush from forested
areas. Reforestation activities may
include some forest fire prevention or
suppression duties, such as constructing
fire breaks or performing prescribed
burning tasks, when such duties are in
connection with and incidental to other
reforestation activities. Reforestation
activities do not include vegetation
management activities in and around
utility, highway, railroad, or other
rights-of-way.
(6) Pine straw activities. Operations
associated with clearing the ground of
underlying vegetation, pine cones, and
debris; and raking, lifting, gathering,
harvesting, baling, grading, and loading
of pine straw for transport from pine
forests, woodlands, pine stands, or
plantations, is agricultural labor or
services for purposes of paragraph (b) of
this section.
(c) Definition of a temporary or
seasonal nature. For the purposes of
this subpart, employment is of a
seasonal nature where it is tied to a
certain time of year by an event or
pattern, such as a short annual growing
cycle or a specific aspect of a longer
cycle, and requires labor levels far above
those necessary for ongoing operations.
Employment is of a temporary nature
where the employer’s need to fill the
position with a temporary worker will,
except in extraordinary circumstances,
last no longer than 1 year.
§ 501.4
Discrimination prohibited.
(a) A person may not intimidate,
threaten, restrain, coerce, blacklist,
discharge, or in any manner
discriminate against any person who
has:
(1) Filed a complaint under or related
to 8 U.S.C. 1188 or this part;
(2) Instituted or caused to be
instituted any proceedings related to 8
U.S.C. 1188, 20 CFR part 655, subpart B,
or this part;
(3) Testified or is about to testify in
any proceeding under or related to 8
U.S.C. 1188, 20 CFR part 655, subpart B,
or this part;
(4) Consulted with an employee of a
legal assistance program or an attorney
on matters related to 8 U.S.C. 1188, 20
CFR part 655, subpart B, or this part; or
(5) Exercised or asserted on behalf of
himself or herself or others any right or
protection afforded by 8 U.S.C. 1188, 20
CFR part 655, subpart B, or this part.
(b) Allegations of discrimination
against any person under paragraph (a)
of this section will be investigated by
WHD. Where WHD has determined
through investigation that such
allegations have been substantiated,
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appropriate remedies may be sought.
WHD may assess civil money penalties,
seek injunctive relief, and/or seek
additional remedies necessary to make
the worker whole as a result of the
discrimination, as appropriate, initiate
debarment proceedings, and
recommend to OFLC revocation of any
such violator’s current temporary
agricultural labor certification.
Complaints alleging discrimination
against workers or immigrants based on
citizenship or immigration status may
also be forwarded by WHD to the
Department of Justice, Civil Rights
Division, Immigrant and Employee
Rights Section.
§ 501.5
Waiver of rights prohibited.
A person may not seek to have an H–
2A worker, a worker in corresponding
employment, or a U.S. worker
improperly rejected for employment or
improperly laid off or displaced waive
any rights conferred under 8 U.S.C.
1188, 20 CFR part 655, subpart B, or this
part. Any agreement by a worker
purporting to waive or modify any
rights given to said person under these
provisions shall be void as contrary to
public policy except as follows:
(a) Waivers or modifications of rights
or obligations hereunder in favor of the
Secretary shall be valid for purposes of
enforcement; and
(b) Agreements in settlement of
private litigation are permitted.
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§ 501.6 Investigation authority of the
Secretary.
(a) General. The Secretary, through
WHD, may investigate to determine
compliance with obligations under 8
U.S.C. 1188, 20 CFR part 655, subpart B,
or this part, either pursuant to a
complaint or otherwise, as may be
appropriate. In connection with such an
investigation, WHD may enter and
inspect any premises, land, property,
housing, vehicles, and records (and
make transcriptions thereof), question
any person, and gather any information
as may be appropriate.
(b) Confidential investigation. WHD
shall conduct investigations in a manner
that protects the confidentiality of any
complainant or other person who
provides information to the Secretary in
good faith.
(c) Report of violations. Any person
may report a violation of the obligations
imposed by 8 U.S.C. 1188, 20 CFR part
655, subpart B, or this part to the
Secretary by advising any local office of
the SWA, ETA, WHD, or any other
authorized representative of the
Secretary. The office or person receiving
such a report shall refer it to the
appropriate office of WHD for the
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geographic area in which the reported
violation is alleged to have occurred.
§ 501.7
Cooperation with Federal officials.
All persons must cooperate with any
Federal officials assigned to perform an
investigation, inspection, or law
enforcement function pursuant to 8
U.S.C. 1188 and this part during the
performance of such duties. WHD will
take such action as it deems
appropriate, including initiating
debarment proceedings, seeking an
injunction to bar any failure to
cooperate with an investigation, and/or
assessing a civil money penalty therefor.
In addition, WHD will report the matter
to OFLC, and may recommend to OFLC
that the person’s existing temporary
agricultural labor certification be
revoked. In addition, Federal statutes
prohibiting persons from interfering
with a Federal officer in the course of
official duties are found at 18 U.S.C. 111
and 18 U.S.C. 114.
§ 501.8 Accuracy of information,
statements, and data.
Information, statements, and data
submitted in compliance with 8 U.S.C.
1188 or this part are subject to 18 U.S.C.
1001, which provides, with regard to
statements or entries generally, that
whoever, in any matter within the
jurisdiction of any department or agency
of the United States, knowingly and
willfully falsifies, conceals, or covers up
a material fact by any trick, scheme, or
device, or makes any false, fictitious, or
fraudulent statements or
representations, or makes or uses any
false writing or document knowing the
same to contain any false, fictitious, or
fraudulent statement or entry, shall be
fined not more than $10,000 or
imprisoned not more than 5 years, or
both.
§ 501.9
Enforcement of surety bond.
Every H–2A labor contractor (H–
2ALC) must obtain a surety bond
demonstrating its ability to discharge
financial obligations as set forth in 20
CFR 655.132(c).
(a) Notwithstanding the required bond
amounts set forth in 20 CFR 655.132(c),
the WHD Administrator may require
that an H–2ALC obtain a bond with a
higher face value amount after notice
and opportunity for hearing when it is
shown based on objective criteria that
the amount of the bond is insufficient to
meet potential liabilities.
(b) Upon a final decision reached
pursuant to the administrative
proceedings of subpart C of this part,
including any timely appeal, or
resulting from an enforcement action
brought directly in a District Court of
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the United States finding a violation or
violations of 20 CFR part 655, subpart
B, or this part, the WHD Administrator
may make a written demand on the
surety for payment of any wages and
benefits, including the assessment of
interest, owed to an H–2A worker, a
worker engaged in corresponding
employment, or a U.S. worker
improperly rejected or improperly laid
off or displaced. The WHD
Administrator shall have 3 years from
the expiration of the certification,
including any extension thereof, to
make such written demand for payment
on the surety. This 3-year period for
making a demand on the surety is tolled
by commencement of any enforcement
action of the WHD Administrator
pursuant to § 501.6, § 501.15, or § 501.16
or the commencement of any
enforcement action in a District Court of
the United States.
Subpart B—Enforcement
§ 501.15
Enforcement.
The investigation, inspection, and law
enforcement functions to carry out the
provisions of 8 U.S.C. 1188, 20 CFR part
655, subpart B, or this part, as provided
in this part for enforcement by WHD,
pertain to the employment of any H–2A
worker, any worker in corresponding
employment, or any U.S. worker
improperly rejected for employment or
improperly laid off or displaced. Such
enforcement includes the work contract
provisions as defined in § 501.3(a).
§ 501.16 Sanctions and remedies—
general.
Whenever the WHD Administrator
believes that 8 U.S.C. 1188, 20 CFR part
655, subpart B, or this part have been
violated, such action shall be taken and
such proceedings instituted as deemed
appropriate, including, but not limited
to, the following:
(a)(1) Institute appropriate
administrative proceedings, including:
The recovery of unpaid wages
(including recovery of recruitment fees
paid in the absence of required contract
clauses (see 20 CFR 655.135(k)); the
enforcement of provisions of the work
contract, 8 U.S.C. 1188, 20 CFR part
655, subpart B, or this part; the
assessment of a civil money penalty;
make whole relief for any person who
has been discriminated against;
reinstatement and make whole relief for
any U.S. worker who has been
improperly rejected for employment, or
improperly laid off or displaced; or
debarment for up to 3 years.
(2) The remedies referenced in
paragraph (a)(1) of this section will be
sought either directly from the
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employer, agent, or attorney, or from its
successor in interest, as appropriate. In
the case of an H–2ALC, the remedies
will be sought from the H–2ALC
directly and/or monetary relief (other
than civil money penalties) from the
insurer who issued the surety bond to
the H–2ALC, as required by 20 CFR part
655, subpart B, and § 501.9.
(b) Petition any appropriate District
Court of the United States for temporary
or permanent injunctive relief,
including to prohibit the withholding of
unpaid wages and/or for reinstatement,
or to restrain violation of 8 U.S.C. 1188,
20 CFR part 655, subpart B, or this part,
by any person.
(c) Petition any appropriate District
Court of the United States for an order
directing specific performance of
covered contractual obligations.
§ 501.17
Concurrent actions.
OFLC has primary responsibility to
make all determinations regarding the
issuance, denial, or revocation of a labor
certification as described in 20 CFR part
655, subpart B, and § 501.1(b) . WHD
has primary responsibility to make all
determinations regarding the
enforcement functions as described in
§ 501.1(c). The taking of any one of the
actions referred to above shall not be a
bar to the concurrent taking of any other
action authorized by 8 U.S.C. 1188, 20
CFR part 655, subpart B, or this part.
OFLC and WHD have concurrent
jurisdiction to impose a debarment
remedy pursuant to 20 CFR 655.182 and
§ 501.20.
§ 501.18
Representation of the Secretary.
The Solicitor of Labor, through
authorized representatives, shall
represent the WHD Administrator and
the Secretary in all administrative
hearings under 8 U.S.C. 1188 and this
part.
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§ 501.19
Civil money penalty assessment.
(a) A civil money penalty may be
assessed by the WHD Administrator for
each violation of the work contract, or
the obligations imposed by 8 U.S.C.
1188, 20 CFR part 655, subpart B, or this
part. Each failure to pay an individual
worker properly or to honor the terms
or conditions of a worker’s employment
required by 8 U.S.C. 1188, 20 CFR part
655, subpart B, or this part constitutes
a separate violation.
(b) In determining the amount of
penalty to be assessed for each
violation, the WHD Administrator shall
consider the type of violation
committed and other relevant factors.
The factors that the WHD Administrator
may consider include, but are not
limited to, the following:
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(1) Previous history of violation(s) of
8 U.S.C. 1188, 20 CFR part 655, subpart
B, or this part;
(2) The number of H–2A workers,
workers in corresponding employment,
or U.S. workers who were and/or are
affected by the violation(s);
(3) The gravity of the violation(s);
(4) Efforts made in good faith to
comply with 8 U.S.C. 1188, 20 CFR part
655, subpart B, and this part;
(5) Explanation from the person
charged with the violation(s);
(6) Commitment to future compliance,
taking into account the public health,
interest, or safety, and whether the
person has previously violated 8 U.S.C.
1188; and
(7) The extent to which the violator
achieved a financial gain due to the
violation(s), or the potential financial
loss or potential injury to the worker(s).
(c) A civil money penalty for each
violation of the work contract or a
requirement of 8 U.S.C. 1188, 20 CFR
part 655, subpart B, or this part will not
exceed $1,692 per violation, with the
following exceptions:
(1) A civil money penalty for each
willful violation of the work contract or
a requirement of 8 U.S.C. 1188, 20 CFR
part 655, subpart B, or this part, or for
each act of discrimination prohibited by
§ 501.4 shall not exceed $5,695.
(2) A civil money penalty for a
violation of a housing or transportation
safety and health provision of the work
contract, or any obligation under 8
U.S.C. 1188, 20 CFR part 655, subpart B,
or this part, that proximately causes the
death or serious injury of any worker
shall not exceed $56,391 per worker.
(3) For purposes of paragraphs (c)(2)
and (4) this section, the term serious
injury includes, but is not limited to:
(i) Permanent loss or substantial
impairment of one of the senses (sight,
hearing, taste, smell, tactile sensation);
(ii) Permanent loss or substantial
impairment of the function of a bodily
member, organ or mental faculty,
including the loss of all or part of an
arm, leg, foot, hand, or other body part;
or
(iii) Permanent paralysis or
substantial impairment that causes loss
of movement or mobility of an arm, leg,
foot, hand, or other body part.
(4) A civil money penalty for a repeat
or willful violation of a housing or
transportation safety and health
provision of the work contract, or any
obligation under 8 U.S.C. 1188, 20 CFR
part 655, subpart B, or this part, that
proximately causes the death or serious
injury of any worker, shall not exceed
$112,780 per worker.
(d) A civil money penalty for failure
to cooperate with a WHD investigation
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shall not exceed $5,695 per
investigation.
(e) A civil money penalty for laying
off or displacing any U.S. worker
employed in work or activities that are
encompassed by the approved
Application for Temporary Employment
Certification for H–2A workers in the
area of intended employment either
within 60 calendar days preceding the
first date of need or during the validity
period of the job order, including any
approved extension thereof, other than
for a lawful, job-related reason, shall not
exceed $16,917 per violation per
worker.
(f) A civil money penalty for
improperly rejecting a U.S. worker who
is an applicant for employment, in
violation of 8 U.S.C. 1188, 20 CFR part
655, subpart B, or this part, shall not
exceed $16,917 per violation per
worker.
§ 501.20
Debarment and revocation.
(a) Debarment of an employer, agent,
or attorney. The WHD Administrator
may debar an employer, agent, or
attorney, or any successor in interest to
that employer, agent, or attorney from
participating in any action under 8
U.S.C. 1188, 20 CFR part 655, subpart B,
or this part, subject to the time limits set
forth in paragraph (c) of this section, if
the WHD Administrator finds that the
employer, agent, or attorney
substantially violated a material term or
condition of the temporary agricultural
labor certification, with respect to H–2A
workers, workers in corresponding
employment, or U.S. workers
improperly rejected for employment, or
improperly laid off or displaced, by
issuing a Notice of Debarment.
(b) Effect on future applications. No
application for H–2A workers may be
filed by a debarred employer, or any
successor in interest to a debarred
employer, or by an employer
represented by a debarred agent or
attorney, or by any successor in interest
to any debarred agent or attorney,
subject to the time limits set forth in
paragraph (c) of this section. If such an
application is filed, it will be denied
without review.
(c) Statute of limitations and period of
debarment. (1) The WHD Administrator
must issue any Notice of Debarment not
later than 2 years after the occurrence of
the violation.
(2) No employer, agent, or attorney, or
their successors in interest, may be
debarred under this part for more than
3 years from the date of the final agency
decision.
(d) Definition of violation. For the
purposes of this section, a violation
includes:
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(1) One or more acts of commission or
omission on the part of the employer or
the employer’s agent which involve:
(i) Failure to pay or provide the
required wages, benefits, or working
conditions to the employer’s H–2A
workers and/or workers in
corresponding employment;
(ii) Failure, except for lawful, jobrelated reasons, to offer employment to
qualified U.S. workers who applied for
the job opportunity for which
certification was sought;
(iii) Failure to comply with the
employer’s obligations to recruit U.S.
workers;
(iv) Improper layoff or displacement
of U.S. workers or workers in
corresponding employment;
(v) Failure to comply with one or
more sanctions or remedies imposed by
the WHD Administrator for violation(s)
of contractual or other H–2A
obligations, or with one or more
decisions or orders of the Secretary or
a court under 8 U.S.C. 1188, 20 CFR part
655, subpart B, or this part;
(vi) Impeding an investigation of an
employer under 8 U.S.C. 1188 or this
part, or an audit under 20 CFR part 655,
subpart B;
(vii) Employing an H–2A worker
outside the area of intended
employment, or in an activity/activities
not listed in the job order or outside the
validity period of employment of the job
order, including any approved
extension thereof;
(viii) A violation of the requirements
of 20 CFR 655.135(j) or (k);
(ix) A violation of any of the
provisions listed in § 501.4(a); or
(x) A single heinous act showing such
flagrant disregard for the law that future
compliance with program requirements
cannot reasonably be expected.
(2) In determining whether a violation
is so substantial as to merit debarment,
the factors set forth in § 501.19(b) shall
be considered.
(e) Procedural requirements. The
Notice of Debarment must be in writing,
must state the reason for the debarment
finding, including a detailed
explanation of the grounds for and the
duration of the debarment, must
identify appeal opportunities under
§ 501.33 and a timeframe under which
such rights must be exercised and must
comply with § 501.32. The debarment
will take effect 30 calendar days from
the date the Notice of Debarment is
issued, unless a request for review is
properly filed within 30 calendar days
from the issuance of the Notice of
Debarment. The timely filing of an
administrative appeal stays the
debarment pending the outcome of the
appeal as provided in § 501.33(d).
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(f) Debarment involving members of
agricultural associations. If, after
investigation, the WHD Administrator
determines that an individual employermember of an agricultural association
has committed a substantial violation,
the debarment determination will apply
only to that member unless the WHD
Administrator determines that the
agricultural association or another
agricultural association member
participated in the violation, in which
case the debarment will be invoked
against the agricultural association or
other complicit agricultural association
member(s) as well.
(g) Debarment involving agricultural
associations acting as sole employers. If,
after investigation, the WHD
Administrator determines that an
agricultural association acting as a sole
employer has committed a substantial
violation, the debarment determination
will apply only to the agricultural
association and any successor in interest
to the debarred agricultural association.
(h) Debarment involving agricultural
associations acting as joint employers.
If, after investigation, the WHD
Administrator determines that an
agricultural association acting as a joint
employer with its members has
committed a substantial violation, the
debarment determination will apply
only to the agricultural association, and
will not be applied to any individual
employer-member of the agricultural
association. However, if the WHD
Administrator determines that the
member participated in, had knowledge
of, or had reason to know of the
violation, the debarment may be
invoked against the complicit
agricultural association member as well.
An agricultural association debarred
from the H–2A temporary labor
certification program will not be
permitted to continue to file as a joint
employer with its members during the
period of the debarment.
(i) Revocation. WHD may recommend
to the OFLC Administrator the
revocation of a temporary agricultural
labor certification if WHD finds that the
employer:
(1) Substantially violated a material
term or condition of the approved
temporary agricultural labor
certification;
(2) Failed to cooperate with a DOL
investigation or with a DOL official
performing an investigation, inspection,
or law enforcement function under 8
U.S.C. 1188, 20 CFR part 655, subpart B,
or this part; or
(3) Failed to comply with one or more
sanctions or remedies imposed by WHD,
or with one or more decisions or orders
of the Secretary or a court order secured
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36299
by the Secretary under 8 U.S.C. 1188, 20
CFR part 655, subpart B, or this part.
§ 501.21 Failure to cooperate with
investigations.
(a) No person shall refuse to cooperate
with any employee of the Secretary who
is exercising or attempting to exercise
this investigative or enforcement
authority.
(b) Where an employer (or employer’s
agent or attorney) does not cooperate
with an investigation concerning the
employment of an H–2A worker, a
worker in corresponding employment,
or a U.S. worker who has been
improperly rejected for employment or
improperly laid off or displaced, WHD
may make such information available to
OFLC and may recommend that OFLC
revoke the existing certification that is
the basis for the employment of the H–
2A workers giving rise to the
investigation. In addition, WHD may
take such action as appropriate,
including initiating proceedings for the
debarment of the employer, agent, or
attorney from future certification for up
to 3 years, seeking an injunction, and/
or assessing civil money penalties
against any person who has failed to
cooperate with a WHD investigation.
The taking of any one action shall not
bar the taking of any additional action.
§ 501.22 Civil money penalties—payment
and collection.
Where a civil money penalty is
assessed in a final order by the WHD
Administrator, an ALJ, or the
Administrative Review Board (ARB), the
amount of the penalty must be received
by the WHD Administrator within 30
calendar days of the date of the final
order. The person assessed such penalty
shall remit the amount ordered to the
WHD Administrator by certified check
or money order, made payable to ‘‘Wage
and Hour Division, United States
Department of Labor.’’ The remittance
shall be delivered or mailed to the WHD
Regional Office for the area in which the
violations occurred.
Subpart C—Administrative
Proceedings
§ 501.30 Applicability of procedures and
rules in this subpart.
The procedures and rules contained
in this subpart prescribe the
administrative process that will be
applied with respect to a determination
to assess civil money penalties, debar,
or increase the amount of a surety bond
and which may be applied to the
enforcement of provisions of the work
contract, or obligations under 8 U.S.C.
1188, 20 CFR part 655, subpart B, or this
part, or to the collection of monetary
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relief due as a result of any violation.
Except with respect to the imposition of
civil money penalties, debarment, or an
increase in the amount of a surety bond,
the Secretary may, in the Secretary’s
discretion, seek enforcement action in a
District Court of the United States
without resort to any administrative
proceedings.
Procedures Relating to Hearing
§ 501.31 Written notice of determination
required.
Whenever the WHD Administrator
decides to assess a civil money penalty,
debar, increase a surety bond, or
proceed administratively to enforce
contractual obligations, or obligations
under 8 U.S.C. 1188, 20 CFR part 655,
subpart B, or this part, including for the
recovery of the monetary relief, the
person against whom such action is
taken shall be notified in writing of such
determination.
§ 501.32
Contents of notice.
The notice required by § 501.31 shall:
(a) Set forth the determination of the
WHD Administrator including the
amount of any monetary relief due or
actions necessary to fulfill a contractual
obligation or obligations under 8 U.S.C.
1188, 20 CFR part 655, subpart B, or this
part; the amount of any civil money
penalty assessment; whether debarment
is sought and if so its term; and any
change in the amount of the surety
bond, and the reason or reasons
therefor.
(b) Set forth the right to request a
hearing on such determination.
(c) Inform any affected person or
persons that in the absence of a timely
request for a hearing, the determination
of the WHD Administrator shall become
final and unappealable.
(d) Set forth the time and method for
requesting a hearing, and the procedures
relating thereto, as set forth in § 501.33.
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§ 501.33
Request for hearing.
(a) Any person desiring review of a
determination referred to in § 501.32,
including judicial review, shall make a
written request for an administrative
hearing to the official who issued the
determination at the WHD address
appearing on the determination notice,
no later than 30 calendar days after the
date of issuance of the notice referred to
in § 501.32.
(b) No particular form is prescribed
for any request for hearing permitted by
this part. However, any such request
shall:
(1) Be typewritten or legibly written;
(2) Specify the issue or issues stated
in the notice of determination giving
rise to such request;
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(3) State the specific reason or reasons
the person requesting the hearing
believes such determination is in error;
(4) Be signed by the person making
the request or by an authorized
representative of such person; and
(5) Include the address at which such
person or authorized representative
desires to receive further
communications relating thereto.
(c) The request for such hearing must
be received by the official who issued
the determination, at the WHD address
appearing on the determination notice,
within the time set forth in paragraph
(a) of this section. Requests may be
made by certified mail or by means
normally assuring overnight delivery.
(d) The determination shall take effect
on the start date identified in the
written notice of determination, unless
an administrative appeal is properly
filed. The timely filing of an
administrative appeal stays the
determination pending the outcome of
the appeal proceedings, provided that
any surety bond remains in effect until
the conclusion of any such proceedings.
Rules of Practice
§ 501.34
General.
(a) Except as specifically provided in
this part, the Rules of Practice and
Procedure for Administrative Hearings
before the Office of Administrative Law
Judges established by the Secretary at 29
CFR part 18 shall apply to
administrative proceedings described in
this part.
(b) As provided in the Administrative
Procedure Act, 5 U.S.C. 556, any oral or
documentary evidence may be received
in proceedings under this part. The
Federal Rules of Evidence and subpart
B of the Rules of Practice and Procedure
for Administrative Hearings before the
Office of Administrative Law Judges (29
CFR part 18, subpart B) will not apply,
but principles designed to ensure
production of relevant and probative
evidence shall guide the admission of
evidence. The ALJ may exclude
evidence that is immaterial, irrelevant,
or unduly repetitive.
§ 501.35
Commencement of proceeding.
Each administrative proceeding
permitted under 8 U.S.C. 1188 and the
regulations in this part shall be
commenced upon receipt of a timely
request for hearing filed in accordance
with § 501.33.
§ 501.36
Caption of proceeding.
(a) Each administrative proceeding
instituted under 8 U.S.C. 1188 and the
regulations in this part shall be
captioned in the name of the person
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requesting such hearing, and shall be
styled as follows:
In the Matter ofllll, Respondent.
(b) For the purposes of such
administrative proceedings, the WHD
Administrator shall be identified as
plaintiff and the person requesting such
hearing shall be named as respondent.
Referral for Hearing
§ 501.37
Judge.
Referral to Administrative Law
(a) Upon receipt of a timely request
for a hearing filed pursuant to and in
accordance with § 501.33, the WHD
Administrator, by the Associate
Solicitor for the Division of Fair Labor
Standards or the Regional Solicitor for
the Region in which the action arose,
will, by Order of Reference, promptly
refer a copy of the notice of
administrative determination
complained of, and the original or a
duplicate copy of the request for hearing
signed by the person requesting such
hearing or the authorized representative
of such person, to the Chief ALJ, for a
determination in an administrative
proceeding as provided herein. The
notice of administrative determination
and request for hearing shall be filed of
record in the Office of the Chief
Administrative Law Judge and shall,
respectively, be given the effect of a
complaint and answer thereto for
purposes of the administrative
proceeding, subject to any amendment
that may be permitted under 29 CFR
part 18 or this part.
(b) A copy of the Order of Reference,
together with a copy of this part, shall
be served by counsel for the WHD
Administrator upon the person
requesting the hearing, in the manner
provided in 29 CFR 18.3.
§ 501.38
Notice of docketing.
Upon receipt of an Order of
Reference, the Chief ALJ shall appoint
an ALJ to hear the case. The ALJ shall
promptly notify all interested parties of
the docketing of the matter and shall set
the time and place of the hearing. The
date of the hearing shall be not more
than 60 calendar days from the date on
which the Order of Reference was filed.
§ 501.39 Service upon attorneys for the
Department of Labor—number of copies.
Two copies of all pleadings and other
documents required for any
administrative proceeding provided
herein shall be served on the attorneys
for DOL. One copy shall be served on
the Associate Solicitor, Division of Fair
Labor Standards, Office of the Solicitor,
U.S. Department of Labor, 200
Constitution Avenue NW, Washington,
DC 20210, and one copy on the attorney
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representing the Department in the
proceeding.
decision based upon the agreed
findings.
same shall be served upon the ALJ and
upon all parties to the proceeding.
Procedures Before Administrative Law
Judge
Post-Hearing Procedures
§ 501.43 Responsibility of the Office of
Administrative Law Judges.
§ 501.40
Consent findings and order.
(a) General. At any time after the
commencement of a proceeding under
this part, but prior to the reception of
evidence in any such proceeding, a
party may move to defer the receipt of
any evidence for a reasonable time to
permit negotiation of an agreement
containing consent findings and an
order disposing of the whole or any part
of the proceeding. The allowance of
such deferment and the duration thereof
shall be at the discretion of the ALJ,
after consideration of the nature of the
proceeding, the requirements of the
public interest, the representations of
the parties, and the probability of an
agreement being reached which will
result in a just disposition of the issues
involved.
(b) Content. Any agreement
containing consent findings and an
order disposing of a proceeding or any
part thereof shall also provide:
(1) That the order shall have the same
force and effect as an order made after
full hearing;
(2) That the entire record on which
any order may be based shall consist
solely of the notice of administrative
determination (or amended notice, if
one is filed), and the agreement;
(3) A waiver of any further procedural
steps before the ALJ; and
(4) A waiver of any right to challenge
or contest the validity of the findings
and order entered into in accordance
with the agreement.
(c) Submission. On or before the
expiration of the time granted for
negotiations, the parties or their
authorized representatives or their
counsel may:
(1) Submit the proposed agreement for
consideration by the ALJ; or
(2) Inform the ALJ that agreement
cannot be reached.
(d) Disposition. In the event an
agreement containing consent findings
and an order is submitted within the
time allowed therefor, the ALJ, within
30 calendar days thereafter, shall, if
satisfied with its form and substance,
accept such agreement by issuing a
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§ 501.41 Decision and order of
Administrative Law Judge.
(a) The ALJ will prepare, within 60
calendar days after completion of the
hearing and closing of the record, a
decision on the issues referred by the
WHD Administrator.
(b) The decision of the ALJ shall
include a statement of the findings and
conclusions, with reasons and basis
therefor, upon each material issue
presented on the record. The decision
shall also include an appropriate order
which may affirm, deny, reverse, or
modify, in whole or in part, the
determination of the WHD
Administrator. The reason or reasons for
such order shall be stated in the
decision.
(c) The decision shall be served on all
parties and the ARB.
(d) The decision concerning civil
money penalties, debarment, monetary
relief, and/or enforcement of other
contractual obligations under 8 U.S.C.
1188, 20 CFR part 655, subpart B, and/
or this part, when served by the ALJ
shall constitute the final agency order
unless the ARB, as provided for in
§ 501.42, determines to review the
decision.
Review of Administrative Law Judge’s
Decision
§ 501.42 Procedures for initiating and
undertaking review.
(a) A respondent, WHD, or any other
party wishing review, including judicial
review, of the decision of an ALJ must,
within 30 calendar days of the decision
of the ALJ, petition the ARB to review
the decision. Copies of the petition must
be served on all parties and on the ALJ.
If the ARB does not issue a notice
accepting a petition for review of the
decision within 30 calendar days after
receipt of a timely filing of the petition,
or within 30 calendar days of the date
of the decision if no petition has been
received, the decision of the ALJ will be
deemed the final agency action.
(b) Whenever the ARB, either on the
ARB’s own motion or by acceptance of
a party’s petition, determines to review
the decision of an ALJ, a notice of the
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Upon receipt of the ARB’s notice to
accept the petition, the OALJ will
promptly forward a copy of the
complete hearing record to the ARB.
§ 501.44 Additional information, if
required.
Where the ARB has determined to
review such decision and order, the
ARB will notify each party of:
(a) The issue or issues raised;
(b) The form in which submissions
must be made (e.g., briefs or oral
argument); and
(c) The time within which such
presentation must be submitted.
§ 501.45 Final decision of the
Administrative Review Board.
The ARB’s final decision must be
issued within 90 calendar days from the
notice granting the petition and served
upon all parties and the ALJ.
Record
§ 501.46
Retention of official record.
The official record of every completed
administrative hearing provided by the
regulations in this part shall be
maintained and filed under the custody
and control of the Chief ALJ, or, where
the case has been the subject of
administrative review, the ARB.
§ 501.47
Certification.
Upon receipt of a complaint seeking
review of a decision issued pursuant to
this part filed in a District Court of the
United States, after the administrative
remedies have been exhausted, the
Chief ALJ or, where the case has been
the subject of administrative review, the
ARB shall promptly index, certify, and
file with the appropriate District Court
of the United States, a full, true, and
correct copy of the entire record,
including the transcript of proceedings.
Molly E. Conway,
Acting Assistant Secretary for Employment
and Training, Labor.
[FR Doc. 2019–15307 Filed 7–19–19; 8:45 am]
BILLING CODE P
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[Federal Register Volume 84, Number 144 (Friday, July 26, 2019)]
[Proposed Rules]
[Pages 36168-36301]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15307]
[[Page 36167]]
Vol. 84
Friday,
No. 144
July 26, 2019
Part II
Department of Labor
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Employment and Training Administration
Wage and Hour Division
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20 CFR Parts 653 and 655
29 CFR Part 501
Temporary Agricultural Employment of H-2A Nonimmigrants in the United
States; Proposed Rules
Federal Register / Vol. 84 , No. 144 / Friday, July 26, 2019 /
Proposed Rules
[[Page 36168]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 653 and 655
Wage and Hour Division
29 CFR Part 501
[DOL Docket No. ETA-2019-0007]
RIN 1205-AB89
Temporary Agricultural Employment of H-2A Nonimmigrants in the
United States
AGENCY: Employment and Training Administration and Wage and Hour
Division, Department of Labor.
ACTION: Proposed rule; request for comments.
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SUMMARY: The Department of Labor (Department or DOL) proposes to amend
its regulations regarding the certification of temporary employment of
nonimmigrant workers employed in temporary or seasonal agricultural
employment and the enforcement of the contractual obligations
applicable to employers of such nonimmigrant workers. This notice of
proposed rulemaking (NPRM or proposed rule) streamlines the process by
which the Department reviews employers' applications for temporary
agricultural labor certifications to use in petitioning the Department
of Homeland Security (DHS) to employ a nonimmigrant worker in H-2A
status. Amendments to the current regulations focus on modernizing the
H-2A program and eliminating inefficiencies. The Department also
proposes to amend the regulations for enforcement of contractual
obligations for temporary foreign agricultural workers and the Wagner-
Peyser Act regulations to provide consistency with revisions to H-2A
program regulations governing the temporary agricultural labor
certification process.
DATES: Interested persons are invited to submit written comments on the
proposed rule on or before September 24, 2019.
ADDRESSES: You may submit comments, identified by Regulatory
Information Number (RIN) 1205-AB89, by any one of the following
methods:
Electronic Comments: Comments may be sent via https://www.regulations.gov, a Federal E-Government website that allows the
public to find, review, and submit comments on documents that agencies
have published in the Federal Register and that are open for comment.
Simply type in `1205-AB89' (in quotes) in the Comment or Submission
search box, click Go, and follow the instructions for submitting
comments.
Mail: Address written submissions to (including disk and CD-ROM
submissions) to Adele Gagliardi, Administrator, Office of Policy
Development and Research, Employment and Training Administration, U.S.
Department of Labor, 200 Constitution Avenue NW, Room N-5641,
Washington, DC 20210.
Instructions: Please submit only one copy of your comments by only
one method. All submissions must include the agency's name and the RIN
1205-AB89. Please be advised that comments received will become a
matter of public record and will be posted without change to https://www.regulations.gov, including any personal information provided.
Comments that are mailed must be received by the date indicated for
consideration.
Docket: For access to the docket to read background documents or
comments, go to the Federal e-Rulemaking Portal at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For further information regarding 20
CFR part 653, contact Thomas M. Dowd, Deputy Assistant Secretary,
Employment and Training Administration, Department of Labor, Box #12-
200, 200 Constitution Avenue NW, Washington, DC 20210, telephone: (202)
513-7350 (this is not a toll-free number). Individuals with hearing or
speech impairments may access the telephone numbers above via TTY/TDD
by calling the toll-free Federal Information Relay Service at 1 (877)
889-5627.
For further information regarding 20 CFR part 655, contact Thomas
M. Dowd, Deputy Assistant Secretary, Employment and Training
Administration, Department of Labor, Box #12-200, 200 Constitution
Avenue NW, Washington, DC 20210, telephone: (202) 513-7350 (this is not
a toll-free number). Individuals with hearing or speech impairments may
access the telephone numbers above via TTY/TDD by calling the toll-free
Federal Information Relay Service at 1 (877) 889-5627.
For further information regarding 29 CFR part 501, contact Amy
DeBisschop, Acting Director of the Division of Regulations,
Legislation, and Interpretation, Wage and Hour Division, Department of
Labor, Room S-3502, 200 Constitution Avenue NW, Washington, DC 20210,
telephone: (202) 693-0578 (this is not a toll-free number). Individuals
with hearing or speech impairments may access the telephone number
above via TTY/TDD by calling the toll-free Federal Information Relay
Service at 1 (877) 889-5627.
SUPPLEMENTARY INFORMATION:
I. Revisions to 20 CFR Part 655, Subpart B
A. Statutory Framework
The H-2A nonimmigrant worker visa program enables United States
agricultural employers to employ foreign workers on a temporary basis
to perform temporary or seasonal agricultural labor or services where
the Secretary of Labor (Secretary) certifies that (1) there are not
sufficient U.S. workers who are able, willing, and qualified, and who
will be available at the time and place needed to perform the labor or
services involved in the petition; and (2) the employment of the aliens
in such labor or services will not adversely affect the wages and
working conditions of workers in the United States similarly employed.
See section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act
(INA or the Act), as amended by the Immigration Reform and Control Act
of 1986 (IRCA), 8 U.S.C. 1101(a)(15)(H)(ii)(a); section 218(a)(1) of
the INA, 8 U.S.C. 1188(a)(1). The Secretary has delegated his authority
to issue temporary agricultural labor certifications to the Assistant
Secretary, Employment and Training Administration (ETA), who in turn
has delegated that authority to ETA's Office of Foreign Labor
Certification (OFLC). Secretary's Order 06-2010 (Oct. 20, 2010). In
addition, the Secretary has delegated to the Department's Wage and Hour
Division (WHD) the responsibility under section 218(g)(2) of the INA, 8
U.S.C. 1188(g)(2), to assure employer compliance with the terms and
conditions of employment under the H-2A program. Secretary's Order 01-
2014 (Dec. 19, 2014).
B. Current Regulatory Framework
Since 1987, the Department has operated the H-2A temporary labor
certification program under regulations promulgated pursuant to the
INA. The Department's current regulations governing the H-2A program
were published in 2010.\1\ The standards and procedures applicable to
the certification and employment of workers under the H-2A program are
found in 20 CFR part 655 and 29 CFR part 501. In addition, the
Department has issued special procedures for the
[[Page 36169]]
employment of foreign workers in the herding and production of
livestock on the range as well as animal shearing, commercial
beekeeping, and custom combining occupations.\2\ The Department
incorporated the provisions for employment of workers in the herding
and production of livestock on the range into the regulation, with
modifications, in 2015. Those provisions are now codified at Sec. Sec.
655.200 through 655.235.
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\1\ Final Rule, Temporary Agricultural Employment of H-2A Aliens
in the United States, 75 FR 6884 (Feb. 12, 2010) (2010 Final Rule).
\2\ See TEGL, No. 17-06, Change 1, Special Procedures: Labor
Certification Process for Employers in the Itinerant Animal Shearing
Industry under the H-2A Program (June 14, 2011), accessed at https://wdr.doleta.gov/directives/corr_doc.cfm?docn=3041; TEGL, No. 33-10,
Special Procedures: Labor Certification Process for Itinerant
Commercial Beekeeping Employers in the H-2A Program (June 14, 2011),
accessed at https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3043; TEGL, No. 16-06, Change 1, Special
Procedures: Labor Certification Process for Multi-State Custom
Combine Owners/Operators under the H-2A Program (June 14, 2011),
accessed at https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3040.
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C. Need for New Rulemaking
It is the policy of the Department to increase protections for
workers and vigorously enforce all laws within its jurisdiction
governing the administration and enforcement of nonimmigrant visa
programs. This includes the coordination of the administration and
enforcement activities of ETA, WHD, and the Office of the Solicitor in
the promotion of the hiring of U.S. workers and the safeguarding of
working conditions in the United States. In addition, these agencies
make criminal referrals to the Department's Office of Inspector General
to combat visa-related fraud schemes.\3\
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\3\ See News Release, U.S. Secretary of Labor Protects
Americans, Directs Agencies to Aggressively Confront Visa Program
Fraud and Abuse (June 6, 2017), https://www.dol.gov/newsroom/releases/opa/opa20170606.
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The proposed rule furthers the goals of Executive Order (E.O.)
13788, Buy American and Hire American. See 82 FR 18837 (Apr. 21, 2017).
The E.O. articulates the executive branch policy to ``rigorously
enforce and administer'' the laws governing entry of nonimmigrant
workers into the United States ``[i]n order to create higher wages and
employment rates for workers in the United States, and to protect their
economic interests.'' Id. sec. 2(b). It directs federal agencies,
including the Department, to protect U.S. workers by proposing new
rules and issuing new guidance to prevent fraud and abuse in
nonimmigrant visa programs. Id. sec. 5.
The Department proposes to update its H-2A regulations to ensure
that employers can access legal agricultural labor, without undue cost
or administrative burden, while maintaining the program's strong
protections for the U.S. workforce. The changes proposed in this NPRM
would enhance WHD's enforcement capabilities, thereby removing
workforce instability that hinders the growth and productivity of our
nation's farms, while allowing for aggressive enforcement against
program fraud and abuse that undermine the interests of U.S. workers,
in accordance with E.O. 13771, Reducing Regulation and Controlling
Regulatory Costs. Below is an overview of major proposed changes,
followed by a section-by-section discussion of all proposed changes.
1. Mandatory Electronic Filing and Electronic Signatures
a. Mandatory Electronic Filing
The Department proposes to require electronic filing (e-filing) of
Applications for Temporary Employment Certification and job orders for
most employers and, if applicable, their authorized representatives. E-
filing will be required for the Form ETA-9142A and appropriate
appendices; the Form ETA-790/790A and appropriate addenda; and all
applicable documentation required by this subpart to secure a temporary
agricultural labor certification from the Department, including the
surety bonds required for H-2A Labor Contractors (H-2ALCs). In
addition, the Office of Management and Budget's (OMB) approved forms
will require employers and, if applicable, their authorized
representatives to designate a valid email address for sending and
receiving official correspondence concerning the processing of these e-
filings by the State Workforce Agency (SWA) and National Processing
Center (NPC). The requirement to submit electronic Applications for
Temporary Employment Certification and job orders would not apply in
situations where the employer is unable or limited in its ability to
use or access electronic forms as result of a disability or lacks
access to e-filing.\4\
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\4\ The lack of a computer may or may not constitute lack of
access to e-filing under the proposed regulation. It depends on the
circumstances presented by the employer at the time of filing.
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This proposal is intended to maximize end-to-end electronic
processing of Applications for Temporary Employment Certification and
job orders, which is an important technological objective of the
Department. Although e-filing of applications using OFLC's iCERT Visa
Portal System (iCERT System) is not currently mandated, in the
Department's experience, employers prefer to use e-filing to request
temporary agricultural labor certification in the H-2A program. Based
on temporary agricultural labor certification applications processed
during fiscal years (FYs) 2016 and 2017, more than 81 percent of
employer H-2A applications were submitted electronically to the NPC for
processing using the iCERT System. When compared to paper-filed
applications, preparing H-2A applications and uploading supporting
documentation through the iCERT System resulted in more complete
submissions, better quality entries on form fields, and more
streamlined processing using email as the primary form of communication
with employers and, if applicable, their authorized representatives.\5\
Further, the Department's experience indicates that only a handful of
H-2A employers did not provide an email address on their H-2A
applications.
---------------------------------------------------------------------------
\5\ Based on an analysis of 18,775 temporary labor certification
records processed during FY 2016 and 2017, approximately 66 percent
of H-2A applications mailed to the NPC were issued a Notice of
Deficiency (NOD), while approximately 47 percent of H-2A
applications filed electronically were issued a NOD.
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The Department has determined that mandating e-filing will reduce
costs and burdens for most employers and for the Department, reduce the
frequency of delays related to filing applications, improve the quality
of information collected, and promote administrative efficiency and
accountability. For employers and their authorized representatives, the
Department's proposal to require e-filing would improve the customer
experience by permitting more prompt adjudication of applications and
reducing paperwork burdens and mailing costs. E-filing permits
automatic notification that an application is incomplete or obviously
inaccurate and provides employers with an immediate opportunity to
correct the errors or upload the missing documentation. This approach
reduces processing delays and costs for employers who would otherwise
need to pay for expedited mail or private courier services to submit
corrected applications.
Paper-based submissions are more costly for the Department to
process than electronic submissions because they require manual data
entry of information contained in the required documents and manual
uploading of scanned copies of the documents into the iCERT System's
electronic case documents repository. As noted in a 2012 Government
Accountability Office
[[Page 36170]]
(GAO) report on the H-2A program, paper-based submissions can result in
misplaced or lost documentation, unnecessary communication delays
between employers and the Government, and missed opportunities to
quickly resolve minor deficiencies in the application process.\6\
Electronic submissions, on the other hand, do not require manual data
entry by DOL and can be instantaneously categorized and assigned for
review by the NPC. If an Application for Temporary Employment
Certification filed electronically requires amendments or other
corrections, often those amendments and corrections are automatically
entered into the iCERT System. Furthermore, electronic submissions are
more likely to include all necessary documentation and information
because the Department can require validation of the form entries and
supporting documentation prior to its submission.
---------------------------------------------------------------------------
\6\ See GAO-12-706, H-2A Visa Program: Modernization and
Improved Guidance Could Reduce Employer Application Burden (2012),
U.S. Government Accountability Office.
---------------------------------------------------------------------------
The Department acknowledges that there may be opportunity costs
associated with transitioning to a new way of filing and costs
associated with changing familiar processes and learning new systems.
The Department believes that the efficiencies gained in processing by
the Department from an increase in electronic filing will outweigh
these costs. The Department invites comment on this analysis.
Consistent with its adoption of mandatory e-filing, the Department
plans to expand the capabilities of the iCERT System to permit the
electronic execution and delivery of surety bonds. As explained more
fully in Sec. 655.132, accepting electronic surety bonds would further
streamline the application process and reduce unnecessary delays, while
preserving the Department's ability to enforce such bonds.
The Department anticipates that requiring e-filing will not require
a change of practice for the vast majority of employers. Based on
FY2019 data, approximately 94.1 percent of H-2A applications were filed
electronically. Almost all of the remaining 5.9 percent of H-2A
applications filed by mail also disclosed valid email addresses on the
application form, thereby suggesting that employers and, if applicable,
their authorized attorneys and agents have access to the internet and
are likely capable of filing electronically. Employers without means to
file electronically represent a small percentage of all filers, and the
Department anticipates the very few employers without access to e-
filing will continue to decrease with the growth of information
technology and access to the internet in rural areas. However, the
Department acknowledges that a small number of employers may be unable
to take advantage of the more efficient e-filing process. Therefore,
the proposal permits these employers to file using a paper-based
process if they lack adequate access to e-filing. In addition, the
proposal establishes a process for individuals with disabilities to
request an accommodation to allow these employers to use or access
forms and communications from the Department.
The Department seeks comments on its proposal to require e-filing.
For example, the Department would like to know if there are members of
the regulated community, aside from those already identified in the
proposal, who would be significantly burdened if the Department
requires e-filing. The Department also seeks comments on e-filing
methodology, such as the convenience or inconvenience of e-filing and
other advantages or disadvantages of the e-filing process compared to
other filing processes.
b. Acceptance of Electronic Signatures
The Department proposes to promote greater efficiencies in the
application process and establish parity between paper and electronic
documents by expanding the ability of employers, agents, and attorneys
to use electronic methods to comply with signature requirements for the
H-2A program. As a matter of longstanding policy, the Department
considers an original signature to be legally-binding evidence of the
intention of a person with regard to a document, record, or
transaction. Since the implementation of an e-filing option in December
2012, the Department also has considered a signature valid where the
employer's original signature on a document retained in the employer's
file is photocopied, scanned, or similarly reproduced for electronic
transmission to the Department, whether at the time of filing or during
the course of processing an Application for Temporary Employment
Certification. Although acceptance of electronic (scanned) copies of
original signatures on documents has generated efficiencies in the
application process, modern technologies and evolving business
practices are rendering the distinction between original paper and
electronic signatures nearly obsolete, and the Department and employers
can achieve even greater efficiencies using and accepting electronic
signature methods. For instance, the use of electronic signature
methods is necessary for the Department to implement its proposal to
accept electronic surety bonds.
Under this proposed rule, the Department would permit an employer,
agent, or attorney to sign or certify a document required under this
subpart using a valid electronic signature method. This proposal is
consistent with the principles of two Federal statutes that govern an
agency's implementation of electronic document and signature
requirements. First, the Government Paperwork Elimination Act (GPEA),
Public Law 105.277, Title XVII (Secs. 1701-1710), 112 Stat. 2681-749
(Oct. 21, 1998), 44 U.S.C. 3504 note, requires Federal agencies to
allow individuals or entities that deal with the agencies, when
practicable, the option to submit information or transact with the
agencies electronically and to maintain records electronically. The
GPEA also specifically states that electronic records and their related
electronic signatures are not to be denied legal effect, validity, or
enforceability merely because they are in electronic form, and
encourages Federal Government use of a range of electronic signature
alternatives. See sections 1704, 1707 of the GPEA. Second, the
Electronic Signatures in Global and National Commerce (E-SIGN) Act,
Public Law 106-229, 114 Stat. 464 (June 30, 2000), 15 U.S.C. 7001 et
seq., generally provides that electronic documents have the same legal
effect as their hard copy counterparts.
The GPEA and E-SIGN Act adopt a ``functional equivalence approach''
to electronic signature requirements where the purposes and functions
of the traditional paper-based requirements for a signature must be
considered, and how those purposes and functions can be fulfilled in an
electronic context. The functional equivalence approach rejects the
precept that Federal agency requirements impose on users of electronic
signatures more stringent standards of security than required for
handwritten or other forms of signatures in a paper-based environment.
Consistent with the GPEA, the Department proposes to accept an
electronic signature on H-2A applications as long as it (1) identifies
and authenticates a particular person as the source of the electronic
communication; and (2) indicates such person's approval of the
information contained in the electronic communication.\7\ In addition,
OMB
[[Page 36171]]
guidelines state that a valid and enforceable electronic signature
would require satisfying the following signing requirements: (1) The
signer must use an acceptable electronic form of signature; (2) the
electronic form of signature must be executed or adopted by the signer
with the intent to sign the electronic record; (3) the electronic form
of signature must be attached to or associated with the electronic
record being signed; (4) there must be a means to identify and
authenticate a particular person as the signer; and (5) there must be a
means to preserve the integrity of the signed record.\8\ The Department
will rely on best practices for electronic signature safety, such as
these five signing requirements. Consistent with the GPEA and E-SIGN
Act, the Department proposes to adopt a technology ``neutral'' policy
with respect to the requirements for electronic signature. That is, the
employer, agent, or attorney can apply an electronic signature required
on a document using any available technology that can meet the five
signing requirements.
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\7\ Section 1710(1) of the GPEA. The definition of electronic
signature in the E-SIGN Act essentially is equivalent to the
definition in the GPEA. The E-SIGN Act defines an electronic
signature as ``an electronic sound, symbol, or process, attached to
or logically associated with a contract or other record and executed
or adopted by a person with the intent to sign the record.'' 15
U.S.C. 7006(5).
\8\ Federal Chief Information Council, Use of Electronic
Signatures in Federal Organization Transactions, Version 1.0 (Jan.
25, 2013).
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The Department concludes that these standards for electronic
signature are reasonable and accepted by Federal agencies. Promoting
the use of electronic signatures would enable employers, agents, and
attorneys to reduce printing, paper, and storage costs. For employers
that need to retain and refer to multiple applications for temporary
agricultural labor certification, the time and costs savings can be
considerable. For the Department, implementing electronic signatures
would help reduce operational costs and improve processing efficiency,
including through the acceptance of electronic surety bonds.
2. Revisions to the Adverse Effect Wage Rate and Prevailing Wage
Methodologies
The Department also proposes to adjust the methodology used to
establish the required wage rate for the H-2A program. Section
218(a)(1)(B) of the INA, 8 U.S.C. 1188(a)(1)(B), provides that an H-2A
worker is only admissible if the Secretary determines that ``the
employment of the alien in such labor or services will not adversely
affect the wages and working conditions of workers in the United States
similarly employed.'' In 20 CFR 655.120(a), the Department currently
meets this statutory requirement, in part, by requiring an employer to
offer, advertise in its recruitment, and pay a wage that is the highest
of the adverse effect wage rate (AEWR), the prevailing wage, the
agreed-upon collective bargaining wage, the Federal minimum wage, or
the State minimum wage. The Department proposes to maintain this wage
structure with only minor modifications.
Within this structure, the Department proposes to establish
separate AEWRs by agricultural occupation to better protect against
adverse effect on the wages of similarly employed workers in the United
States. In addition, updates to the prevailing wage methodology would
set more practical standards that would allow the Department to
establish reliable and accurate prevailing wage rates for workers and
employers.
The Department currently sets the AEWR for all H-2A job
opportunities at the annual average hourly gross wage for field and
livestock workers (combined) for the state or region from the Farm
Labor Survey (FLS) conducted by the U.S. Department of Agriculture's
(USDA) National Agricultural Statistics Service (NASS). Using this
methodology, the Department is currently able to establish an AEWR for
every State except for Alaska, which is not covered by the FLS.
The Department proposes to set the AEWR for a particular
agricultural occupation at the annual average hourly gross wage for
that agricultural occupation in the State or region reported by the FLS
when the FLS is able to report such a wage. If the FLS does not report
a wage for an agricultural occupation in a State or region, the
Department proposes to set the AEWR at the statewide annual average
hourly wage for the standard occupational classification (SOC) from the
Occupational Employment Statistics (OES) survey conducted by the
Department's Bureau of Labor Statistics (BLS). This change to an
occupation-based wage is intended to produce more accurate AEWRs than
under the current practice of establishing a single rate for all
agricultural workers in a state or region. The proposal reflects the
Department's concern that the current AEWR methodology may have an
adverse effect on the wages of workers in higher-paid agricultural
occupations, such as supervisors of farmworkers and construction
laborers on farms, whose wages may be inappropriately lowered by an
AEWR established from the wages of field and livestock workers
(combined). This is because the category of field and livestock workers
(combined) from the FLS does not include workers who USDA classifies as
supervisors; ``other workers,'' such as agricultural inspectors, animal
breeders, and pesticide handlers and sprayers; or contract and custom
workers. In addition, the use of generalized data for agricultural
occupations within the field and livestock (combined) classification
could produce a wage rate that is not sufficiently tailored to the wage
necessary to protect against adverse effect for those occupations
because that category aggregates the wages of workers performing
significantly different job duties, such as agricultural equipment
operators and crop laborers.
In addition, the Department proposes to modernize the current
methodology used to conduct prevailing wage surveys, which applies to
both H-2A and other job orders that use the Wagner-Peyser Act
agricultural recruitment system. ETA Handbook 385 (Handbook 385 or the
Handbook),\9\ which pre-dates the creation of the H-2A program and has
not been updated since 1981, currently sets the methodology used to
establish prevailing wage rates for all agricultural job orders. The
Handbook sets standards, including a requirement for in-person
interviews, which are inconsistent with available resources at the
state and federal levels. Due to the difficulty of implementing these
resource-intensive standards, the SWAs are often required to report
``no finding'' from prevailing wage surveys; therefore, the surveys are
both costly and fail to meet the aim of producing reliable prevailing
wage rates. Accordingly, the Department proposes to update the
prevailing wage standards to allow the SWAs and other state agencies to
conduct surveys using more practical standards and establish reliable
and accurate prevailing wage rates for workers and employers.
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\9\ See ETA Handbook No. 385 (Aug. 1981), available at https://www.foreignlaborcert.doleta.gov/pdf/et_385_wage_finding_process.pdf.
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3. Incorporation of Certain Training and Employment Guidance Letters
Into the H-2A Regulatory Structure
Similar to the Department's approach to incorporate the standards
and procedures for sheep herders, goat herders, and the range
production of livestock into regulations promulgated in 2015--and
following the decision of the United States Court of Appeals for the
District of Columbia in Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir.
2014), explained below--the Department now
[[Page 36172]]
proposes to incorporate into the H-2A regulations, with some
modifications, the standards and procedures related to animal shearing,
commercial beekeeping, and custom combining in this NPRM. These
standards and procedures are currently found in Temporary and
Employment Guidance Letters (TEGL). The proposed standards and
procedures, if adopted, would be incorporated at 20 CFR part 655
subpart B, 655.300 through 655.304.
4. The Definition of Agriculture
The Department proposes to expand the definition of ``agriculture''
under the H-2A program to include reforestation and pine straw
activities. As further discussed below, although temporary foreign
workers engaged in reforestation and pine straw activities are
currently admitted under the H-2B program, these workers share many of
the same characteristics as traditional agricultural crews.
5. The 30-Day Rule
The Department proposes to replace the 50 percent rule with a 30-
day rule requiring employers to provide employment to any qualified,
eligible U.S. worker who applies for the job opportunity until 30
calendar days from the employer's first date of need on the certified
Application for Temporary Employment Certification, and a longer
recruitment period for those employers who choose to stagger the entry
of H-2A workers into the United States, as explained below. Under the
current regulation, an employer granted temporary agricultural labor
certification must continue to provide employment to any qualified,
eligible U.S. worker who applies until 50 percent of the period of the
work contract has elapsed. The obligation to hire additional workers
mid-way through a season is disruptive to agricultural operations and
makes it difficult for agricultural employers to be certain they will
have a steady, stable, properly trained, and fully coordinated
workforce. Since the implementation of the current regulation, the
Department has collected a significant amount of data that shows that a
very low number of U.S. workers apply for the job opportunity within 30
days after the start date of work, and even fewer after that.
Section 218(c)(3)(B)(iii) of the INA, 8 U.S.C. 1188(c)(3)(B)(iii),
tasked the Department with determining whether agricultural employers
should be required by regulation to hire U.S. workers after H-2A
workers have already departed for the place of employment. These
provisions suggest that, in making this determination, the Department
should weigh the ``benefits to United States workers and costs to
employers.'' Based on available data, it appears that the costs of the
rule to employers outweigh any benefits the rule may provide to U.S.
workers. Replacing the 50 percent rule with a rule requiring employers
to hire qualified, eligible U.S. worker applicants for a period of 30
days after the employer's first date of need will balance the needs of
workers and employers. Requiring employers to hire workers 30 days into
the contract period, while still disruptive to agricultural operations,
shortens the period during which such disruptions may occur and
restores some stability to employers that depend on the H-2A program.
Providing U.S. workers the ability to apply for these job opportunities
30 days into the contract period ensures that U.S. workers still have
access to these jobs after the start of the contract period during the
period of time they are most likely to apply.
6. Staggered Entry
The Department proposes to permit the staggered entry of H-2A
workers into the United States. Under this proposal, any employer that
receives a temporary agricultural labor certification and an approved
H-2A Petition may bring nonimmigrant workers into the United States at
any time up to 120 days after the first date of need identified on the
certified Application for Temporary Employment Certification without
filing another H-2A Petition. If an employer chooses to stagger the
entry of its workers, it must continue to accept referrals of U.S.
workers and hire those who are qualified and eligible through the
period of staggering or the first 30 days after the first date of need
identified on the certified Application for Temporary Employment
Certification, whichever is longer. This proposal will provide
employers with the flexibility to accommodate changing weather and
production conditions that are inherent to agricultural work. It will
also reduce the need for employers to file multiple Applications for
Temporary Employment Certification for same occupational classification
in which the only difference is the expected start date of work, thus
improving efficiencies for both employers and the Department.
II. Discussion of Proposed Revisions to 20 CFR Part 655, Subpart B; 20
CFR 653.501(c)(2)(i); and 29 CFR Part 501
A. Introductory Sections
1. Section 655.100, Scope and Purpose of Subpart B
The proposed revisions to this section clarify the statutory
authority for the H-2A temporary agricultural labor certification
process, and the scope of the Department's role in receiving,
reviewing, and adjudicating applications for temporary agricultural
labor certification, and upholding the integrity of Applications for
Temporary Employment Certification. These revisions also clarify the
Department's authority to establish standards and obligations with
respect to the terms and conditions of the temporary agricultural labor
certification with which H-2A employers must comply, as well as the
rights and obligations of H-2A workers and workers in corresponding
employment.
2. Section 655.101, Authority of the Agencies, Offices, and Divisions
of the Department of Labor; and 29 CFR 501.1, Purpose and Scope
The revisions to this section clarify the delegated authority of,
and division of responsibilities between, ETA and WHD under the H-2A
program. This section addresses the delegated authority of OFLC, the
office within ETA that exercises the Secretary's responsibility for
determining the availability of qualified U.S. workers to perform the
temporary agricultural labor or services, and whether the employment of
the H-2A workers will adversely affect the wages and working conditions
of workers in the United States similarly employed. This provision also
discusses the authority delegated to WHD, the agency responsible for
investigation and enforcement of the terms and conditions of H-2A
temporary agricultural labor certifications. Finally, this provision
reminds program users of each agency's concurrent authority to impose a
debarment remedy when appropriate under ETA regulations at 20 CFR
655.182 or under WHD regulations at 29 CFR 501.20.
3. Section 655.102, Transition Procedures
a. Proposal To Rescind the Provision That Allows for the Creation of
Special Procedures
Special procedures in the H-2A program were based upon a
determination that variations from the normal labor certification
processes
[[Page 36173]]
were necessary to permit the temporary employment of foreign workers in
specific industries or occupations when able, willing, and qualified
U.S. workers were not available and the employment of foreign workers
would not adversely affect the wages or working conditions of workers
in the United States similarly employed. The H-2A regulations have,
since their creation, provided authority for the Department to
``establish, continue, revise, or revoke special procedures for
processing certain H-2A applications.'' 20 CFR 655.102.
In Mendoza v. Perez, 754 F.3d 1002, 1022 (D.C. Cir. 2014), the D.C.
Circuit concluded that 20 CFR 655.102 was ``a grant of unconstrained
and undefined authority [, and the] purpose of the [Administrative
Procedure Act (APA)] would be disserved if an agency with a broad
statutory command . . . could avoid notice-and-comment rulemaking
simply by promulgating a comparably broad regulation . . . and then
invoking its power to interpret the statute and regulation in binding
the public to a strict and specific set of obligations.'' Accordingly,
the court in Mendoza specifically held that the special procedures
pertaining to sheep, goat, and cattle herding issued under Sec.
655.102 were subject to the APA's notice and comment requirements
because they possess all the hallmarks of a legislative rule and could
not be issued through sub-regulatory guidance. 754 F.3d at 1024 (``The
[special procedures] are necessarily legislative rules because they
`effect [ ] a [substantive] change in existing law or policy,' and
`effectively amend[ ] a prior legislative rule.' '') (citations
omitted).
In light of Mendoza, the Department proposes to rescind from the H-
2A regulations the general provision that allows for the creation of
special procedures that establish variations for processing certain
Applications for Temporary Employment Certification. The Department
proposes, in this NPRM, procedures for handling applications for each
of the occupations that currently have special procedures under this
authority: Animal shearing, commercial beekeeping, and custom
combining. The Department also proposes procedures for handling
applications involving reforestation, which, as discussed in detail
below, the Department proposes to include within the H-2A definition of
agriculture activities.
b. Proposal To Add a Provision Providing Procedures for Implementing
Changes Created by a Final Rule
The Department proposes to rename Sec. 655.102, ``Transition
procedures,'' and add a transition period in order to provide an
orderly and seamless transition for implementing changes created by
these proposed regulatory revisions, if adopted in a final rule.
Generally, the Department processes all applications in accordance with
the rules in effect on the date the Application for Temporary
Employment Certification is submitted. However, based on the
Department's program experience, a transition period will help provide
employers and other stakeholders with time to understand and comply
with regulatory revisions affecting the assurances and obligations of
the H-2A program to obtain and employ workers under a temporary
agricultural labor certification. Similarly, a transition period will
allow the Department to implement necessary changes to program
operations, application forms, technology systems, and to provide
training and technical assistance to OFLC, SWAs, employers, and other
stakeholders in order to familiarize them with changes required by this
proposed rule.
Accordingly, the Department proposes that any application submitted
by an employer prior to the effective date of a final rule must meet
regulatory requirements and will be processed by the NPC in accordance
with the 2010 Final Rule. The Department also proposes to establish a
transition period that will apply to any application for which the
first date of need for H-2A workers is no earlier than the effective
date of a final rule and not later than the date that is 90 calendar
days after the effective date of a final rule. Specifically, an
employer submitting an application on or after the effective date of a
final rule, where the first date of need for H-2A workers is not later
than 90 calendar days after the effective date of a final rule, will
continue to meet regulatory requirements and will be processed by the
NPC in accordance with the current regulation. Thus, the Department
proposes to establish a 90-day transition period in which employers are
allowed to continue filing applications and receive temporary
agricultural labor certifications under the regulatory requirements set
forth in the current regulation. However, all applications submitted by
employers on or after the effective date of a final rule, where the
first date of need for H-2A workers is later than 90 calendar days
after the effective date of a final rule, will be expected to fully
comply with all of the requirements of a final rule. The Department
invites comments on the length of the transition period, including
impact and costs associated with a transition period longer or shorter
than 90 days.
4. Section 655.103, Overview of This Subpart and Definition of Terms;
20 CFR 653.501(c)(2)(i) of the Wagner Peyser Act Regulations; and 29
CFR 501.3, Definitions
a. Paragraph (b), Definitions; and 20 CFR 653.501(c)(2)(i)
i. Adverse Effect Wage Rate
The current regulation provides that the AEWR is set at the annual
weighted average hourly wage for field and livestock workers (combined)
based on the USDA's FLS. To be consistent with the Department's
proposal to adjust the current AEWR methodology, the Department
proposes conforming changes to the definition of AEWR in this section.
The Department discusses the proposed changes to the AEWR methodology
in the preamble to Sec. 655.120.
ii. Administrator, OFLC Administrator, WHD Administrator, and Wage and
Hour Division
The current regulation defines the OFLC Administrator as the
primary official of the OFLC or the OFLC Administrator's designee. The
Department proposes to add an equivalent definition of ``WHD
Administrator'' to clarify that the OFLC and WHD Administrators have
unique roles in the H-2A temporary agricultural labor certification
process. Additionally, the Department proposes to add a definition of
``Administrator'' that cross references the definitions of OFLC
Administrator and WHD Administrator so that interested parties may be
able to locate these definitions more easily. Finally, the Department
proposes to add a definition of ``Wage and Hour Division'' to provide a
clear definition of a term used throughout the current and proposed
regulations.
iii. Area of Intended Employment
The Department proposes a minor amendment to the definition of
``area of intended employment'' that replaces the terms ``place of the
job opportunity'' and ``worksite'' with the term ``place(s) of
employment,'' consistent with the proposed inclusion and definition of
``place(s) of employment'' in this section. Based on the factual
circumstances of each application, the Certifying Officer (CO) will
continue using the term ``area of intended employment'' to assess
whether each place of employment is within normal commuting distance
from the first place of employment or, if designated, the centralized
``pick-up'' point (e.g.,
[[Page 36174]]
worker housing) to every other place of employment identified in the
application and job order. The Department maintains that the
recruitment of U.S. workers is most effective when the work performed
under the job order is advertised to workers residing in the local or
regional area and enables them to return to their permanent places of
residence on a daily basis rather than traveling long distances to
reach the places of employment. Longer than normal commuting times,
transportation issues, geographic barriers, or the need to live away
from home are all factors that can discourage U.S. workers from
accepting a temporary agricultural job opportunity, making it
challenging for the Department to accurately assess whether there are
sufficient U.S. workers who are able, willing, and qualified to perform
the labor or services involved in the application.
However, the Department acknowledges that the absence of a clear
and objective standard for normal commuting distance in the definition
of area of intended employment makes it difficult for employers to
understand and predict how the Department will review the geographic
scope of their job opportunities. Accordingly, the Department invites
comments on whether it should further revise the definition of area of
intended employment. Specifically, the Department is interested in
comments focused on whether there are objective factors, commuting or
labor market area designation systems, or other comprehensive commuting
studies and data that can be used to more effectively determine normal
commuting distances for the purpose of the Department's implementation
of the H-2A program. The Department is also interested in comments on
whether it should continue making fact-based determinations on a case-
by-case basis, or whether it should impose a more uniform standard for
all employers, such as maximum commuting distance or time above which
will be considered an unreasonable commuting distance or time in all
cases. Comments submitted under this proposed rule should address the
advantages and disadvantages of each suggested alternative, and how
implementation of the alternative will ensure the integrity of the
labor market test and provide greater clarity to employers with respect
to what constitutes a normal commuting distance to the places of
employment identified in their applications and job orders.
iv. Average AEWR
The Department proposes to define a new term ``average adverse
effect wage rate'' to complement proposed changes to Sec. 655.132. As
discussed more fully later in this preamble, the Department proposes to
change the H-2A Labor Contractor (H-2ALC) surety bond requirement such
that the required bond amounts adjust annually based on changes to a
nationwide average AEWR. The Department will calculate and publish the
average AEWR annually when it calculates and publishes AEWRs in
accordance with Sec. 655.120(b).\10\ The average AEWR will be
calculated as a simple average of the published AEWRs applicable to the
SOC 45-2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse).
This classification was chosen to benchmark the required bond amounts
because the majority of workers employed by H-2ALCs perform work in
this classification.
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\10\ The Department published the 2018 AEWRs for non-range
occupations in Notice, Labor Certification Process for the Temporary
Employment of Aliens in Agriculture in the United States: 2018
Adverse Effect Wage Rates for Non-Range Occupations, 82 FR 60628
(Dec. 21, 2017).
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v. Employer and Joint Employment
Section 218 of the INA generally recognizes that growers,
agricultural associations, and H-2A labor contractors that file
applications are employers or joint employers.\11\ In conformity with
the statute as well as the Department's current policy and practice,
the Department proposes to clarify the definitions of employer and
joint employment with respect to the H-2A program to include those
entities the statute recognizes as employers or joint employers. First,
the Department proposes to add language to the definition of joint
employment in the H-2A program that clarifies that an agricultural
association that files an application as a joint employer is, at all
times, a joint employer of all H-2A workers sponsored under the
application and, if applicable, of corresponding workers. Second, the
Department proposes to clarify the definition of joint employment to
include an employer-member of an agricultural association that is
filing as a joint employer, but only during the period in which the
member employs H-2A workers sponsored under the association's joint
employer application. Third, the Department proposes a slight change to
the joint employment language in the current regulation to more
expressly codify that the common law of agency determines joint
employer status under the statute. Fourth, the Department proposes to
add language to the definition of joint employment with respect to the
H-2A program that would clarify that growers who file the joint
employer application proposed in Sec. 655.131(b) are joint employers,
at all times, with respect to the H-2A workers sponsored under the
application and, if applicable, any corresponding workers. Fifth, in
addition to the proposed changes to the definition of joint employment,
the Department proposes to add language to the definition of employer
to clarify that a person who files an application other than as an
agent is an employer. Sixth, the Department proposes to add language to
the definition of employer to clarify that a person on whose behalf an
application is filed is an employer. These proposed revisions reflect
the Department's longstanding administrative and enforcement practice
that is already familiar to employers.
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\11\ See 8 U.S.C. 1188(c)(2) (``The employer shall be notified
in writing within seven days of the date of filing if the
application does not meet the [relevant] standards . . . .''); 8
U.S.C. 1188(c)(3)(A)(i) (``The Secretary of Labor shall make . . .
the certification described in subsection (a)(1) if . . . the
employer has complied with the criteria for certification . . .
.''); 8 U.S.C. 1188(d)(2) (``If an association is a joint or sole
employer of temporary agricultural workers . . . [H-2A] workers may
be transferred among [employer]-members'').
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Controlling judicial and administrative decisions provide that to
the extent a federal statute does not define the term employer, the
common law of agency governs whether an entity is an employer.\12\
Accordingly, the proposal continues to use the common law of agency to
define the terms employer and joint employment for associations and
growers that have not filed applications. Thus, for example, under the
Department's current and continuing enforcement policy--with which
employers are already familiar--if an agricultural association files as
a joint employer, the association's employer-members are only joint
employers with the association when they are jointly employing the H-2A
or corresponding worker under the common law of agency.
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\12\ See Nationwide Mutual Insurance v. Darden, 503 U.S. 318,
322-24 (1992); Garcia-Celestino v. Ruiz Harvesting, 843 F.3d 1276,
1288 (11th Cir. 2016); Admin. v. Seasonal Ag. Services, Inc., 2016
WL 5887688, at *6 (ARB, Sept. 30, 2016). The focus of the common law
standard is the ``hiring entity's `right to control the manner and
means by which the product is accomplished.' '' Ruiz Harvesting, 843
F.3d at 1292-93 (quoting Darden, 503 U.S. at 323). Application of
the standard typically entails consideration of a variety of
factors. See Ruiz Harvesting, 843 F.3d at 1293 (citing Darden, 503
U.S. at 323-24).
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The Department additionally notes that the current H-2A program
definitions of employer and joint
[[Page 36175]]
employment, as well as those the Department proposes herein, are
different from the definitions of ``employer,'' ``employee,''
``employ'' in the Fair Labor Standards Act, 29 U.S.C. 201 et seq.
(FLSA) and the definition of ``employ'' in the Migrant and Seasonal
Agricultural Worker Protection Act, 29 U.S.C. 1801 et seq. (MSPA).
Thus, the statutory definitions in the FLSA and MSPA that determine the
existence of an employment relationship or joint employer status
neither apply nor are relevant to the determination of whether an
entity is an H-2A employer or joint employer.
Employer-Member Responsibility for Violations Committed Under a Joint
Employer Application Filed by an Agricultural Association
Consistent with existing practice, when an agricultural association
files a joint employer application, an employer-member of that
association is an employer of the H-2A workers during the time when
those workers perform work or services for the member. When only one
employer-member is employing the H-2A workers at the time of a program
violation, only that employer-member and its agricultural association
are economically responsible for program violations.
Joint Employer Applications Under Proposed Sec. 655.131(b)
Proposed Sec. 655.131(b) generally codifies the Department's
longstanding practice with regard to joint employer applications. Each
grower party to a Sec. 655.131(b) joint employer application will be
jointly liable for compliance with all H-2A program requirements. Thus,
for example, if employer C and employer D file a joint employer
application under proposed Sec. 655.131(b) and employer C fails to pay
the H-2A workers the required wage, employer D will be jointly liable
for employer C's violations. This codification of ongoing
administrative and enforcement policy towards employers that have filed
as joint employers under the program is designed to maintain
consistency with the Department's well-known practices that are already
familiar to employers.
The Department's approach to joint employment under Sec.
655.131(b)--which aims to accommodate small growers that do not have
full time work for their H-2A employees--is implied by the statute. The
statute specifically contemplates that filers (other than agents) are
employers and only expressly permits an entity (i.e., an agricultural
association) to transfer H-2A workers when the entity agrees to retain
program responsibility with respect to the workers it transfers.\13\
Therefore, the Department must require entities that jointly apply for
H-2A workers, who they intend to transfer among themselves, to retain
program responsibility for the transferred workers and, if applicable,
any corresponding workers.
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\13\ See 8 U.S.C. 1188(d)(2).
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This proposed approach provides a flexible application system that
harmonizes with the statutory language. Growers who prefer not to
assume the shared liability under the proposed joint employer
application may file through an agricultural association acting as a
joint or sole employer. In addition to conformity with the statute, the
Department's proposed approach is also consistent with judicial
authority.\14\
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\14\ Martinez-Bautista v. D&S Produce, 447 F. Supp. 2d 954, 960-
62 (E.D. Ark. 2006) (ruling entities that jointly applied to employ
H-2A workers are joint employers of the workers and rejecting
application of agricultural association liability principles when
the joint employers had not filed through an association).
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Department's Approach to Imposing Liability Among Culpable Joint
Employers
The Department will continue to apply its longstanding policy with
respect to imposing liability among culpable joint employers. This
policy includes consideration of the factors at 29 CFR 501.19(b) when
the Department assesses civil money penalties. The Department applies
these factors to joint employers on a case-by-case basis. For example,
if the Department determines an agricultural association achieved no
financial gain from an employer-member's failure to pay the required
wage to H-2A or corresponding workers, but that the employer-member
achieved significant financial gain, the civil money penalty, if any,
applicable to the association would likely be less than that applicable
to the employer-member for this violation.
Proposal To Move Certain Requirements in the Definition of Employer
The current definition of employer in the H-2A program requires an
employer to have a place of business in the United States and a means
of contact for employment as well as a Federal Employer Identification
Number (FEIN). The Department proposes to move these requirements to
Sec. Sec. 655.121(a)(1) and 655.130(a). The proposal will require a
prospective employer to include its FEIN, its place of business in the
United States and a means of contact for employment in both its job
order submission to the NPC, and its Application for Temporary
Employment Certification.
vi. First Date of Need and Period of Employment
The Department proposes to define the term ``first date of need''
as the first date on which the employer anticipates requiring the
temporary agricultural labor or services for which it seeks a temporary
agricultural labor certification. This is the date that appears on the
employer's job order and Application for Temporary Employment
Certification as the start date of work for the job opportunity and
will be used in recruitment and for calculating program requirements
(e.g., the positive recruitment period under Sec. 655.158). By
including the term ``anticipated,'' the Department's proposed
definition would provide a limited degree of flexibility for the actual
start date of work for some or all of the temporary workers hired,
which may vary due to such factors as travel delays or crop conditions
at the time work is expected to begin. Provided that the employer
complies with all obligations to workers (e.g., providing housing and
subsistence at no cost to workers as set forth in Sec. 655.145(b)),
the employer's actual start date of work may occur within 14 calendar
days after the anticipated first date of need listed on the temporary
agricultural labor certification. Additionally, the Department proposes
to define the term ``period of employment'' as the time during which
the employer requires the temporary agricultural labor or services for
which it seeks a temporary agricultural labor certification, as
indicated by the first date of need and the last date of need provided
on the employer's job order and Application for Temporary Employment
Certification.
vii. Prevailing Wage
The current H-2A regulation defines ``prevailing wage'' as ``[w]age
established pursuant to 20 CFR 653.501(d)(4),'' which is the Wagner-
Peyser Act regulation that covers clearance of both H-2A and non-H-2A
agricultural job orders. Due to regulatory revisions to part 653 under
the Workforce Innovation and Opportunity Act, Sec. 653.501(d)(4) no
longer addresses prevailing wages but rather discusses the referral of
workers.\15\ While Sec. 653.501(c)(2)(i) contains the requirement that
the SWA must ensure that job orders provide that the employer has
offered not less than the
[[Page 36176]]
higher of the prevailing wage rate or applicable Federal or State
minimum wage, nothing in part 653 addresses how that prevailing wage is
established.
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\15\ See Final Rule, Workforce Innovation and Opportunity Act,
81 FR 56071, 56346-48 (Aug. 19, 2016) (amending Sec. 653.501).
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As discussed in detail below, the Department proposes to modernize
the longstanding sub-regulatory guidance that it uses to establish
prevailing wages and replace the existing methodology with a new
methodology, as set forth in proposed regulatory text in 20 CFR 655.120
and discussed in the preamble to that section. Accordingly, the
Department proposes to conform changes to the regulatory definition of
prevailing wage in Sec. 655.103 to cross reference that new proposed
methodology at Sec. 655.120(c). The Department proposes to use the
same methodology to establish the prevailing wage for both H-2A and
non-H-2A agricultural job orders. As a result, the Department proposes
to make a corresponding change to the Wagner-Peyser Act regulation at
20 CFR 653.501(c)(2)(i) to define ``prevailing wage'' for the
agricultural recruitment system in the same manner as the Department
proposes to define ``prevailing wage'' for the H-2A program in 20 CFR
655.103(b).
viii. Temporary Agricultural Labor Certification
The Department also proposes revisions to the definition of
``temporary agricultural labor certification.'' Under the proposal, the
definition clarifies that the certification made by OFLC is made based
on the information contained in the Application for Temporary
Employment Certification, the job order, and all supporting
documentation submitted to the Department in the course of processing
the application and job order. Under the current regulation, the
definition does not make it clear that the Department's determination
is based on all of these documents, though OFLC can and does consider
that information in processing H-2A applications. The proposed revision
would codify the Department's long-standing practice to base the
certification determination on the information contained in those
documents, demonstrating compliance with regulatory requirements.
ix. Additional definitions
The Department proposes to add definitions of other terms for
clarity: Act, applicant, Application for Temporary Employment
Certification, Board of Alien Labor Certification Appeals (BALCA),
Chief ALJ, Department of Homeland Security, Employment and Training
Administration, H-2A Petition, Metropolitan Statistical Area, piece
rate, place of employment, Secretary of Labor, Secretary of Homeland
Security, and U.S. Citizenship and Immigration Services.
b. Paragraph (c), Definition of Agricultural Labor or Services
The Department proposes to expand the regulatory definition of
agricultural labor or services pursuant to section 101(a)(15)(H)(ii)(a)
of the INA, 8 U.S.C. 1101(a)(15)(H)(ii)(a), to include reforestation
and pine straw activities, which have similar fundamental
characteristics to occupations currently defined as agricultural labor
or services by statute or by the Secretary. When considering the
Department's enforcement experience and reconsidering comments on past
proposed rules, the Department has determined that reforestation and
pine straw activities are more appropriately included in the H-2A
program than in the H-2B program. In view of the changes that have
taken place since the last proposal to include these activities in the
H-2A program, it is appropriate to again seek comment on this issue.
Although the Department cannot immediately anticipate the full impact
of shifting these specific activities to the H-2A program, it notes
that ``Forest & Conservation Workers'' have been the second leading
occupation in DOL's certification of H-2B temporary labor
certifications, with upwards of 11,000 certified positions annually in
each of the last two fiscal years (FY17 and FY18). However, it is
unlikely that all of these certified positions would have been filled
with foreign H-2B workers due to the H-2B visa cap.
The proposed rule defines reforestation activities as predominantly
manual forestry operations associated with developing, maintaining, or
protecting forested areas including, but not limited to, planting tree
seedlings in specified patterns using manual tools, and felling,
pruning, pre-commercial thinning, and removing trees and brush from
forested areas. This definition encompasses tasks that are normally
associated with reforestation work and the cultivation of trees or
other forestry products, regardless of whether the result of such
cultivation is timber or a forested area for conservation purposes.
Reforestation activities may include some forest fire prevention or
suppression duties such as constructing fire breaks or performing
prescribed burning tasks when such duties are in connection with and
incidental to other reforestation activities. Forest fire protection or
suppression duties are reforestation activities only when incidental to
and performed as part of tree or forest product cultivation. For
example, reforestation crews engaged in thinning to accelerate growth
of immature trees may also construct a fire break, and reforestation
crews engaged in planting may perform a prescribed burn prior to
planting seedlings. This definition does not include regular and
routine work of a forest firefighting crew and performance of job
duties such as rescuing fire victims, administering first aid, locating
fires, or monitoring environmental conditions for fire risk.
The proposed rule also states that reforestation activities do not
include vegetation management activities in and around utility,
highway, railroad, or other rights-of-way. As defined here,
reforestation activities exclude vegetation management activities that
are not associated with the cultivation of trees or other forestry
products for timber or conservation purposes. \16\ This includes, but
is not limited to, right-of-way vegetation management activities such
as the removal of vegetation that may interfere with utility lines or
lines-of-sight, herbicide application, brush clearing, mowing, cutting,
and tree trimming around roads, railroads, transmission lines, and
other rights-of-way. Consequently, employers seeking temporary foreign
workers for occupations involving these activities will have to file
under the H-2B program and meet all applicable program requirements.
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\16\ The definition of reforestation activities in the proposed
rule excludes right-of-way vegetation management because this work
does not involve the handling or planting of trees or other forestry
products as an agricultural or horticultural commodity. Although
right-of-way vegetation management involves similar activities as
performed in reforestation (i.e., brush clearing and tree trimming),
the result of these activities is the destruction of vegetation, not
cultivation. Right-of-way vegetation management therefore is more
akin to landscaping, which is generally recognized as a non-
agricultural industry and would be inappropriate to include within
the scope of the H-2A program. The Department has also previously
opined that right-of-way vegetation management does not constitute
agricultural employment as defined by the Migrant and Seasonal
Agricultural Worker Protection Act (MSPA), thereby further
distinguishing this industry from reforestation activities as
defined here, which do constitute MSPA agricultural employment. See
WHD Opinion Letter, June 11, 2002.
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The proposed rule defines pine straw activities as ``[o]perations
associated with clearing the ground of underlying vegetation, pine
cones, and debris; and raking, lifting, gathering, harvesting, baling,
grading, and loading of pine straw for transport from pine forests,
woodlands, pine stands, or plantations.''
As required by the INA, the definition of agricultural labor or
services encompasses certain statutory
[[Page 36177]]
definitions,\17\ as well as occupations defined as such by the
Secretary in regulations. Prior to the 2008 Final Rule,\18\ the
Secretary did not use his authority to expand the scope of agricultural
labor or services beyond those activities that the statute required to
be included, none of which normally included reforestation or pine
straw activities. The 2008 Final Rule expanded the definition of
agricultural labor or services to include logging employment,\19\ which
the current regulation maintained and further clarified. See 2010 Final
Rule, 75 FR 6884, 6981. Although reforestation and pine straw
activities are generally recognized as sub-industries of forestry, they
do not generally meet the definition of logging employment and
therefore were excluded from the definition of agricultural labor or
services.
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\17\ Specifically, section 101(a)(15)(H)(ii)(a) of the INA, 8
U.S.C. 1101(a)(15)(H)(ii)(a), identifies that, in addition to
industries defined as such by the Secretary, the definition of
agricultural labor or services includes ``agricultural labor defined
in section 3121(g) of the Internal Revenue Code of 1986, agriculture
as defined in section 3(f) of the Fair Labor Standards Act of 1938,
as amended (FLSA), 29 U.S.C. 203(f), and the pressing of apples for
cider on a farm.''
\18\ See Final Rule, Temporary Agricultural Employment of H-2A
Aliens in the United States; Modernizing the Labor Certification
Process and Enforcement, 73 FR 77110, 77212 (Dec. 18, 2008) (2008
Final Rule).
\19\ See Final Rule, Temporary Agricultural Employment of H-2A
Aliens in the United States; Modernizing the Labor Certification
Process and Enforcement, 73 FR 77110, 77212 (Dec. 18, 2008) (2008
Final Rule).
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Consequently, nonimmigrant workers engaged in reforestation and
pine straw activities as defined in the proposed rule historically have
been and are currently admitted under the H-2B program. However, these
activities, as defined in the proposed rule, share fundamental
similarities with traditional agricultural industries. Specifically,
both reforestation and pine straw activities can involve the handling
or planting of agricultural and horticultural commodities in their
unmanufactured state and include tasks that are substantially similar
to traditional agriculture, such as planting, weed control, herbicide
application, and other unskilled tasks related to preparing the site
and cultivating the soil. See 2008 Final Rule, 73 FR 77110, 77118.
Additionally, the working conditions have similar characteristics to
those encountered in agricultural industries; reforestation activities
are commonly performed by migrant crews and overseen by labor
contractors, occur in remote locations, and are frequently paid on a
piece rate basis.\20\ Due to these similarities, work in both the
reforestation and pine straw industries, as defined in this proposed
rule, often meets the definition of agricultural employment under the
Migrant and Seasonal Agricultural Worker Protection Act (MSPA) \21\ and
of agricultural employers under the Occupational Safety and Health
(OSH) Act's field sanitation standards.
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\20\ For further analysis of the similarities between
reforestation activities and traditional agricultural crews, see
Proposed Rule, Temporary Agricultural Employment of H-2A Aliens in
the United States, 74 FR 45906, 45910-11 (Sept. 4, 2009) (2009
NPRM).
\21\ See Morante-Navarro v. T & Y Pine Straw, Inc., 350 F.3d
1163, 1170-72 (11th Cir. 2003); Bresgal v. Brock, 843 F.2d 1163,
1171-72 (9th Cir. 1987); Davis Forestry Corp. v. Smith, 707 F.2d
1325, 1328 n.3 (11th Cir. 1983).
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In past rulemakings, these fundamental similarities prompted the
Department to consider similar proposals regarding the inclusion of
reforestation and pine straw activities within the scope of the H-2A
program. In the 2008 NPRM, the Department sought comments regarding
other industries for possible inclusion in the definition of
agricultural labor and services.\22\ In response, some representatives
from the reforestation industry suggested that reforestation activities
be included. In the 2008 Final Rule, the Department acknowledged the
validity of these comments, but wanted input from a more representative
sample of the affected industry.\23\ In the 2009 NPRM, the Department
proposed the inclusion of reforestation and pine straw activities
within the definition of agricultural labor or services. 74 FR 45906,
45910-11. The Department, however, removed this provision in the 2010
Final Rule in response to comments that opposed the inclusion of
reforestation. Only one comment specifically addressed pine straw
activities. 75 FR 6884, 6889.
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\22\ See Proposed Rule, Temporary Agricultural Employment of H-
2A Aliens in the United States; Modernizing the Labor Certification
Process and Enforcement, 73 FR 8538, 8555 (Feb. 13, 2008) (2008
NPRM).
\23\ ``The comments from the reforestation industry, while
thoughtful, represented the input of only two individual employers
and a single employer association who do not necessarily provide a
representative sample of the entire reforestation industry. The
department is reluctant to overturn the regulatory practices of
several decades and impose the significant obligations of an H-2A
employer without significant input from that industry. While the
Department is willing to further explore whether to include the
reforestation industry in the definition of agriculture, it does not
believe a decision to do so is warranted at this time.'' 2008 Final
Rule, 73 FR 77110, 77118.
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The Department, however, believes that many of the comments
received in response to the 2009 NPRM are no longer applicable in the
current regulatory environment. Specifically, some commenters expressed
concern about the additional costs and regulatory burdens that would be
imposed by participation in the H-2A program instead of the H-2B
program. 2010 Final Rule, 75 FR 6884, 6889. However, this is no longer
the case as the protections that currently apply to H-2A workers are
generally comparable to the protections afforded to H-2B workers in the
reforestation and pine straw industries.\24\ For example, the
employer's obligation to pay or reimburse the worker for inbound and
outbound transportation to and from the place of employment is similar
under both H-2A and H-2B programs.\25\ Likewise, among other
similarities, both programs include similar recordkeeping and
disclosure requirements, and require the employer to provide to the
worker, without charge or deposit charge, all tools, supplies, and
equipment required to perform the duties assigned.\26\
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\24\ See Interim Final Rule, Temporary Non-Agricultural
Employment of H-2B Aliens in the United States, 80 FR 24041 (Apr.
29, 2015).
\25\ See 20 CFR 655.122(h)(1) and (2) for H-2A program
requirements and 20 CFR 655.20(j)(1)(i) and (ii) for H-2B program
requirements regarding inbound and outbound transportation.
\26\ Compare 20 CFR 655.122 and 20 CFR 655.20.
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There are certain important differences, however, between the
programs. For example, while an itinerant H-2B employer must provide
housing at no cost to the workers (as is required of all H-2A
employers), the H-2A program further requires that all employer-
provided housing be inspected and certified, and that rental and/or
public accommodations meet certain local, State, or Federal standards.
See 20 CFR 655.122(d). In addition, the H-2A corresponding employment
and three-fourths guarantee requirements differ slightly from these
same requirements under the H-2B program.\27\ Moreover, the time period
during which an employer must recruit and hire U.S. workers differs
between the H-2A and the H-2B programs.\28\ Similarly, employers in the
reforestation and pine straw industries may qualify as H-2ALCs as
defined in Sec. 655.103 and, therefore, would be subject to the
requirements found in Sec. 655.132, including the requirement to
[[Page 36178]]
obtain a surety bond.\29\ Reforestation and pine straw employers would
be required to become familiar, and comply, with these differences in
program requirements, among others, to ensure compliance with the H-2A
program under the proposed rule. Despite these differences, the
Department believes that transitioning these industries from the H-2B
to the H-2A program should not represent a significant burden for
employers, given the overall similarities between the programs and that
(as discussed above) work in both the reforestation and pine straw
industries, as defined in the proposed rule, often meets the definition
of agricultural employment under the MSPA.
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\27\ See 20 CFR 655.103 and 655.122(i) for H-2A program
requirements and 20 CFR 655.5 and 655.20(f) for H-2B program
requirements.
\28\ See 20 CFR 655.135(d) for H-2A program requirements and 20
CFR 655.40(c) for H-2B program requirements.
\29\ Additional filing requirements for H-2ALCs include a
detailed itinerary of worksites, a copy of the MSPA Farm Labor
Contractor Certificate of Registration (if required), copies of
fully executed work contracts with each fixed-site agricultural
business, and specific details and proof pertaining to worker
housing and transportation. See 20 CFR 655.132.
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c. Paragraph (d), Definition of a Temporary or Seasonal Nature
The Department seeks comment on the possibility of moving the
adjudication of an employer's temporary or seasonal need either
exclusively to DHS or exclusively to DOL. It is an administration goal
to eliminate duplication wherever feasible and this potential change
may or may not streamline the adjudications of temporary or seasonal
need for employers. Section 101(a)(15)(H)(ii)(a) of the INA, 8 U.S.C.
1101(a)(15)(H)(ii)(a), requires that only ``agricultural labor or
services . . . of a temporary or seasonal nature'' may be performed
under the H-2A visa category. Currently, the Department evaluates an
employer's temporary or seasonal need in the first instance, using the
standards set forth in Sec. 655.103(d), which provides that employment
is of a seasonal nature where it is tied to a certain time of year by
an event or pattern, such as a short annual growing cycle or a specific
aspect of a longer cycle, and requires labor levels far above those
necessary for ongoing operations. Employment is of a temporary nature
where the employer's need to fill the position with a temporary worker
will, except in extraordinary circumstances, last no longer than 1
year.
DHS regulations provide that the Department's finding that
employment is of a temporary or seasonal nature as ``normally
sufficient'' for the purpose of an H-2A Petition, but also state that
notwithstanding this finding, DHS adjudicators will not find employment
to be temporary or seasonal in certain situations, such as ``where an
application for permanent labor certification has been filed for the
same alien, or for another alien to be employed in the same position,
by the same employer or by its parent, subsidiary or affiliate,'' or
``where there is substantial evidence that the employment is not
temporary or seasonal.'' 8 CFR 214.2(h)(5)(iv)(B). In making the latter
determination, DHS uses the same definitions of temporary and seasonal
as the Department. Compare 20 CFR 655.103(d) with 8 CFR
214.2(h)(5)(iv)(A).
Under the current process, the Department and DHS use separate and
distinct experience to adjudicate temporary or seasonal need in the H-
2A program. The Department has developed expertise and a process to
which H-2A employers have become accustomed. DHS has historically
adjudicated this need as part of its review of an H-2A visa petition,
and it may have access to independent documentation unavailable to the
Department that allows it to assess whether an employer has a temporary
or seasonal need.
The Department contemplates that if either the Department or DHS
became the sole arbiter of temporary or seasonal need for all H-2A
employers, the Department and DHS would take actions, including
delegation of authorities as the final arbiter of temporary or seasonal
need and amendment of regulations, as needed, to effectuate this
change. Accordingly, the Department seeks comment on whether there are
benefits or concerns if either the Department exclusively or DHS
exclusively became the sole arbiter of temporary or seasonal need.
B. Prefiling Procedures
1. Section 655.120, Offered Wage Rate
Section 218(a)(1) of the INA, 8 U.S.C. 1188(a)(1), provides that an
H-2A worker is admissible only if the Secretary determines that ``there
are not sufficient workers who are able, willing, and qualified, and
who will be available at the time and place needed, to perform the
labor or services involved in the petition, and the employment of the
alien in such labor or services will not adversely affect the wages and
working conditions of workers in the United States similarly
employed.'' In 20 CFR 655.120(a), the Department currently meets this
statutory requirement, in part, by requiring an employer to offer,
advertise in its recruitment, and pay a wage that is the highest of the
AEWR, the prevailing wage, the agreed-upon collective bargaining wage,
the Federal minimum wage, or the State minimum wage. As discussed
below, the Department proposes to maintain this wage-setting structure
with only minor revisions and proposes to modify the methodologies by
which the Department establishes the AEWRs and prevailing wages.
Specifically, the Department proposes to establish AEWRs for each
agricultural occupation, as identified by the FLS and the OES survey,
so that each AEWR is based on data more specific to the agricultural
occupation of workers in the United States similarly employed and, as a
result, better protects against adverse effect on the wages of workers
in the United States similarly employed. In addition, the Department
proposes to modernize the methodology used by the SWAs to conduct
prevailing wage surveys. Finally, the proposed rule sets requirements
for updates to wage rates during the work contract and for wage
assignments and appeals of those assignments. Currently DOL funds the
NASS Farm Labor Survey. USDA is committed to this survey and including
$5 million in the President's budget for its modification and expansion
to collect more granular data. This expansion will assist in providing
the SOC level data DOL is seeking to best capture wage rates from
farmerworkers across the country.
The Department currently sets the AEWR at the gross hourly rate for
field and livestock workers (combined) from the FLS conducted by the
USDA's NASS for each State or region. This produces a single AEWR for
all agricultural workers in a given State or region, so that
supervisors, agricultural inspectors, graders and sorters of animal
products, agricultural equipment operators, construction laborers, and
crop laborers are all assigned the same AEWR.
The Department is concerned that the current AEWR methodology may
have an adverse effect on the wages of workers in higher-paid
agricultural occupations, such as construction laborers and supervisors
of farmworkers on farms or ranches, whose wages may be inappropriately
lowered by an AEWR established from the wages of field and livestock
workers (combined) because this is an occupational category from the
FLS that does not include construction laborers or supervisors of
farmworkers, among other occupations. In addition, the use of
generalized data for other agricultural occupations could produce a
wage rate that is not sufficiently tailored to the wage necessary to
protect against adverse effect on workers in the United States
similarly employed.
[[Page 36179]]
Accordingly, the Department proposes to revise its methodology so
that the AEWR for a particular agricultural occupation will be based on
the annual average hourly gross wage for that agricultural occupation
in the State or region reported by the FLS when the FLS is able to
report such a wage.\30\ If the FLS does not report a wage for an
agricultural occupation in a State or region, the Department proposes
to set the AEWR at the statewide annual average hourly wage for the SOC
from the OES survey conducted by BLS. If both the FLS cannot produce an
annual average hourly gross wage for that agricultural occupation in
the State or region and the OES cannot produce a statewide annual
average hourly wage for the SOC, then the Department proposes to set
the AEWR based on the national wage for the occupational classification
from these sources.\31\ This change to an occupation-based wage is
intended to produce more tailored AEWRs that better protect against
adverse effect on workers in the United States similarly employed than
the Department's current regulation.
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\30\ The Department proposes to remove the word ``weighted''
from the description of the FLS wage rate from the current
regulation. This proposed change has no substantive effect. Both the
OES and FLS apply weights in determining the average wage in
accordance with accepted statistical principals, and the
Department's other regulations which refer to OES-based wage rates
do not use the term weighted. Therefore, for consistency, the
Department proposes to remove the word ``weighted'' from the H-2A
regulation governing the AEWR methodology. The Department also
proposes to add the term ``gross'' after the term ``hourly'' in
describing the wage rate from the FLS because, as discussed further
below, USDA is considering making changes to its survey instrument
to produce a wage that excludes certain types of incentive pay to
report a ``base'' wage separate from the currently reported gross
hourly wage. If the Department elects to use this new base wage as a
source for the AEWR, the Department would first engage in notice-
and-comment rulemaking to adopt that change, consistent with APA
requirements. Until that time, the Department proposes to continue
to use the ``gross'' hourly wage reported, consistent with the
current regulation.
\31\ Using a national wage when a State wage cannot be produced
is consistent with the OES reporting methodology.
---------------------------------------------------------------------------
The Department also proposes to modernize the methodology used by
the SWAs to conduct prevailing wage surveys, which applies to both H-2A
and other job orders that use the Wagner-Peyser Act agricultural
recruitment system. The Department currently relies on Handbook 385,
which pre-dates the creation of the H-2A program and was last updated
in 1981, to set the standards that govern the prevailing wage surveys
that the SWAs conduct to establish prevailing wage rates for all
agricultural job orders. Many of these survey standards, such as a
requirement for in-person interviews, are inconsistent with modern
survey methods and the level of appropriated funding at the State and
Federal levels. Due to the difficulty of implementing these resource-
intensive standards, the SWAs are often required to report ``no
finding'' from the prevailing wage surveys that they conduct. As a
result, the current survey standards are not only resource-intensive
but also fail to meet the Department's aim of producing reliable
prevailing wage rates. Accordingly, the Department proposes to
modernize the prevailing wage standards as set out in proposed Sec.
655.120(c) to: (1) Establish reliable and accurate prevailing wage
rates for employers and workers; and (2) allow the SWAs and other State
agencies to conduct surveys using standards that are more realistic.
a. The Department's Proposal Maintains the Requirement That the Offered
Wage Rate Must Be the Highest of Applicable Wage Sources
The Department proposes to continue to protect against adverse
effect on the wages of workers in the United States similarly employed
by maintaining the current requirement in Sec. 655.120(a) that an
employer must offer, advertise in its recruitment, and pay a wage that
is the highest of the AEWR, the prevailing wage, the agreed-upon
collective bargaining wage, the Federal minimum wage, or the State
minimum wage, unless a special procedure wage rate applies, with only
three minor changes.
First, the Department proposes to remove the exception in the
current regulation for separate wage rates set by ``special
procedures'' (i.e., sub-regulatory variances from the regulation). The
Department proposes to remove this exception because the only
occupation that has a different wage rate structure is the herding and
production of livestock on the range, and the wage methodology for that
occupation is governed by Sec. 655.211 and is no longer set through a
sub-regulatory ``special procedure.'' In addition, as discussed above,
the Department proposes to remove the authority in Sec. 655.102 to
establish, continue, revise, or revoke special procedures for H-2A
occupations. Accordingly, the Department proposes to replace the
reference to ``special procedures'' in the current regulation with a
reference to the regulatory provisions covering workers primarily
engaged in herding and production of livestock on the range as the only
exception from the wage methodology set forth in this proposed rule.
Second, the Department proposes to remove the current reference to
``the prevailing hourly wage or piece rate in 20 CFR 655.120(a) and
(b).'' \32\ Instead, the Department proposes to refer only to the
``prevailing wage'' or ``prevailing wage rate,'' except where a given
provision specifically applies only to prevailing piece rates. The
Department proposes this change because the Department has issued
prevailing wage rates that are not in the form of an hourly or piece
rate wage, including monthly prevailing wage rates.
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\32\ The Department also proposes to make corresponding changes
throughout the regulation.
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Third, the Department proposes to clarify that the requirement to
offer and pay the prevailing wage applies only ``if the OFLC
Administrator has approved a prevailing wage survey for the applicable
crop activity or agricultural activity meeting the requirements of
paragraph (c)'' of Sec. 655.120.\33\ This revision is intended to
clarify that the Department is not obligated to establish a prevailing
wage separate from the AEWR for every occupation and agricultural
activity in every State. As discussed further below, the Department
meets its obligation to protect against adverse effect on workers in
the United States similarly employed primarily by requiring employers
to offer, advertise, and pay the AEWR, which under the current wage
methodology is the required wage rate in approximately 92 percent of H-
2A applications based on a review of OFLC certification data. In
addition, as the Department has previously acknowledged, the AEWR is
actually a type of prevailing wage rate because it is the wage rate
that is determined from a survey of actual wages paid by employers.
Accordingly, the Department is already establishing a prevailing wage
in the form of the AEWRs for all agricultural occupations. 2008 Final
Rule, 73 FR 77110, 77167.
---------------------------------------------------------------------------
\33\ The Department also proposes a corresponding change to 20
CFR 655.122(l).
---------------------------------------------------------------------------
Nevertheless, the Department recognizes that State-conducted
prevailing wage rates can serve as an important additional protection
for U.S. workers in crop activities and agricultural activities with
piece rates or, in rare instances, higher hourly rates of pay.
Accordingly, the Department proposes to make the changes discussed
below to modernize the prevailing wage methodology and empower States
to produce a greater number of reliable prevailing wage surveys
results. However, the Department proposes this new text to clarify that
the Department is not required to issue prevailing wage rates for all
crop activities and
[[Page 36180]]
agricultural activities in every State as such a requirement is both
inconsistent with available Federal and State resources and unnecessary
to prevent adverse effect. If finalized as proposed, the Department
will work with the States through their annual grant plans to focus
prevailing wage surveys on those crop activities and agricultural
activities where prevailing wage surveys are most useful to protect the
wages of U.S. workers, including for activities for which employers
commonly pay based on a piece rate and when State agencies know based
on past experience that prevailing wage surveys commonly result in
hourly wages higher than the AEWR. The Department invites comments on
other circumstances in which prevailing wage rates can be most useful
as a tool to protect the wages of U.S. workers.
b. The Department Proposes To Base the AEWR on Occupation-Specific Data
That Better Reflects the Wages of Workers in the United States
Similarly Employed
The Department is retaining the requirement in the current
regulation that employers in the H-2A program offer, advertise, and pay
at least the AEWR if it is the highest applicable wage. Section
218(a)(1)(B) of the INA, 8 U.S.C. 1188(a)(1)(B), provides that DHS
cannot approve an H-2A Petition unless the Department certifies that
``the employment of the alien in such labor or services will not
adversely affect the wages and working conditions of workers in the
United States similarly employed.'' Requiring employers to pay the AEWR
when it is the highest applicable wage is the primary way the
Department meets its statutory obligation to certify no adverse effect
on workers in the United States similarly employed.
As the Department has explained in previous regulations, the AEWR
``reflects a longstanding concern that there is a potential for the
entry of foreign workers to depress the wages and working conditions of
domestic agricultural workers.'' 2010 Final Rule, 75 FR 6884, 6891. The
use of an AEWR, separate from a State-conduced prevailing wage for a
particular crop activity or agricultural activity, ``is most relevant
in cases in which the local prevailing wage is lower than the wage
considered over a larger geographic area (within which the movement of
domestic labor is feasible) or over a broader occupation/crop/activity
definition (within which reasonably ready transfer of skills is
feasible).'' Id. at 6892-6893.
The H-2A program is unique among the temporary nonimmigrant
programs administered by the Department because the H-2A program is not
subject to a statutory cap. Consequently, concerns about wage
depression from the importation of foreign workers are particularly
acute because access to an unlimited number of foreign workers in a
particular labor market and crop activity or agricultural activity
could cause the prevailing wage of workers in the United States
similarly employed to stagnate. In this context, the AEWR acts as ``a
prevailing wage concept defined over a broader geographic or
occupational field.'' 2010 Final Rule, 75 FR 6884, 6892. In other
words, because the AEWR is generally based on data collected in a
multi-State agricultural region and an occupation broader than a
particular crop activity or agricultural activity, while the prevailing
wage is commonly determined based on a particular crop activity or
agricultural activity at the State or sub-State level, the AEWR
protects against localized wage depression that might occur in
prevailing wage rates. For these reasons, the Department proposes to
continue to use an AEWR in the H-2A program and to require employers to
offer, advertise, and pay at least the AEWR if it is the highest
applicable wage.
i. The Department Proposes To Continue to the Use the FLS To Establish
the AEWR in Most Geographic Areas for Most H-2A Workers
The Department proposes to use the FLS conducted by USDA's NASS to
set the AEWR for the overwhelming majority of H-2A workers. The FLS is
the Department's preferred wage source for establishing the AEWR
because it is the only comprehensive wage survey that collects data
from farm and ranch employers. The Department proposes to use the OES
survey conducted by BLS to set the AEWR only for occupations and
locations where the Department cannot establish an AEWR based on the
FLS because the FLS does not report a wage. Because the OES survey is a
reliable and comprehensive wage survey and is widely used in the
Department's other foreign labor certification programs, the OES survey
provides useful data for setting the AEWR in the limited circumstances
where the FLS may not report a wage. The use of the FLS survey, and the
OES survey as needed, will allow the Department to establish AEWRs
based on occupational classification rather than based on all field and
livestock workers (combined) and will better protect against adverse
effects on similarly employed U.S. workers, as discussed below.
As the Department has stated in prior rulemakings, the FLS and the
OES survey are the two ``leading candidates'' that the Department could
use to establish the AEWR. 2009 NPRM, 74 FR 45906, 45912. The
Department has always used the FLS to set the H-2A AEWR, with the
exception of a brief period under the 2008 Final Rule. Currently, the
Department uses the average gross hourly wage rate for the category
field and livestock workers (combined) from the FLS as the AEWR for
each State in the multi-State or single-State crop region to which the
State belongs.
By contrast, under the 2008 Final Rule, the Department set the AEWR
based on the OES survey. Under that rule, the Department set the AEWR
using the SOC taxonomy and set a different AEWR for each SOC and
localized area of intended employment. The Department used four wage
levels intended to reflect education and experience under the 2008
Final Rule.
The FLS uses the following methodology: NASS collects wage and
employment data for four reference weeks, one each quarter, from all
farms with $1,000 or more in annual sales revenue for all in all States
except for Alaska. The total sample of the FLS is approximately 10,000
to 13,000 farms and ranches, and data is reported for the United States
as a whole and for each of 15 multi-State labor regions and the 3
single States of Florida, California, and Hawaii.\34\
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\34\ Guide to NASS Surveys: Farm Labor, available at https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/index.php
(last modified May 4, 2018).
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[[Page 36181]]
The USDA regions are as follows:
Table 1--USDA Regions
Appalachian I.......................... Virginia and North Carolina.
Appalachian II......................... Kentucky, Tennessee, and West
Virginia.
Cornbelt I............................. Illinois, Indiana, and Ohio.
Cornbelt II............................ Iowa and Missouri.
Delta.................................. Arkansas, Louisiana, and
Mississippi.
Lake................................... Michigan, Minnesota, and
Wisconsin.
Mountain I............................. Idaho, Montana, and Wyoming.
Mountain II............................ Colorado, Utah, and Nevada.
Mountain III........................... Arizona and New Mexico.
Northeast I............................ Connecticut, Maine,
Massachusetts, New Hampshire,
New York, Rhode Island, and
Vermont.
Northeast II........................... Delaware, Maryland, New Jersey,
and Pennsylvania.
Northern Plains........................ Kansas, Nebraska, North Dakota,
and South Dakota.
Pacific................................ Oregon and Washington.
Southeast.............................. Alabama, Georgia, and South
Carolina.
Southern Plains........................ Oklahoma and Texas.
Appendix A, Table 1 shows the AEWRs by region or State established
by the Department for 2016 to 2018 based on FLS data for field and
livestock workers (combined) under the current regulation.
Most data for the FLS is collected by mail and computer-assisted
phone interviews, with personal interviews used for some large
operations and those with special handling arrangements. NASS reports
FLS data semiannually based on four quarterly reference weeks; in
November, NASS reports annual data. In California, NASS collects data
in cooperation with the California Employment Development Department
and reports the data monthly. The FLS generally has a response rate of
greater than 50 percent. The FLS reports hourly wage rates based on
employers' reports of gross wages paid and total hours worked for all
hired workers during the survey reference week for each quarter it
conducts the survey.
Since 2014, the FLS has collected data by SOC--the same taxonomy
that is used for the OES survey. It does not currently report wage data
by SOC. Instead, the FLS aggregates and reports data in the major FLS
occupational categories of field workers, livestock workers, field and
livestock workers (combined), and all hired workers. In collaboration
with the Department and the OMB, USDA established and implemented a
crosswalk from the major FLS categories to the SOC categories.\35\
Within the major FLS field worker category is the SOC category
Farmworkers and Laborers, Crop, Nursery and Greenhouse (SOC 45-2092).
Within the FLS livestock worker category is the SOC category
Farmworkers, Farm, Ranch, and Aquacultural Animals (SOC 45-2093).
Agricultural Equipment Operators (SOC 45-2091), Packers and Packagers,
Hand (SOC 53-7064), Graders and Sorters, Agricultural Products (SOC 45-
2041), and All Other Field Workers and All Other Livestock Workers (SOC
45-2099) are assigned to either the livestock worker or field worker
major category of the FLS depending upon the agricultural product.
Although the FLS collects data on the wages of supervisors, the FLS has
not been able to report a statistically valid wage result for the major
FLS category of supervisors. As a result, the wages of supervisors are
currently only reported in the all hired workers category and are not
included in the field and livestock workers (combined) category that
the Department uses to establish the AEWR. Included within the major
FLS category of supervisors are Farmers, Ranchers, and Other
Agricultural Managers (SOC 11-9013); and First Line Supervisors of Farm
Workers (SOC 45-1011). Finally, the FLS collects data on ``other
workers.'' The FLS has not been able to report a statistically valid
wage result for this FLS category, and, as a result, wages for ``other
workers'' are reported only in the all hired workers category and are
not included in the wages reported in the field and livestock workers
(combined) category. Included in the ``other workers'' category are
Agricultural Inspectors (SOC 45-2011), Animal Breeders (45-2021), Pest
Control Workers (37-2021), and any other agricultural worker not
fitting into the categories above, including mechanics, shop workers,
truck drivers, accountants, bookkeepers, and office workers who fall
within a variety of SOCs and have a wide variety of job duties.
Contract and custom workers are excluded from the FLS sample
population.
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\35\ See Crosswalk from the National Agricultural Statistics
Service (NASS) Farm Labor Survey (FLS) Occupations to the 2010
Standard Occupational Classification (SOC) System, available at
https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Farm_Labor/Farm-Labor-Survey-(FLS)-to-SOC-Crosswalk.pdf.
---------------------------------------------------------------------------
The OES survey is among the largest ongoing statistical survey
programs of the Federal Government and produces wage estimates for over
800 occupations. It is used as the primary wage source for all of the
nonimmigrant and immigrant prevailing wage determinations issued by the
Department, except for those in the H-2A program. The OES program
surveys approximately 200,000 establishments every 6 months and over a
3-year period collects the full sample of 1.2 million establishments,
accounting for approximately 57 percent of employment in the United
States.\36\ Every 6 months, the oldest data from the 3-year cycle is
removed from the sample, and new data is added. The wages reported in
the older data are adjusted by the ECI, which is a BLS index that
measures the change in labor costs for businesses. The OES survey is
primarily conducted by mail, with follow up by phone to non-respondents
or if needed to clarify data.\37\ The OES average \38\ hourly wage
reported includes all straight-time, gross pay, exclusive of premium
pay, but including piece rate pay.
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\36\ See OES Frequently Asked Questions, available at https://www.bls.gov/oes/oes_ques.htm.
\37\ Id.
\38\ The OES uses the term ``mean.'' However, for purposes of
this regulation the Department uses the term ``average'' because the
two terms are synonymous, and the Department has traditionally used
the term ``average'' in setting the AEWR from the FLS.
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The primary advantage of using a wage derived from the FLS is that
the FLS surveys farm and ranch employers. The OES survey, on the other
hand, surveys establishments that support farm production. While
establishments
[[Page 36182]]
that support farm production participate in the H-2A program, they
constitute a minority of agricultural labor or services, and so data
reported by these establishments is generally useful for purposes of
calculating the AEWR applicable to an agricultural occupation only in
the limited circumstances where FLS data is unavailable for the
occupation.\39\ Another positive feature of the FLS is that the
statewide and regional wages issued provide protection against wage
depression that is most likely to occur in particular local areas where
there is a significant influx of foreign workers. The OES survey also
produces statewide wage rates in addition to wage rates based on
metropolitan statistical areas (MSAs).\40\ Similarly, both the FLS and
the OES surveys report a wage that covers activities above a crop
activity level, which, as discussed above, is where wage depression
from an influx of foreign workers could be most acute.
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\39\ Indeed, BLS refers the public to USDA and NASS for
statistics on U.S. agriculture employment and wages. See OES
Frequently Asked Questions, https://www.bls.gov/oes/oes_ques.htm.
\40\ The Department uses MSA-based wage estimates from the OES
survey to set prevailing wage rates for the H-2B program and used
OES MSA-based wage rates to set AEWRs under the 2008 H-2A Rule.
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The Department favors the FLS as a source for the AEWR, and the
Department proposes to use an occupation-based wage from that survey
due to concerns that the current AEWR based solely on the field and
livestock worker (combined) wage aggregates data at a level that
combines wages of agricultural occupations that are dissimilar and that
this may have the effect of inappropriately raising wages for lower-
paid agricultural jobs while depressing wages in higher-paid
occupations. For example, a worker performing construction labor on a
farm under the H-2A program in Ohio must currently be paid at least the
AEWR of $12.93 per hour because the worker's wage is determined based
on the field and livestock (combined) wage, which contains many
dissimilar jobs, including agricultural equipment operators; graders
and sorters of agricultural products; hand packers and packagers of
agricultural products; and farmworkers who tend to farm, ranch, and
aquacultural animals, as well as farmworkers who perform manual labor
to harvest crop, nursery, and greenhouse products. This is the case
even though the FLS sample does not include workers who perform
contract work, and workers performing construction labor on farms are
likely to be employed as contract workers. In contrast, if the same
construction worker performed identical job duties at a location other
than a farm and, therefore, fell under the H-2B program, the required
prevailing wage rate based on the OES SOC would be approximately $20.27
per hour.\41\ This aspect of the current methodology appears to cause
an adverse effect on the wages of workers in the United States
similarly employed, contrary to the Department's statutory mandate.
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\41\ This is the current statewide OES wage for the category of
Construction Laborer, SOC 47-2061, in Ohio. Under the H-2B program,
a local wage for that occupation would be used if available. As
discussed below, the Department proposes to use the statewide OES
mean hourly wage to establish the AEWR if the FLS cannot report a
wage for the occupational classification in a given State or region.
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An AEWR based on an occupational classification that accounts for
significantly different job duties but remains broader than a
particular crop activity or agricultural activity in a local area may
better protect U.S. workers.\42\ Accordingly, the Department proposes
to amend its current AEWR methodology to issue an occupation-specific
AEWR. The Department proposes to establish the AEWR using the FLS where
the FLS reports a statewide or regional annual average gross hourly
wage result for a particular agricultural occupation.
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\42\ For example, an AEWR under this proposal would be
established for SOC 45-2092 (Farmworkers and Laborers, Crop,
Nursery, and Greenhouse), while particular crop activities within
that category might include the hand harvesting of strawberries or
onion packing shed duties.
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Based on data collected by NASS from 2015 to 2017, the Department
expects it will be able to establish AEWRs for most States and regions
in SOCs 45-2092 (Farmworkers and Laborers, Crop, Nursery, and
Greenhouse) and 45-2093 (Farmworkers, Farm, Ranch, and Aquacultural
Animals). These occupations would represent approximately 89 percent of
workers in the H-2A program if Forest and Conservation Workers (SOC 45-
4011) are added to the H-2A program as proposed, and so the FLS will
continue to be the basis for the AEWRs covering the vast majority of H-
2A workers. In addition, the Department anticipates that it will be
able to use the FLS to establish AEWRs for some States and regions for
SOCs 45-2041 (Graders and Sorters, Agricultural Products), 45-2091
(Agricultural Equipment Operators), 45-2099 (Agricultural Workers, All
Other),\43\ 53-7064 (Packers and Packagers, Hand), 11-9013 (Farmers,
Ranchers and Other Agricultural Managers), and 45-1011 (First Line
Supervisors of Farm Workers) based on NASS data. The FLS will never be
able to report a statewide or regional wage for Alaska because the
survey is not conducted there.
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\43\ The Department would not use the ``all other'' category
from the FLS to set a wage if a more specific SOC applies. For
example, under this proposal, the AEWRs for Forest and Conservation
Workers (SOC 45-4011), Logging Workers (SOC 45-4020), and
Construction Laborers (SOC 47-2061) would all be based on those
specific SOCs, not the ``all other'' category.
---------------------------------------------------------------------------
In a circumstance where the FLS cannot produce a wage for the
occupational classification, the Department proposes to establish the
AEWRs for all SOCs and States or regions at the statewide average
hourly wage for that occupation using data from the OES survey, as
discussed below, unless such a wage is not reported by BLS. Under this
methodology, the OES statewide average hourly wage would also be used
to establish the AEWR if USDA ceased to conduct the FLS for budgetary
or other reasons.
To the extent the FLS may not consistently report data in each SOC
for a State or region, the wage source used to establish the AEWR may
vary from year to year, which could result in a much higher degree of
variation in the AEWR applicable to an occupation from year to year
than exists under the current methodology. The Department requests
comments on whether there are alternate methods or sources that it
should use to set the AEWR in the event that the FLS does not produce a
wage in an SOC and State or region, including, but not limited to: (1)
Whether the Department should use the separate field worker and
livestock worker classifications from the FLS to set AEWRs for workers
in occupations included in those classifications if a wage based on the
SOC from the FLS is not available; (2) whether the Department should
index past wage rates for a given SOC using the Consumer Price Index
(CPI) or Employment Cost Index (ECI) if a wage cannot be reported for
an SOC in a State or region in a given year based on the FLS but a wage
was available in a previous year; (3) whether the Department should use
the FLS national wage rate to set the AEWR for an SOC if the FLS cannot
produce a wage at the State or regional level; and (4) whether the
Department should consider any other methodology that would promote
consistency and reliability in wage rates from year to year.
As an alternative, the Department invites comments on whether to
set AEWRs based on the current FLS occupational classifications of
field
[[Page 36183]]
workers and livestock workers for each State or region. Under this
alternative, any occupational classifications not surveyed by NASS
under either the field worker or livestock worker category would be
assigned an AEWR based on the OES SOC. The disadvantage of this
alternative is that it produces an AEWR at a broader occupational level
than the SOC taxonomy. As a result, this option would provide a single
AEWR covering a broader group of occupations, such as Graders and
Sorters, Agricultural Products (SOC 45-2041) and Agricultural Equipment
Operators (SOC 45-2091), in which workers perform dissimilar job
duties. In contrast, the advantage of this alternative is that the FLS
is currently able to produce a statewide or regional wage for both the
field worker and livestock worker categories in every year, except in
Alaska. As a result, this alternative would significantly reduce the
likelihood that wage sources will change from year to year. For the
same reasons, this methodology would also likely result in the
Department using the FLS to set wages more often if the Department were
to adopt a methodology that set AEWRs based on the SOC. As discussed
above, the Department generally prefers to establish AEWRs based on the
FLS rather than the OES survey because the FLS surveys farmers and
ranchers, whereas the OES surveys establishments that support farm
production, as discussed below.
In proposing to continue use of the FLS to set the AEWR for most H-
2A workers, the Department notes that it does not have direct control
over the FLS, and that USDA could elect to terminate the survey at some
point. Indeed, USDA did briefly terminate the survey in 2007 due to
budget constraints. The Department has addressed such a possibility in
this proposal by providing that the OES statewide average hourly wage
for the SOC will be used if the FLS does not produce an annual gross
hourly wage for the occupational classification for a State or region.
The Department understands that USDA may make future adjustments to
the FLS methodology, including that USDA may exclude certain types of
incentive pay so that a base wage can be separately reported from the
hourly wage rate. However, even after these modifications are complete,
USDA also plans to continue to release data using its current methods.
Under this proposed rule, the Department would continue to use USDA's
existing methodology to set AEWRs based on SOC codes as discussed
above. If the Department decides to later adjust the AEWR calculation
based on methodological changes by USDA, the Department will provide
the public with notice and the opportunity to provide comment before
adopting any changes.
ii. If the OES Produces a Statewide Average Hourly Wage for the SOC,
the Department Proposes To Use That Wage To Set the AEWR for Any
Occupation Classification Where the FLS Does Not Report a Wage for the
Occupational Classification and State or Region
The OES survey can be very useful in limited circumstances where
the FLS cannot produce statistically reliable data for an occupation
and state or region, and the OES survey is able to do so. The
Department expects that the OES will be particularly useful in those
occupations that constitute a small percentage of agricultural labor or
services and a larger subset of non-agricultural labor or services
(e.g., construction workers), or where work is generally not performed
on farms, so wages are not generally sampled by the FLS (e.g., logging
occupations). For these types of occupations, the FLS cannot produce a
wage for the applicable SOCs. Similarly, the OES will be useful for the
proposed addition of forest and conservation workers to the H-2A
program. Like logging, forest and conservation work is not generally
performed on farms or ranches, so it is generally excluded from the
FLS, and the FLS cannot produce a wage for the applicable SOC.
Accordingly, in the Department's view, the OES survey provides the most
accurate source for determining the AEWR for these occupations. Indeed,
because the OES survey is the primary wage source in the H-2B program,
employers bringing in forest and conservation workers for temporary
work are already required to pay at least an average hourly wage based
on the OES survey.
Accordingly, the Department proposes to use the statewide OES
average hourly wage for the SOC where the FLS cannot produce a wage for
the agricultural occupation and State or region. In the H-2B program,
the Department generally establishes prevailing wages based on the OES
survey for the SOC in a metropolitan or non-metropolitan area. For the
H-2A program, however, the Department proposes to use a statewide wage
both to more closely align with the geographic areas from the FLS and
to protect against wage depression from a large influx of nonimmigrant
workers that is most likely to occur at the local level. As explained
in prior rulemakings, the concern about localized wage depression is
more pronounced in the H-2A program than in the H-2B program due to
both the vulnerable nature of agricultural workers and the fact that
the H-2A program is not subject to a statutory cap, which allows an
unlimited number of nonimmigrant workers to enter a given local
area.\44\
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\44\ See, e.g., 2010 Final Rule, 75 FR 6884, 6895.
---------------------------------------------------------------------------
When the OES survey is used to establish the AEWR, the Department
proposes to use the average hourly wage for the SOC, which is the
methodology used under the H-2B program.\45\ The average is proposed
rather than the four-tiered wage level structure that the Department
used to set the AEWR under the 2008 H-2A Final Rule. As explained in
the preamble to the Department's current H-2A regulation: ``OES wage
levels are not determined by surveying the actual skill level of
workers, but rather by applying an arithmetic formula. These are
arbitrary percent cut-offs of the distribution of earnings within the
occupations. Therefore, the associated occupational skill levels are
not well defined, and H-2A wage differences [imposed by a four tier
system] do not accurately reflect meaningful differences in skills or
job complexity.'' 2010 Final Rule, 75 FR 6884, 6900. As the Department
further noted, ``[m]ost of the occupations and activities relevant to
the H-2A program involve skills that are readily learned in a very
short time on the job, skills peak quickly, rather than increasing with
long-term experience.'' Id. To the extent that there are some
agricultural activities that require a higher amount of expertise than
others, such as agricultural inspectors or animal breeders, such
differences are accounted for in the Department's proposal to issue
AEWRs at the occupational classification level without regard to
artificial ``tiers.''
---------------------------------------------------------------------------
\45\ The H-2B regulation uses the term ``mean'' rather than
``average,'' but the meaning is the same.
---------------------------------------------------------------------------
In proposing to use the OES survey to establish the AEWR for a
small percentage of H-2A workers, the Department acknowledges that the
Department concluded in the 2010 Final Rule that use of the OES survey
under the 2008 Final Rule depressed the wages of workers in the United
States similarly employed. That finding does not apply to the current
proposal for three primary reasons.
First, the Department proposes to use the OES survey only when the
FLS cannot produce a wage for an occupation at the State or regional
level. As discussed above, using the generalized field and livestock
workers
[[Page 36184]]
(combined) wage from the FLS to establish the AEWR may have a
depressive effect on wages of workers in the United States similarly
employed for some agricultural occupations. As a result, if the FLS
cannot produce a State or regional wage for an agricultural occupation,
it is the Department's preliminary view, for the reasons discussed
above, that the statewide OES survey provides a more accurate and
appropriate source for the AEWR. Second, much of the wage reduction
under the 2008 Final Rule was due to the fact that the 2008 Final Rule
used a four-tiered wage level system, in contrast to this NPRM's
proposal to use the average. As the Department has noted, under the
2008 Final Rule, ``73 percent of applicants for H-2A workers specified
the lowest available skill level--corresponding to the wage earned by
the lowest paid 16 percent of observations in the OES data. Only 8
percent of applicants specified a skill level that translated into a
wage above the OES median.'' 2010 Final Rule, 75 FR 6884, 6898. Third,
the use of the statewide wage rather than the wage at the metropolitan
or non-metropolitan area is intended to prevent the OES wage from
reflecting any wage depression in a particular local geographic area.
Accordingly, the proposal to use the OES survey in this manner does not
raise the same concerns as the 2008 Final Rule did.
The Department recognizes that the proposed methodology results in
some AEWR increases and some AEWR decreases depending upon geographic
location and agricultural occupation. Because any wage reductions are
the result of the use more accurate occupational data, the reductions
are consistent with the Department's obligation to protect against
adverse effect on workers in the United States similarly employed. The
use of more accurate occupational data means that lower AEWRs that
better reflect the wage needed to protect against adverse effect for
those agricultural occupations are generally offset by higher AEWRs in
other occupations.
Appendix A, Table 2 provides average hourly wages by SOC and State
under the proposed rule. The estimates in Appendix A, Table 2 are based
on historic data.
iii. The Department Proposes To Use National Occupational Data If
Neither the OES Survey Nor the FLS Reports a State or Regional Wage for
the Occupation
In the rare event that both the FLS does not report an annual
average hourly gross wage for the occupational classification in the
State or region and the OES survey does not report a statewide annual
average hourly wage for the SOC, the Department proposes to use
national data for the occupation to set the wage for that geographic
area. If both wage sources report a national wage rate for the
occupational classification, the Department proposes to set the AEWR at
the national annual average hourly gross wage for the occupational
classification from the FLS because, for the reasons discussed above,
the Department generally prefers to use the FLS, which is based on
wages paid by farmers and ranchers. If the FLS does not report a
national wage for the occupation, the Department proposes to use the
national average hourly OES wage for that SOC and geographic area.
iv. The Department Requests Comments on All Aspects of Its Proposed
Methodology for Establishing the AEWR
The Department invites comments on all aspects of the proposed AEWR
methodology. In particular, the Department is interested in comments on
the use of the FLS and OES survey, the conditions under which each
survey should be used to establish the AEWR, and the proposal to depart
from relying on the field and livestock workers (combined) wage from
the FLS to instead establish AEWRs based on occupational
classifications. The Department also invites comments on any alternate
wage sources the Department might use to establish the AEWRs in the H-
2A program.
c. The Department Proposes To Modernize the Methodology Used To
Establish the Prevailing Wage Rate
i. The Current Prevailing Wage Methodology is Outdated and Does Not
Meet the Policy Goal of Producing Reliable Prevailing Wage Rates
Current 20 CFR 655.120(a) requires that an employer seeking a
temporary agricultural labor certification to employ an H-2A worker
must offer, advertise in its recruitment, and pay a wage that is at
least the highest of the AEWR, the prevailing wage, the agreed-upon
collective bargaining wage, the Federal minimum wage, or the State
minimum wage.\46\ In addition, the Wagner-Peyser regulation at 20 CFR
653.501(c)(2)(i) requires the SWA to ensure for all agricultural job
orders, H-2A and non-H-2A, that ``wages . . . offered are not less than
the prevailing wages . . . among similarly employed farmworkers in the
area of intended employment or the applicable Federal or State minimum
wage, whichever is higher.'' Currently, the SWAs are required to
conduct prevailing wage surveys using standards set forth in Handbook
385, which pre-dates the creation of the H-2A program and has not been
updated since 1981. The Handbook is used for both H-2A and non-H-2A
agricultural job orders. Notable aspects of the guidance are discussed
below.
---------------------------------------------------------------------------
\46\ Under the current regulations and survey methodology, the
AEWR most often sets the minimum hourly requirement.
---------------------------------------------------------------------------
Handbook 385 requires the SWAs to conduct prevailing wage surveys
to determine the wage rates paid to domestic workers. Handbook 385 at
I-116. These surveys are conducted based on ``crop activity,'' with
``crop activity'' defined as follows:
the job actually being performed in a specific crop at time of
survey. A single job title, such as `harvest', may apply to the
entire crop activity. On the other hand, different stages of the
harvest, such as `cotton, 1st pick, 2nd pick, and strip', may be
involved; or, a different use of the commodity such as `tomatoes,
fresh' or `tomatoes, canning.' In such cases, the important
consideration is whether the work is different. . . . For the
purposes of this report, each operation or job related to a specific
crop activity for which a separate wage rate is paid should be
identified and listed separately.
Handbook 385 at I-113. In addition, the Handbook establishes separate
prevailing wage rates for in-State workers, interstate workers, and all
workers. Handbook 385 at I-118. Generally, job orders placed in the
interstate clearance system are required to use the highest of these
three rates. Handbook 385 at I-118.
Among the guidelines provided, the Handbook lists sample sizes that
the SWA ``should'' follow, which vary depending upon the number of
workers. Handbook 385 at I-114. The Handbook provides that for some
crops with a small number of domestic workers, samples of the wages of
all workers in the crop activity should be conducted, as follows:
Table 2--Sample Sizes From Handbook 385
------------------------------------------------------------------------
Sample size
Number of workers in the crop activity in area (percent of
workers)
------------------------------------------------------------------------
100-349................................................. 100
350-499................................................. 60
500-799................................................. 50
800-999................................................. 40
1000-1249............................................... 35
1250-1599............................................... 30
1600-2099............................................... 25
2100-2999............................................... 20
3000 or more............................................ 15
------------------------------------------------------------------------
[[Page 36185]]
Handbook 385 at I-114. The Handbook does not provide any further
information on whether the sample size guidelines are intended to be
mandatory in all circumstances and, if the standards are not intended
to be mandatory in all circumstances, what factors the Department must
consider in determining whether to issue a prevailing wage if the
sample size guidelines are not met. The Handbook further suggests that
the State should conduct at least 1 survey per season in each of the
following circumstances: (1) At least 100 workers were employed in the
crop activity in the previous season or are expected to be employed in
the current season; (2) regardless of the number of workers employed,
foreign workers were employed in the previous season, or employers have
requested or may be expected to request foreign workers in the current
season, regardless of the number of workers involved; (3) the crop
activity has an unusually complex wage structure; or (4) the crop or
crop activity has been designated by the ETA national office as a major
crop or crop activity. Handbook 385 at I-115. In addition, the Handbook
recommends that surveys should normally be completed within 3 days.
Handbook 385 at I-115.
The Handbook provides that prevailing wages are produced based on a
``40 percent rule'' and a ``51 percent rule.'' Handbook 385 at I-116-
17. Under the 40 percent rule, a single rate or schedule that
``accounts for the wages paid to 40 percent or more of the domestic
seasonal workers in a single crop activity is the prevailing rate.''
Handbook 385 at I-116. There are additional special rules if there is
more than one rate or schedule accounting for 40 percent of the
domestic seasonal workers. Handbook 385 at I-116. If no single rate or
schedule accounts for 40 percent or more of the domestic workers, the
prevailing rate is set at the 51 percentile. Handbook 385 at I-117. If
there is more than one unit of payment, the SWA is instructed to
determine which unit of payment is prevailing and base the prevailing
wage finding on that unit of payment. Handbook 385 at I-117.
Most burdensome, the Handbook methodology requires in-person
interviews to conduct the prevailing wage survey. Specifically, the
wage survey must include ``a substantial number of personal employer
interviews,'' which can only be supplemented by telephone or mail
contacts ``to a limited extent.'' Handbook 385 at I-116. Further, the
Handbook requires that 10 percent of the workers included in the sample
for the wage survey must be interviewed and suggests that the worker
sample ``should be drawn from workers of as many as possible of the
employers interviewed.'' Handbook 385 at I-116. Neither the FLS nor the
OES survey requires in-person interviews of employers as the primary
collection method. Both the FLS and OES survey rely solely on employer-
reported data and do not canvass workers directly.
The methodology in the Handbook 385 is outdated and needs to be
modernized in a manner that produces reliable and accurate prevailing
wage rates, while still being manageable given the limited available
resources at the State and Federal levels. The Handbook methodology
dates from 1981, before the creation of the modern H-2A program. Before
the IRCA, the Department established AEWRs in only 14 ``traditional
user'' States, leaving the prevailing wage and Federal and State
minimum wages as the only wage protections available in other states.
See 1989 Final Rule, 54 FR 28037, 28038. After the passage of the IRCA,
the Department dramatically expanded the use of the AEWR as a wage
protection in the H-2A program in 49 States (excluding Alaska) and
first began using the FLS to set the AEWR. See id. In contrast, no
updates were made to the Handbook 385 after the passage of the IRCA or
at any time since. Requirements in the Handbook, such as the
requirement for in-person interviews, are now unrealistic given current
SWA limitations. Due to the continued use of these standards, the SWAs
are often required to report that the State cannot produce a finding
for a given crop activity or agricultural activity because the
completed survey cannot meet methodological standards. Accordingly, the
current wage methodology both wastes State and Federal resources and
fails to produce reliable and accurate prevailing wage rates for
employers and workers.
For all of these reasons, the Department proposes to make changes
to modernize the prevailing wage methodology. The proposal is intended
to meet the Department's goals of establishing requirements that allow
the SWAs and other State agencies to conduct surveys using standards
that are realistic in a modern budget environment, while also
establishing reliable and accurate prevailing wage rates for employers
and workers. By modernizing the prevailing wage survey standards, the
Department hopes to focus States on producing surveys in the
circumstances in which the surveys can be most useful for protecting
the wages of U.S. workers, and hopes to encourage a greater number of
reliable prevailing wage survey results. The proposal recognizes that
under the proposed wage methodology, which requires the offered wage
rate to be set at the highest of all applicable wage rates, prevailing
wage determinations will continue to be relevant only to a small
percentage of job orders.
ii. The Department Proposes To Modernize the Methodology Used To
Establish the Prevailing Wage Rate
For the reasons discussed above, the Department proposes to
modernize the standards in Handbook 385 and replace the existing
prevailing wage methodology with a new methodology at Sec. 655.120(c)
under which the Department would establish prevailing wages for crop
activities or agricultural activities. The Department proposes to use
the term ``crop activity or agricultural activity'' rather than the
term ``crop activity'' from Handbook 385 because prevailing wage rates
may exist for a single agricultural activity conducted across multiple
agricultural commodities. Establishing wage rates by both crop
activities and agricultural activities is consistent with the
Department's current policy. For example, the Department's existing
sub-regulatory guidance covering custom combine workers explains that
prevailing wage rates for custom combine operators are established in
accordance with Handbook 385.\47\ This is because custom combine
operators may be engaged in an agricultural activity, such as operating
harvesting equipment, with a single wage structure across multiple
crops.
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\47\ See TEGL 16-06, Change 1, Special Procedures: Labor
Certification Process for Multi-State Custom Combine Owners/
Operators under the H-2A Program, Attachment A at p. 1, available at
https://wdr.doleta.gov/directives/attach/TEGL/TEGL16-06-Ch1.pdf
(last updated June 14, 2011). As discussed further in the preamble
related to proposed Sec. Sec. 655.300 through 655.304, the
Department proposes to codify in regulations the existing sub-
regulatory guidance for certain H-2A itinerant occupations,
including guidance applicable to custom combine operators.
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Under the new proposed methodology, the OFLC Administrator would
establish a prevailing wage for a given crop activity or agricultural
activity only if all of the requirements in proposed Sec.
655.120(c)(1) are met. Requiring that all surveys meet statistical
standards is necessary to establish reliable and accurate prevailing
wage rates for employers and workers. The Department proposes the
following standards: (1) The SWA must submit a standardized form
providing the methodology of the survey, which must be independently
conducted by
[[Page 36186]]
the SWA or another state entity; (2) the survey must cover a distinct
work task or tasks performed in a single crop activity or agricultural
activity; (3) the survey must be based on either a random sample or a
survey of all employers in the geographic area surveyed who employ
workers in the crop activity or agricultural activity; (4) the survey
must be limited to the wages of U.S. workers; (5) a single unit of pay
must be used to compensate at least 50 percent of the U.S. workers
included in the survey; (6) the survey must report an average wage; (7)
the survey must cover an appropriate geographic area based on several
factors; and (8) the survey must report the wages of at least 30 U.S.
workers and 5 employers and the wages paid by a single employer must
represent no more than 25 percent of the sampled wages included in the
survey. In addition to these methodological standards, the Department
proposes to establish a validity period of prevailing wage surveys.
First, the Department proposes to maintain the current requirement
that the SWA submit a Form ETA-232 providing the methodology for the
survey. If finalized as proposed, the Department would update the Form
ETA-232 to align with the new proposed prevailing wage methodology.
While the SWA would continue to submit the Form ETA-232 to OFLC, the
Department proposes to allow the survey to be independently conducted
by State entities other than the SWA, including any State agency, State
college, or State university.\48\ The Department proposes to broaden
the universe of State entities that may conduct a prevailing wage
survey because the SWAs have limited capacity to conduct surveys given
other legal requirements, including the statutory requirement to
conduct housing inspections. However, some other State agencies, State
colleges, or State universities may have resources and expertise to
conduct reliable prevailing wage surveys for the H-2A program. The
Department proposes to broaden the categories of State entities that
may conduct prevailing wage surveys to encourage more prevailing wage
surveys to be conducted by reliable sources, independent of employer or
worker influence. Under this proposal, a State entity other than the
SWA could choose to conduct a prevailing wage survey using State
resources without any foreign labor certification program funding, or
the SWA could elect to wholly or partially fund a survey conducted by
another State entity using funds provided by the Department for foreign
labor certification programs. However, the Department proposes to
continue to require the SWA to submit the Form ETA-232 for any
prevailing wage survey, even if the survey was conducted by another
State entity, to provide a single avenue through which States submit
surveys, and so it is clear that all surveys sent to the Department are
submitted on behalf of the State as a whole. The SWA is the appropriate
entity to submit any survey to the Department because the SWA receives
grant funding from the Department for the H-2A program. Without this
requirement, the Department is concerned that more than one agency in a
State might conduct a survey for the same crop activity or agricultural
activity, which would require the Department to adjudicate conflicting
prevailing wage surveys. The Department requests comments on alternate
methods of dealing with the issue of possible conflicting surveys. The
Department also requests comments on whether there are additional
neutral sources of prevailing wage information that the Department
should use in the H-2A program.
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\48\ The H-2B regulation generally uses the OES average wage for
the SOC to set the prevailing wage rate and allows employers to
submit non-OES wage surveys as an alternative to the OES only if the
survey is independently conducted and issued by a State, including
any State Agency, State college or State university; where the OES
does not provide data in the geographic area; or if the OES does not
accurately represent the relevant job classification. 20 CFR 655.10.
---------------------------------------------------------------------------
Second, the Department proposes that the survey must cover a
distinct work task or tasks performed in a single crop activity or
agricultural activity. The concept of distinct work tasks is continued
from the Handbook 385, which provides:
Some crop activities involve a number of separate and distinct
operations. Thus, in harvesting tomatoes, some workers pick the
tomatoes and place them in containers while others load the
containers into trucks or other conveyances. Separate wage rates are
usually paid for individual operations or combinations of
operations. For the purposes of this report, each operation or job
related to a specific crop activity for which a separate wage rate
is paid should be identified and listed separately.
Handbook 385 at I-113 (emphasis in original). The distinct task
requirement means that even within a single crop, distinct work tasks
that are compensated differently (e.g., picking and packing) would be
required to be surveyed in a manner that produces separate wage
results.
Third, the Department proposes that the survey must be based on
either a random sample or a survey of all employers in the surveyed
geographic area who employ workers in the crop activity or agricultural
activity. This requirement is based on general statistical principals
and is consistent with the recommendation in Handbook 385, which
provides: ``[w]ithout regard to whether employers do or do not utilize
the facilities of the Job Service, the wage survey sample should
include workers of small, medium and large employers of domestic
workers from all sectors of the area being surveyed, and should be
selected by probability sampling methods.'' Handbook 385 at I-114.
Probability and random sampling are synonymous, and random sampling
includes both simple random sample and stratified random sample
methods. The Department proposes to maintain this existing requirement
to conduct a random/probability sample and clarify that random sampling
(or surveying the entire universe) is a requirement, not a
recommendation. The requirement that a prevailing wage survey be
established based on a sampling of the entire universe or a random
sample is also consistent with the H-2B prevailing wage regulation at
Sec. 655.10, as well as current H-2B prevailing wage guidance
interpreting the H-2B appropriations riders.\49\ To make a reasonable,
good faith effort to contact all employers in the surveyed geographic
area who employ workers in the crop activity or agricultural activity,
the surveyor might send the survey through the mail or other
appropriate means to all employers in the geographic area and then
follow up by telephone with all non-respondents.
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\49\ See Effects of the 2016 Department of Labor Appropriations
Act (Dec. 29, 2015) at p. 4, available at https://www.foreignlaborcert.doleta.gov/pdf/H-2B_Prevailing_Wage_FAQs_DOL_Appropriations_Act.pdf.
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Fourth, to protect against possible adverse effect on the wages of
workers in the United States similarly employed, the Department
proposes to limit the survey to the wages of U.S. workers. This
limitation applies to both determining the universe of workers' wages
to be sampled and the universe of workers' wages reported. Limiting the
survey to U.S. workers is consistent with the Department's current
policy and reflects the Department's longstanding concern that
including the wages of non-U.S. workers may depress wages.\50\ The
Department recognizes that in the H-2B program, prevailing wage surveys
must be conducted
[[Page 36187]]
without regard to the immigration status of the workers whose wages are
included in the survey. However, the Department proposes to continue to
require prevailing wage surveys in H-2A to include only the wages of
U.S. workers due to concerns that the presence of the wages of
undocumented workers in the sample may depress the wages of workers in
the United States similarly employed are particularly acute in
agriculture, because nearly half of farmworkers lack work
authorization.\51\ The Department invites comments on this policy,
including whether the Department should instead adopt the H-2B
standard.
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\50\ The Handbook 385 uses the terms ``domestic workers'' and
``U.S. workers'' in describing the sample to be conducted, and the
current Form ETA-232 similarly limits the survey to U.S. workers.
\51\ According to the most recent U.S. Department of Labor's
National Agricultural Workers Survey, between October 1, 2012, and
September 30, 2014, 47 percent of farmworkers in the United States
lacked work authorization. Findings from the National Agricultural
Workers Survey (NAWS) 2013-2014: A Demographic and Employment
Profile of United States Farmworkers, Research Report No. 12 (Dec.
2016), pp. 4-5, available at https://www.doleta.gov/naws/pages/research/docs/NAWS_Research_Report_12.pdf.
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Fifth, the Department proposes that a prevailing wage be issued
only if a single unit of pay is used to compensate at least 50 percent
of the U.S. workers included in the survey. For example, an hourly
prevailing wage rate would only be issued if at least 50 percent of the
U.S. workers included in the survey are paid by the hour (and the
survey also meets all other requirements provided in the proposed
rule). For a wage rate based on a piece rate to be issued under this
proposal, at least 50 percent of the U.S. workers whose wages are
included in the survey must be both paid by the piece and also must be
paid based on the same unit of measurement (e.g., bushel, bin, etc.).
This is similar to the requirement in the Handbook 385 that if a survey
includes more than one unit of payment, a prevailing wage rate is
issued based on the unit of pay that represents the largest number of
workers. Handbook 385 at I-117. The Department proposes this
requirement both to verify that the rate structure reflected in the
survey is actually prevailing and to provide that the wages included in
the survey can be averaged, as discussed in the next paragraph of the
preamble, because it would not be possible to average wages using
different units of measurement.
Sixth, the Department proposes that a prevailing wage survey must
report an average wage for the unit of pay that represents at least 50
percent of the wages of U.S. workers included in the survey. This
proposal departs from the requirement in Handbook 385 to use a ``40
percent rule'' and a ``51 percent rule,'' discussed above. The
Department proposes to use an average wage to establish the prevailing
wage because it is consistent with both how the Department proposes to
set the AEWR under the FLS and OES methodologies and with the current
H-2B wage methodology for prevailing wage rates. The Department invites
comments on this methodology as well as possible alternatives,
including whether the ``40 percent rule'' and a ``51 percent rule''
from the Handbook should be maintained or whether the Department should
instead establish the prevailing wage at the median wage based on the
unit of pay.
Seventh, the Department proposes that a prevailing wage survey must
cover an appropriate geographic area based on available resources, the
size of the agricultural population covered by the survey, and any
different wage structures in the crop activity or agricultural activity
within the State. With this proposal, the Department intends to codify
existing practice whereby the Department receives prevailing wage
surveys based on State, sub-state, and--in the case of logging
activities in Maine, New Hampshire, and Vermont--regional geographic
areas based on the factors listed above. The Department requests
comments on whether any other factors should be considered in
determining the appropriate geographic area for prevailing wage
surveys.
Eighth, and most significantly, the Department proposes to replace
the statistical guidelines from Handbook 385 with standards that are
more effective in producing a prevailing wage and more appropriate to a
modern budget environment. As discussed above, existing standards often
result in ``no finding'' from a prevailing wage survey; therefore, the
current standards are both a waste of government resources and fail to
meet the goal of producing reliable and accurate prevailing wage rates.
The Department is also concerned that employers may be incentivized not
to respond to a survey under the existing methodology because the OFLC
Administrator does not issue a prevailing wage if the sample is too
small. As a result, requiring smaller sample sizes than those suggested
in Handbook 385 may actually increase survey response rates because
employers may be more likely to respond to a survey if it is more
likely that the OFLC Administrator will issue a prevailing wage than
under the current methodology.
The Department proposes that the survey must report the wages of at
least 30 U.S. workers and 5 employers and that the wages paid by a
single employer must represent no more than 25 percent of the sampled
wages included in the survey. The 30-worker standard is consistent with
the requirements for H-2B prevailing wage rates as well as minimum
reporting numbers for the OES. See 20 CFR 655.10(f)(4)(ii) (employer-
provided surveys for the H-2B program must include wage data from at
least 30 workers and three employers); see also 80 FR 24146, 24173
(Apr. 29, 2015). BLS requires wage information from a minimum of 30
workers (after raw OES survey data is appropriately scrubbed and
weighted) before it deems data of sufficient quality to publish on its
website. In addition, the Department proposes that a survey must
include wages paid by at least five employers. This is a change from
Handbook 385, which does not have a minimum number of employers who
must be included in the survey. The Department recognizes that by
proposing to require that a survey must include wages paid by at least
five employers, the proposal exceeds the number of employers (e.g.,
three) required to establish prevailing wage rates under the H-2B
program; however, while prevailing wages in the H-2B program are
generally set based on local area of intended employment, H-2A
prevailing wage rates are generally set based on a larger geographic
area. In the Department's preliminary view, this makes a higher number
of employer responses appropriate for the H-2A program. Finally, the
Department proposes that the wages paid by a single employer must
represent no more than 25 percent of the sampled wages. The Department
proposes this 25 percent standard so that the wage is not unduly
impacted by the wages of a single dominant employer. The Department
would issue a prevailing wage from a survey only if all of the sample
size requirements--30 workers, 5 employers, and the 25 percent single
employer standards--are met.
Both the five employer and 25 percent dominance standards are
consistent with the ``safety zone'' standards for exchanges of employer
wage information established by the Department of Justice (DOJ) and
Federal Trade Commission (FTC) in the antitrust context.\52\ Under the
safety zone
[[Page 36188]]
standards, absent extraordinary circumstances, the exchange of
information about employer wages meeting the requirements for the
safety zone will not be challenged by the DOJ or the FTC as a violation
of antitrust law. Although created for a different purpose than these
proposed H-2A regulatory standards, the safety zone standards establish
levels at which the DOJ and FTC have established that an exchange of
wage information is sufficiently anonymized to prevent the wages of a
single employer from being identified because the wage results reported
too closely track the wages paid by a single employer. It is the
Department's preliminary conclusion that the safety zone standards are
consistent with the Department's aim of requiring that the wages
reported from a prevailing wage survey are sufficiently representative,
and the wages of a single employer do not drive the wage result.
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\52\ See Statement 6 of the Antitrust Enforcement Policy in
Health Care (``enforcement policy''), August 1996, available at
https://www.justice.gov/atr/public/guidelines/0000.htm. While the
enforcement policy was developed for exchanges of information in the
health care industry, the policy has been recognized to ``offer
significant insights that go beyond health care, including a very
useful framework for analyzing information exchanges,'' David H.
Evans & Benjamin D. Bleiberg, Trade Associations: Collaboration,
Conspiracy and Invitations to Collude, Antitrust Rev. of the
Americas, at 40 (2011); see also Robert H. Lattinville & Robert A.
Boland, Coaching in the National Football League: A Market Survey
and Legal Review, 17 Marq. Sports L. Rev. 109, at n. 428 (Fall 2006)
(``Officials from the FTC have stated that the principles, while
nominally focused on the health care industry, are broadly
applicable to other industries and professions.'').
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The Department requests comments on these statistical standards and
any alternate standards that might be used to meet the Department's
goals of establishing reliable and accurate prevailing wage rates
consistent with a modern budget environment. For example, the
Department requests comments on whether to require the Handbook's
suggested sample size of 15 percent for crop activities or agricultural
activities with at least 3,000 U.S. workers but require a smaller
sample than those set in the Handbook for smaller crop activities and
agricultural activities. Additionally, the Department requests comments
on whether the proposed sample size requirements, and any recommended
alternative requirements, should apply to the survey overall or to the
prevailing unit of pay. For example, the Department invites comments on
whether, if a survey includes both hourly pay and piece rate pay based
on a bushel unit, the 30 worker, 5 employer, and 25 percent dominance
standards should apply to the survey overall, or to the unit of pay
that represents the wages paid to at least 50 percent of the workers in
the survey.
In addition to the standards governing the methodology in the
survey, in Sec. 655.120(c)(2), the Department proposes that a
prevailing wage rate would remain valid for 1 year after OFLC posts the
wage rate or until replaced with an adjusted prevailing wage, whichever
comes first, except that if a prevailing wage that was guaranteed in
the employer's Application for Temporary Employment Certification
expires during the contract period, the employer must continue to
guarantee a wage that is at least equal to the expired prevailing wage
rate. This proposal is consistent with OFLC's current policy. The
Department proposes that if an employer guaranteed a prevailing wage
rate in the Application for Temporary Employment Certification, it must
continue to guarantee that rate if it is the highest applicable wage,
even if the prevailing wage rate ``expires'' during the contract
period. This is because the employer may not pay a wage lower than the
wage it offered to U.S. or H-2A workers.
The 1-year validity period for prevailing wage rates is generally
consistent with OFLC's current practice. The Department proposes to
maintain the current validity period with the goals of both basing
prevailing wage rates on the most recent and accurate data and making
prevailing wage rate findings available where the prevailing wage rate
would be higher than the AEWR. The Department invites comments on
whether an alternate duration for the validity of prevailing wage
surveys would better meet these goals. For example, the Department
invites comments on whether to use the 2-year period that is used for
the H-2B program. For the H-2B program, an employer may submit a
prevailing wage survey if it is the most recent edition of a survey and
is based on data collected no more than 24 months before submission.
The Deparment also invites comments on whether it should index
prevailing wage rates based on either the CPI or ECI when the OFLC
Administrator issued a prevailing wage rate in 1 year for a crop
activity or agricultural activity but a prevailing wage finding is not
available in a subsequent year. The Department also invites comments on
whether it should set any limits on the age of the data reported by a
survey.
The Department requests comments on each of the methodological
changes discussed above, as well as any alternate prevailing wage
survey requirements. This includes comments on whether and why any of
the elements of Handbook 385 should be maintained and incorporated in
to the regulation as well as whether and why any aspects of the
Department's H-2B prevailing wage methodology for employer-provided
surveys should be adopted for the H-2A program. The Department is
particularly interested in comments that address how the recommended
standard will meet the Department's objective to produce reliable and
accurate prevailing wage rates for employers and workers in a manner
consistent with available resources at the State and Federal levels.
d. The Department Proposes That the Employer Must Pay Any Higher AEWR
or Prevailing Wage Rate Not Later Than 14 Days After Notification of
the New Wage Rate
Paragraph (c) of current Sec. 655.120 provides that the Department
would update the AEWR at least annually by publication in the Federal
Register.\53\ In addition, the current regulation at Sec. 655.122(l)
requires employers to pay the highest wage ``in effect at the time the
work is performed,'' which means employers must begin paying the AEWR
upon its effective date. The current regulation is silent on when a
published AEWR becomes effective. For many years, the Department
published AEWRs with an immediate effective date. However, starting
with the AEWRs for 2018, the Department gave employers up to 14 days to
start paying a newly issued higher AEWR.\54\ The Department proposes to
provide text in Sec. 655.120(c) that clarifies that if a higher AEWR
is published in the Federal Register during the labor certification
period, the employer must begin paying the new wage rate within 14
days, consistent with the current regulation and policy. This policy
prevents adverse effect on the wages of U.S. workers by quickly
implementing any newly-required higher wage rate, while giving
employers a brief window to update their payroll systems to implement a
newly-issued wage. The 14-day effective date is based on the current
regulation at Sec. 655.122(m), which requires the employer to pay the
worker at least twice a month or according to the prevailing practice
in the area of intended employment, whichever is more frequent. No
changes are proposed to Sec. 655.122(m). Given this existing
requirement, the 14-day window provides that an employer is not
required to adjust a worker's pay in the middle of a pay period.
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\53\ Under 44 U.S.C. 1507, publication in the Federal Register
provides legal notice of the new wage rates.
\54\ See Notice, Labor Certification Process for the Temporary
Employment of Aliens in Agriculture in the United States: 2018
Adverse Effect Wage Rates for Non- Range Occupations, 82 FR 60628
(Dec. 21, 2017).
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In addition, the Department proposes to make minor edits to the
existing language because the AEWRs will no longer be announced in a
single Federal
[[Page 36189]]
Register announcement. Instead, each AEWR will be updated at least
annually, but the Department plans to make the updates through two
announcements, one for the AEWRs based on the FLS, and another one for
the AEWRs based on the OES survey. This is due to the different time
periods for release of these two surveys.
Similar to the current regulation on AEWR updates, the current
regulation at Sec. 655.120(b) requires the employer to pay a higher
prevailing wage upon notification to the employer by the Department.
The Department's current practice is to publish prevailing wage rates
on its website and to directly contact employers who are covered by a
higher prevailing wage rate. The proposed regulation maintains this
current practice for notifying employers directly, rather than through
the Federal Register, because the administrative burden of contacting
employers directly is less than publishing multiple prevailing wage
rates in the Federal Register given that prevailing wage rate surveys
are not provided for all crops, activities, and locations in a single
cycle. As with the AEWR, the Department proposes to make the new
prevailing wage rates effective 14 days after notification so that
employers do not need to update the wage rate in the middle of a pay
period.
For both the AEWR and prevailing wage rate, the Department proposes
that the employer must pay a higher wage rate if the wage is adjusted
during the contract period, but may not lower the wage rate if OFLC
issues an AEWR or prevailing wage that is lower than the offered wage
rate. Because the employer advertised and offered the higher rate
through its recruitment of U.S. and H-2A workers, the wage cannot be
reduced below the wage already offered and agreed to in the work
contract. Under this proposal, an employer would not be permitted to
put a clause in the job order stating that it may reduce the offered
wage rate if a lower AEWR or prevailing wage is issued. The Department
also proposes to remove current regulatory language that requires an
employer to pay the wage ``in effect at the time work is performed''
from Sec. Sec. 655.120(b) and 655.122(l) because that language may
create confusion about the existing requirement to continue to pay a
previously offered wage if the new ``effective'' wage is lower.
e. Wage Assignments and Appeals
Under this proposal, an employer would select the appropriate SOC
code for the job opportunity and guarantee in its Application for
Temporary Employment Certification a wage that is at least the highest
of the AEWR for that SOC, a prevailing wage where the OFLC
Administration has issued such a wage rate, an agreed-upon collective
bargaining wage, or the applicable Federal or State minimum wage. The
CO would then review the employer's wage selection as part of the
review of the Application for Temporary Employment Certification to
verify that the employer guarantees at least the required wage.
Under paragraph (b)(5) of this proposal, if the job duties on the
Application for Temporary Employment Certification do not fall within a
single occupational classification, the CO would determine the
applicable AEWR at the highest AEWR for all applicable occupational
classifications. Determining the appropriate SOC is an important
component of the Department's proposal to move to an occupation-
specific wage. The proposal to use the highest applicable wage would
reduce the potential for employers to misclassify workers and would
impose a lower recordkeeping burden than if the Department permitted
employers to pay different AEWRs for job duties falling within
different occupational classifications on a single Application for
Temporary Employment Certification. This proposal is also consistent
with how the Department assigns prevailing wage rates for jobs that
cover multiple SOCs in the H-2B program.
Under this proposal, employers who currently file a single
Application for Temporary Employment Certification covering multiple
workers and a wide variety of duties might choose to file separate
Applications for Temporary Employment Certification and limit the
duties of the workers covered by each Application for Temporary
Employment Certification to a single occupational classification. The
employer would then pay a separate wage rate based on the duties of
each Application for Temporary Employment Certification.
The Department invites comments on the proposal to determine the
applicable AEWR at the highest AEWR for all applicable occupational
classifications, including any alternate methods the Department should
use to determine the AEWR if the job duties on the Application for
Temporary Employment Certification do not fall within a single
occupational classification. For example, the Department invites
comments on whether it should establish the AEWR to be guaranteed on
the Application for Temporary Employment Certification based on the
primary duties of the job as reported on the Application for Temporary
Employment Certification. Any proposals to use a methodology other than
the highest AEWR for all applicable occupational classifications should
explain how the Department would protect against misclassification.
All Applications for Temporary Employment Certification are
currently assigned an SOC by the SWA, but these assignments have no
impact on the required wage rate in the H-2A program, because the
required wage rate is not currently based on the SOC system. Based on
past SOC assignments by the SWA, approximately 95 percent of H-2A
workers will fall within one of the following SOC codes: 45-2092
(Farmworkers and Laborers, Crop, Nursery, and Greenhouse), 45-2093
(Farmworkers, Farm, Ranch, and Aquacultural Animals), 45-2091
(Agricultural Equipment Operators), and 45-4011 (Forest and
Conservation Workers) if reforestation workers are added to the H-2A
program as proposed. Given the very small number of SOCs applicable to
most H-2A jobs, the Department expects that employers will be able to
select the correct SOC code and accompanying AEWR in most cases.
In a small number of cases, the employer may select the incorrect
SOC on its Application for Temporary Employment Certification. If the
employer offers a wage that does not meet the requirements of Sec.
655.120(a), proposed paragraph (d)(1) explains that the CO would issue
a NOD and require the employer to correct the wage rate. This would
include recruiting for the job opportunity at the correct wage rate.
Proposed paragraph (d)(2) further provides that if the employer
disagrees with the wage rate required by the CO, the employer may
appeal only after the Application for Temporary Employment
Certification is denied, and the employer must follow the procedures in
Sec. 655.171. This proposal is consistent with the proposal to
eliminate appeals of NODs discussed in the preamble related to Sec.
655.141 of this proposed rule and would promote efficiency by providing
that all possible grounds for denial are appealed at once, rather than
allowing for separate appeals of multiple issues.
2. Section 655.121, Job Order Filing Requirements
a. Submission of the Job Order
The statute requires employers to engage in the recruitment of U.S.
workers through the employment service job clearance system
administered by the SWAs. See section
[[Page 36190]]
218(b)(4) of the INA, 8 U.S.C. 1188(b)(4); see also 29 U.S.C. 49 et
seq., and 20 CFR part 653, subpart F. The Department proposes to
modernize and streamline the process by which employers submit job
orders to the SWA for review and for intrastate and interstate
clearance in order to test the local labor market and determine the
availability of U.S. workers before filing an Application for Temporary
Employment Certification.
Employers have described the current process of preparing and
submitting job orders to the SWAs as cumbersome, complicated, and
requiring the expenditure of considerable time and money. An employer
must prepare the job order, Agricultural and Food Processing Clearance
Order (Form ETA-790), in paper form, scan it, and submit it, along with
any other paper attachments, to the SWA using email, U.S. mail, or
private courier. Mistakes often must be corrected by hand, initialed
and dated, then emailed or mailed to appropriate parties. Failure to
complete these manual exchanges of corrections can lead to active job
orders with outdated and/or inaccurate terms and conditions.
Furthermore, the SWAs generally do not have adequate capacity to
provide for the e-filing and management of job orders, which may create
uncertainty for employers that need to submit job orders within
regulatory timeframes. Given that an employer must provide a copy of
the same job order to the NPC at the time of filing the Application for
Temporary Employment Certification, the current job order filing
process requires duplication of effort for employers, especially those
with business operations covering large geographic areas that need to
coordinate job order submissions with multiple SWAs.
Therefore, the Department proposes that an employer submit a newly
designed job order, H-2A Agricultural Clearance Order (Form ETA-790/
790A), directly to the NPC designated by the OFLC Administrator. This
proposal also requires an employer to submit the job order using the
electronic method(s) designated by the OFLC Administrator, and adopts
the use of electronic signatures. Employers permitted to file by mail
or who request a reasonable accommodation due to a disability under the
proposed procedures in Sec. 655.130(c) would be permitted to file
using those other means. Unless the employer has a disability or lacks
adequate access to e-filing, the NPC will return without review any job
order submitted using a method other than the electronic method(s)
designated by the OFLC Administrator.
Where the job order is submitted in connection with a future master
application, an agricultural association will continue to submit a
single job order in the name of the agricultural association as a joint
employer on behalf of all employer-members that will be identified on
the Application for Temporary Employment Certification. The Department
proposes edits to clarify that the employer-members will also be listed
on the job order. Similarly, the Department proposes that where two or
more employers are seeking to jointly employ a worker or workers, as
permitted by proposed Sec. 655.131(b), any one of the employers may
submit the job order as long as all joint employers are named on the
job order and the future Application for Temporary Employment
Certification.
Upon receipt of the job order, the NPC will transmit, on behalf of
the employer, an electronic copy of the job order to the SWA serving
the area of intended employment for review. If the job opportunity is
located in more than one State within the same area of intended
employment, the NPC will transmit a copy of the electronic job order,
on behalf of the employer, to any one of the SWAs having jurisdiction
over the place(s) of employment for review. The job order must continue
to satisfy the requirements for agricultural clearance orders set forth
in 20 CFR part 653, subpart F, and Sec. 655.122.
As explained above, the Department believes this proposal will
modernize and streamline the job order filing process and create
significant savings and efficiencies for employers, SWAs, and the
Department. Many employers and their authorized representatives are
highly automated in their business operations and familiar with e-
filing the Form ETA-9142A, required appendices, and supporting
documentation with the NPC. Based on applications filed during FYs 2016
and 2017, more than 81 percent of employer applications were submitted
electronically to the NPC for processing. Expanding OFLC's technology
system to include the electronic submission of the new Form ETA-790/
790A, prior to the filing of an Application for Temporary Employment
Certification, will save employers time and money preparing, scanning,
and mailing the job order to the SWA, and streamline the filing process
by providing a single point-of-access to H-2A program services.
To implement this proposal, OFLC's technology system will allow an
employer to initiate the new Form ETA-790/790A online, pre-populate all
business contact information from their account, and save a partially
completed form as a ``draft'' that the employer can access and complete
later. As the Form ETA-790/790A is prepared online, the system will
provide the employer with a series of electronic data checks and
prompts to ensure each required field is completed and values entered
on the form are valid and consistent with regulatory requirements. An
online glossary and ``help'' function will allow the employer to refer
to explanations of key terms along with access to frequently asked
questions designed to clarify instructions on completing the form. For
an employer that has recurring seasonal job opportunities, the system
will allow the preparation of multiple Forms ETA-790/790A and ``reuse''
previously filed job orders. This ``reuse'' capability is similar to
the one currently available for preparing the Form ETA-9142A, and will
save the employer significant time and expense by pre-populating key
sections into the draft Form ETA-790/790A, including information
related to the job opportunity, crops or agricultural activities, wage
offers, place of employment and housing locations, and other worker
guarantees (e.g., meals and transportation).
The newly designed Form ETA-790/790A will also contain a
standardized set of terms and conditions of employment, as required by
Sec. Sec. 653.501(c) and 655.122, that the employer will review, sign,
and date online prior to submission. The Department proposes to
standardize these required terms and conditions of employment to ensure
greater consistency in disclosure to prospective U.S. worker applicants
and reduce the frequency of inadvertent errors or omissions that lead
to processing delays. After agreeing to these standard, required terms
and conditions of employment, the employer will affix its electronic
signature in order to submit the job order for processing. Once
submitted, the OFLC technology system will automatically transmit the
electronic Form ETA-790/790A to the SWA serving the area of intended
employment, thereby eliminating the need for the employer to send the
job order to the SWA.
For the Department and SWAs, electronic submission of job orders
will decrease data entry, improve the speed with which job order
information can be retrieved and shared with the SWAs, reduce staff
time and storage costs, and improve storage security. Since the new
Form ETA-790/790A will be stored electronically, it also eliminates the
need for manual corrections of errors and other deficiencies and
improves the efficiency of posting and maintaining
[[Page 36191]]
approved job orders on the Department's electronic job registry. This
may result in more efficient use of Department and SWA staff time.
Further, the Department already provides the SWAs with access to OFLC's
technology system for purposes of communicating any deficiencies with
job orders associated with employer-filed H-2A and H-2B applications
and uploading inspection reports of employer housing. Incorporating a
capability for the SWAs to access and retrieve the Form ETA-790/790A
assigned by the NPC, virtually in real time after submission by
employers, is a logical next step in enhancing OFLC's technology system
and creating a seamless delivery of program services for employers.
b. SWA Review of the Job Order
The Department proposes minor revisions to the timeframes and
procedures under which the SWA performs a review of the employer's job
order. The SWA will continue to provide written notification to the
employer of any deficiencies within 7 calendar days from the date the
SWA received the job order from the NPC. The Department proposes
editorial changes to clarify that the notification issued by the SWA
must state the reasons the job order fails to meet the applicable
requirements and state the modifications needed for the SWA to accept
the job order. The employer will continue to have an opportunity to
respond to the deficiencies within 5 calendar days from the date the
notification is issued by the SWA, and the SWA will issue a final
notification to accept or deny the job order within 3 calendar days
from the date the employer's response is received.
To ensure a timely disposition is issued on all job orders, the
Department proposes the job order be deemed abandoned if the employer's
response to the notification is not received within 12 calendar days
after the SWA issues the notification. In this situation, the SWA will
provide written notification and direct the employer to submit a new
job order to the NPC that satisfies all the requirements of this
section. The 12-calendar-day period provides an employer with a
reasonable maximum period within which to respond, given the
Department's concern for timely processing of the employer's job order.
The Department is also clarifying that any notice sent by the SWA to an
employer that requires a response must be sent using a method that
assures next day delivery, including email or other electronic methods,
and must include a copy to the employer's representative, if
applicable.
If the employer is not able to resolve the deficiencies with the
SWA or the SWA does not respond within the stated timelines, the
Department will continue to permit the employer to file its Application
for Temporary Employment Certification and job order to the NPC using
the emergency filing procedures contained in Sec. 655.134. With the
newly designed Form ETA-790/790A, the Department anticipates fewer
discrepancies and inconsistencies between SWA determinations in various
States. The Department continues to encourage employers to work with
the SWAs early in the process to ensure that their job orders meet
applicable state-specific laws and regulations and are accepted timely
for intrastate and interstate clearance.
c. Intrastate and Interstate Clearance of Approved Job Orders
The Department proposes minor changes to the process by which the
SWA circulates the approved job order for intrastate clearance and
posts a copy of the job order for interstate clearance to other
designated SWAs.
Under the current regulation, once the SWA accepts the job order,
it must place the job order in intrastate clearance and commence
recruitment of U.S. workers. Where the employer's job order covers an
area of intended employment that falls within the jurisdiction of more
than one SWA, the originating SWA initiates limited interstate
clearance by circulating a copy of the job order to the other SWAs
serving the area of intended employment. The Department proposes
changes to this process to accommodate the new requirement that
employers file job orders directly with the NPC. Upon its acceptance of
the job order, the SWA will continue to place the job order in its
intrastate job clearance system. However, rather than circulating the
job order to other SWAs covering the area of intended employment or
waiting for instructions from the CO in the NOA, the Department
proposes that the SWA notify the NPC that the job order is approved and
must be placed into interstate clearance. Upon receipt of the SWA
notification, the NPC is responsible for promptly transmitting an
electronic copy of the approved job order for interstate clearance to
all SWAs with jurisdiction over the area of intended employment and the
States designated by the OFLC Administrator as potential sources of
traditional or expected labor supply, in accordance with Sec. 655.150.
The Department has concluded that these proposed changes will
provide U.S. worker applicants with greater exposure to the job
opportunity and facilitate a more efficient process for circulating the
employer's job order through the interstate clearance system.
Circulation of the approved job order for interstate clearance prior to
the filing of the Application for Temporary Employment Certification
will significantly increase the amount of time that job orders are
initially available to prospective U.S. worker applicants, including in
labor supply States designated by the OFLC Administrator. Additionally,
the SWAs will save time and resources because the proposed changes will
eliminate the need to prepare, scan, and transmit copies of approved
job orders to other SWAs. Since the job order is electronically
available to the NPC, the NPC can transmit a copy of the approved job
order to other SWAs with minimal effort and expense.
Where modifications to the job order are required under this
section, the NPC can serve as a single source of authority for all
modifications to ensure greater accuracy and consistency in disclosing
the modified terms and conditions of employment. Once the modifications
are complete, the NPC will promptly re-circulate an electronic copy of
the job order to all affected SWAs, as well as the employer.
Consequently, the SWAs will be able to focus their resources on
recruiting U.S. workers and conducting timely inspections of employer
housing.
d. Other Proposed Changes
To clarify procedures and as a result of other proposed changes,
the Department is retaining but reorganizing several components of
Sec. 655.121. For example, the Department proposes to move the
timeliness requirement for submitting a job order from paragraph (a)(1)
to a new paragraph (b) that focuses solely on the timeliness
requirements. The change in the location of this timeliness language,
combined with new paragraphs (c) and (d) to accommodate the e-filing of
job orders and Applications for Temporary Employment Certification with
the designated NPC, required renumbering of subsequent paragraphs. The
Department also proposes procedures to allow employers that lack
adequate access to e-filing to file the job order by mail and for
employers that are unable or limited in their ability to use or access
the electronic application due to a disability to request an
accommodation to allow them to access and/or file the job order through
other means.
The Department also proposes minor changes to paragraph (a)(2) and
new
[[Page 36192]]
paragraph (a)(3) to clarify procedures for an agricultural
association's submission of a job order in connection with a future
master application, as permitted by proposed Sec. 655.131(a), and for
two or more employers seeking to submit a job order in connection with
a future joint employment application, as permitted by proposed Sec.
655.131(b). While only one joint employer will submit the job order to
the NPC, the job order must identify names of all employers included in
that job order. Proposed paragraph (a)(4) retains former paragraph
(a)(3), with technical changes, and continues to require the employer's
job order to satisfy the requirements for agricultural clearance orders
set forth in 20 CFR part 653, subpart F, and Sec. 655.122.
Finally, the Department has made a technical correction in proposed
paragraph (g), changing Application for Temporary Employment
Certification to ``application'' to accurately reflect that the term
``application'' refers to a U.S. worker's application for the
employer's job opportunity during recruitment, and has made similar
conforming edits throughout this subpart.
3. Section 655.122, Contents of Job Offers
a. Paragraph (d), Housing
The Department proposes several revisions to its regulations at
Sec. 655.122(d) governing housing inspections and certifications.
Pursuant to the statute and the Department's regulations, an employer
must provide housing at no cost to all H-2A workers. The employer must
also provide housing at no cost to those non-H-2A workers in
corresponding employment who are not reasonably able to return to their
residences within the same day. See section 218(c)(4) of the INA, 8
U.S.C. 1188(c)(4); 20 CFR 655.122(d)(1). Generally, an employer may
meet its housing obligations in one of two ways: (1) It may provide its
own housing that meets the applicable federal standards; or (2) it may
provide rental and/or public accommodations that meet the applicable
local, state, or federal standards.\55\ The statute further requires
that the determination whether the housing meets the applicable
standards must be made not later than 30 days before the first date of
need. See section 218(c)(3)(A), (4) of the INA, 8 U.S.C. 1188(c)(3)(A),
(4).
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\55\ Housing for workers principally engaged in the range
production of livestock must meet the minimum standards required by
Sec. 655.122(d)(2).
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i. Employer-Provided Housing
Preoccupancy inspections of employer-provided housing are critical
to ensure that sufficient and safe housing is available prior to the
workers arriving for the work contract period. The Department is aware,
however, that the current requirement of preoccupancy inspections of
employer-provided housing for every temporary agricultural labor
certification (regardless of the condition of the housing or how
recently it may have been inspected) may result in delays in the labor
certification process. These delays are often due to insufficient SWA
capacity to conduct timely inspections of employer-provided housing.
These delays--which are often beyond an employer's control regardless
of how early it might request an inspection--may have a significant
detrimental impact on the employer's operations.
To address these concerns, the Department proposes the following
changes to its current regulations. First, the Department proposes to
reiterate in its regulations the statutory requirement that
determinations with respect to housing must be made not later than 30
days prior to the first date of need. Second, the Department proposes
to clarify that other appropriate local, state, or federal agencies may
conduct inspections of employer-provided housing on behalf of the SWAs.
Third, the Department proposes to authorize the SWAs (or other
appropriate authorities \56\) to inspect and certify employer-provided
housing for a period of up to 24 months. Twenty-four month
certification would be subject to appropriate criteria and prior notice
to the Department by the certifying authority. In light of the SWAs'
longstanding expertise in conducting housing inspections, the
Department proposes to authorize each SWA to develop its own criteria
to determine, at its sole discretion, whether to certify specific
employer-provided housing for a time period longer than the immediate
work contract period, but in no case longer than 24 months. The
Department invites comment on whether it should establish specific
criteria that the SWAs must consider when determining the validity
period of a housing certification (e.g., history of housing compliance
or age of the housing), and if so, what those criteria should be.
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\56\ See 20 CFR 653.501(b)(3).
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Under the proposal, an employer must self-certify that the
employer-provided housing remains in compliance for any subsequent
Application for Temporary Employment Certification filed during the
validity period of the official housing certification previously
received from the SWA (or other appropriate authority). To self-
certify, an employer must re-inspect the employer-provided housing,
which was previously inspected by the SWA or other authority. The
employer must then submit to the SWA and the CO a copy of the valid
certification for the housing previously issued by the SWA or other
authority, and a written statement, signed and dated, attesting that
the employer has inspected the housing, and that the housing is
available and sufficient to accommodate the number of workers being
requested and continues to meet all applicable standards.
ii. Rental and/or Public Accommodations
In its experience administering and enforcing the H-2A program, the
Department increasingly encounters H-2A employers that provide rental
and/or public accommodations to meet their H-2A housing obligations.
Under the Department's current regulations at Sec. 655.122(d)(1)(ii),
such housing must meet the applicable local standards for such housing.
In the absence of applicable local standards, state standards apply. In
the absence of applicable local or state standards, DOL OSHA standards
at 29 CFR 1910.142 apply. In addition, an employer that elects to
provide such housing must document to the satisfaction of the CO that
the housing complies with the local, state, or federal housing
standards. Through guidance, the Department has explained that such
documentation might include, but is not limited to: A SWA inspection
report (where required); a certificate from the local or state health
department or building department (where required); or a signed,
written statement from the employer.\57\
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\57\ See OFLC FAQ, What do I need to submit to demonstrate the
[rental and/or public accommodations] complies with applicable
housing standards? (June 2017), available at https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#q!917.
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Despite these requirements, in WHD's enforcement experience, H-2A
employers often fail to secure sufficient rooms and/or beds for
workers. This results in unsafe and unsanitary conditions for workers.
Overcrowding, which is among one of the most common issues the
Department encounters in rental and/or public accommodations, may
result in unsanitary conditions, pest infestations, and outbreaks of
communicable
[[Page 36193]]
diseases. In some cases, for example, employers required workers to
share a bed, required workers to sleep on the floor in a sleeping bag,
or converted laundry or living spaces into sleeping facilities by
putting mattresses on the ground. In other situations, as many as eight
workers have been housed in a single room. Moreover, in rooms where
workers also cook, the failure to provide sufficient space for workers
to cook and sleep and/or to provide sanitary facilities for preparing
and cooking can lead to health issues from improperly cooked food and/
or pest and rodent issues. WHD also often encounters employers that do
not provide sufficient access to laundry facilities when housing
workers in rental and/or public accommodations. Sufficient access to
laundry is critical to ensure the health of workers, as workers often
perform work in fields sprayed with pesticides, which comes in contact
with workers' clothing. Further, WHD has encountered numerous instances
of faulty or improperly installed heating, water heating, and cooking
equipment in rental and/or public accommodations, posing serious safety
risks to workers. In some instances, for example, electrical currents
have run through water faucets. In other instances, workers have used
hot plates that were not plugged into a grounded electrical line,
causing the hot plates to catch fire.
Where there are no local or state standards for rental and/or
public accommodations, the DOL OSHA standards at 29 CFR 1910.142 apply,
and these standards include specific requirements addressing these
safety and health concerns. However, even where local and state
standards for rental and/or public accommodations exist, these
standards often do not include requirements addressing overcrowding and
other basic safety and health concerns. The Department, therefore, is
concerned that its current regulations may be interpreted to mean that
where any local or state standards for rental and/or public
accommodations exist, only those standards will apply, even where those
standards do not address basic safety and health concerns applicable to
rental and/or public accommodations.
To address these concerns, the Department proposes the following
revisions to its regulations. First, the Department proposes that, in
the absence of applicable local standards addressing those health or
safety concerns otherwise addressed by the OSHA temporary labor camp
standards at 29 CFR 1910.142(b)(2) (``each room used for sleeping
purposes shall contain at least 50 square feet for each occupant''),
Sec. 1910.142(b)(3) (``beds . . . shall be provided in every room used
for sleeping purposes''); Sec. 1910.142(b)(9) (``In a room where
workers cook, live, and sleep a minimum of 100 square feet per person
shall be provided. Sanitary facilities shall be provided for storing
and preparing food.''); Sec. 1910.142(c) (water supply); Sec.
1910.142(b)(11) (heating, cooking, and water heating equipment
installed properly); Sec. 1910.142(f) (laundry, handwashing, and
bathing facilities); and Sec. 1910.142(j) (insect and rodent control),
the relevant state standards will apply; in the absence of applicable
state standards addressing such concerns, the relevant OSHA temporary
labor camp standards will apply. For example, under this proposal,
where local standards for rental and/or public accommodations exist,
but do not include a standard that requires a certain minimum square
footage per person, all of the existing local standards will apply in
addition to any state standard that addresses square footage. If there
is no state standard addressing minimum square footage, then the DOL
OSHA standard at 29 CFR 1910.142(b)(2) (or, where cooking facilities
are present, Sec. 1910.142(b)(9)) will apply, in addition to the
existing local standards. The Department welcomes comment on this
proposal, specifically on whether the applicable standards should
address any additional safety and health concerns relevant to housing
temporary workers in rental and/or public accommodations that are
otherwise addressed in the DOL OSHA standards at 29 CFR 1910.142, such
as screens on exterior openings (see Sec. 1910.142(b)(8)).
Second, the Department proposes to specify in the regulations that
an employer must submit to the CO a signed, dated, written statement,
attesting that the rental and/or public accommodations meet all
applicable standards and are sufficient to accommodate the number of
workers requested. This statement must include the number of bed(s) and
room(s) that the employer will secure for the worker(s). Where the
applicable local or state standards under Sec. 655.122(d)(1)(ii)
require an inspection, the employer also must submit a copy of the
inspection report or other official documentation from the relevant
authority. Where no inspection is required, the employer's written
statement must confirm that no inspection is required.
iii. Housing for Workers Covered by 20 CFR 655.200 Through 655.235
The Department proposes clarifying edits to paragraph (d)(2) to
reflect that Sec. Sec. 655.230 and 655.235 establish the housing
requirements for workers primarily engaged in the herding and
production of livestock on the range. The Department has established
separate requirements for these workers for the entirety the H-2A
program due to the unique nature of the work performed.
b. Paragraph (g), Meals
The Department is retaining the current regulation at Sec.
655.122(g) that requires an employer to provide each worker three meals
a day or furnish free and convenient cooking and kitchen facilities so
that the worker can prepare meals. Where an employer provides the
meals, the job offer must state the charge, if any, to the worker for
such meals. Although the Department does not propose any changes to
Sec. 655.122(g), the Department frequently encounters violations of
this provision and thus provides the following information to clarify
the provision's requirements.
Should an employer elect to provide kitchen and cooking
facilities--in lieu of providing meals--the facilities must be free,
convenient, and adequate for workers to prepare three meals a day.
These facilities must include clean space intended for food preparation
as well as necessary equipment, including working cooking appliances,
refrigeration appliances, and dishwashing facilities (e.g., sinks
designed for this purpose). The types of cooking appliances may vary
but must allow workers to sufficiently prepare three meals a day. For
example, an employer has not met its obligation to provide kitchen and
cooking facilities by merely providing an electric hot plate, a
microwave, or an outdoor community grill. Similarly, an employer has
not met its obligation if the workers are required to purchase cooking
appliances or accessories, such as portable burners, charcoal, propane,
or lighter fluid.
In the Department's enforcement experience, it has found that
public accommodations (e.g., hotels or motels) frequently do not have
adequate cooking facilities that allow workers to prepare three meals a
day. Specifically, public accommodations frequently lack stoves,
dishwashing facilities, and clean space for workers to safely prepare
and store food apart from their sleeping facilities. Should such public
accommodations lack adequate cooking and kitchen facilities for workers
to prepare and store their own meals, the employer must provide three
meals a day to each worker in order to satisfy the employer's
obligations under Sec. 655.122(g).
Where an employer elects to provide meals, the employer may deduct
any
[[Page 36194]]
previously disclosed allowable meal charges from the worker's pay;
however, it must either obtain prepared meals or prepare the meals
itself.\58\ An employer may not pass on to the worker any costs that
the employer has incurred for the provision of the meal that exceeds
the allowable meal charge. Where a worker elects to purchase food in
excess of the meal provided (e.g., additional servings or premium
items), the worker may bear the additional cost (assuming the provided
meal was adequate, as discussed below).
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\58\ The maximum allowable meal charge to workers is governed by
the daily subsistence rate as defined in Sec. 655.173.
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Providing access to third-party vendors and requiring workers to
purchase meals from the third-party vendor does not constitute
compliance with the requirement to provide meals or facilities, even if
the employer provides a meal stipend.\59\ An employer may arrange for a
third party vendor and pay for the workers' meals, or use a voucher or
ticket system where the employer initially purchases the meals and
distributes vouchers or tickets to workers to obtain the meals from the
third-party vendor. With such an arrangement, the employer may deduct
the corresponding allowable meal charge if previously disclosed and in
compliance with the procedures described under proposed Sec. 655.173.
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\59\ See Wickstrum Harvesting, LLC, 2018-TLC-00018 (May 3,
2018). The ALJ affirmed an ETA determination denying certifications
based on the employer's practice of providing workers with a stipend
for meals instead of providing meals or furnishing free and
convenient cooking facilities.
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Should an employer elect to house workers in public accommodations,
the employer may receive the appropriate pro-rated credit for a meal
provided by the public accommodation (e.g., continental breakfasts,
buffets, etc.) towards its daily meal obligation as long as the workers
can readily access the meal. Such credit shall not be allowed if the
daily start time for the work day prohibits the worker from accessing
the meal prior to departure to the place of employment. Similarly, when
prepared meals are delivered, the delivery must occur in a timely and
sanitary fashion. For example, food requiring refrigeration cannot be
delivered hours before an anticipated mealtime. If meals are not
delivered in a timely or sanitary fashion, the employer has not
satisfied its meal obligation.
c. Paragraph (h), Transportation; Daily Subsistence
i. Paragraph (h)(1), Transportation to Place of Employment
The Department proposes to revise the beginning and end points from
and to which an employer must provide or pay for transportation and
subsistence costs for certain H-2A workers. The Department's current
regulation at Sec. 655.122(h)(1) requires, in part, that an employer
pay a worker for the reasonable transportation and subsistence costs
incurred when traveling to the employer's place of employment, provided
that the worker completes at least 50 percent of the work contract
period and the employer has not previously advanced or otherwise
provided such transportation and subsistence.\60\ Specifically, an
employer must provide or pay for transportation and subsistence costs
from ``the place from which the worker has come to work for the
employer.'' The Department currently interprets the ``place from which
the worker has come to work for the employer'' to mean the ``place of
recruitment,'' which sometimes is the worker's home.\61\ Additionally,
for a worker who completes the work contract period or is terminated
without cause, and who does not have immediate subsequent H-2A
employment, Sec. 655.122(h)(2) requires the employer to provide or pay
for return transportation and subsistence costs to the place from which
the worker ``departed to work for the employer,'' disregarding
intervening employment.\62\
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\60\ Section 655.122(h)(1) further requires that, when it is in
the prevailing practice among non-H-2A employers in the area to do
so, or when offered to H-2A workers, the employer must advance
transportation and subsistence costs to workers in corresponding
employment. Section 655.122(h)(1) also places employers on notice
that they may be subject to the FLSA, which operates independently
of the H-2A program and imposes independent requirements relating to
deductions from wages. See also 20 CFR 655.122(p). The proposed rule
does not affect an FLSA-covered employer's obligations under the
FLSA.
\61\ See, e.g., Preamble to 2009 NPRM, 74 FR 45906, 45915
(``this Proposed Rule requires the employer to pay for the costs of
transportation and subsistence from the worker's home to and from
the place of employment''); OFLC FAQ Sept. 15, 2010 (subsistence
costs must be paid for costs incurred ``during the worker's inbound
trip from the point of recruitment to the employer's worksite . . .
and during the worker's outbound trip from the employer's worksite
to the worker's home or subsequent employment'').
\62\ Section 655.122(h)(2) further provides that, for those
workers who do have immediate subsequent H-2A employment, the
initial or subsequent employer must cover the transportation and
subsistence fees for the travel between the initial and subsequent
worksites. The obligation to pay for such costs remains with the
initial H-2A employer if the subsequent H-2A employer has not
contractually agreed to pay the travel expenses. This section also
places employers on notice that they are not relieved of their
obligation to provide or pay for return transportation and
subsistence if an H-2A worker is displaced as a result of an
employer's compliance with the recruitment period described in Sec.
655.135(d).
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The proposed rule largely retains the current requirements of Sec.
655.122(h)(1) and (2) without change. However, in the Department's
experience administering and enforcing the current H-2A regulations, it
is often challenging to ascertain the place of recruitment and
calculate travel expenses for H-2A workers departing to work for the
employer from a location outside of the U.S.\63\ In many cases, foreign
recruitment is not an official process but an informal network of
former H-2A workers, their friends, families, and neighbors. Some H-2A
workers may not actually speak with the employer or the employer's
representative until arriving at the U.S. Consulate or Embassy for visa
processing or arriving at the appropriate port of entry to seek
admission to the United States.\64\
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\63\ Unless the location outside the United States is the
consulate or embassy that issued the visa.
\64\ Citizens or nationals of certain localities may directly
seek admission to the United States in H-2A classification with
Customs and Border Protection at a U.S. port of entry. See 8 CFR
212.1(a).
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In light of these challenges, the Department proposes to revise
Sec. 655.122(h)(1) to require an employer to provide or pay for
inbound and return transportation and subsistence costs (where
otherwise required by the regulation) from and to the place from which
the worker departed to the employer's place of employment. For an H-2A
worker departing from a location outside of the United States, the
place from which the worker departed will mean the appropriate U.S.
Consulate or Embassy. For those H-2A workers who must obtain a visa,
the Department will consider the ``appropriate'' U.S. Consulate or
Embassy to be the U.S. Consulate or Embassy that issued the visa. The
Department recognizes, however, that the specific procedures for
processing visas may differ among U.S. Consulates and Embassies and
seeks comment on whether a different designation of the ``appropriate''
U.S. Consulate or Embassy is warranted.
Additionally, the Department recognizes that certain H-2A workers
do not require a visa to obtain H-2A status, and so will not need to
visa a consulate or embassy prior to entering the United States. See 8
CFR 212.1(a). Accordingly, the Department seeks comment on what the
``place from which the worker department'' should mean for those
workers who do not require a visa to
[[Page 36195]]
obtain H-2A status. For workers in corresponding employment and those
H-2A workers who depart to the employer's place of employment from a
location within the United States, the place from which the worker
departed will continue to mean the place of recruitment. The Department
also proposes conforming revisions throughout the NPRM to refer to the
place from which a worker departs rather than the place from which the
worker has come to work for the employer.
This proposal will provide the Department with a more consistent
place from and to which to calculate travel costs and obligations for
H-2A workers departing from a location outside of the United States. It
will also provide H-2A workers and employers more precision when
estimating the costs associated with H-2A employment. This proposal is
also consistent with the 2008 Final Rule, wherein the Department
defined the place of departure for H-2A workers coming from outside of
the United States as the ``place of recruitment,'' which meant the
appropriate U.S. Consulate or port of entry. 73 FR 77110, 77151-52,
77217-18. As the Department explained then, the consulate or port of
entry provides the Department with an ``administratively consistent
place from which to calculate charges and obligations.'' Id. at 77151-
52. In the current regulation, the Department required reimbursement of
travel costs from and to the place of recruitment. See 75 FR 6884,
6912. However, when promulgating the current regulation, the Department
did not fully anticipate the difficulties of determining transportation
costs on a basis that is unique to the facts of each individual
worker's place of recruitment. Based on the Department's enforcement of
the current regulation, a single gathering point from which
transportation costs can be anticipated, measured, and paid, is
necessary to the efficient administration of the H-2A program,
simplifies the process for employers, and provides a reasonable
transportation reimbursement to workers.
Finally, the Department recognizes that before continuing on to the
employer's place of employment, a prospective H-2A worker requiring a
visa often must complete several steps (such as medical exam or
fingerprinting appointments) over the course of several days between
applying for and receiving a visa at the U.S. Consulate or Embassy.
Some workers make multiple, distinct trips to the U.S. consulate or
Embassy to complete these steps, though most workers complete these
steps over one longer stay immediately prior to departing to the
employer's place of employment. In either case, under the proposed
rule, the employer must provide or pay for all reasonable subsistence
costs (including lodging) that arise from the time at which the worker
first arrives in the consular/embassy city for visa processing until
the time the worker arrives at the employer's place of employment,
regardless of whether the worker completes these activities over the
course of one or multiple trips. This requirement is consistent with
Sec. 655.135(j) of these regulations which prohibits an employer or
its agent from seeking or receiving payment of any kind from any
employee subject to 8 U.S.C. 1188 for any activity related to obtaining
H-2A labor certification. As noted above, however, the employer is only
required to provide or pay for the worker's reasonable transportation
costs from the appropriate U.S. Consulate or Embassy to the place of
employment.
ii. Paragraph (h)(4), Employer-Provided Transportation
The Department proposes to clarify the minimum safety standards
required for employer-provided transportation in the H-2A program. The
Department's current regulation at Sec. 655.122(h)(4) provides that
employer-provided transportation must comply with applicable federal,
state, or local laws and must provide, at a minimum, the same
transportation safety standards, driver licensure, and vehicle
insurance required under MSPA at 29 U.S.C. 1841, 29 CFR 500.105, and 29
CFR 500.120 to 500.128. 20 CFR 655.122(h)(4). Employers seeking to
employ H-2A workers must also recruit and hire any available U.S.
workers. Because many H-2A employers also employ U.S. workers who may
be covered by MSPA, it would not be a burden for these employers to
adhere to the MSPA transportation safety standards when transporting H-
2A workers. Section 1841 of MSPA provides that employers must comply
with transportation safety regulations promulgated by the Secretary,
including 29 CFR 500.104 and 500.105. In order to clarify the H-2A
requirement to comply with Sec. 500.104, the Department's proposal
adds a citation specifically to Sec. 500.104.
The Department also seeks comments concerning how its H-2A
regulations can be modified to improve transportation safety.
Currently, Sec. 500.104 applies to automobiles, station wagons, and
all vehicles that are used for trips of no more than 75 miles. It
contains minimum safety standards for mechanisms such as operable
brakes, lights, tires, steering, windshield wipers, and securely-
fastened seats, but lacks protections against driver fatigue. The
regulation at Sec. 500.105 provides transportation safety standards,
including measures to prevent driver fatigue, which are applicable to
drivers and vehicles, other than passenger automobiles and station
wagons, that transport agricultural workers pursuant to a day-haul
operation or for any trip covering a distance greater than 75 miles.
Despite these transportation safeguards, vehicle accidents involving H-
2A and other agricultural workers continue to be a recurring problem,
and are often attributable to unsafe vehicles and driver fatigue.\65\
In the agricultural industry, it is common for drivers to be
agricultural workers themselves, who after a long day or season of
arduous agricultural work, transport other agricultural workers from
one worksite to another or to the workers' home country after
completing their work contracts in the United States. In a recent
accident, a tractor-trailer hit a bus carrying 34 agricultural workers
when the bus driver, an agricultural worker, failed to stop at a
traffic signal apparently no more than 75 miles from the point of
origin. The tractor-trailer driver and three bus passengers died. The
bus driver, 28 bus passengers, and a passenger on the truck sustained
injuries. The National Transportation Safety Board found that the
accident was likely caused by driver fatigue.\66\
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\65\ The measures that address driver fatigue under Sec.
500.105 include the requirement that drivers of vehicles covered by
this section make meal stops once every 6 hours and at least one
rest stop between meals. 29 CFR 500.105(b)(2)(viii). Additionally,
Sec. 500.105 requires that drivers and passengers of trucks
traveling more than 600 miles stop and rest for a period of at least
8 consecutive hours either before or upon completion of 600 miles.
29 CFR 500.105(b)(2)(x).
\66\ National Transportation Safety Board Public Meeting Report,
pg. 4, available at https://www.ntsb.gov/news/events/Documents/2017-HWY16MH019-BMG-abstract.pdf.
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In light of this finding, the Department invites comments about
additional protections that may be considered to help ensure against
driver fatigue and other unsafe driving conditions in order to improve
safety in the transportation of H-2A and corresponding U.S. workers.
d. Paragraph (j), Earning Records
The lack of permanent addresses makes it difficult to contact H-2A
workers after they return to their home country should the Department
need to contact a worker to distribute back wages, conduct an employee
interview as part of an investigation, or to secure
[[Page 36196]]
employee testimony during litigation. The Department, therefore,
proposes to clarify that an employer must collect and maintain a
worker's permanent address in the worker's home country. The
Department's current regulation at Sec. 655.122(j)(1) requires an
employer to maintain a worker's home address, among other information.
The regulation, however, does not define ``home address.''
Consequently, in administering and enforcing the H-2A program, the
Department often encounters employers who maintain only the worker's
temporary address at the worker's place of employment in the United
States. Employers must maintain the worker's actual permanent home
address--which is usually in the worker's country of origin.
Accordingly, the Department proposes to clarify that an employer must
collect and maintain a worker's permanent address in the worker's home
country.
As part of its efforts to modernize and enhance its administration
and enforcement of the H-2A program, the Department is also considering
whether to require an employer to maintain a worker's email address and
phone number(s) in the worker's home country when available. This
information would greatly assist the Department in contacting an H-2A
worker in the worker's home country, should the Department need to do
so for the reasons outlined above. However, the Department understands
that not all workers possess an email address or a private phone number
or may not want to disclose such information to the employer for
personal reasons. This, in turn, could make it difficult for an
employer to demonstrate that it requested but did not receive such
information from a worker. The Department, therefore, requests comments
on potential benefits and implications of these additional
recordkeeping requirements on H-2A employers. Finally, the Department
proposes minor, nonsubstantive revisions to this section.
e. Paragraph (l), Rates of Pay
The Department proposes several changes to paragraph (l). First,
the Department proposes to remove the statement ``[i]f the worker is
paid by the hour'' and replace it with ``[e]xcept for occupations
covered by Sec. Sec. 655.200 through 655.235.'' This change is
proposed consistent with the explanation provided above for Sec.
655.120(a) because the only occupations with a different wage
methodology are those covered by the regulatory provisions for workers
primarily engaged in the herding or production of livestock on the
range as discussed in Sec. Sec. 655.200 through 655.235. The
Department is concerned that the existing language ``[i]f the worker is
paid by the hour,'' might create confusion about the fact that all
other employers, including those who pay a monthly salary and those who
pay based on a piece rate, must pay the highest applicable wage as set
forth in Sec. 655.120(a). This revision also clarifies that if the
employer is certified for a monthly salary because, for example, the
prevailing wage rate is a monthly rate, the employer must still pay the
highest applicable wage rate. The requirement to pay the highest
applicable wage means that if paying the AEWR for all hours worked in a
given month would result in a higher wage than the certified monthly
salary, the employer must pay the AEWR for all hours worked in that
month.
Due to the requirement that the employer pay the highest applicable
wage, regardless of the unit of pay, all employers except those
employing workers covered by Sec. Sec. 655.200 through 655.235 are
required to keep a record of all hours worked. Consistent with FLSA
principles, which provide a longstanding and generally recognized
definition of ``hours worked,'' the term includes, but is not limited
to, travel time between places of employment; driving vehicles to
transport equipment or workers between housing and the place of
employment, other than a bona fide carpool arrangement; time spent
engaged to wait, such as waiting for the fields to dry or necessary
equipment to arrive; and preparing tools for work. In addition, if the
Department certifies the employer with a monthly wage rate that
specifies that food will be provided (e.g., $2,000 per month plus room
and board), the employer must provide food in addition to wages, and
the employer cannot take a credit for the cost of food if the credit
would bring the worker below the wage that is the highest of the AEWR,
the prevailing wage, the agreed-upon collective bargaining wage, the
Federal minimum wage, or the State minimum wage. Further, because all
H-2A employers are required to provide housing without charge to the
worker, an employer also cannot not take a credit for the cost of
housing.
The Department also proposes to make corresponding changes to align
this paragraph with the proposed changes to Sec. 655.120. Those
changes are discussed in the preamble to Sec. 655.120.
f. Paragraph (n), Abandonment of Employment or Termination for Cause
The Department's current regulation at Sec. 655.122(n) provides
relief from the requirements relating to return transportation and
subsistence costs \67\ as well as the three-fourths guarantee \68\ when
an employer notifies the NPC, and DHS in the case of an H-2A worker, if
a worker voluntarily abandons employment before the end of the contract
period or is terminated for cause.\69\ It should be noted that the
employer's timely notification to DHS of H-2A workers who voluntarily
abandon employment or are terminated for cause is vital to ensuring
program integrity and identifying workers who had been, but may no
longer be, in the United States lawfully.
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\67\ See 20 CFR 655.122(h).
\68\ See 20 CFR 655.122(i).
\69\ See 20 CFR 655.122(n).
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This provision also protects employers from disrupting their
farming operations and incurring other costs and obligations to workers
who voluntarily abandon employment, such as the obligations to provide
housing and meals, and to solicit the return of U.S. workers to the job
next season.
The Department's current regulation at Sec. 655.153 requires an
employer to contact the U.S. workers it employed in the previous year
to solicit their return to the job unless the workers abandoned
employment or were dismissed for cause during the previous year. The
Department's proposal related to Sec. 655.153 would require an
employer to provide timely notice to the NPC of such abandonment or
termination in the manner described in Sec. 655.122(n) to receive
relief from its otherwise applicable contact obligation. The employer
may email the notification or send it by facsimile or U.S. mail to the
contact information provided on OFLC's website at
www.foreignlaborcert.doleta.gov. The Department proposes to revise
Sec. 655.122(n) to require an employer to maintain records of the
notification detailed in the same section, including records related to
U.S. workers' abandonment of employment or termination for cause during
the previous year, for not less than 3 years from the date of the
certification. See 20 CFR 655.153.
In its experience administering and enforcing the H-2A program, the
Department encounters H-2A employers that claim that they have made
proper notification in a timely manner in regard to workers who have
abandoned employment or have been terminated for cause. Employers,
however, frequently cannot produce records of such notification when
requested. In order to promote its enforcement policy of appropriately
[[Page 36197]]
investigating claims of abandonment or termination because of the
potential for abuse in an effort to evade transportation, subsistence,
three-fourths guarantee, or U.S. worker contact obligations,\70\ the
Department proposes to require each employer to maintain records of the
notification to the NPC, and DHS in the case of a worker in H-2A visa
status, for not less than 3 years from the date of the certification.
The requirement to maintain records of the notification assists in
protecting the interests of able, willing, and qualified U.S. workers
who might be available to perform the agricultural work, consistent
with the INA and E.O. 13788. In addition, these records could assist
growers in the event U.S. workers who have abandoned employment or been
terminated for cause later assert the employer failed to contact them
as required by proposed Sec. 655.153.
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\70\ See Department of Labor, Wage and Hour Division, Field
Assistance Bulletin No. 2012-1, H-2A ``Abandonment or Termination
for Cause'' Enforcement of 20 CFR 655.122(n) (Feb. 28, 2012),
https://www.dol.gov/whd/FieldBulletins/fab2012_1.pdf.
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The Department additionally notes that abandonment of employment,
which can occur at any time during the contract period, will sometimes
be apparent. For example, a worker may simply fail to report for work
without the employer's consent, in which case the regulations deem the
worker to have abandoned employment upon a failure to report to work
for 5 consecutive working days. See 20 CFR 655.122(n). In order for an
employer to avail itself of the abandonment exception to the typical
requirement to contact a U.S. worker, however, the U.S. worker's
abandonment of employment must have been voluntary. Thus, if a U.S.
worker discontinues employment because working conditions have become
so intolerable that a reasonable person in the worker's position would
not stay, the worker's departure may constitute an involuntary
constructive discharge. Specific factual circumstances dictate whether
a constructive discharge has occurred. Although the constructive
discharge inquiry is inherently fact-specific, the Department has
previously identified circumstances which likely support, and
circumstances which likely do not support, a finding of constructive
discharge rather than job abandonment.\71\
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\71\ See Department of Labor, Wage and Hour Division, Field
Assistance Bulletin No. 2012-1, H-2A ``Abandonment or Termination
for Cause'' Enforcement of 20 CFR 655.122(n) (Feb. 28, 2012),
https://www.dol.gov/whd/FieldBulletins/fab2012_1.pdf.
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g. Paragraph (p), Deductions
The Department's current regulation at Sec. 655.122(p) prohibits
unauthorized deductions. An employer must disclose any deductions not
required by law in the job offer. The Department, however, routinely
encounters employers who fail to disclose deductions; improperly
withhold FICA taxes; or properly disclose and withhold federal income
tax at the worker's request, but fail to remit the withholding to the
proper agencies. These actions, although sometimes inadvertent,
constitute violations of the H-2A statute and regulations.
The Department does not propose any change to the regulation at
Sec. 655.122(p), but seeks to clarify that according to the Internal
Revenue Service (IRS), an employer may not withhold Federal Insurance
Contributions Act (FICA) taxes from an H-2A worker's paycheck; and that
an employer generally is not required to withhold federal income tax
from an H-2A worker's paycheck. In some situations, employers may be
prohibited from withholding federal income tax under the H-2A program.
i. FICA Taxes
The Department follows IRS rulings with respect to taxes and
withholdings. IRS guidelines provide that H-2A workers are exempt from
FICA taxes, which include social security and Medicare taxes.\72\ An
employer, therefore, may not withhold FICA taxes from an H-2A worker's
paycheck.
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\72\ See IRS, Publication 51 (Circular A), Agricultural
Employer's Tax Guide 2018 11 (Jan. 25, 2018), https://www.irs.gov/pub/irs-pdf/p51.pdf.
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ii. Federal Income Tax Withholding
Compensation paid to an H-2A worker for agricultural labor
performed in connection with an H-2A visa is not subject to mandatory
federal income tax withholding if the worker provides the employer a
Social Security Number (SSN) or Individual Taxpayer Identification
Number (ITIN).\73\ The employer may voluntarily withhold federal income
tax when it is disclosed in the job order, provided the withholding is
requested by the H-2A worker. The employer, however, is required to
make ``backup withholding'' if an H-2A worker fails to provide an SSN
or ITIN and receives aggregate annual compensation of $600 or more.\74\
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\73\ See IRS, Publication 5144, Federal Income Tax and FICA
Withholding for Foreign Agricultural Workers with an H-2A Visa (June
2014), https://www.irs.gov/pub/irs-pdf/p5144.pdf.
\74\ See Internal Revenue Service, Foreign Agricultural Workers
on H-2A Visas (June 5, 2018), https://www.irs.gov/individuals/international-taxpayers/foreign-agricultural-workers.
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Employers should continue to consult with the IRS or their tax
consultants regarding federal withholding requirements and consult with
applicable local and state tax authorities for compliance with their
standards. Additionally, employers are encouraged to review WHD Field
Assistance Bulletin No. 2012-3 \75\ for further information on
compliance with the requirements for deductions under the H-2A program.
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\75\ See Department of Labor, Wage and Hour Division, Field
Assistance Bulletin No. 2012-3, General Guidance on Voluntary
Assignments of Wages under the H-2A Program (May 17, 2012), https://www.dol.gov/whd/FieldBulletins/fab2012_3.pdf.
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h. Paragraph (q), Disclosure of Work Contract.
The Department's current regulation at Sec. 655.122(q) requires an
employer to disclose a copy of the work contract between the employer
and the worker in a language understood by the worker as necessary or
reasonable. The time by which the work contract must be provided
depends on whether the worker is entering the U.S. to commence
employment or is already present in the U.S.; however, for most H-2A
workers, this must occur by the time the worker applies for a visa. The
Department is retaining the current disclosure requirements with one
minor revision. The Department proposes to specify that the work
contract must be disclosed to those H-2A workers who do not require a
visa to enter the United States under 8 CFR 212.1(a)(1) not later than
the time of an offer of employment. This is the same point at which H-
2A workers who are already in the United States because they are moving
between H-2A employers receive the work contract.
4. Section 655.123, Positive Recruitment of U.S. Workers
The Department proposes a new section describing employers'
positive recruitment obligations. The statute requires the Secretary to
deny the temporary agricultural labor certification if the employer has
not made positive recruitment efforts within a multistate region of
traditional or expected labor supply where the Secretary finds that
there are a significant number of qualified U.S. workers who, if
recruited, would be willing to make themselves available for work at
the time and place needed. Section 218(b)(4) of the INA, 8 U.S.C.
1188(b)(4). The requirement for employers to engage in positive
recruitment is in addition to, and occurs within the same time period
as, the circulation of the job order through the
[[Page 36198]]
interstate clearance system maintained by the SWAs. Id. Proposed
paragraph (a) reiterates these statutory requirements.
Proposed paragraph (b) permits employers to conduct their positive
recruitment efforts after the SWA serving the area of intended
employment has reviewed and accepted the employer's job order for
intrastate clearance and before the employer files an Application for
Temporary Employment Certification. Specifically, upon acceptance of
the job order by the SWA under Sec. 655.121, the NPC will transmit the
accepted job order to other appropriate SWAs, thereby initiating the
interstate clearance of the job order as set forth in Sec. 655.150.
The employer then may commence the required positive recruitment, as
set forth in Sec. Sec. 655.151 through 655.154.
Under proposed paragraph (c), if the employer chooses to engage in
prefiling positive recruitment, the employer must begin its positive
recruitment efforts within 7 calendar days of the date on which the SWA
accepted the job order and must continue recruiting until the date
specified in Sec. 655.158. This timeframe will ensure that the
employer begins its prefiling positive recruitment in a timely manner,
and that such efforts are conducted within the same time period as the
interstate clearance of the approved job order, as required by the
statute.
Permitting positive recruitment to commence prior to the filing an
Application for Temporary Employment Certification will clearly benefit
those employers that consistently file job orders in compliance with
program requirements because they may be able to obtain certification
more quickly without the need for the Department to first issue a NOA
or a NOD. The proposal will also provide the Department with better
information with which to make its certification determinations.
To ensure recruitment of U.S. workers continues for an adequate
period of time, proposed paragraph (f) prohibits the employer from
preparing a recruitment report for submission with the Application for
Temporary Employment Certification more than 50 calendar days before
the first date of need. The initial recruitment report assures the
Department that the employer is actively making efforts to conduct
positive recruitment of U.S. workers, as required by the statute and
this subpart.
Proposed paragraph (e) requires the employer to accept and hire all
qualified, available U.S. worker applicants through the end of the
recruitment period set forth in Sec. 655.135(d), clarifying that this
requirement applies to employers who engage in pre-filing recruitment.
In addition, proposed paragraph (d) ensures U.S. workers have a fair
opportunity to apply for these jobs by prohibiting preferential
treatment of potential H-2A workers through interview requirements.
5. Section 655.124, Withdrawal of a Job Order
The Department proposes to reorganize the current withdrawal
provisions at Sec. 655.172 by moving the job order withdrawal
provision from Sec. 655.172(a) to proposed Sec. 655.124, ``Withdrawal
of a job order,'' in the sections of the regulation governing
``Prefiling Procedures,'' which address job orders filed in
anticipation of future Applications for Temporary Employment
Certification. The Department proposes placing the job order withdrawal
procedures and the job order filing and review procedures together in
``Prefiling Procedures'' to make the rule better organized and more
user-friendly.
In addition to relocating the job order withdrawal provision, the
Department proposes minor edits to the job order withdrawal provision
for both clarity and consistency with other proposed changes. For
example, removing ``from intrastate posting'' is necessary because both
intrastate and interstate posting may have begun under proposed Sec.
655.121(f). Consistent with the proposal that employers submit their
job orders to the NPC, proposed Sec. 655.124(b) would establish the
NPC as the recipient of job order withdrawal requests. An employer
would submit its request to the NPC in writing, identifying the job
order and stating its reason(s) for requesting withdrawal.
The Department proposes no change to an employer's continuing
obligations to workers recruited in connection with the job order;
these obligations attach at recruitment and continue after withdrawal.
C. Application for Temporary Employment Certification Filing Procedures
1. Section 655.130, Application Filing Requirements
a. Paragraph (a), What To File
The Department proposes to modernize and clarify the procedures by
which an employer files an Application for Temporary Employment
Certification for H-2A workers under this subpart. Based on the
Department's experience administering the H-2A program under the
current regulation, a common reason for issuing a NOD on an employer's
application includes failure to complete all required fields on a form,
failure to submit one or more supporting documents required by the
regulation at the time of filing, or both. Under the current
regulation, the NPC must issue non-substantive NODs to obtain
information or documentation from the employer that the regulation
expressly requires the employer to submit at the time of filing. This
use of NPC staff resources increases processing times for all
employers, including employers that consistently file complete and
accurate applications.
To address these concerns and create an incentive for employers to
file complete applications, Sec. 655.130(a) would continue to require
employers to file a completed Application for Temporary Employment
Certification. For applications submitted electronically, OFLC's
technology system will not permit an employer to submit an Application
for Temporary Employment Certification until the employer completes all
required fields on the forms and uploads and saves to the pending
application an electronic copy of all documentation and information
required at the time of filing, including a copy of the job order
submitted in accordance with Sec. 655.121. For applications permitted
to be filed by mail pursuant to the procedures discussed below, if an
employer submits an application that is incomplete or contains errors,
completing the application would require the Department to issue a NOD
identifying any deficiencies, and for the employer to mail back a
revised application, thus requiring a timely back-and-forth.
b. Paragraphs (c) and (d), Location and Method of Filing
In paragraph (c), the Department proposes to require an employer to
submit the Application for Temporary Employment Certification and all
required supporting documentation using an electronic method(s)
designated by the OFLC Administrator. The Department also proposes
procedures to allow employers that lack adequate access to e-filing to
file by mail and, for employers who are unable or limited in their
ability to use or access the electronic application due to a
disability, to request an accommodation to allow them to access and/or
file the application through other means. Employers who are limited in
their ability or unable to access electronic forms or communication due
to a disability may use the procedures in Sec. 655.130(c)(2) to
request an accommodation. Proposed paragraph (d)
[[Page 36199]]
adopts the use of electronic signatures as a valid form of the
employer's original signature and, if applicable, the original
signature of the employer's authorized attorney agent or surety.
Unless the employer requests an accommodation due to a disability
or adequate access to e-filing, the NPC will return, without review,
any Application for Temporary Employment Certification submitted using
a method other than the electronic method(s) designated by the OFLC
Administrator. For reasons discussed earlier in this preamble, the
Department believes this proposal will modernize and streamline the
application filing process, will not require a change in practice for
the overwhelming majority of employers and their authorized attorneys
or agents, and will create significant administrative efficiencies for
employers and the Department.
c. Paragraph (e), Scope of Applications
The Department proposes a new paragraph (e) to clarify the scope of
all Applications for Temporary Employment Certification submitted by
employers to the NPC. First, proposed paragraph (e) clarifies that each
Application for Temporary Employment Certification must be limited to
places of employment within a single area of intended employment,
except where otherwise permitted by the subpart (e.g., under Sec.
655.131(a)(2), a master application may include places of employment
within two contiguous States). This proposal addresses the lack of
clarity in the 2010 Final Rule regarding whether an application could
include places of employment that span more than one area of intended
employment. The 2010 Final Rule also introduced some ambiguity by its
revisions to Sec. 655.132(a), which specifically limited H-2ALC
applications to places of employment within a single area of intended
employment.
In both the temporary and permanent labor certification programs,
the Department has historically used the area of intended employment
for the purpose of determining recruitment requirements employers must
follow to locate qualified and available U.S. workers, and to aid the
Department in assessing whether the wages, job requirements, and terms
and conditions of the job opportunity will adversely affect workers in
the United States similarly employed in that same local or regional
area.
Whether an employer is a fixed-site employer or H-2ALC, the area of
intended employment is an essential component of the labor market test
necessary to determine availability of U.S. workers for the job
opportunity and to ensure that U.S. workers in the local or regional
area have an opportunity to apply for those job opportunities located
within normal commuting distance of their permanent residences.
Qualified U.S. workers may be discouraged from applying for these job
opportunities if the employer's offer of employment is conditioned on
workers being available to perform the labor or services at places of
employment both within and outside the normal commuting area or
assignment to places of employment outside normal commuting distance
from their residences, despite the availability of closer work. In
addition, monitoring program compliance becomes more difficult and the
potential for violations increases when workers employed under a single
Application for Temporary Employment Certification are dispersed across
multiple areas of intended employment. For those reasons, applications
in the H-2A program, unless a specific exception applies, must
generally be limited to one area of intended employment, based on which
other regulatory requirements attach (such as recruitment, housing, and
wages). The Department therefore proposes to make this requirement
clearer in Sec. 655.130(e).
Second, paragraph (e) clarifies that an employer may file only one
Application for Temporary Employment Certification for place(s) of
employment covering the same geographic scope, period of employment,
and occupation or comparable work. This provision will prevent the
Department from receiving and processing duplicate applications. This
provision will also reduce duplicative efforts by preventing an
employer from filing a new application for the same job opportunity
while an appeal is pending. In addition, it clarifies that filing more
than one Application for Temporary Employment Certification is
necessary when an employer needs workers to perform full-time job
opportunities that do not involve the same occupation or comparable
work, or workers to perform the same full-time work, but in different
areas of intended employment or with different starting and ending
dates (e.g., ramping up or winding down operations).
d. Paragraph (f), Staggered Entry of H-2A Workers
The Department proposes to add a new paragraph (f) to Sec.
655.130, which permits the staggered entry of H-2A workers into the
United States. Under this proposal, any employer that receives a
temporary agricultural labor certification and an approved H-2A
Petition may bring nonimmigrant workers into the United States at any
time during the 120-day period after the first date of need identified
on the certified Application for Temporary Employment Certification
without filing another H-2A Petition. If an employer chooses to stagger
the entry of its workers, it must continue to accept referrals of U.S.
workers and hire those who are qualified and eligible through the
period of staggering or the first 30 days after the first date of need
identified on the certified Application for Temporary Employment
Certification, whichever is longer, as described in more detail in the
preamble discussing Sec. 655.135(d). Additionally, the employer must
comply with the requirement to update its recruitment report as
described in Sec. 655.156.
The Department preliminarily concludes that due to the uncertain
nature of agricultural work, permitting the option to stagger the entry
of workers under a single Application for Temporary Employment
Certification is necessary to provide employers with the flexibility to
accommodate changing weather and production conditions. Agriculture,
especially in more labor-intensive crops and commodities, is different
from other economic sectors and has unique implications for the
availability of labor. The agricultural production process is highly
dependent on changing climatic and biological conditions that create
seasonal cycles for planting, cultivating, and harvesting crops.
Although farmers have some degree of control over when they plant their
crops each year, there is great uncertainty regarding when and how much
of the crop will be harvestable and, depending on its commercial value,
how quickly the crop needs to get to the marketplace. Because
agricultural production is highly seasonal and generally dispersed over
a broad geographic area, timely access to the right amount of labor at
the right places becomes essential to the success of farming
operations. This situation becomes even more critical for small farms
that grow a wide array of diversified crops where the planting,
cultivating, and harvesting periods are not the same, but may occur
sequentially or in close proximity to one another.
Currently, employers whose needs for agricultural workers occur at
different points of a season must file separate Applications for
Temporary Employment Certification containing a new start date of work
for each group of job opportunities. This means employers must repeat
each step of the
[[Page 36200]]
labor certification process with the Department and the visa petition
process with DHS, even though the agricultural labor or services to be
performed is in the same occupational classification and the only
difference is the expected start date of work. For agricultural
associations filing as joint employers with a number of its employer-
members, the master applications are more complex and burdensome to
prepare and file, because the agricultural association must coordinate
the amount and timing of labor needed across numerous employer-members
growing a wide array of different crops under the same start date of
work. Consequently, the Department receives and processes numerous
master applications filed by the same agricultural association, often
one every calendar month, covering substantially the same employer-
members who need workers to perform work in the same occupational
classification based on a different start date of work. For these
reasons, the Department proposes to permit H-2A employers to stagger
the entry of nonimmigrant workers into the United States.
Furthermore, requiring those employers that choose to stagger to
accept referrals of U.S. workers through the period of staggering or
the first 30 days of the contract period, whichever is longer,
sufficiently ensures that the job opportunity will remain available to
qualified U.S. workers and that the employment of H-2A workers will not
adversely affect the wages and working conditions of workers in the
United States similarly employed. Under this proposal, for as long as
there is a job opportunity that has not yet been filled by an H-2A
worker, the job opportunity remains open, and qualified, eligible U.S.
workers must be hired. The Department has chosen 120 days as the
maximum period of staggering because enough has changed in the
available labor market pool after a 4-month period that it needs to be
retested. Limiting the staggering period to 120 days or fewer ensures
that DOL satisfies its statutory mandate to certify that ``there are
not sufficient workers who are able, willing, and qualified, and who
will be available at the time and place needed, to perform the labor or
services involved in the petition.'' 8 U.S.C. 1188(a)(1)(A).
Employers that wish to stagger the entry of their H-2A workers into
the United States, including a joint employer filing an Application for
Temporary Employment Certification under Sec. 655.131(b), must notify
the NPC in writing of their intent to stagger and identify the period
of time, up to 120 days, during which the staggering will take place.
This notice must be filed electronically, unless the employer was
permitted to file by mail as set forth in Sec. 655.130(c). An
agricultural association filing as a joint employer with its members
(that may have different staggered entry needs) must make a single
request on behalf of all its members duly named on the Application for
Temporary Employment Certification and provide the NPC with the maximum
staggered entry timeframe (i.e., the longest period of time any one
member plans to stagger the entry of its H-2A workers). Since
agricultural associations have a unique statutory ability to transfer
H-2A workers among any of their certified job opportunities, the
Department proposes that associations must accept qualified, eligible
U.S. workers at any time during the provided staggered entry timeframe.
Under this proposal, employers may submit notice of their intent to
use the staggering provisions at any time after the Application for
Temporary Employment Certification is filed through 14 days after the
first date of need certified by the NPC, including any modifications
approved by the CO. This timeframe balances employers' need for
flexibility with prospective workers' need for certainty in the terms
of employment offered. Thus, the Department proposes that an employer
who does not submit notice of intent to use the staggering provisions
during the requirement timeframe (i.e., no later than 14 days after the
first date of need listed on the temporary agricultural labor
certification issued) is not permitted to stagger entry of its workers
and must submit a separate Applications for Temporary Employment
Certification containing a new first date of need for those job
opportunities with a later start date. Upon receipt of the employer's
notice of intent to stagger, the NPC will inform all SWAs that received
a copy of the employer's job order to extend the period of recruitment
by the provided staggered entry timeframe, if applicable. In accordance
with Sec. 655.121(g), the SWA(s) will keep the employer's job order in
its active file and refer any U.S. worker who applies for the job
opportunity through the end of the new recruitment period. In addition,
the NPC will update the electronic job registry to ensure that the job
order remains active through the new recruitment period, in accordance
with Sec. 655.144(b).
The Department modeled this new proposed paragraph on the staggered
entry provision available to seafood employers in the H-2B program. See
20 CFR 655.15(f)(2). That provision was added to the Interim Final Rule
pursuant to section 108 of the Consolidated and Further Continuing
Appropriations Act, 2015, Public Law 113-235, 128 Stat. 2130, 2464, and
differs from the provision proposed in this NPRM in several respects.
See 80 FR 24041, 24060. First, in the H-2B program, staggered entry is
available only to employers in the seafood industry, while in this
proposal, it is available to all H-2A employers that receive a
temporary agricultural labor certification and an approved H-2A
Petition. Because all H-2A employers may require flexibility to
accommodate changing weather and production conditions, the staggered
entry procedures are available to any employer participating in the
program.
Second, H-2B employers who stagger the entry of their nonimmigrant
workers into the United States between 90 and 120 days after the start
date of need must complete a new assessment of the local labor market
during the period that begins at least 45 days after the start date of
need and ends before 90 days after the start date of need, which
includes listing the job in local newspapers, placing new job orders
with the SWA, posting the job opportunity at the place of employment
for at least 10 days, and offering the job to any qualified, available
U.S. worker who applies. See 20 CFR 655.15(f)(2). Here, the Department
has proposed that the approved job order being circulated for
recruitment by the SWA remain open and that employers must hire all
qualified, eligible U.S. workers who apply through the period of
staggering, but the Department has not proposed employers to conduct a
new assessment of the local labor market for staggering periods that
exceed 90 days. For purposes of this NPRM, the Department determined
that its proposal sufficiently protects U.S. workers and fulfills its
statutory obligations. The Department, however, welcomes comments on
whether additional recruitment for employers that stagger the entry of
workers beyond 90 days should be required and what form that
recruitment should take.
Third, H-2B employers must sign and date an attestation form
stating the employer's compliance with the regulatory requirements for
staggered entry and provide a copy of the attestation to the H-2B
worker seeking entry to the United States with instructions that the
workers present the documentation upon request to the Department of
State's (DOS's) consular officers when they apply for a visa and/or
DHS's U.S. Customs and Border Protection officers when seeking
[[Page 36201]]
admission to the United States. See 20 CFR 655.15(f)(3). Here, in order
to streamline the process and avoid additional paperwork, the
Department plans to update Appendix A to the Form ETA-9142A to make
clear that recruitment obligations and assurances are extended for
those employers who stagger the entry of their H-2A workers.
Furthermore, the Department does not propose to require H-2A workers to
present documentation to DOS or DHS, but invites the public to comment
on this or other aspects of the proposed procedures.
e. Paragraph (g), Information Dissemination
Finally, the Department proposes minor editorial changes to newly
designated paragraph (g) that permits OFLC to provide information
received in the course of processing Applications for Temporary
Employment Certification or in the course of conducting program
integrity measures not only to the WHD, but to any other Federal
agency, as appropriate, for investigative and/or enforcement purposes.
The Department proposes this change to promote greater collaboration
among Federal agencies with authority to enforce compliance with
program requirements and combat fraud and abuse.
2. Section 655.131, Agricultural Association and Joint Employer Filing
Requirements
The Department proposes to revise this section to include
provisions that govern the filing of Applications for Temporary
Employment Certification by joint employers other than agricultural
associations that file master applications. To reflect these new
provisions, the Department proposes to rename this section,
``Agricultural association and joint employer filing requirements.''
The Department is otherwise retaining the provisions at Sec. 655.131
that govern the filing of an Application for Temporary Employment
Certification by an agricultural association on behalf of its employer-
members, with minor revisions to the procedures for applications by
agricultural associations. The INA requires that agricultural
associations be permitted to file H-2A applications, including master
applications, and that they be permitted to do so either as employers
or agents. Section 218(c)(3)(B)(iv), (d) of the INA; 8 U.S.C.
1188(c)(3)(B)(iv), (d). Therefore, the Department is continuing its
longstanding practice of permitting an agricultural association to file
an application as an employer or agent on behalf of its employer-
members, including the option to file a master application as a joint
employer.
a. Agricultural Association Filing Requirements
The Department's proposed rule makes no substantive changes to
agricultural associations' filing requirements. Accordingly, the
proposed rule permits an agricultural association to file an
application as a sole employer, joint employer, or agent, as
contemplated in the INA. See section 218(c)(3)(B)(iv), (d) of the INA;
8 U.S.C. 1188(c)(3)(B)(iv), (d). The proposed rule renumbers the
introductory paragraph as paragraph (a), and the current paragraph (a)
would become paragraph (a)(1). The Department proposes to add a new
paragraph (a)(3) codifying the Department's longstanding practice that
an agricultural association that files a master application as a joint
employer with its employer-members may sign the application on behalf
of the employer-members, but an agricultural association that files as
an agent may not and must obtain each member's signature on the
application. Finally, the Department proposes to divide the current
paragraph (b) into a new paragraph (a)(2), which addresses master
application filing requirements, and a new paragraph (a)(4), which
addresses the procedure for issuing a final determination to the
association that approves the application, consistent with the proposed
revisions to Sec. 655.162.
b. Master Applications
Master applications are contemplated by section 218(d) of the INA,
8 U.S.C. 1188(d), and the Department has permitted the filing of master
applications as a matter of practice. The proposed rule retains the
master application filing requirements currently described in paragraph
(b), but will describe these requirements in paragraphs (a)(2) and (4),
with minor amendments necessary to ensure the provisions are consistent
with proposed revisions to the definition of master application in
Sec. 655.103 and the modernization proposals that revise the Sec.
655.162 procedures for issuance of certifications. Under the current
regulation, the Department only certifies a master application if all
employer-members have the same first dates of need. The Department
proposes to permit a master application if the employer-members have
different first dates of need, provided no first date of need listed in
the application differs by more than 14 calendar days from any other
listed first date of need, consistent with the proposed revision to the
definition of master application in Sec. 655.103, as explained further
above. The Department also proposes to delete the phrase ``just as
though all of the covered employers were in fact a single employer''
because this phrase was open to the misinterpretation that the
provisions of the regulation that govern the geographic scope of a
master application apply to single employer filers as well. Removal of
this phrase clarifies that this paragraph applies only to agricultural
associations and their employer-members.
The Department also proposes to revise the procedures for issuing
certified applications to an agricultural association. Paragraph (b) of
the current regulation requires the CO to send the certified
Application for Temporary Employment Certification to the association
and contemplates that the association will send copies of the certified
application to its employer-members for inclusion in petitions to
USCIS. Consistent with the proposed revisions to Sec. 655.162 below,
proposed paragraph (a)(4) states that the CO will send the agricultural
association a Final Determination using electronic method(s).
c. Joint Employer Filing Requirements
The Department proposes a new paragraph (b) to codify the
Department's longstanding practice of permitting two or more individual
employers to file a single Application for Temporary Employment
Certification as joint employers. This situation arises when two or
more individual employers operating in the same area of intended
employment have a shared need for the workers to perform the same
agricultural labor or services during the same period of employment,
but each employer cannot guarantee full-time employment for the workers
during each workweek. This allows smaller employers that do not have
full time work for an H-2A worker and lack access to an association, to
utilize the H-2A program. Typically, there is an arrangement among the
employers to share or interchange the services of the workers to
provide full-time employment during each workweek and guarantee all the
terms and conditions of employment under the job order or work
contract.
This proposal establishes the procedures and requirements under
which two or more individual employers may continue to participate in
the H-2A program as joint employers. Under proposed paragraph
(b)(1)(i), any one of the employers may file the Application for
Temporary Employment
[[Page 36202]]
Certification with the NPC, so long as the names, addresses, and the
crops and agricultural labor or services to be performed are identified
for each employer seeking to jointly employ the workers. Consistent
with longstanding practice, any applications filed by two or more
employers will continue to be limited to places of employment within a
single area of intended employment covering the same occupation or
comparable work during the same period of employment for all joint
employers, as required by Sec. 655.130(e). Typically, this allows
neighboring farmers with similar needs to use the program, though they
do not, by themselves, have a need for a full time worker.
The proposed application filing procedures for two or more
employers under proposed Sec. 655.131(b) are different from the
procedures for a master application filed by an agricultural
association as a joint employer in several ways. First, unlike the
master application provision, the employers filing a single Application
for Temporary Employment Certification under proposed paragraph (b)
would not be in joint employment with an agricultural association of
which they may be members. Thus, if an agricultural association assists
one or more of its employer-members in filing an Application for
Temporary Employment Certification under proposed paragraph (b), the
agricultural association would be filing as an agent for its employer-
members. Second, all employers filing an Application for Temporary
Employment Certification under proposed paragraph (b) would have to
have the same first date of need and require the agricultural labor or
services of the workers requested during the same period of employment
in order to offer and provide full-time employment during each
workweek. In contrast, in a master application filed by an agricultural
association, each employer-member would offer and provide full-time
employment to a distinct number of workers during a period of
employment that may have first dates of need differing by up to 14
calendar days. Finally, unlike a master application where the places of
employment for the employer-members could cover multiple areas of
intended employment within no more than two contiguous States, the
employers filing a single application as joint employers under proposed
paragraph (b) would have to identify places of employment within a
single area of intended employment.
Proposed paragraph (b)(1)(ii) provides that each joint employer
must employ each H-2A worker the equivalent of 1 workday (e.g., a 7-
hour day) each workweek. This requirement is in keeping with the
purpose of this filing model, which is to allow smaller employers in
the same area and in need of part-time workers performing the same work
under the job order, to join together on a single application, making
the H-2A program accessible to these employers. This requirement
provides a limiting principle that is intended to assure that
individual employers with full time needs use the established
application process for individual employers, that association members
use the statutory process provided for associations, and that joint
applications are restricted to employers with a simultaneous need for
workers that cannot support the full time employment of an H-2A worker.
In this way, the Department can carry out the statutory requirements
applicable to individual employers and to associations. The Department
invites comments on this requirement, and how to best effectuate the
purposes of joint employer applications.
Each employer seeking to jointly employ the workers under the
Application for Temporary Employment Certification would have to comply
with all the assurances, guarantees, and other requirements contained
in this subpart and in part 653, subpart F, of the chapter. Therefore,
proposed Sec. 655.131(b)(1)(iii) would require each joint employer to
sign and date the Application for Temporary Employment Certification.
By signing the application, each joint employer attests to the
conditions of employment required of an employer participating in the
H-2A program, and assumes full responsibility for the accuracy of the
representations made in the application and job order, and for all of
the assurances, guarantees, and requirements of an employer in the H-2A
program. In the event the Department determines any employer named in
the Application for Temporary Employment Certification has committed a
violation, either one or all of the employers named in the Application
for Temporary Employment Certification can be found responsible for
remedying the violation(s) and for attendant penalties.
Where the CO grants temporary agricultural labor certification to
joint employers, proposed Sec. 655.131(b)(2) provides that the joint
employer that filed the Application for Temporary Employment
Certification would receive the Final Determination correspondence on
behalf of the other joint employers in accordance with the procedures
proposed in Sec. 655.162.
3. Section 655.132, H-2A Labor Contractor Filing Requirements; and 29
CFR 501.9, Enforcement of Surety Bond
The Department proposes to revise the additional filing
requirements for H-2ALCs at Sec. 655.132. First, the Department
proposes to move language addressing the scope of H-2ALC applications
in current paragraph (a) to proposed paragraph (e) in Sec. 655.130 to
clarify that the geographic scope of an Application for Temporary
Employment Certification is limited to one area of intended employment,
except as otherwise permitted by this subpart, without regard to the
type of employer filing the application (i.e., fixed-site employer,
joint-employers, agricultural association filing as a sole employer or
agent, or H-2ALC). An H-2ALC application and job order will continue to
be limited to places of employment within a single area of intended
employment. However, pursuant to the Department's proposed Sec.
655.130(e) that this same limitation applies to all applications and
job orders, the Department proposes to remove current paragraph (a) to
eliminate any confusion or redundancy in the regulatory text.
Therefore, the Department proposes that current paragraph (b)
becomes paragraph (a) in the proposed rule. This paragraph continues to
explain the enhanced documentation requirements for H-2ALCs with minor
amendments. The Department observes that the number of H-2ALCs applying
for temporary agricultural labor certifications has risen dramatically
in recent years and is expected to continue to increase.\76\ Given the
increased use of the H-2A program by H-2ALCs and the relatively complex
and transient nature of their business operations, the Department has
determined the enhanced documentation requirements for H-2ALCs,
provided at the time of filing an Application for Temporary Employment
Certification, continue to be necessary in order to protect the safety
and security of workers and ensure basic program requirements are met.
Under this paragraph, H-2ALCs
[[Page 36203]]
will continue to include in or with their Applications for Temporary
Employment Certification at the time of filing the information and
documentation listed in redesignated paragraphs (a) through (e) to
demonstrate compliance with regulatory requirements, with the following
proposed revisions.
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\76\ Based on an analysis of Applications for Temporary
Employment Certification processed for FYs 2014 and 2017, the number
of applications filed by H-2ALCs more than doubled from 660 (FY
2014) to 1,410 (FY 2017), and the number of worker positions
certified for H-2ALCs nearly tripled from approximately 24,900 (FY
2014) to 72,400 (FY 2017). Between FYs 2014 and 2017, the average
annual increase in H-2ALC applications requesting temporary labor
certification was 29 percent, compared to only 18 percent for
agricultural associations and 11 percent for individual farms and
ranches.
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In proposed paragraph (e)(2), the Department proposes a minor
editorial clarification and a technical correction. Because H-2ALC
operations typically require transporting workers to multiple worksite
locations owned or operated by the fixed-site agricultural business,
the Department proposes to replace the term ``the worksite'' with ``all
place(s) of employment'' to clarify that transportation provided by the
fixed-site agricultural business between all the worksites and the
workers' living quarters must comply with the requirements of this
section. Additionally, the Department has corrected the reference for
workers' compensation coverage of transportation from Sec. 655.125(h)
to Sec. 655.122(h).
In proposed paragraph (c), the Department is retaining the
requirement that an H-2ALC is required to submit with its Application
for Temporary Employment Certification proof of its ability to
discharge its financial obligations in the form of a surety bond. 20
CFR 655.132(b)(3); 29 CFR 501.9. This bonding requirement, which became
effective in 2009, allows the Department to ensure that labor
contractors, who may be transient and undercapitalized, can meet their
payroll and other program obligations, thereby preventing program
abuse. 20 CFR 655.132(b)(3); 29 CFR 501.9. Following a final decision
that finds violations, the WHD Administrator may make a claim to the
surety for payment of wages and benefits owed to H-2A workers, workers
in corresponding employment, and U.S. workers improperly rejected from
employment, laid off, or displaced, up to the face amount of the bond.
Currently, bond amounts range from $5,000 to $75,000 depending on the
number of H-2A workers employed by the H-2ALC under the labor
certification. 29 CFR 501.9(c).
Based on the Department's experience implementing the bonding
requirement and its enforcement experience with H-2ALCs, the Department
proposes updates to the regulations. These updates are intended to
clarify and streamline the existing requirement and to strengthen the
Department's ability to collect on such bonds, including by accepting
electronic surety bonds and requiring the use of a standard bond form.
Further, the Department proposes adjustments to the required bond
amounts to reflect annual increases in the AEWR and to address the
increasing number of certifications covering a significant number of
workers (e.g., more than 150 workers).
Under the current regulations, application requirements for an H-
2ALC, including obtaining a surety bond, are found in 20 CFR 655.132.
Most of the requirements pertaining to bonds, however, including the
required bond amounts and scope of bond coverage, are found in 29 CFR
501.9. The Department has observed that a large proportion of the
surety bonds submitted by labor contractors do not meet the
requirements of 29 CFR 501.9. This hinders the Department's ability to
effectively collect wages and benefits owed to workers when violations
are found. Therefore, to make these regulations more accessible to the
regulated community, the Department proposes moving the substantive
requirements governing the content of labor contractor surety bonds to
20 CFR 655.132(c) so that these requirements are in the same section as
other requirements for the Application for Temporary Employment
Certification.\77\ Requirements that pertain solely to the WHD's
procedures for enforcing bonds will remain in 29 CFR 501.9.
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\77\ Available at https://www.foreignlaborcert.doleta.gov/h-2a.cfm.
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To further address the issue of noncompliant bonds and streamline
its review of bond submissions, the Department proposes to expand the
capabilities of the iCERT System to permit the electronic execution and
delivery of surety bonds and to adopt a bond form that will include
standardized bond language.
Since the implementation of e-filing in December 2012, OFLC has
permitted employers to upload a scanned copy of the surety bond at the
time of filing and, upon acceptance of the application under Sec.
655.143, provided a written notice reminding employers to submit the
original surety bond during processing, before issuance of the
certification.\78\ Implementing a process to accept electronic surety
bonds will eliminate delays associated with the mailing of an original
paper bond and promote efficiency in the review of the bonds without
compromising program integrity. The Department, therefore, proposes to
develop a process for accepting electronic surety bonds that would
involve a bond form to be completed through the iCERT System, verify
the identity and authority of signatories to the bond (the H-2ALC and
surety's representative), allow both parties to sign the bond form
electronically, and securely store and transmit the executed bond to
the Department along with the rest of the application. Under this
proposal, electronic surety bonds are required for all H-2ALCs subject
to the Department's proposed mandatory e-filing requirement. H-2ALCs
exempt from mandatory e-filing under Sec. 655.130(c) due to a
disability or lack adequate access to e-filing would be permitted to
submit paper surety bonds, along with the rest of their paper
application.
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\78\ Notice, Electronic Filing of H-2A and H-2B Labor
Certification Applications Through the iCERT Visa Portal System, 77
FR 59672 (Sept. 28, 2012).
---------------------------------------------------------------------------
Until such time as the Department's proposed process for accepting
electronic surety bonds is operational, the Department will allow H-
2ALCs to submit an electronic (scanned) copy of the surety bond with
the application, provided that the original bond is received within 30
days of the date that the certification is issued. To ensure that the
original bond is received within this time period, the Department
proposes to revise Sec. 655.182 to specify that failure to submit a
compliant, original surety bond within this time period will constitute
a substantial violation that may warrant debarment. This proposed
addition means that the failure to submit a compliant, original surety
bond is also grounds for revoking the certification. This will allow
greater flexibility and efficiency in the processing of applications
while protecting the Department's ability to enforce the bonds. Under
this alternative proposal, the Department still requires the use of a
standardized form bond.
The use of a standardized form bond will also streamline the
processing and improve compliance with the bonding requirement.
Currently, the bonds received by the Department vary considerably in
wording and form. Not only does this make it more difficult to discern
whether a bond is sufficient for the purposes of the Application for
Temporary Employment Certification, it also results in different
sureties and labor contractors believing they are subject to differing
legal requirements. For instance, as discussed below, different bonding
companies have interpreted the current regulatory language in different
ways. The Department's proposed bond form is ETA-9142A--Appendix B. The
Department seeks comments from the public, and particularly from
stakeholders and those in the bond industry, on the feasibility and
accessibility of its proposals to implement a process for accepting
[[Page 36204]]
electronic surety bonds and to use a standardized bond form.
The proposed bond form with its standardized language is intended
to incorporate the existing bond requirements in most respects, while
clarifying certain requirements for the regulated community. For
example, the proposed bond language still requires a surety to pay sums
for wages and benefits owed to H-2A workers, workers in corresponding
employment, and U.S. workers improperly rejected from employment, laid
off, or displaced based on a final decision finding a violation or
violations of 20 CFR part 655, subpart B, or 29 CFR part 501, but
clarifies that the wages and benefits owed may include the assessment
of interest.
Similarly, the proposed language also clarifies the time period
during which liability on the bond accrues, as distinguished from the
time period in which the Department may seek payment from the surety
under the bond. Currently 29 CFR 501.9(b) provides that bonds must be
written to cover ``liability incurred during the term of the period
listed in the Application for Temporary Employment Certification.''
Language in paragraph (d), pertaining to the time period in which
claims can be made against a bond, permits cancellation or termination
of the bond with 45 days' written notice to the WHD Administrator. 29
CFR 501.9(d). This provision was intended to permit a surety to end the
period in which a claim can be made against a bond provided that the
minimum claims period of paragraph (d) had elapsed. Instead, some
sureties have interpreted this language as permitting the early
termination of the bond during the period in which liability accrues.
The proposed bond language described below makes it clear that
liability accrues for the duration of the period covered by the labor
certification.
The Department proposes several changes to the bond requirements.
Currently, a bond must be written to cover liability incurred during
the period of the labor certification and the labor contractor is
required to amend the surety bond to cover any requested and granted
extensions of the labor certification. 29 CFR 501.9(b). The
standardized bond language proposed by the Department provides that
liability accrues during the period of the labor certification,
including any extension, thereby eliminating the need to amend the
surety bond, streamlining the extension process, and reducing the risk
of errors introduced when amending the bonds.
The Department also proposes extending and simplifying the time
period in which a claim can be filed against the surety. As currently
written, the Department must be given no fewer than 2 years from the
expiration of the labor certification in which to enforce the bond.
This is tolled when the Administrator commences enforcement
proceedings. After this time, sureties are permitted to terminate this
claims period with 45 days' written notice to the WHD Administrator.
Under the proposed rule, this period of enforcement is extended to 3
years (and is still tolled by the commencement of enforcement
proceedings). This does not extend the accrual of liability. Instead,
it allows the Department more time to complete its investigations while
retaining the ability to seek recovery from the surety. Because the
Department's proposed standardized bond language provides more
specificity as to the length of the claims period (3 years as opposed
to ``no less than [2] years''), the provision allowing cancellation or
termination of the claims period with 45 days' written notice has been
eliminated.
Further, the Department proposes adjusting the required bond
amounts annually to reflect increases in the AEWR and increasing the
bond amounts required for certifications covering a significant number
of workers (e.g., 150 or more workers). The bonding requirement for H-
2ALCs was created because, in the Department's experience, these
employers can be transient and undercapitalized, making it difficult to
recover the wages and benefits owed to their workers when violations
are found.\79\ Current required bond amounts range from $5,000 to
$75,000, based on the number of H-2A workers to be employed under the
labor certification, with the highest amount required for
certifications covering 100 or more workers. 29 CFR 501.9(c). However,
the Department has found that the current bond amounts often are
insufficient to cover the amount of wages and benefits owed by labor
contractors, limiting the Department's ability to seek back wages for
workers. The Department seeks comment on the specific adjustments
proposed, as well as alternative means of adjusting the bond amounts to
better reflect risk and ensure sufficient coverage.
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\79\ See 2008 Final Rule, 73 FR 77110, 77163; see also 2010
Final Rule, 75 FR 6884, 6941 (``The Department's enforcement
experience has found that agricultural labor contractors are more
often in violation of applicable labor standards than fixed-site
employers. They are also less likely to meet their obligations to
their workers than fixed-site employers.'').
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First, the Department proposes adjusting the current bond amounts
to reflect the annual increase in the AEWR. For certifications covering
fewer than 75 workers, the bond amounts have remained the same since
2009, when the bonding requirement was implemented; for certifications
covering 75 or more workers, the bond amounts have been unchanged since
2010. See 2008 Final Rule, 73 FR 77110, 77231. As a result, as the AEWR
rises, the bonds are less likely to cover the full amount of wages and
benefits owed to workers. When the Department examined the required
bond amounts in its 2009-2010 rulemaking, it proposed and adopted
additional bond amounts for certifications covering 75 to 99 workers
and those covering 100 or more workers. 2009 NPRM, 74 FR 45906, 45925;
2010 Final Rule, 75 FR 6884, 6941. In so doing, it based the new bond
amount for certifications covering 100 or more workers on the amount of
wages 100 workers would be paid over a 2-week period (80 hours)
assuming an AEWR of $9.25. 2009 NPRM, 74 FR 45906, 45925. Therefore,
the Department proposes to adjust the existing required bond amounts
proportionally on an annual basis to the degree that a nationwide
average AEWR exceeds $9.25. The Department will calculate and publish
an average AEWR annually when it calculates and publishes AEWRs in
accordance with Sec. 655.120(b). The average AEWR will be calculated
as a simple average of these AEWRs applicable to SOC 45-2092
(Farmworkers and Laborers, Crop, Nursery, and Greenhouse). To calculate
the updated bond amounts, the Department will use the current bond
amounts as a base, multiply the base by the average AEWR, and divide
that number by $9.25. Until the Department publishes an average AEWR,
the updated amount will be based on a simple average of the 2018 AEWRs,
which the Department calculates to be $12.20. For instance, for a
certification covering 100 workers, the Department would calculate the
required bond amount according to the following formula:
$75,000 (base amount) x $12.20 / $9.25 = $98,919 (updated bond amount).
In subsequent years, the 2018 average AEWR of $12.20 would be replaced
in this calculation by the average AEWR calculated and published in
that year.
Second, the Department proposes increasing the required bond
amounts for certifications covering a significant number of workers
(e.g., 150 or more workers). In recent years, the
[[Page 36205]]
Department has observed more certifications for which the current bond
amounts do not provide adequate protection. In the first half of FY
2018 alone, OFLC issued 75 certifications to labor contractors that
planned to employ 150 or more workers (9.8 percent of the
certifications issued to labor contractors). In contrast, during the
entire FY 2014 (the first year with easily comparable data), only 28
(4.7 percent) of the certifications issued by OFLC covered 150 or more
workers. This represents more than a two-fold increase between 2014 and
2018 in the percentage of certifications for crews of 150 or more
workers; and more than a five-fold increase in the total number of such
certifications over the same time period. Further, certifications are
being issued that cover even larger numbers of workers. In FY 2014, no
certifications were issued for 500 or more workers. In contrast, in the
first half of FY 2018, several certifications have been issued which
each cover nearly 800 workers.
Given these dramatic increases in crew sizes, the Department
proposes increasing the required bond amount for certifications
covering 150 or more workers. For such certifications, the bond amount
applicable to certifications covering 100 or more workers is used as a
starting point and is increased for each additional set of 50 workers.
The interval by which the bond amount increases will be updated
annually to reflect increases in the AEWR. This value will be based on
the amount of wages earned by 50 workers over a 2-week period and, in
its initial implementation, would be calculated using the 2018 average
AEWR as demonstrated:
$12.20 (2018 Average AEWR) x 80 hours x 50 workers = $48,800 in
additional bond for each additional 50 workers over 100.
For example, a certification covering a crew of 150 workers would
require additional surety in the amount of $48,800 (150-100 = 50; 1
additional set of 50 workers). For a crew of 275 workers, additional
surety of $146,400 would be required (275-100 = 175; 175/50 = 3.5; this
is 3 additional sets of 50 workers). As explained above, this
additional surety is added to the bond amount required for
certifications of 100 or more workers. Thus, for a crew of 150 workers
the required bond amount would be $147,719 ($98,919 required for
certifications of 100 or more workers + $48,800 in additional surety).
Likewise, for a crew of 275 workers, the required bond amount would be
$245,319 ($98,919 + $146,400 in additional surety).
While this may represent a significant increase in the face value
of the required bond, the Department understands that employer premiums
for farm labor contractor surety bonds generally range from 1 to 4
percent on the standard bonding market (i.e., contractors with fair/
average credit or better); therefore, any increase in premiums will be
reasonably calculated given the large number of workers potentially
impacted. Further, the Department believes this is necessary to ensure
fairness among labor contractors and for workers. The current framework
``disproportionately advantages larger H-2ALCs while providing
diminishing levels of protection for employees of such contractors''--
the very concerns which led the Department to create higher bond
amounts for certifications covering 75 to 99 and 100 or more workers.
2010 Final Rule, 75 FR 6884, 6941.
Finally, because the proposed rule in Sec. 655.103 expands the
definition of agriculture to include reforestation and pine straw
activities, employers in these industries may qualify as H-2ALCs and
therefore would be required to comply with the surety bond requirements
described in this section.
The Department seeks comments on the impact of the Department's
proposed updates to the required bond amounts and whether these
appropriately reflect the amount of risk that would otherwise be borne
by workers.
Additionally, the Department seeks comments as to whether any
additional filing requirements for H-2ALCs are needed to ensure that
labor contractors are able to meet H-2A program obligations.
4. Section 655.134, Emergency Situations
The Department proposes minor amendments to Sec. 655.134 to
provide greater clarity with respect to the procedures for handling
Applications for Temporary Employment Certification filed on an
emergency basis. Proposed paragraph (a) contains minor technical
changes, including moving a parenthetical example of ``good and
substantial cause'' to paragraph (b), where the meaning of ``good and
substantial cause'' is discussed in more detail.
Paragraph (b) continues to address what an employer must submit to
the NPC when requesting a waiver of the time period for filing an
Application for Temporary Employment Certification, including a
statement describing the emergency situation that justifies the waiver
request. The factors that may constitute good and substantial cause
will continue to be nonexclusive, but the Department has clarified that
these situations involve the substantial loss of U.S. workers due to
Acts of God or similar unforeseeable man-made catastrophic events
(e.g., a hazardous materials emergency or government-controlled
flooding), unforeseeable changes in market conditions, pandemic health
issues, or similar conditions that are wholly outside of the employer's
control. The minor clarifications do not materially change the
regulatory standards, but establish greater consistency with a similar
provision contained in the H-2B regulation at Sec. 655.17.\80\
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\80\ Pursuant to 20 CFR 655.17(b), the employer may request a
waiver of the required time period(s) for filing an H-2B Application
for Temporary Employment Certification based on good and substantial
cause that ``may include, but is not limited to, the substantial
loss of U.S. workers due to Acts of God, or a similar unforeseeable
man-made catastrophic event (such as an oil spill or controlled
flooding) that is wholly outside of the employer's control,
unforeseeable changes in market conditions, or pandemic health
issues.'' 80 FR 24041, 24116, 24117.
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The Department also proposes changes to paragraphs (b) and (c) to
simplify the emergency application filing process for employers and
provide greater clarity with respect to the procedures for handling
such applications. Consistent with the proposal in Sec. 655.121(a) to
require employers to submit job orders to the NPC, rather than a SWA,
the Department proposes to eliminate the requirement that an employer
requesting an emergency situation waiver submit a copy of the job order
concurrently to both the NPC and the SWA serving the area of intended
employment. Rather, the employer must submit the required documentation
to the NPC. Upon receipt of a complete waiver request, the CO promptly
will transmit a copy of the job order, on behalf of the employer, to
the SWA serving the area of intended employment and request review for
compliance with the requirements set forth in Sec. Sec. 653.501(c) and
655.122. This proposed change simplifies the application filing process
by providing one point of submission (i.e., the NPC) for all job orders
and will save employers time and cost by eliminating the need to file a
duplicate copy of the job order concurrently with the NPC and the SWA.
In addition, it makes the process for filing job orders in emergency
situations consistent with the process for filing job orders under
proposed Sec. 655.121.
Under this proposal, the CO will continue to process emergency
[[Page 36206]]
Applications for Temporary Employment Certification in a manner
consistent with the provisions set forth in Sec. Sec. 655.140 through
655.145 and make final determinations in accordance with Sec. Sec.
655.160 through 655.167. The CO will concurrently review the
Application for Temporary Employment Certification, job order, other
documentation, and statement submitted by the employer that details the
reason(s) that necessitate the waiver request. The Department's
proposed paragraph (c)(1) requires that the SWA inform the CO of any
deficiencies in the job order within 5 calendar days of the date the
SWA receives the job order. Under proposed paragraph (c)(2), if the
employer's submission does not justify waiver of the filing timeframe
and/or the CO determines there is not sufficient time to undertake an
expedited test of the labor market, the CO will issue a NOD under Sec.
655.141 that states the reason(s) the waiver request cannot be granted.
The NOD will also provide the employer with an opportunity to submit a
modified Application for Temporary Employment Certification or job
order that brings the requested workers' anticipated start date into
compliance with the required time periods for filing. In providing
these clarifying amendments, the Department proposes to eliminate
current procedures that require the CO to deny certification under in
Sec. 655.164 if the waiver cannot be granted, without first providing
the employer with an opportunity to modify the application or job order
to bring it into compliance with the non-emergency job order filing
timeliness requirement at Sec. 655.121(b).
The Department believes that providing employers with an
opportunity to submit a modified Application for Temporary Employment
Certification or job order before a denial determination is issued will
result in better customer service and more efficient processing for
OFLC and employers. The Department's experience under the current
regulation demonstrates that employers prefer to adjust their first
date of need to comply with regulatory requirements, and thereby
continue the application process, rather than receive a denial
determination and either follow the procedures under Sec. 655.121 to
submit the same job order to the NPC, revised only to list the
anticipated start date as at least 60 days from the filing date, or
face a time-consuming and costly appellate process. More importantly,
the COs and SWAs expend considerable time and effort reviewing
Applications for Temporary Employment Certification and job orders for
compliance with regulatory requirements, and if those efforts result in
denials, employers begin the process again and file duplicate
applications and job orders with modified periods of employment. For
these reasons, when an employer has failed to justify a waiver request
and/or there is not sufficient time to undertake an expedited test of
the labor market, the Department proposes that employers be provided an
opportunity to modify their applications or job orders.
5. Section 655.135, Assurances and Obligations of H-2A Employers
a. Paragraph (d), 30-Day Rule
The Department proposes to replace the 50 percent rule in Sec.
655.135(d) with a 30-day rule requiring employers to provide employment
to any qualified, eligible U.S. worker who applies for the job
opportunity until 30 calendar days from the employer's first date of
need on the certified Application for Temporary Employment
Certification, including any modifications thereof, and a longer
recruitment period for those employers who choose to stagger the entry
of H-2A workers into the United States under proposed Sec. 655.130(f).
The 50 percent rule, which requires employers of H-2A workers to hire
any qualified, eligible U.S. worker who applies to the employer during
the first 50 percent of the work contract period, was originally
created by regulation as part of the predecessor H-2 agricultural
worker program in 1978.\81\ In 1986, the IRCA added the 50 percent rule
to the INA as a temporary 3-year statutory requirement, pending the
findings of a study that the Department was required to conduct as well
as review of ``other relevant materials including evidence of benefits
to U.S. workers and costs to employers, addressing the advisability of
continuing a policy which requires an employer, as a condition for
certification under this section, to continue to accept qualified,
eligible United States workers for employment after the date the H-2A
workers depart for work with the employer.'' Section 218(c)(3)(B)(iii)
of the INA, 8 U.S.C. 1188(c)(3)(B)(iii). In the absence of the
enactment of Federal legislation prior to the end of the 3-year period,
the statute instructed the Secretary to publish the findings
immediately and promulgate an interim or final regulation based on the
findings.
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\81\ See 20 CFR 655.203(e) (1978); Final Rule, Temporary
Employment of Alien Agricultural and Logging Workers in the United
States, 43 FR 10306, 10316 (Mar. 10, 1978).
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To comply with these requirements, the Secretary hired a research
firm to analyze the cost-benefit impact of the 50 percent rule on U.S.
workers, growers, and the general public. See 2008 NPRM, 73 FR 8538,
8553. The research firm studied the impact of the 50 percent rule in
just Virginia and Idaho, the two States that were determined to have
the highest number of U.S. worker referrals made pursuant to the 50
percent rule. The number of growers interviewed was extremely small, as
the firm interviewed only those growers that actually hired U.S.
workers because of the 50 percent rule--only 66 growers (0.1 percent)
in all of Virginia and Idaho's total 64,346 farms (according to USDA).
The study sought to determine the costs to employers that hire referred
50 percent rule workers and the concomitant benefits to the U.S.
workers hired under the rule. Even with this narrow focus, the study
made it clear that the H-2A program was not regarded as desirable by
growers. Of those questioned, 6 percent said they were dropping out of
the H-2A program because of the 50 percent rule. Forty percent wanted
the rule eliminated entirely and 33 percent wanted to alter the
requirement by, for example, requiring the 50 percent rule workers to
finish the season or modifying substantially the 50 percent rule by
requiring the hiring of U.S. workers only up to a certain point before
the first date of need.
In 1990, pursuant to what is now section 218(c)(3)(B)(iii) of the
INA, 8 U.S.C. 1188(c)(3)(B)(iii), ETA published an interim final rule
to continue the 50 percent requirement.\82\ That rule was never
finalized. In 2007, the Department commissioned a survey of stakeholder
representatives to evaluate the effectiveness of the 50 percent rule as
a mechanism to minimize adverse impacts of the H-2A rule on U.S.
farmworkers. See 2008 Final Rule, 73 FR 77110, 77127 n.3. The surveyors
for this study conducted interviews with a number of stakeholders to
gather information on the impact of the 50 percent rule, including
employers, SWAs, and farm worker advocacy organizations. The
researchers found that the rule played an insignificant role in the
program overall, hiring-wise, and had not contributed in a meaningful
way to protecting employment for domestic agricultural workers. The
researchers estimated that the number of agricultural hires resulting
from
[[Page 36207]]
referrals to employers during the 50 percent rule period was
exceedingly small, with H-2A employers hiring less than 1 percent of
the legal U.S. agricultural workforce through the 50 percent rule. All
surveyed stakeholder groups reported that U.S. workers hired under the
50 percent rule typically did not stay on the job for a significant
length of time once hired.
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\82\ Continuation of Interim Final Rule, Labor Certification
Process for the Temporary Employment of Aliens in Agriculture in the
United States; ``Fifty-Percent Rule'', 55 FR 29356 (July 19, 1990).
---------------------------------------------------------------------------
In 2008, the Department eliminated the 50 percent rule, based on
its determination that the rule created substantial uncertainty for
employers in managing their labor supply and labor costs during the
life of an H-2A contract and served as a substantial disincentive to
participate in the program. 2008 Final Rule, 73 FR 77110, 77127. The
Department determined that the obligation to hire additional workers
mid-way through a season was disruptive to agricultural operations and
made it difficult for agricultural employers to be certain they would
have a steady, stable, properly trained, and fully coordinated
workforce. Id. On the other hand, the Department found that some U.S.
workers secured jobs through referrals made pursuant to the rule, but
that the number of hires was small, and that many workers hired
pursuant to the rule did not complete the entire work period. Id. at
77127-28. Therefore, the Department concluded that the costs of the
rule substantially outweighed any potential benefits for U.S. workers.
Id. at 77128. However, in order to prevent the disruption of access of
U.S. workers to agricultural employment activities and allow for the
collection of additional data about the costs and benefits of mandatory
post-date-of-need hiring, the Department created a 5-year transitional
period under the Final Rule during which mandatory post-date-of-need
hiring of qualified and eligible U.S. workers would continue to be
required of employers for a period of 30 days after the employer's
first date of need. Id. In effect, the Department replaced the 50
percent rule with a 30-day rule for the transitional period.
In 2010, the Department reinstated the 50 percent rule, concluding
that the potential costs to employers incurred as a result of the 50
percent rule were outweighed by the benefits to U.S. workers of having
access to these jobs through 50 percent of the contract period. 2010
Final Rule, 75 FR 6884, 6922. The Department cited the lack of
definitive data as the basis for its reinstatement of the rule. Id.
Since the implementation of the current regulation, the Department
has gained additional experience and collected a significant amount of
data that can assess whether the 50 percent rule is an effective means
of protecting the employment opportunities of U.S. workers from
potential adverse impact resulting from the employment of foreign
workers. Specifically, as part of the audit examination process under
Sec. 655.180, the recruitment reports submitted by employers to the
Department are a relevant and readily available source of information
in assessing how many U.S. workers applied for the certified job
opportunities and at what point in time, as well as the disposition of
each U.S. worker. Under the current regulation, an employer granted
temporary agricultural labor certification must continue to provide
employment to any qualified, eligible U.S. worker who applies until 50
percent of the period of the work contract has elapsed, and update the
recruitment report for each U.S. worker who applied through the entire
recruitment period.\83\
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\83\ In accordance with Sec. 655.156(b), this updated written
recruitment report is retained by the employer and must be made
available to the Department in the event of a post-certification
audit or upon request by authorized representatives of the
Secretary.
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The Department examined the recruitment reports of 1,824 certified
H-2A applications covering more than 33,510 jobs selected for audit
examination and fully audited during calendar years 2016 to 2018.\84\
Approximately 87 percent (1,582) of the recruitment reports of 1,824
certified H-2A applications reviewed, covering 23,324 jobs, reported
that no U.S. workers applied for the job opportunities at any point
during the 50 percent recruitment period. Of the remaining 13 percent
(242) of the 1,824 certified H-2A applications, covering 10,186 jobs,
employer recruitment reports revealed that 3,392 U.S. workers applied
for the available job opportunities at some point from the beginning of
the employer's H-2A recruitment efforts through 50 percent of the work
contract period. Of those who applied, only 2,053 were reportedly
hired, accounting for approximately 6 percent of the total 33,510 jobs
available.
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\84\ In accordance with Sec. 655.180(a), the 1,824 certified H-
2A applications were selected for audit examination between October
1, 2015 and April 2, 2018, at random and based on the discretion of
the CO. Nearly 75 percent (24,782) of the 33,500 jobs covered by the
1,824 audited H-2A applications were located in the states of
Florida, Georgia, New York, Louisiana, California, Kentucky,
Washington, North Carolina, South Carolina, and Mississippi--the
same states that consistently constitute more than 68 percent of all
certified jobs in the H-2A program during FY 2015, 2016, and 2017.
---------------------------------------------------------------------------
Of that 13 percent, the Department conducted a detailed review of
52 recruitment reports showing that U.S. workers applied for available
jobs from the beginning of the employer's H-2A recruitment efforts
through 50 percent of the work contract period. That review revealed
that more than 84 percent of the U.S. workers who applied for the
available job opportunities did so during the active recruitment period
before the start date of work and through the first 30 days after the
start date of work.\85\ For the remaining 16 percent of U.S. workers
who applied and/or were hired more than 30 days after the start date of
work, employer recruitment reports revealed that the overwhelming
majority of the referral and hiring activities occurred within the next
60 days of the recruitment period. Employers also reported that many of
these U.S. workers who were hired either did not report to work or
voluntarily resigned or abandoned the job shortly after beginning work.
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\85\ Of the 2,809 U.S. workers who applied for the certified
jobs, 50 percent (1,393) applied before the start date of work; 36
percent (1,002) applied within 30 days after the start date of work;
and 15 percent (414) applied more than 30 days after the start date
of work. Of the 1,843 U.S. workers hired for the certified jobs, 47
percent (862) were hired before the start date of work; 37 percent
(687) were hired within 30 days after the start date of work; and 16
percent (294) were hired more than 30 days after the start date of
work.
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The language of section 218(c)(3)(B)(iii) of the INA, 8 U.S.C.
1188(c)(3)(B)(iii), suggests that when issuing regulations dictating
whether agricultural employers should be required to hire U.S. workers
after H-2A workers have already departed for the place of employment,
the Department should weigh the ``benefits to United States workers and
costs to employers.'' Based on the data described above, it appears
that a very low number of U.S. workers apply for the job opportunity
within thirty days after the start date of work, and even fewer after
that; therefore, the costs of the rule to employers, including the
actual or potential cost of returning displaced H-2A workers to the
place from which they departed, outweigh any benefits the rule may
provide to U.S. workers. The 50 percent rule is not an effective method
of filling available jobs for employers needing a stable workforce and,
according to the data, provides little benefit to U.S. workers who,
based on the data described above, apply for jobs either before the
start date of work or during the first 30 days after the start date of
work. In order to balance the needs of workers and employers, proposed
paragraph (d)(1) replaces the 50 percent rule with a rule requiring
employers to hire qualified, eligible U.S. worker applicants for a
period of 30 days after the employer's first date of
[[Page 36208]]
need. Requiring employers to hire workers 30 days into the contract
period, while still disruptive to agricultural operations, shortens the
period during which such disruptions may occur and restores some
stability to employers that depend on the H-2A program. Moreover, it is
clear from the data provided above that the vast majority of U.S.
workers hired after the first date of need were hired within the first
30 days of the period of need. Providing U.S. workers the ability to
apply for these job opportunities 30 days into the contract period
ensures that U.S. workers still have access to these jobs after the
start of the contract period during the period of time they are most
likely to apply.
Furthermore, the Department notes that the impact of this proposed
change on U.S. workers is minimized by the staggered entry proposal,
discussed further in the preamble to Sec. 655.130(f). Under that
proposal, if a petition for H-2A nonimmigrant workers filed by an
employer is granted, the employer may bring the H-2A workers described
in the petition into the United States at any time up to 120 days from
the first date of need stated on the Application for Temporary
Employment Certification. Proposed paragraph (d)(2) of Sec. 655.135
provides that if an employer chooses to stagger the entry of H-2A
workers, it must hire any qualified, eligible U.S. worker who applies
for the job opportunity through the period of staggering or the end of
the 30-day period, whichever is longer, for a period of up to 120
calendar days from the first date of need. The Department has
determined that in order to fulfill its statutory duty to ensure that
foreign workers are not admitted unless sufficient U.S. workers are
unavailable, the period during which employers are obligated to hire
qualified and eligible U.S. workers must extend beyond 30 days to the
last date on which the H-2A workers enter the country.
Under proposed Sec. 655.135(d), an employer may choose the
relative stability and predictability of a shorter recruitment period,
or may choose the flexibility of staggering the entry of its H-2A
workers that comes with a longer recruitment period, depending on its
needs. In the case of staggered entry, the resulting longer recruitment
period should be less disruptive than the 50 percent rule, since, in
most cases in which the employer chooses to stagger the entry of its
workers, a U.S. worker hired after the beginning of the contract period
would not displace an H-2A worker who has already begun employment.
Rather than displacing an H-2A worker who has already entered the
United States and begun work, the U.S. worker would most likely fill
one of the positions with a later start date (i.e., one of the
staggered positions). Regardless of the employer's choice, U.S. workers
will continue to have access to these job opportunities for a
significant period of time after the work contract has commenced and,
in the case of staggered entry, for a period of time almost comparable
to that available under the 50 percent rule.
The Department proposes conforming changes to those sections of the
current rule that refer to the 50 percent rule. In Sec. Sec.
655.122(h)(2) and (i)(4), 655.144(b), 655.150(b), 655.156(b),
655.157(c), 655.220(c), and 655.225(b), the Department has replaced
references to the 50 percent rule with language referring to the
recruitment periods described in Sec. 655.135(b). These changes
account for the Department's proposals both to replace the 50 percent
rule with a 30-day rule and to require a longer recruitment period for
those employers who choose to stagger the entry of their H-2A workers
into the United States.
In making the proposal to replace the 50 percent rule, the
Department has considered available data as well as its experience
administering the H-2A program, but it would like to consider
additional information from the public before making a final decision.
To that end, the Department invites comments from parties who may have
data illustrating the costs and benefits of the 50 percent rule in the
current labor market, particularly, comprehensive studies of the
frequency with which H-2A employers hire U.S. workers pursuant to the
50 percent rule. The Department also invites comments on whether, if
the employer chooses to stagger the entry of H-2A workers, the
resulting recruitment period should run to the last date on which the
employer expects foreign workers to enter the country, as proposed
herein, or if the recruitment period should extend 30 days beyond the
period of staggering.
b. Paragraph (k), Contracts With Third Parties Comply With Prohibitions
Finally, the Department proposes to clarify that employers engaging
any foreign labor contractor or recruiter ``must contractually prohibit
in writing'' the foreign labor contractor or recruiter, or any agent of
such contractor or recruiter, from seeking or receiving payments from
prospective employees. For employers' convenience and to facilitate
more consistent and uniform compliance with this regulatory provision,
the Department proposes contractual language employers must use to
satisfy this requirement.
The Department makes this proposal because when employers use
recruiters, they must make it abundantly clear that their foreign labor
contractors or recruiters and their agents are not to receive
remuneration from prospective employees recruited in exchange for
access to a job opportunity. The proposed contractual language
specifies that foreign labor contractors and recruiters, and their
agents and employees, are not to receive payments of any kind from any
prospective employee subject to 8 U.S.C. 1188 for any activity related
to obtaining H-2A labor certification. To help monitor compliance with
this prohibition, the Department is retaining the requirement that
employers make these written contracts or agreements available upon
request by the CO or another Federal party.
6. Section 655.136, Withdrawal of an Application for Temporary
Employment Certification and Job Order
As discussed in the preamble discussing Sec. 655.124 above, the
Department proposes to reorganize the current withdrawal provisions at
Sec. 655.172 by moving withdrawal procedures for specific stages of H-
2A processing to the portion of the regulation that addresses that
processing stage. The Department proposes to move the current
Application for Temporary Employment Certification and related job
order withdrawal provision from Sec. 655.172(b) to new Sec. 655.136,
located in the ``Application for Temporary Employment Certification
Filing Procedures'' portion of the regulation, which begins at Sec.
655.130. By placing the provisions for Application for Temporary
Employment Certification filing and withdrawal together, the Department
anticipates employers will be able to find these withdrawal procedures
more easily.
In addition, the Department proposes to revise the current
provision by removing language limiting withdrawal to the period after
formal acceptance. Instead, the proposal permits employers to submit a
withdrawal request at any time before the CO makes a final
determination. Employers may realize after filing and before formal
acceptance that they cannot comply with certification requirements
(e.g., after reviewing a NOD), or for some other reason, they may no
longer wish to pursue the application. Withdrawal is an efficient
mechanism to end processing of the application and job order. Finally,
proposed Sec. 655.136(b) clarifies that employers must submit
[[Page 36209]]
withdrawal requests in writing to the NPC, identifying the Application
for Temporary Employment Certification and job order to be withdrawn
and stating the reason(s) for requesting withdrawal.
The Department proposes no change to an employer's continuing
obligations to workers recruited in connection with the job order and/
or Application for Temporary Employment Certification; these
obligations attach at recruitment and continue after withdrawal.
D. Processing of Applications for Temporary Employment Certification
1. Section 655.140, Review of Applications
The Department proposes minor amendments to Sec. 655.140 to
clarify existing procedures and explain the first actions available to
the CO after initial review of the Application for Temporary Employment
Certification, job order, and any necessary supplementary
documentation. Under current paragraph (a), the CO conducts an initial
review of the application and issues a NOA to the employer under Sec.
655.143 if the application meets acceptance requirements or a NOD under
Sec. 655.141 if the application contains deficiencies. The Department
proposes to amend paragraph (a) by adding language that explains that
in addition to issuance of a NOA or NOD, the CO's first action may be
issuance of a Final Determination under Sec. 655.160. As explained in
the preamble discussing Sec. 655.123 above, the Department proposes to
permit the employer to conduct recruitment prior to filing its
application. Consistent with that proposal, a Final Determination to
certify the application may be the appropriate first action if the
employer conducts pre-filing recruitment, provided the application
meets all certification criteria and the employer has complied with all
regulatory requirements necessary for certification. Likewise, a Final
Determination to deny the application may be the appropriate first
action if the application is incurably deficient at the time it is
filed, such as an application filed by a debarred employer.
The Department proposes to amend paragraph (b) to include language
that permits the CO to send electronic notices and requests to the
employer and permits the employer to send electronic responses to these
notices and requests, which is consistent with current practice and
other modernization proposals explained in this NPRM. The Department
encourages electronic communication and OFLC currently permits H-2A
employers to respond to notices and requests electronically. Proposed
paragraph (b) retains the option to issue and respond to notices and
requests using traditional methods that assure next day delivery, which
is necessary in some cases, such as when the employer does not have
access to e-filing methods. Proposed paragraph (b) also clarifies that
the CO will send notices and requests to the address the employer
provides in the Application for Temporary Employment Certification.
2. Section 655.141, Notice of Deficiency
In paragraph (b), the Department proposes to remove language that
allows an employer to request expedited administrative review or a de
novo hearing of a NOD. The Department proposes this change to conform
to the language of the INA, which requires expedited administrative
review, or a de novo hearing at the employer's request, only for a
denial of certification or a revocation of such a certification. See
section 218(e)(1) of the INA, 8 U.S.C. 1188(e)(1). Because the NOD is
neither a denial of certification nor a revocation of such a
certification, this proposal better conforms with statutory
requirements under the INA. For the same reason, the Department also
proposes to remove current paragraph (c), which permits employers to
appeal a NOD. Additionally, the Department proposes to remove language
from paragraph (b)(5) that prohibits the employer from appealing the
denial of a modified Application for Temporary Employment
Certification. This change aligns this section with the language in
Sec. 655.142(c), which permits the appeal of a denial of a modified
application.
In paragraph (b)(3), the Department proposes to add language to
clarify that the employer may submit a modified job order in response
to a NOD. This proposal conforms paragraph (b)(3) with the language in
paragraphs (a), (b)(1), and (b)(2) of the current rule, which allows
the CO to issue a NOD for job order deficiencies and provides the
employer an opportunity to submit a modified job order to cure those
deficiencies.
3. Section 655.142, Submission of Modified Applications
The Department proposes amendments to clarify the provisions at
Sec. 655.142 that govern the employer's submission of a modified
Application for Temporary Employment Certification or job order. The
Department proposes to add language to paragraphs (a) and (b) that
clarifies the employer may submit a modified job order in response to a
NOD, which conforms these paragraphs to the provisions at Sec. 655.141
that permit the CO to issue a NOD for job order deficiencies and
provide the employer opportunity to submit a modified job order to cure
those deficiencies. Proposed paragraph (a) also clarifies that if the
employer submits a modified application or job order, the CO will
postpone the Final Determination for a maximum of 5 calendar days,
consistent with the current provision that the CO's Final Determination
will be postponed by 1 calendar day for each day the employer's
response is untimely (i.e., past the due date for submitting a
modification under Sec. 655.141(b)(2)).
In addition, proposed paragraph (a) explicitly authorizes the CO to
issue multiple NODs, if necessary, which mirrors language included at
Sec. 655.32(a) of the 2015 Interim Final Rule that governs the H-2B
temporary labor certification program. See 80 FR 24041, 24122.
Authority to issue multiple NODs provides the CO with the necessary
flexibility to work with employers to resolve deficiencies that prevent
acceptance of their Applications for Temporary Employment Certification
or job orders. For example, a CO may discover a deficiency while
reviewing submissions by the employer, such as an employer's response
to a NOD, which raises other issues that require the CO to request
additional modifications.
4. Section 655.143, Notice of Acceptance
The Department proposes revisions to Sec. 655.143 to clarify
current policy and to reflect proposed changes to the organizing
structure of this section to ensure the NOA content requirements
reflect the proposals to amend positive recruitment requirements, such
as labor supply State determinations in proposed Sec. 655.154(d),
requiring the CO to transmit the job order to the SWAs for interstate
circulation, and permitting the employer to conduct prefiling
recruitment. As explained in the preamble discussing Sec. 655.123
above, the Department's proposed rule permits the employer to conduct
the positive recruitment activities required by Sec. Sec. 655.151
through 655.154 before filing its Application for Temporary Employment
Certification (i.e., prefiling recruitment). To ensure Sec. 655.143 is
consistent with this proposal, the proposed content requirements for
NOAs account for whether the employer has conducted prefiling
recruitment, and whether that recruitment is complete and compliant
with the
[[Page 36210]]
employer's positive recruitment obligations.
Proposed paragraphs (b)(1)(i) through (iii) correspond with
paragraphs (b)(1) through (3) in the current regulation and describe
the content requirements for NOAs sent to an employer that has not
chosen to commence positive recruitment prior to filing the Application
for Temporary Employment Certification, or an employer that has
submitted, along with its Application for Temporary Employment
Certification, evidence of satisfactorily fulfilling some, but not all,
of its positive recruitment obligations following the procedures set
forth in proposed Sec. 655.123. The proposed content requirements are
substantively the same as those described in current paragraphs (b)(1)
through (3), but the Department has made minor editorial revisions to
reflect the modification of the job order circulation procedure in
proposed Sec. 655.150, explained in the preamble for that section.
Under proposed paragraph (b)(1)(i), the NOA will not direct the SWA
serving the area of intended employment to send the job order to other
SWAs for circulation because the CO will be responsible for sending the
job order to the appropriate SWAs under the proposed rule. Under
proposed paragraph (b)(1)(ii), the NOA continues to direct the employer
to engage in positive recruitment and to submit a recruitment report,
but the Department has replaced the reference to Sec. 655.154 with
Sec. Sec. 655.151 through 655.154 to better reflect positive
recruitment requirements. Finally, under proposed paragraph
(b)(1)(iii), the NOA continues to state that the employer's positive
recruitment must occur during and in addition to SWA recruitment, and
continues to specify the date on which the employer's positive
recruitment obligation terminates. However, the Department has
simplified the language by stating the employer's recruitment
obligation ends on the date specified in Sec. 655.158, as amended in
this proposed rule, instead of quoting that section unnecessarily.
Proposed paragraph (b)(2) describes the content of the NOA the CO
will send to an employer who submitted, along with its Application for
Temporary Employment Certification, evidence of having commenced some
or all aspects of positive recruitment, as permitted by proposed Sec.
655.123, but failed to comply with some or all of the requirements for
the positive recruitment activities conducted. When an employer has
engaged in prefiling recruitment activities, the CO will evaluate that
recruitment to ensure positive recruitment requirements at Sec. Sec.
655.151 through 655.154 have been met and, if not, direct the employer
to bring its recruitment into compliance. Under proposed paragraph
(b)(2)(i), the NOA will direct the employer to conduct corrective
positive recruitment and to submit proof of compliant advertising
concurrently with the recruitment report. Under proposed paragraph
(b)(2)(ii), the NOA will state that the employer's positive recruitment
must occur during and in addition to SWA recruitment, and will
terminate on the date specified in Sec. 655.158.
In addition, proposed paragraph (b)(3) will require all NOAs to
specify any other documentation or assurances the employer must provide
in order for the Application for Temporary Employment Certification to
meet the requirements for certification. This might include, for
example, a required original surety bond, housing documentation, or
MSPA Farm Labor Contractor Certificate of Registration. Under this
provision, the CO may issue a NOA in cases where the application is
complete and compliant for recruitment purposes, but the employer has
not submitted all documentation required for certification. This
reflects current practice, which allows the employer to engage in
positive recruitment while simultaneously gathering additional
information that will be required for certification. This process is
more efficient than requiring the employer to submit all information
required for certification prior to allowing the employer to commence
recruitment.
Finally, proposed paragraph (b)(4) retains the requirement that all
NOAs state that the CO will issue a Final Determination not later than
30 calendar days prior to the employer's first date of need, except in
cases where the employer's application requires modification under
Sec. 655.141. The Department proposes to amend paragraph (b)(4) by
adding language that permits the CO to issue a Final Determination
fewer than 30 calendar days prior to the employer's first date of need.
The proposed revisions would allow the CO to hold an application that
would otherwise be denied on the thirtieth day before the employer's
start date to allow the employer more time to meet all certification
requirements. For example, the SWA may have inspected the employer's
housing and identified a repair that must be made before the housing
certification can be issued, which the employer is in the process of
addressing. Therefore, this proposal gives the employer a short period
of time beyond the 30-day mark to submit the missing documentation,
thereby minimizing unnecessary burdens and delays. Furthermore, the
proposal minimizes inefficiencies for the NPC, which would otherwise be
required to issue a denial and either reopen and certify the
application following a successful appeal or fully process a second
application for the same job opportunity.
5. Section 655.144, Electronic Job Registry
The Department is retaining the current language of the electronic
job registry provisions at Sec. 655.144, with the exception of three
minor amendments to make this section consistent with other proposals
and current practice. The Department's public disclosure of redacted
job orders (Forms ETA-790/790A) through the electronic job registry on
OFLC's website is essential to ensuring transparency and accountability
in the Department's administration of the foreign labor certification
program. In addition, the electronic job registry is a valuable
resource for worker advocacy organizations, State and Federal agencies
and public officials, and interested members of the public. OFLC's
publication of job order information on the registry reduces Government
costs and paperwork burdens by reducing the number of Freedom of
Information Act requests the Department receives. Finally, placement of
job orders on the electronic job registry helps to make information
about employers' job opportunities more widely available to U.S.
workers.
The Department also proposes to add the phrase ``in active status''
to clarify that job orders must remain in active status on the
electronic job registry until the end of the recruitment period set
forth in Sec. 655.135(d); when the recruitment period ends, the job
order remains on the electronic job registry in inactive status.
Finally, the Department proposes to amend paragraph (a) by deleting the
sentence that explains the Department will begin posting job orders on
the registry once it has initiated operation of the registry. The
registry is now fully operational; therefore, this sentence is
unnecessary and should be removed.
E. Post-Acceptance Requirements
1. Section 655.150, Interstate Clearance of Job Order
The Department is retaining Sec. 655.150, which addresses the
process for placement of approved job orders into interstate clearance,
with clarifying revisions necessary to conform this section to proposed
revisions to the
[[Page 36211]]
recruitment and filing processes. The Department proposes to revise
Sec. 655.150 consistent with the centralization of job order
submission to, and dissemination from, the NPC as proposed in Sec.
655.121. Under proposed Sec. 655.121(c), the employer files its job
order with the NPC, rather than a SWA serving the area of intended
employment. After receiving the job order from the employer, the NPC
sends the job order to a SWA serving the area of intended employment
for review and, after approval, circulation in that SWA's intrastate
employment service system, as described in Sec. 655.121. The CO,
rather than the SWA, would then transmit the approved job order to the
appropriate SWAs for interstate clearance (e.g., SWAs serving other
states where work will be performed) on the employer's behalf. Finally,
proposed paragraph (a) also clarifies that the job order will be placed
into interstate clearance in labor supply states designated by the OFLC
Administrator, consistent with proposed changes to the labor supply
state determination method in Sec. 655.154(d).
2. Section 655.151, Advertising in the Area of Intended Employment
The Department recently proposed revisions to Sec. 655.151 in a
separate proposed rule, Modernizing Recruitment Requirements for the
Temporary Employment of H-2A Foreign Workers in the United States.\86\
This Proposed Rule does not propose any revisions to this section, and
the revisions proposed in the separate rulemaking are not reflected in
this proposed rule.
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\86\ 83 FR 55994 (Nov. 9, 2018). On June 17, 2019, the
Department submitted a final rule of that rulemaking to OMB for
review. See https://www.reginfo.gov/public/do/eoDetails?rrid=129233.
---------------------------------------------------------------------------
3. Section 655.152, Advertising Content Requirements
The Department proposes only minor editorial amendments to the
advertising content provisions in Sec. 655.152 to clarify existing
obligations and ensure consistency with changes made in other sections
of this proposed rule. The Department will continue to require
advertisements to state certain job offer information that complies
with H-2A program requirements and is essential to apprising
prospective workers of the job opportunity (e.g., offered wage, or wage
range floor, no lower than the amount required under Sec. Sec.
655.120(a) and 655.122(l)).
The Department proposes to add the word ``content'' to the section
title to clarify the section addresses advertising content requirements
specifically. The Department proposes to amend the introductory
paragraph to include a reference to Sec. 655.154 to clarify that the
Sec. 655.152 content requirements apply to additional positive
recruitment conducted under that section as well. The proposed
revisions to paragraphs (a) and (d) explain that advertisements must
include the names of each joint employer and the name of the
agricultural association, if applicable. Finally, the Department
proposes to delete references to employer interviews of U.S. applicants
in paragraph (j) because the proposed rule includes this language in
proposed Sec. 655.123, ``Positive recruitment of U.S. workers.''
4. Section 655.153, Contact With Former U.S. Workers
The Department retains Sec. 655.153 with some minor proposed
revisions. Section 655.153 presently requires an employer to contact,
by mail or other effective means (e.g., phone or email),\87\ U.S.
workers it employed in the occupation at the place of employment during
the previous year to solicit their return to the job. This obligation
aims to ensure that these U.S. workers, who likely have an interest in
these job opportunities, receive notice of the job opportunities and to
prevent the employer from effectively displacing qualified and
available U.S. workers by seeking H-2A workers. An employer, however,
need not contact those U.S. workers it dismissed for cause or those who
abandoned the worksite. The Department proposes to add language to
Sec. 655.153 requiring an employer to provide the notice described in
Sec. 655.122(n) \88\ to the NPC with respect to a U.S. worker who
abandoned employment or was terminated for cause in the previous year.
The proposal also requires an employer to have provided the notice in a
manner consistent with the NPC Federal Register notice issued under
Sec. 655.122(n).\89\ This proposal is intended to ensure that there is
virtually contemporaneous documentation to support an employer
assertion that a U.S. worker abandoned employment or that it terminated
the U.S. worker for cause. Under this proposal, the employer must
contact former U.S. workers who abandoned employment or it terminated
for cause if, while subject to H-2A program requirements, it fails to
provide notice in the required manner.
---------------------------------------------------------------------------
\87\ See 2010 Final Rule, 75 FR 6884, 6929.
\88\ Under Sec. 655.122(n), a worker's abandonment of
employment or termination for cause relieves an employer of
responsibility for subsequent transportation and subsistence costs
and the obligation to meet the three-fourths guarantee for that
worker, if the employer provides notice to the ETA NPC, and in the
case of an H-2A worker DHS, of the abandonment or termination.
\89\ See Notice, Information about the DOL Notification Process
for Worker Abandonment, or Termination for Cause for H-2A Temporary
Agricultural Labor Certifications, 76 FR 21041 (Apr. 14, 2011).
---------------------------------------------------------------------------
The Department may not certify an application unless the
prospective employer has engaged in positive recruitment efforts of
able, willing, and qualified U.S. workers available to perform the
work. See section 218(b)(4) of the INA, 8 U.S.C. 1188(b)(4). The
prospective employer's positive recruitment obligation is distinct
from, and in addition to, its obligation to circulate the job through
the SWA system. Id. E.O. 13788 requires the Department, consistent with
applicable law, to protect the economic interests of U.S. workers. See
82 FR 18837, sec. 2(a), 5. The requirement to notify the Department of
abandonment and termination for cause would protect the interests of
able, willing, and qualified U.S. workers who might be available to
perform the agricultural work, consistent with the INA and E.O. 13788.
In addition, the notice could assist growers in the event U.S. workers
who have abandoned employment or been terminated for cause later assert
the employer failed to contact them as required by Sec. 655.153.
The proposed notice obligation should not increase the existing
regulatory burden. Section 655.122(n) permits an employer to avoid the
responsibility to satisfy the three-fourths guarantee as well as its
return transportation and subsistence payment obligations when a U.S.
worker voluntarily abandons employment or the employer terminates the
worker for cause if the employer notifies the NPC not later than 2
working days after the abandonment or termination. Employers already
have a strong financial incentive to submit this notice to avoid
responsibility for the three-fourths guarantee and return
transportation and subsistence costs and the requirement to submit the
notice to avoid Sec. 655.153's contact obligation is unlikely to
change the current regulatory burden on employers.
As noted above, Sec. 655.153 currently permits employers to
contact U.S. workers by mail or other effective means. The regulatory
text of the 2008 Final Rule specified that other effective means
included phone and email contact. 73 FR 77110, 77215. The 2010 Final
Rule removed the specific reference to phone or email contact from the
text to simplify the regulatory language, but the 2010 preamble
expressly stated that phone or email contact remained effective means
to
[[Page 36212]]
contact U.S. workers. 75 FR 6884, 6929. The Department hereby reaffirms
that phone and email contact continue to be effective means to contact
U.S. workers.
The Department understands there are circumstances where employers
had not employed H-2A workers in the previous year but are now applying
to employ H-2A workers for the current year. In those circumstances,
employers often have employed U.S. workers in the occupation at the
place of employment during the previous year. Similarly, a regular user
of the H-2A program might employ U.S. workers in the pertinent
occupation at the place of employment to provide agricultural services
for the first time and then use the H-2A program in the succeeding
year.
In each instance, Sec. 655.153 requires these employers to contact
the U.S. workers employed in the previous year. This obligation applies
to entities that employed U.S. workers in the previous year under the
common law definition of employer incorporated in Sec. 655.103(b). For
example, if a grower applying to employ H-2A workers used farm labor
contractors to provide U.S. workers during the previous year and the
grower employed the U.S. workers under the common law of agency, then
Sec. 655.153 requires the employer to contact those U.S. workers. In
the event that the grower has not kept payroll records for such U.S.
workers, the regulations implementing MSPA will typically have required
the farm labor contractors to have furnished the grower with a copy of
all payroll records including the workers' names and permanent
addresses. The growers must maintain these records for 3 years. 29 CFR
500.80(a), (c). These records should provide the employer with contact
information for the pertinent U.S. workers.
While the Department's proposal would continue to impose the
contact obligation found in Sec. 655.153 on employers that did not
participate in the H-2A program in the previous year, the proposal
would not require such employers to have provided the NPC the notice
described in Sec. 655.122(n) in order to avoid the obligation to
contact U.S. workers the employer terminated for cause in the previous
year or who abandoned the employment in the previous year.
Finally, the proposed rule clarifies that the employer's contact
with former U.S. workers must occur during the positive recruitment
period (i.e., while the employer's job order is circulating with the
SWAs in interstate clearance system and terminating on the date workers
depart for the place of employment, as determined under Sec. 655.158)
by including a reference to Sec. 655.158.
5. Section 655.154, Additional Positive Recruitment
The INA requires employers to engage in positive recruitment of
U.S. workers within a multi-State region of traditional or expected
labor supply. Section 218(b)(4) of the INA, 8 U.S.C. 1188(b)(4). The
Department proposes to provide greater clarity with respect to the
procedures OFLC will use to determine the States of traditional or
expected labor supply.
Under the current regulation, the CO receives informal information
from the SWAs at least once every 6 months on the availability of
workers and interstate referrals to agricultural job openings. Based on
that information, if traditional or expected labor supply States exist
for an area of intended employment, the CO will designate such States
in the NOA to inform the locations where the employer must conduct
positive recruitment. The designation of traditional or expected labor
supply States is not publicly accessible and, based on the Department's
experience implementing the current regulation, has not resulted in any
significant changes in State designations year to year.
The Department proposes to clarify the procedure for identifying
traditional or expected labor supply States. The OFLC Administrator
would make an annual determination of traditional or expected labor
supply States based primarily on information provided by the SWAs
within 120 calendar days preceding the determination. The OFLC
Administrator may also consider information from other sources in
making this determination. A listing of the States designated as States
of labor supply for each State, if any, would be published by OFLC on
an annual basis on the OFLC website at www.foreignlaborcert.doleta.gov.
The State designations issued by OFLC would become effective on the
date of publication for employers who have not commenced positive
recruitment under this subpart and would remain valid until a new
determination is published. The Department has determined that the
increased transparency resulting from this proposal would provide clear
expectations for employers to meet their positive recruitment
obligations, especially employers who choose to begin their positive
recruitment activities as soon as their job orders are approved by the
SWA under Sec. 655.121 and prior to the filing of an Application for
Temporary Employment Certification under Sec. 655.123.
6. Section 655.156, Recruitment Report
The Department proposes minor revisions to Sec. 655.156, which
requires the employer to prepare and maintain in its records a written
report describing recruitment steps undertaken and the results of those
efforts, including the name and contact information of U.S. worker
applicants, identification of recruitment sources, confirmation of
contact with former U.S. workers, the number of applicants hired and,
if applicable, the number of U.S. workers rejected, summarized by the
lawful job-related reasons for such rejections. The Department will
maintain the requirement that employers must update their recruitment
reports throughout the recruitment period to ensure the employers
account for contact with each prospective U.S. worker during that time.
The Department proposes minor revisions to paragraph (a) to simplify
language and reflect procedural changes resulting from the proposed
positive recruitment provisions at Sec. 655.123. Finally, the
Department proposes minor amendments to paragraphs (a)(1) and (3) to
clarify existing obligations related to recruitment reports.
The Department's proposed positive recruitment provisions at Sec.
655.123, explained in more detail above, will permit an employer with
an approved job order to begin positive recruitment prior to submitting
its Application for Temporary Employment Certification application and
to submit its initial recruitment report simultaneously with the
application. Under this proposal, if an employer chooses to conduct
prefiling positive recruitment, does so properly, and submits a
compliant initial recruitment report at the time of filing, the CO may
determine certification is the appropriate first action under Sec.
655.140. Under these circumstances, the employer would not receive a
NOA. Consistent with these proposed changes, the Department proposes to
amend paragraph (a) of Sec. 655.156 by deleting the language that
requires employers to submit the recruitment report on a date specified
by the CO in the NOA. Under circumstances which require the CO to issue
a NOA, Sec. 655.143 specifies that the NOA must direct the employer to
submit a recruitment report.
Additionally, the Department proposes to add language to paragraph
(a)(1) to make explicit the employer's obligation to include in its
recruitment report the date of advertisement for each recruitment
source. The proposed rule also clarifies that the employer's
recruitment report must identify the
[[Page 36213]]
specific, proper name of each recruitment source, rather than
identifying the general type of recruitment source, like ``web page''
or ``online job board.'' Finally, paragraph (a)(3) of the proposed rule
clarifies that if the employer has no former U.S. workers that it is
required to contact, the employer must include an affirmative statement
in the report explaining the reason(s) the recruitment report does not
include confirmation of such contact. This amendment enables COs to
confirm that the employer's omission of language describing contact
with former U.S. workers was intentional, rather than inadvertent.
F. Labor Certification Determinations
1. Section 655.161, Criteria for Certification
The Department proposes amendments to this section to clarify
existing rules and procedures. The Department proposes to revise
paragraph (a) by replacing references to establishment of temporary
need and compliance with specific sections of the regulation with
clearer language stating the employer must comply with all requirements
of 20 CFR part 655, subpart B, necessary for certification, which
encompasses the requirements to establish temporary need and comply
with the specific sections referenced in the current regulation. The
revisions to paragraph (b) clarify that the CO will count as available
any U.S. worker whom the employer must consider and whom the employer
has not rejected for a lawful, job-related reason. The proposed
language does not revise the substance of the paragraph, but sets out
the current provision in clearer terms.
2. Section 655.162, Approved Certification
The Department proposes to amend Sec. 655.162 to accommodate two
procedural changes that will modernize the filing process, and
streamline both the issuance of temporary agricultural labor
certifications to employers and the delivery of those certifications to
USCIS. Currently, the CO issues a certification to the employer by
completing the last page of the Form ETA-9142A, Application for
Temporary Employment Certification, printing it on blue security paper,
and sending the original certification using means that normally
assures next day delivery. The employer then includes this original
Form ETA-9142A, printed on blue security paper, in its H-2A Petition to
USCIS.
To both simplify and expedite this process, while maintaining
program integrity, the Department proposes to issue certifications
using a new Final Determination notice that would contain succinct,
essential information about the certified application. The CO would
send the Final Determination notice that confirms certification, as
well as a copy of the certified Application for Temporary Employment
Certification and job order, both to the employer and USCIS using an
electronic method designated by the OFLC Administrator. In cases where
an employer is permitted to file by mail as set forth in Sec.
655.130(c), the Department would use the same electronic method to
transmit the certification documentation directly to USCIS as all other
electronically filed applications, but would deliver certification
documentation to the employer using a method that normally assures next
day delivery. Consistent with current practice, the Department would
send a copy of the certification documentation to the employer and, if
applicable, to the employer's agent or attorney.
In addition to increasing processing efficiency, the Department
anticipates these proposed procedures would reduce paperwork, time, and
resource burdens on employers that currently must receive hard-copy
certifications from OFLC. The proposal would reduce paperwork and
expedite processing of petitions at USCIS, in part, by providing
certification information directly from OFLC to USCIS electronically.
Further, in cases in which an original certification is lost or
misplaced, the new procedure would also eliminate the need for an
employer to request USCIS to obtain a duplicate certification directly
from OFLC.
3. Section 655.164, Denied Certification
The Department proposes revisions to Sec. 655.164 to modernize the
procedure for transmission of Final Determination notices to employers
and make this section consistent with the proposed appeal procedures at
Sec. 655.171. Consistent with proposed procedural changes to Sec.
655.162 and other modernization proposals explained above in this NPRM,
the Department proposes to require COs to send Final Determination
notices to employers using an electronic method authorized by the OFLC
Administrator, except where the Department has permitted an employer to
file by mail as set forth in Sec. 655.130(c), in which case the CO
would send the notice using a method that normally assures next day
delivery.
The Department proposes a revision to paragraph (a) specifying
that, in addition to stating the reasons the certification is denied,
the denial will cite to the relevant regulatory standards.
Additionally, to streamline information on appealing a denied
certification, the Department proposes to reference--in paragraphs (b)
and (c)--the proposed appeal procedures outlined in Sec. 655.171.
Rather than duplicate information on the request for review in each
section that contains an appealable decision by the CO, the
Department's proposal consolidates that information in one location at
Sec. 655.171. In addition to decreasing duplicative information, this
change would align the appeal information in Sec. 655.164 with the
corresponding section in the H-2B regulations. See 20 CFR 655.53.
Under this proposal, both regulations will house information on the
request for review in a central location for ease of reference and
consistency. The Department proposes, as part of this effort, to modify
paragraph (c) to clarify that if a request for review is not submitted
in accordance with Sec. 655.171, the CO's decision is final and the
Department will not accept an appeal of that determination. This change
mirrors the language used in the corresponding H-2B section. See 20 CFR
655.53(c).
4. Section 655.165, Partial Certification
The Department proposes revisions to Sec. 655.165 to streamline
this section and make it consistent with other proposals in this NPRM.
The proposed introductory paragraph explains that the CO will send
Final Determination notices using the electronic transmission
procedures proposed in Sec. 655.162. This paragraph also proposes a
minor amendment to clarify that partial certification is not limited to
U.S. workers the SWA refers to the employer. The CO can issue a full
certification only where the employer has fully considered each U.S.
worker who applied, whether directly or through SWA referral, and
identified a lawful, job-related reason for not hiring the worker.
The Department proposes a revision to paragraph (a) by specifying
that the partial certification will cite the relevant regulatory
standards supporting the reduction of the period of employment, the
number of H-2A workers, or both. Additionally, as discussed in the
preamble to Sec. 655.164, the Department proposes to replace language
discussing appeal procedures in paragraphs (b) and (c) with a reference
to Sec. 655.171. This proposal avoids the duplication of information
and consolidates that information in one location at Sec. 655.171.
This change also aligns the appeal information in Sec. 655.165 with
the corresponding section in the H-2B regulations. See 20 CFR 655.54.
[[Page 36214]]
Lastly, as part of efforts to ensure ease of reference and
consistency, proposed paragraph (c) clarifies that if a request for
review is not submitted in accordance with Sec. 655.171, the CO's
decision is final and the Department will not accept an appeal of that
determination. This change mirrors proposed changes to Sec. 655.164
and the language used in the corresponding H-2B section on partial
certification. See 20 CFR 655.54(d).
5. Section 655.166, Requests for Determinations Based on
Nonavailability of U.S. Workers
The Department proposes clarifying amendments to Sec. 655.166 to
simplify the provision and to ensure consistency with the e-filing and
certification procedures proposed in Sec. Sec. 655.130 and 655.162,
which require all such requests to be made and responded to in writing
using electronic methods, unless the employer requests to file a
request for new determination by mail or for a reasonable accommodation
using the procedures set forth in Sec. 655.130(c).
The Department proposes to amend paragraph (b) by replacing current
language that permits employers to request new determinations
telephonically or using email with language consistent with the
electronic methods proposed in this NPRM.
Similarly, the proposal revises paragraph (c) by specifying that
the CO would issue determination notices following the electronic or
other methods proposed in Sec. Sec. 655.162 and 655.165.
6. Section 655.167, Document Retention Requirements of H-2A Employers
The proposal retains, with minor clarifying amendments, the
document retention requirements in Sec. 655.167. The proposal revises
paragraph (c)(1)(iii) by replacing the word ``or'' with ``and'' to
clarify that employers must comply with each recruitment step
applicable to the Application for Temporary Employment Certification.
In addition, the proposal clarifies that if a worker voluntarily
abandons employment before the end of the contract period, or is
terminated for cause, as set forth in Sec. 655.122(n), employers must
retain records demonstrating they notified the NPC and DHS. The
Department recently proposed revisions to Sec. 655.167 in a separate
proposed rule, Modernizing Recruitment Requirements for the Temporary
Employment of H-2A Foreign Workers in the United States.\90\ Those
proposed revisions are not reflected in this proposed rule.
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\90\ 83 FR 55994 (Nov. 9, 2018). On June 17, 2019, the
Department submitted a Final Rule of that rulemaking to OMB for
review. See https://www.reginfo.gov/public/do/eoDetails?rrid=129233.
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G. Post Certification
1. Section 655.171, Appeals
a. General Changes
The Department proposes to conform the text in Sec. 655.171 with
the corresponding appeals section in the H-2B regulations to the extent
possible. This change includes adding proposed paragraph (a) to
describe the content of the request for review and the procedures for
its submission. Proposed paragraph (a) draws on language from the H-2B
appeals procedures at Sec. 655.61 as well as existing text in the H-2A
regulations. General information on the request for review was
previously located in sections of the H-2A regulations that discussed
the CO's authority and procedure for issuing a specific decision (e.g.,
a denied certification). See, e.g., 20 CFR 655.164. The Department's
proposal seeks to consolidate this information in proposed paragraph
(a) for ease of reference and consistency with the H-2B regulations.
In particular, the Department proposes to extend the time in which
an employer may file a request for review from 7 calendar days to
within 10 business days of the date of the CO's decision. This proposal
aligns with the timeframe to request review under the H-2B regulations,
except in one aspect. Unlike the timeframe to request review under the
H-2B regulations, the proposal requires the request for review in H-2A
to be received by--rather than sent to--the Chief ALJ and the CO within
10 business days of the CO's decision. However, the Department believes
that specifying a time for receipt of the request for review is a
reasonable modification of the H-2B timeframe because it enables the
Department to more easily determine if a request was filed in a timely
manner. The proposal also allows the employer more time to develop a
robust request, which in the case of a request for administrative
review will serve as the employer's brief to the Office of
Administrative Law Judges (OALJ). To this end, the Department seeks to
clarify that the request must include the specific factual issues the
employer seeks to have examined as part of its appeal. Having this
information allows for the prompt and fair processing of appeals by
providing the ALJ and the CO adequate notice regarding the nature of
the appeal.
The Department has additionally found that in the past, some
requests did not identify the type of review sought by the employer,
which could result in delays (as the ALJ asked for clarification) or a
type of review not desired by the employer (as the ALJ presumed the
employer requested a hearing). To avoid this situation, the Department
proposes to include language in proposed paragraph (a) that the request
for review clearly state whether the employer is requesting
administrative review or a de novo hearing. The Department proposes to
add that the case will proceed as a request for administrative review
if the request does not clearly state the employer is seeking a
hearing. See 8 U.S.C. 1188(e)(1) (noting the regulations must provide
for expedited administrative review or, at the employer's request, for
a de novo hearing). Similarly, an employer requesting a de novo hearing
should state whether it is requesting an expedited hearing in
accordance with proposed paragraph (e)(1)(ii), or its request for a
hearing will be construed as requesting a non-expedited hearing. Taken
together, this proposed change is expected to improve judicial
efficiency and the orderly and consistent administration of appeal
proceedings, which allows the parties and the ALJ, in turn, to
adequately prepare for the case at hand.
The Department proposes to clarify that where the request is for
administrative review, the request may only contain such evidence that
was before the CO at the time of his or her decision. The Department
seeks the addition of this language in proposed paragraph (a), which
tracks language in the administrative review section (proposed
paragraph (d)), so that employers or their representative(s) can
prepare their requests accordingly. The Department also proposes to add
language that an employer may submit new evidence with its request for
a de novo hearing, which will be considered by the ALJ if the new
evidence is introduced during the hearing. The Department seeks the
inclusion of this language in proposed paragraph (a), which tracks
language in the de novo hearing section (proposed paragraph (e)), so
that employers or their representative(s) can assemble their requests
and prepare their cases accordingly.
Similar to the reorganization of information in proposed paragraph
(a), proposed paragraphs (b) and (c) draw on existing language in the
H-2A regulations and language from the H-2B appeals procedures to
reorganize information on the appeal file and the assignment of the
case into separate sections. The Department proposes
[[Page 36215]]
minor amendments to the language of proposed paragraph (c) to clarify
that the ALJ assigned to the case may be a single member or a three-
member panel of the BALCA. The proposed amendments to paragraphs (b)
and (c) mirror the wording and organization of the appeals section in
the H-2B regulations. See 20 CFR 655.61(b), (d).
Finally, the Department proposes changes to the issuance of the
ALJ's decision for both an administrative review and a de novo hearing.
Proposed paragraphs (d)(4) and (e)(3) modify the individuals and
entities that receive the ALJ's decision to align with the recipients
of ALJ decisions under the H-2B regulations, namely, the employer, the
CO, and counsel for the CO. See 20 CFR 655.61(f). This proposed change
also removes language from current paragraphs (a) and (b)(2) stating
the ALJ's decision is the final decision of the Secretary because the
language is unnecessary in light of the OALJ's Rules of Practice and
Procedure for Administrative Hearings. Under those rules, the ALJ's
decision is the final agency action for purposes of judicial review
when the applicable statute or regulation does not provide for a review
procedure, as here. See 29 CFR 18.95; 20 CFR 655.171. In addition, the
removal of the ``final decision'' language is consistent with the H-2B
regulations, which lacks similar language, and does not affect the
issue of whether the parties may appeal to the ARB, which is governed
by other authorities issued by the Department. See 20 CFR 655.61;
Secretary's Order 02-2012, Delegation of Authority and Assignment of
Responsibility to the Administrative Review Board, 77 FR 69378 (Nov.
16, 2012). To clarify an employer's existing administrative exhaustion
obligations, however, the Department proposes to specify in proposed
paragraph (a) that when a hearing or administrative review of a CO's
decision is authorized in this subpart, an employer must request such
review in accordance with Sec. 655.171 in order to exhaust its
administrative remedies.
b. Paragraph (d), Administrative Review
The Department proposes specific changes to address the briefing
schedule, standard and scope of review, and the timeline for a decision
in cases of administrative review. In proposed paragraph (d)(1), the
Department seeks to clarify the briefing schedule so that it is
consistent across cases of administrative review and better informs the
ALJ's decision-making process. The current H-2A regulations governing
administrative review do not provide for a briefing schedule,\91\ and
the Department has found that the briefing schedule has varied across
cases as a result. In most cases, the ALJ has permitted the CO and the
employer to file a brief simultaneously within a certain period,
usually 2 to 4 business days, after receipt of the OFLC administrative
file. However, this current practice of simultaneous briefing results
in situations where issues raised in the employer's brief are not
addressed in the CO's brief. The CO and the employer, moreover, do not
know when briefing is due until the issuance of the order setting the
briefing schedule.
---------------------------------------------------------------------------
\91\ See 20 CFR 655.171(a).
---------------------------------------------------------------------------
In contrast, the proposed briefing schedule allows an employer that
wishes to file a brief as part of its appeal to do so with its request
for review. To provide the employer time to develop a brief that sets
forth the specific grounds for its request and corresponding legal
argument, the Department proposes to extend the time in which the
employer may request review from 7 calendar days to within 10 business
days of the CO's decision. The CO may then respond to the employer's
brief within 7 business days of the receipt of the OFLC administrative
file. Under this proposed schedule, an employer is afforded a
predictable amount of time to present its legal arguments in one place
and the CO may then respond to those arguments within a set timeframe.
Similar to current practice, the employer and the CO each file one
brief to allow for an accelerated briefing schedule. But compared with
the practice of simultaneous briefing, the proposal more effectively
assists the ALJ's decision-making process by allowing for a complete
set of arguments by the employer and responses by the CO while
providing the parties a predictable briefing schedule that remains
expedited. The Department invites the public to comment on other ways,
including alternative briefing procedures that address the concern for
a predictable, effective, yet expedited briefing schedule for cases of
administrative review.
In proposed paragraph (d)(2), the Department seeks to incorporate
the arbitrary and capricious standard of review into requests for
administrative review. This proposed change codifies the Department and
OALJ's well-established and longstanding interpretation of the standard
of review for such requests. See J and V Farms, LLC, 2016-TLC-00022, at
3 & n.2 (Mar. 7, 2016). As the regulation is currently silent on the
standard of administrative review, this proposed change provides
helpful clarity and ensures the OALJ is conducting its administrative
review in a consistent manner.
In proposed paragraph (d)(3), the Department seeks to include
clarifying language that the scope of administrative review is limited
to evidence in the OFLC administrative file that was before the CO when
the CO made his or her decision. The Department proposes this
clarifying language because the administrative file may contain new
evidence submitted by the employer to the CO after the CO has issued
his or her decision, such as when the employer submits a request for
review with new evidence, or a corrected recruitment report with new
information, after the CO has denied certification. Although such
evidence is in the administrative file, the ALJ may not consider this
new evidence because it was not before the CO at the time of the CO's
decision. This amendment incorporates legal principles already in
existence for H-2A cases, namely, that administrative review is limited
to (1) evidence in the written record that was (2) before the CO when
the CO made his or her decision.\92\
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\92\ See 20 CFR 655.171(a) (allowing written submissions ``which
may not include new evidence''); Keller Farms, Inc., 2009-TLC-00008,
at 5 (Nov. 21, 2008) (``all evidence . . . not before ETA at the
time it made its decision will not be considered''); see also J and
V Farms, 2016-TLC-00022, at 3 n.2 (the ``substance of [the appeals
regulation] has remained the same since 1987'') (citation and
internal quotation marks omitted).
---------------------------------------------------------------------------
In proposed paragraph (d)(4), the Department has modified the
timeline in which the ALJ should issue a decision from 5 business days
to 10 business days after receipt of the OFLC administrative file, or
within 7 business days of the submission of the CO's brief, whichever
is later. This schedule conforms to the timeline in the H-2B appeals
procedures while continuing to provide for an expedited review
procedure. See 20 CFR 655.61(f).
c. Paragraph (e), De Novo Hearing
The Department proposes specific changes to proposed paragraphs
(e)(1), the conduct of a de novo hearing, and (e)(2), the standard and
scope of review for such hearings. In proposed paragraph (e)(1), if the
employer requests an expedited hearing, the Department proposes to
change the time in which such a hearing must occur from 5 to 14
business days after the ALJ's receipt of the OFLC administrative file.
This proposed change is based on the Department's administrative
experience and is intended to allow the parties reasonable time to
adequately
[[Page 36216]]
prepare for a hearing while effectuating the INA's concern for prompt
processing of H-2A applications.
Additionally, the Department proposes to clarify that the ALJ has
broad discretion to limit discovery and the filing of pre-hearing
motions in a way that contributes to a fair hearing while not unduly
burdening the parties. As is the case with the 2010 Final Rule, 29 CFR
part 18 governs rules of procedure during the hearing process, subject
to certain exceptions discussed in this section and part 18. Although
29 CFR 18.50 et seq. permits an ALJ to exercise discretion in matters
of discovery, the Department's proposed language makes explicit the
ALJ's broad discretion to limit discovery and the filing of pre-hearing
motions in the circumstances of a hearing under the H-2A program. The
Department proposes to include this language because in the H-2A
program, the time to hold a hearing and to issue a decision following
that hearing are expedited, such that the need for limits on requests
for discovery and the filing of pre-hearing motions is particularly
pronounced. The administrative procedures in 29 CFR part 18, and
particularly the sections on discovery and motions, were not
specifically designed for the H-2A program, nor for situations that
require an accelerated adjudication process, as is required by the H-2A
program. As such, the Department's proposal provides the ALJ with broad
discretion to restrict discovery and the filing of pre-hearing motions
to situations where they are needed to ensure the fundamental fairness
of the proceedings.
The Department has retained the 10-calendar-day timeframe in which
an ALJ must issue a decision after a hearing, but invites the public to
comment on whether this time period should be modified. For cases in
which the employer waives its right to a hearing, the Department
proposes to clarify that the proper standard and scope of review is the
standard and scope used for administrative review. This is because
under the INA, the regulations must provide for expedited
administrative review or, at the employer's request, a de novo hearing.
See section 218(e)(1) of the INA, 8 U.S.C. 1188(e)(1). If the employer
requests a de novo hearing, but then waives its right to such a
hearing, the case reverts to the other option--administrative review.
In that circumstance, the standard and scope of review for
administrative review applies. Similarly, should an ALJ determine that
a case does not contain disputed material facts to warrant a hearing,
review must proceed under the standard and scope used in cases of
administrative review.
With regard to the standard and scope of review, the Department
proposes to clarify that the ALJ will review the evidence presented
during the hearing and the CO's decision de novo. This standard of
review recognizes that new evidence may be introduced during the
hearing and allows the ALJ, as permitted under section 218(e)(1) of the
INA, to review such evidence and other evidence introduced during the
hearing de novo. See 8 U.S.C. 1188(e)(1) (noting regulations shall
provide for a de novo administrative hearing at the applicant's
request). Similarly, the INA permits the ALJ to review the CO's
decision de novo when the employer requests a de novo administrative
hearing. See id. As the INA supports a de novo standard of review, the
Department proposes to codify it in the regulations so that the
standard is clearly and consistently applied.
In addition, the Department has recognized that there may be
instances when the issues are purely legal, or when only limited
factual matters are necessary to determine the issues in the case.
Proposed paragraphs (e)(2) and (e)(1)(ii) have been revised to address
this possibility and provide that the ALJ may determine the issues
following a hearing only on the disputed factual issues, if any. The
OALJ already relies on mechanisms, including, but not limited to,
status conferences and prehearing exchanges, to determine which issues
raised in the request for review can be resolved as a matter of law and
which issues involve disputed material facts requiring the introduction
of new evidence during a hearing. The Department's proposed language
acknowledges and codifies this existing practice.
The Department also proposes to clarify that if new evidence is
submitted with a request for de novo hearing, and the ALJ determines
that a hearing is warranted, the new evidence submitted with the
request for review must be introduced during the hearing to be
considered by the ALJ. This proposed change continues to allow for the
introduction of new evidence, and for the de novo review of that
evidence by the ALJ, while ensuring new evidence submitted with a
request for review is subject to the same procedures that apply to new
evidence introduced during a hearing, such as the opportunity for
cross-examination and rebuttal.
Finally, as part of its efforts to conform this section with the
appeals section in the H-2B regulations, the Department intends to move
language that the ALJ must affirm, reverse, or modify the CO's
decision, or remand to the CO for further action from proposed
paragraph (e)(3) to proposed paragraph (e)(2), which addresses the
standard and scope of review.
2. Section 655.172, Post-Certification Withdrawals
The Department proposes to revise Sec. 655.172 by relocating the
job order withdrawal provision from Sec. 655.172(a) to proposed Sec.
655.124 and the Application for Temporary Employment Certification
withdrawal provision from Sec. 655.172(b) to proposed Sec. 655.136,
as discussed in the preamble for those sections. As a result, proposed
Sec. 655.172 addresses only the withdrawal of certifications, which is
appropriate because Sec. 655.172 is located in the post-certification
section of the regulation. This new provision includes proposed
procedures for requesting withdrawal that are consistent with those an
employer must follow to request withdrawal of a job order or an
Application for Temporary Employment Certification and job order: all
withdrawal requests must be made in writing and submitted to the NPC,
and must identify the certification to be withdrawn and state the
reasons for the employer's request. Also, the proposed language
reiterates that withdrawal does not nullify an employer's obligations
to comply with the terms and conditions of employment under the
certification.
3. Section 655.173, Setting Meal Charges; Petition for Higher Meal
Charges
The Department is retaining the methodology used to adjust meal
charge rates annually and the requirement that an employer charge
workers no more than the allowable meal charge set by the regulation,
unless the CO approves a higher meal charge amount and, then, only
after the effective date the CO specifies. For clarity, in paragraph
(a) the Department proposes to replace the standard meal charge in
effect in 2010 when the current regulations were published (i.e.,
$10.64) with the current amount of $12.26 per day. The Department
proposes one additional revision in paragraph (a), which would make the
annually adjusted meal charge effective on a date specified in the
Federal Register notice, which would be no more than 14 calendar days
after publication in the Federal Register. This proposal would provide
a brief period for adjustment to updated rates.
In paragraph (b), the Department will continue to allow employers
to petition for authorization to charge workers more than the standard
meal charge set
[[Page 36217]]
under paragraph (a), provided the employer justifies the requested
higher meal charge. The provision retains the basic process for
requesting higher meal charges, with clarifying edits, including a
revision to clarify that a request to charge a higher amount will be
denied if the employer's documentation does not justify the amount
requested, or if the amount requested exceeds the permitted maximum
higher meal charge. In addition, the proposal provides that the maximum
higher meal charge would be adjusted in the same manner as the standard
meal charge.
The Department is retaining the requirement that an employer that
directly provides meals to workers (i.e., through its own kitchen
facilities and cooks) submits the documentation specified in paragraph
(b)(1)(i) and ensures that its requested higher meal charge includes
only permitted costs. Increasingly, however, employers submit higher
meal charge requests based on the employer's costs to provide meals to
workers through a third party (e.g., hiring a food truck to prepare and
deliver meals or engaging restaurants near the housing or place of
employment to provide meals). Therefore, the Department proposes
documentation requirements in new paragraph (b)(1)(ii) that address
situations in which the employer has engaged the services of a third
party to provide meals to workers. Proposed paragraph (b)(1)(ii) would
require documentation identifying each third party engaged to prepare
meals, describing how the employer's agreement with each third party
will fulfill the employer's obligation to provide three meals a day to
workers, and documenting each third party's charges to the employer for
the meals to be provided. Proposed paragraph (b)(1)(ii) would also
prohibit the employer, or anyone affiliated with the employer, from
receiving a direct or indirect benefit from a higher meal charge to a
worker. Finally, this paragraph requires the employer to retain records
of payments to the third party and deductions from worker's pay.
The Department proposes minor revisions to paragraph (b)(2) to
clarify that the employer may not begin charging higher rates for meals
until it has received the CO's approval and it has disclosed the new
rate to workers. The proposed changes also clarify that a CO's decision
approving a request to charge a higher rate is valid only with respect
to the arrangement described in the documentation submitted with the
employer's request. If such arrangement changes, the employer may
charge no more than the maximum amount permitted under paragraph (a),
until the employer submits, and the CO approves, a new petition for a
higher meal charge.
As a further measure to ensure that an employer's choice to engage
a third party to provide three meals a day to workers does not
unreasonably reduce workers' wages, in paragraph (b), the Department
proposes implementing a ceiling on the maximum amount the CO may
approve as a higher meal charge amount. An objective ceiling on
allowable higher meal charges would not only ensure workers' wages are
not subject to improper deductions, but also would provide
predictability on meal charges, enabling employers and workers to make
more informed financial decisions involving the meal charge included in
the job offer. An employer would be able to make informed business
decisions, knowing the maximum amount it may be permitted to charge
workers for providing meals, regardless of the specific way in which it
chooses to provide meals to workers, while the worker would be assured
that the worker will not be charged more than the maximum higher meal
charge amount set by the regulation.
The proposed maximum allowable higher meal charge is consistent
with the Department's use of a ceiling on higher meal charge amounts
prior to the implementation of the 2008 Final Rule.\93\ The proposed
ceiling of $14.94 per day is derived from the last maximum allowable
higher meal charge amount published in the Federal Register and
effective in 2008 (i.e., $12.27 per day), updated using the same
methodology as in paragraph (a) to adjust the standard meal charge
amount.\94\ This higher meal charge ceiling would be adjusted annually
using the same methodology as is currently in place for adjusting
standard meal charge amounts in paragraph (a).
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\93\ Notice, Allowable Charges for Agricultural and Logging
Workers' Meals, 73 FR 10288 (Feb. 26, 2008). See page I-28 of the
ETA Handbook NO. 398, discussing the methods used to provide meals
and meal charge limits. At that time, employers used a centralized
cooking and feeding facility at the place of employment; arranged
for a catering service to prepare meals elsewhere and deliver them
to the employer's place of employment; or furnished at no cost to
the workers convenient cooking and eating facilities of sufficient
size and capacity (including utensils) which would enable workers to
prepare their own meals. Where the employer provided meals, its
daily charge for providing three meals could not exceed the standard
amount permitted by the regulations, absent a higher meal charge
request at 20 CFR 655.102 or the maximum higher meal charge amount
permitted at 20 CFR 655.111.
\94\ 73 FR 10288.
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The Department invites comments on methods for processing and
evaluating higher meal charge requests involving third-party prepared
meals, including documentation requirements and the process for
determining and updating a higher meal charge ceiling. In particular,
the Department invites comments on alternative methods for determining
and updating a higher meal charge ceiling that will not inhibit the
provision of sufficient, adequate meals and will not reduce workers'
wages without justification. For example, the Department invites
comments on whether an appropriate higher meal charge ceiling could be
set in relation to worker's wages (e.g., as proportion of the AEWR
applicable to the job opportunity or the actual wage offered to the
worker, or average local, regional, or national meal costs).
4. Section 655.175, Post-Certification Amendments
The Department proposes to add a new Sec. 655.175 that would
permit an employer to request minor amendments to the places of
employment listed in an approved certification under certain limited
conditions. The Department's current regulations offer some options for
an employer to address changed circumstances after certification, such
as the option to file a new Application for Temporary Employment
Certification based on good and substantial cause under the emergency
processing provisions at Sec. 655.134. However, the current rule does
not permit amendments to an application after the CO has issued a Final
Determination. Therefore, the Department proposes this new section to
provide employers some flexibility to respond to unforeseen
circumstances arising after certification is granted. The Department
continues to expect an employer to ensure bona fide work is available
at all places of employment disclosed in its Application for Temporary
Employment Certification and to take into consideration all foreseeable
circumstances and factors within its control when describing the need
for H-2A workers on its application. This is critically important so
that the recruitment conducted in connection with that application
appropriately tests the U.S. labor market and the Department's
determination as to whether insufficient U.S. workers are available at
the time and place needed by the employer is accurate.
In proposed paragraph (a), the Department proposes to permit post-
certification amendments to the certified places of employment as long
as (1) the employer has good and substantial cause for the requested
amendment; (2) the circumstances underlying the amendment request
[[Page 36218]]
could not have been reasonably foreseen before certification and are
outside the employer's control; (3) the material terms and conditions
of the job order are not affected by the requested amendment; and (4)
the new places of employment requested are within the certified areas
of intended employment. The proposal limits post-certification
amendments to situations in which good and substantial cause exists,
such as when an employer requires immediate adjustments to places of
employment within the certified area of intended employment in order to
respond to unforeseen emergent situations that may jeopardize or
severely damage crops or other agricultural commodities. For example, a
post-certification amendment may be available when an Act of God
severely damages some of the employer's crops and, as a result, the
work scheduled to be performed at that places of employment is no
longer needed, while crops at other locations within the same area of
intended employment need urgent attention. As defined in the emergency
situations provision at Sec. 655.134, ``[g]ood and substantial cause
may include, but is not limited to, the substantial loss of U.S.
workers due to weather-related activities or other reasons, unforeseen
events affecting the work activities to be performed, pandemic health
issues, or similar conditions.''
The proposal also limits post-certification amendments to
situations in which the reasons for the request could not have been
reasonably foreseen before certification and are wholly outside the
employer's control. In situations where the employer could foresee the
need for amendment after filing, but prior to the CO issuing a Final
Determination, the employer may request amendment under the provisions
set forth at Sec. 655.145. For example, if unusually heavy storms and
rains occur before the employer files its Application for Temporary
Employment Certification, impacts on crop conditions are known or
reasonably foreseeable before the CO issues the Final Determination.
Further, staffing levels are within the employer's control. Therefore,
related minor modifications to the job order and Application for
Temporary Employment Certification would be appropriately addressed
through a pre-certification amendment request under Sec. 655.145. If
the employer experiences normal, predictable, or foreseeable
circumstances within its control that would cause a reasonable employer
to take mitigation measures in advance of receiving certification, the
employer will be required to submit a new Application for Temporary
Employment Certification. For example, in an area where the local or
State government has announced plans to release water from a reservoir
to provide more water to farmers, which has become an annual event, and
the employer's fields are known to be more productive when they receive
more water, the release of reservoir water is a normal, predictable,
and foreseeable event that is not extraordinary or unforeseeable.
The circumstances under which the Department proposes to permit
post-certification amendments are limited to ensure the amendments will
not compromise the terms and conditions of the job offer contained in
the certification, apart from the specific places of employment within
the certified area of intended employment. In addition, post-
certification amendments must not compromise the underlying
determinations the CO made when issuing the certification, most
importantly the determinations ``that there are not sufficient U.S.
workers able, willing, and qualified to perform the work in the area of
intended employment at the time needed and that the employment of
foreign workers will not adversely affect the wages and working
conditions of U.S. workers similarly employed.'' Section 218(a)(1) of
the INA, 8 U.S.C. 1188(a)(1); 8 CFR 214.2(h)(5)(ii); 20 CFR 655.103(a).
Finally, under this proposal, all places of employment an employer
requests to add to the certification must be located within the same
areas of intended employment as the certification issued. When an
employer requires agricultural labor or services at a place of
employment not located within the area of intended employment
certified, the employer would be required to file a new Application for
Temporary Employment Certification, and engage in a labor market test
to support the determinations required by Sec. 655.100.
Proposed paragraph (b) outlines the procedures for requesting post-
certification amendments. An employer desiring amendment to its
approved places of employment would submit a written request to the
NPC. The request would specify the certified places of employment the
employer wishes to add or remove from the certification, the expected
start and end dates of work at each place of employment, and if the
places of employment are not owned or operated by the employer, the
fixed-site agricultural businesses to which the employer would be
providing labor or services. In addition, the employer must provide a
description of the good and substantial cause justifying the need for
the amendments requested and explain how the circumstances were not
reasonably foreseeable and are wholly outside the employer's control.
Proposed paragraph (b) would also require the employer's amendment
request to include three assurances. First, the employer would assure
the amendments requested would not change the material terms and
conditions of the work contract underlying the certification. This
assurance informs the CO that the employer has taken necessary steps to
ensure that it continues to meet its program obligations. For example,
if an employer sought to add a place of employment across a State
border from its certified places of employment, the employer would be
required to have or secure workers' compensation coverage adequate for
the new State and pay the required wage rate for the new State, if
higher than the certified wage offer, as appropriate. An employer
seeking to add a place of employment it does not own or control would
be required to secure additional documents to cover the new location
where it will be acting as an H-2ALC (e.g., a fully-executed contract
for that place of employment and any additional employee transportation
authorizations required by the MSPA Farm Labor Contractor Certificate
of Registration provisions due to the changed circumstances). Further,
this assurance informs the CO that the labor or services to be provided
at the new place of employment are the same as the work performed under
the temporary agricultural labor certification.
Second, the employer would be required to assure that it complied
with its duty to provide a copy of the modified job order to workers.
See 20 CFR 655.122(q). Third, the employer would assure that it will
retain and make available all documentation substantiating the
amendment request, if approved by the CO, following the procedures at
Sec. 655.167. For example, an H-2ALC would be required to retain, and
submit upon request, the fully-executed work contract with the grower
at each place of employment added.
Proposed paragraph (c) sets forth the procedures for processing
amendment requests. Given the urgency of the circumstances under which
an employer would submit a post-certification amendment request, the
Department proposes the CO to review the employer's request and issue a
decision within 3 business days of receipt. In deciding whether to
grant the request, the CO would take into
[[Page 36219]]
consideration whether the employer sufficiently justified its request,
whether the employer provided the necessary assurances, and how the
amendment will affect the underlying labor market test for the job
opportunity. Amendments would not be effective unless and until
approved by the CO.
The Department invites comments on all aspects of the proposal to
allow post-certification amendments. For example, the Department seeks
comments on whether post-certification amendments should be permitted
and, if so, the conditions under which an employer should be permitted
to request amendments to a certification. The Department is
particularly interested in comments that address the types of
circumstances that should be considered extraordinary and unforeseeable
for the purposes of post-certification amendments and the volume and
frequency of post-certification amendments anticipated. The Department
also invites comment on methods through which the Department can
balance employers' needs to adapt quickly to changed circumstances with
the Department's need to protect the integrity of the labor
certification program, such as comments that explain the advantages or
disadvantages of an attestation-based amendment process and alternative
processes. The Department is especially interested in comments that
specify the types of limitations it should impose on post-certification
amendments, such as comments that address the necessity of a time limit
on post-certification amendment requests, and whether the Department
should consider alternatives, such as limiting requests to 45 days
after certification, after which time the employer could submit an
emergency processing request; 30 days after certification, consistent
with the proposed end of the recruitment period for the certification;
or 60 days after certification, consistent with the normal timeframe
for submitting the job order. Finally, the Department seeks comments
regarding the reasonableness of the timeframe for CO review and
determination.
H. Integrity Measures
1. Section 655.180, Audit
The Department proposes minor revisions to this section to clarify
the procedures by which OFLC conducts audits of applications for which
certifications have been granted. Proposed revisions to paragraphs
(b)(1) and (2) clarify that audit letters will specify the
documentation that employers must submit to the NPC, and that such
documentation must be sent to the NPC not later than the due date
specified in the audit letter, which will be no more than 30 calendar
days from the date the audit letter is issued. In paragraph (b)(2), the
Department proposes to revise the timeliness measure from the date the
NPC receives the employer's audit response to the date the employer
submits its audit response. This change is more consistent with other
filing requirements contained in this proposed rule and better ensures
employers' ability to timely submit their responses. Proposed revisions
to paragraph (b)(3) clarify that partial audit compliance does not
prevent revocation or debarment. Rather, employers must fully comply
with the audit process in order to avoid revocation under Sec.
655.181(a)(3) or debarment under Sec. 655.182(d)(1)(vi) based on a
finding that the employer impeded the audit.
The Department proposes adding language to paragraph (c) to clarify
that the CO can issue more than one request for supplemental
information if the circumstances warrant. It is current practice for
the CO to issue multiple requests for supplemental information to
ensure employers have every opportunity to comply fully with audit
requests and to ensure the CO's audit findings are based on the best
record possible; this proposal would codify that practice.
Finally, the Department proposes revisions in paragraph (d) to
clarify the referrals a CO may make as a result of audit, including
updating the name of the office within the Department of Justice, Civil
Rights Division, Immigrant and Employee Rights Section, that will
receive referrals related to discrimination against eligible U.S.
workers.
2. Section 655.181, Revocation
The Department proposes minor revisions to paragraph (b)(2) of this
section to clarify that if an employer does not appeal a final
determination to revoke a certification according to the procedures in
proposed Sec. 655.171, that determination will become final agency
action. The Department has removed language referring to the timeline
for filing an appeal, as that information is provided in proposed Sec.
655.171.
3. Section 655.182, Debarment; 29 CFR 501.16, Sanctions and Remedies--
General; 29 CFR 501.19, Civil Money Penalty Assessment; 29 CFR 501.20,
Debarment and Revocation; 29 CFR 501.21, Failure To Cooperate With
Investigations; 29 CFR 501.41, Decision and Order of Administrative Law
Judge; 29 CFR 501.42, Procedures for Initialing and Undertaking Review;
29 CFR 501.43, Responsibility of the Office of Administrative Law
Judges; 29 CFR 501.44, Additional Information, if Required; and 29 CFR
501.45, Final Decision of the Administrative Review Board
The Department proposes to revise the debarment provision for the
H-2A labor certification program to improve integrity and promote
compliance with program requirements. Under the INA, the Department may
not issue a certification for an H-2A worker if the Secretary has
determined that the employer substantially violated a material term or
condition of the labor certification with respect to the employment of
domestic or nonimmigrant workers. Section 218(b)(2)(A) of the INA, 8
U.S.C. 1188(b)(2)(A). The Department implemented this INA provision by
enacting regulations allowing the debarment of employers, and later
agents and attorneys, and their successors in interest, who appeared
before it, and the effect of the debarment was that a debarred entity
will not be issued future labor certifications. See 20 CFR 655.182(a),
(b); 20 CFR 655.118(a) (2008); 20 CFR 655.110(a) (1987). The Department
proposes to revise Sec. 655.182 to clarify that if an employer, agent,
or attorney is debarred from participation in the H-2A program, the
employer, agent, or attorney, or their successors in interest, may not
file future Applications for Temporary Employment Certification during
the period of debarment. See proposed 20 CFR 655.182(b). If any such
applications are filed, the Department will deny them without review.
See id. The proposed revision to Sec. 655.182 does not change the
regulation's current prohibition on debarred entities' participation in
the H-2A program in ways other than the filing of the Application for
Temporary Employment Certification, such as placing advertisements, or
recruiting workers.
When an application is filed by a debarred entity under the current
regulations, the Department's practice has been to issue a NOD before
denying the application pursuant to Sec. 655.182. However, the INA
does not require the issuance of such a notice in this
[[Page 36220]]
instance. Section 218(c)(2) of the INA, 8 U.S.C. 1188(c)(2), requires
that an employer be notified within 7 days of the date of filing if the
application does not meet the standards for approval. The INA's grant
of debarment authority for the H-2A labor certification program appears
in the section dealing with the conditions for denial of certification
and requires the Department to deny certification on any application
sought by a debarred employer. See section 218(b) of the INA, 8 U.S.C.
1188(b). Thus, when a debarred employer files an application, the
Department is statutorily required to deny the application. There would
be little to be gained from issuing a NOD and offering the employer an
opportunity to correct the deficiency where the deficiency cannot be
overcome.\95\ Processing applications filed by, or through, an entity
that has been debarred imposes a resource burden for the Department
though the Department has no discretion over the issuance of such
certifications.
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\95\ Any challenges to the debarment would be raised separately.
Under current regulations, the employer, agent, or attorney has an
opportunity to challenge the debarment before it becomes effective.
See 20 CFR 655.182(f), 29 CFR 501.20(e).
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Under the proposal, if an employer represented by a debarred agent
or attorney files an application, the application would be denied
without review. Following the denial, in order to obtain certification,
the employer would need to submit a new application without the
debarred entity as the employer's representative. Finally, as with all
certification denials, denials on the basis of debarment will be
appealable to OALJ pursuant to Sec. 655.164.
The Department also proposes to revise Sec. 655.182 to allow for
the debarment of agents or attorneys, and their successors in interest,
based on their own misconduct. Since the 2008 Final Rule, the H-2A
regulations have allowed the Department to debar an agent or attorney
based on its participation in the employer's substantial violation. See
20 CFR 655.182(b); 2010 Final Rule, 75 FR 6884, 6936-37; 2008 Final
Rule, 73 FR 77110, 77188. The Department proposes to hold agents and
attorneys of the employer accountable in debarment for their own
violations as well as for their participation in the employer's
violation. Under proposed Sec. 655.182(a), the Department may debar an
agent or attorney for its own substantial violations, as those are
defined in Sec. 655.182(d). The Department also proposes conforming
revisions to the definition of ``successor in interest'' in Sec.
655.103(b) to reflect that a debarred agent's or attorney's successor
in interest may be held liable for the debarred agent's or attorney's
violation.
The Department has had concerns about the role of agents in the H-
2A program, and has questioned whether agents' participation in the H-
2A labor certification process is undermining compliance with program
requirements. However, the current H-2A debarment provision does not
provide a mechanism for holding the agent or attorney accountable for
its own violation unless the Department finds that it participated in
the employer's violation. Nevertheless, there may be situations where
an agent or attorney commits a violation that the Department finds it
cannot or, in its discretion, should not, attribute to the employer.
For example, if an agent that is responsible for conducting recruitment
for an H-2A employer fails to refer U.S. worker applicants to the
employer, the Department may find, in appropriate circumstances, that
only the agent should be debarred. In addition, if an agent forges
employer signatures to file fraudulent applications for H-2A workers,
or if an agent or attorney commits a heinous act within the meaning of
Sec. 655.182(d), the employer may not necessarily be responsible for
such misconduct.
The Department has determined that in order to improve program
integrity and compliance, agents and attorneys should be accountable
for their own misconduct independent of the employer's violation. This
revision would make agent and attorney misconduct debarrable to the
same extent as the misconduct of the employer-clients. Further, the
proposal would institute consistency between the H-2A regulations and
the other labor certification programs the Department administers. See
20 CFR 655.73(b) (H-2B); 20 CFR 656.31(f) (PERM).
The Department has inherent power to regulate the conduct of agents
and attorneys who practice before it, as well as the authority to debar
such individuals for unprofessional conduct. As the Department has
previously explained, administrative agencies have the authority to
regulate who can practice and participate in administrative proceedings
before them. See Goldsmith v. U.S. Board of Tax Appeals, 270 U.S. 117,
121 (1926); Koden v. U.S. Dep't of Justice, 564 F.2d 228, 232-33 (7th
Cir. 1977). Such power exists even if they do not have express
statutory authority to prescribe the qualifications of those entities.
Touche Ross & Co. v. SEC, 609 F.2d 570, 582 (2d Cir. 1979). In
addition, agencies with the authority to determine who may practice
before them have the power to debar or discipline such individuals for
unprofessional conduct. Koden, 564 F.2d at 233.
The Department has exercised the authority to debar agents and
attorneys from the H-2A program for the last decade. In the 2008 Final
Rule, the Department revised the debarment provision to permit the
debarment of employers' agents and attorneys. 73 FR 77110, 77188. The
2010 Final Rule maintained the provision permitting the debarment of
agents and attorneys for participating in the employer's violation to
``ensure that we are able to address substantial violations committed
by the attorneys or agents themselves, or committed in concert with the
employers.'' 75 FR 6884, 6936-37. The preamble explained that debarment
of agents and attorneys was necessary to uphold the integrity and
effectiveness of the H-2A program. Id.
As the examples provided above illustrate, where an agent or
attorney commits a substantial violation, though generally the employer
would be responsible for the misconduct, the Department believes it is
necessary to have the ability to target debarment actions at the bad
actor directly. Under this proposal, and as has been the case in the H-
2A program for the last decade, agents and attorneys could still be
debarred for participating in the employer's substantial violation,
just as the employer could be debarred based on the agent or attorney's
misconduct.
I. Labor Certification Process for Temporary Agricultural Employment in
Range Sheep Herding, Goat Herding, and Production of Livestock
Operations
The Department proposes changes to this section mainly to conform
the labor certification process for herding and the production of
livestock on the range to other revisions in the proposed rule, as
appropriate. Minor proposed changes include replacing a dash between
two sections with the word ``through'' (e.g., replacing ``Sec. Sec.
655.200-655.235'' with ``Sec. Sec. 655.200 through 655.235'') for
technical consistency with other sections of the proposed rule. The
Department seeks public comment on the substantive changes, which are
discussed below, and affect portions of proposed Sec. Sec. 655.205,
655.211(a)(2), 655.215(b) introductory text and (b)(1), 655.220(b),
(c), and 655.225(b), (d). Except for these minor and substantive
proposed changes, the Department is not reconsidering--and therefore
not requesting comment on--any other portions of Sec. Sec. 655.200
through 655.235. In particular, the Department is neither
[[Page 36221]]
reconsidering nor seeking comment on the wage rate methodology for
herding and range livestock job opportunities. Instead, the entirety of
Sec. Sec. 655.200 through 655.235 are reprinted in subpart B of this
proposed rule for ease of reference only.
1. Section 655.205, Herding and Range Livestock Job Orders
The Department proposes to revise Sec. 655.205 to reflect proposed
revisions to the normal job order filing procedures in Sec. 655.121
and to clarify variances from proposed Sec. 655.121 that remain for
job opportunities involving herding or production of livestock on the
range. Consistent with current procedures, a job order filed under
Sec. 655.205 would not be subject to the timeframe requirements
specified in paragraphs (a) and (b) of Sec. 655.121 or the SWA job
order review procedure described in paragraphs (e) and (f). Rather, an
employer qualifying for processing under Sec. Sec. 655.200 through
655.235 would submit its completed job order to the NPC at the same
time as the related Application for Temporary Employment Certification,
which it must submit no less than 45 days before its first date of need
in compliance with the timeframe requirement of Sec. 655.130(b),
unless the application qualifies for emergency situations processing
under Sec. 655.134. The NPC would coordinate review of the job order
with the SWA and address any job order and Application for Temporary
Employment Certification deficiencies in a manner consistent with the
provisions set forth in Sec. Sec. 655.140 through 655.145.
2. Section 655.211, Herding and Range Livestock Wage Rate
The Department proposes to revise Sec. 655.211 for consistency
with the annual AEWR update notice procedure proposed in Sec.
655.120(b). As discussed in relation to Sec. 655.120(b), providing a
short transition period (i.e., no more than 14 days) for an employer to
implement a new higher AEWR prevents adverse effect on the wages of
U.S. workers by quickly implementing any newly required higher wage
rate, while giving employers a brief window to update their payroll
systems to implement a newly-issued wage.
3. Section 655.215, Procedures for Filing Herding and Range Livestock
Applications for Temporary Employment Certification
The Department proposes revisions to simplify Sec. 655.215 and
conform to revisions in this proposed rule. In paragraph (b) detailed
language about required additional information is obsolete, as the job
order Form ETA-790/790A addenda include data fields for employers to
provide detailed information about the job opportunity. Revised
language in paragraph (b)(1) clarifies that an Application for
Temporary Employment Certification for herding or production of
livestock on the range may cover multiple areas of intended employment
in one state or in two or more contiguous states.
4. Section 655.220, Processing Herding and Range Livestock Applications
for Temporary Employment Certification
In addition to minor revisions to Sec. 655.220 proposed for
consistency within the proposed rule, the Department proposes to revise
paragraph (b) to reflect the centralization of job order dissemination
from the NPC to the SWAs as proposed in Sec. 655.121. Consistent with
Sec. 655.121, after the content of a job order for herding or
production of livestock on the range has been approved, the NPC would
transmit the job order to all applicable SWA to begin recruitment.
5. Section 655.225, Post-Acceptance Requirements for Herding and Range
Livestock
The Department proposes minor revisions in Sec. 655.225 to
simplify language and reflect procedural changes proposed in this
proposed rule, such as the proposed revision of the duration of the
recruitment period at Sec. 655.135(d). The Department recently
proposed revisions to Sec. 655.225 in a separate proposed rule,
Modernizing Recruitment Requirements for the Temporary Employment of H-
2A Foreign Workers in the United States.\96\ Those proposed revisions
are not reflected in this proposed rule.
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\96\ 83 FR 55994 (Nov. 9, 2018). On June 17, 2019, the
Department submitted a final rule of that rulemaking to OMB for
review. See https://www.reginfo.gov/public/do/eoDetails?rrid=129233.
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J. Labor Certification Process for Temporary Agricultural Employment in
Animal Shearing, Commercial Beekeeping, Custom Combining, and
Reforestation Occupations
1. Section 655.300, Scope and Purpose
The introductory provision proposes to establish that, because of
the unique nature of the occupations, employers who seek to hire
temporary agricultural foreign workers to perform animal shearing,
commercial beekeeping, custom combining, and reforestation as defined
in proposed Sec. Sec. 655.103 and 655.301, are subject to certain
standards that are different from the regular H-2A procedures in
subpart B of the part. To date, the Department has processed these
applications using Departmental guidance letters (TEGLs), one specific
to each occupation, containing variances that are substantially similar
to those standards and procedures the Department now proposes.\97\ In
this proposed rule, the Department proposes to create a set of
procedures for employers who employ workers engaged in these four
occupations. Establishing a single set of procedures, with certain
variations where appropriate, for these occupations will create
administrative efficiencies for the Department, promote greater
consistency in the review of H-2A applications, provide foreign workers
and workers in the United States similarly employed with largely the
same benefits and guarantees, and provide greater clarity for employers
with respect to program requirements. The Department seeks comments
from the public on all aspects of these proposed regulations.
---------------------------------------------------------------------------
\97\ See Training and Employment Guidance Letter, No. 17-06,
Change 1, Special Procedures: Labor Certification Process for
Employers in the Itinerant Animal Shearing Industry under the H-2A
Program (June 14, 2011), accessed at https://wdr.doleta.gov/directives/corr_doc.cfm?docn=3041; Training and Employment Guidance
Letter, No. 33-10, Special Procedures: Labor Certification Process
for Itinerant Commercial Beekeeping Employers in the H-2A Program
(June 14, 2011), accessed at https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3043; Training and Employment Guidance Letter, No.
16-06, Change 1, Special Procedures: Labor Certification Process for
Multi-State Custom Combine Owners/Operators under the H-2A Program
(June 14, 2011), accessed at https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3040; and Training and Employment Guidance Letter,
No. 27-06, Special Guidelines for Processing H-2B Temporary Labor
Certification in Tree Planting and Related Reforestation Occupations
(June 12, 2007), accessed at https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=2446.
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In order to employ foreign workers under these procedures, an
employer's job opportunity must possess all of the characteristics
described in Sec. Sec. 655.300 through 655.304. As a preliminary
matter, the job opportunity must involve work in one of the covered
occupations: Animal shearing, commercial beekeeping, custom combining,
or reforestation. In addition, the procedures apply to job
opportunities in those occupations where workers are required to
perform agricultural work on a scheduled itinerary covering multiple
areas of intended employment in one or more contiguous States. Unless
otherwise specified in the proposed procedures, employers whose job
opportunities meet the criteria under Sec. Sec. 655.300 through
655.304 must comply with the H-2A requirements in
[[Page 36222]]
Sec. Sec. 655.100 through 655.185,\98\ including payment of the
highest applicable wage rate, determined in accordance with Sec.
655.122(l) for all hours worked.\99\
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\98\ For example, covered employers must comply, as they do
currently, with the processing procedures in 20 CFR 655.150-655.158
related to recruitment. Similarly, they must comply with Sec.
655.122(g) and either must provide each worker with three meals a
day or must furnish free and convenient cooking and kitchen
facilities to the workers that will enable the workers to prepare
their own meals. Where the employer provides the meals, the job
offer must state the charge, if any, to the worker for such meals.
The amount of meal charges is governed by Sec. 655.173.
\99\ Compliance with 20 CFR 655.122(l), as revised by this
proposed rule, requires an employer to ``pay the worker at least the
AEWR, a prevailing wage if the OFLC Administrator has approved a
prevailing wage survey for the applicable crop activity or
agricultural activity meeting the requirements of Sec. 655.120(c),
the agreed-upon collective bargaining rate, the Federal minimum
wage, or the State minimum wage rate, whichever is highest, for
every hour or portion [of an hour] worked during a pay period.''
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Where the job opportunity does not fall within the scope of the
covered occupations in Sec. Sec. 655.300 through 655.304, the employer
must comply with all of the regular H-2A procedures. If an employer
submits an application containing information and attestations
indicating that its job opportunity is eligible for processing under
these proposed regulations but later, as a result of an investigation
or other compliance review, it is determined that the employment was
not eligible for inclusion under these regulations, the employer will
be responsible for compliance with all of the regular H-2A procedures
and requirements in Sec. Sec. 655.100 through 655.185. In addition,
the Department may seek other remedies, such as civil monetary
penalties and potentially debarment from use of the H-2A program, for
the violations.
2. Section 655.301, Definition of Terms
The proposed definitions contained in this section define the
occupations subject to proposed Sec. Sec. 655.300 through 655.304, and
are intended to assist employers in understanding the only types of
work that qualify for these regulatory variances. Though the TEGLs did
not contain definitions of these terms, the proposed definitions are
based on the Department's current understanding of what work in these
occupations generally involves.
The proposed definition of animal shearing describes typical
activities associated with the shearing and crutching of sheep, goats,
or other animals producing wool or fleece. Those activities include
gathering, moving, and sorting animals into shearing yards, stations,
or pens; placing animals into position prior to shearing; selecting and
using suitable equipment and tools for shearing; shearing animals with
care according to industry standards; marking, sewing, or disinfecting
any nicks and cuts due to shearing; cleaning and washing animals after
shearing; gathering, storing, loading, and delivering wool or fleece to
storage yards, trailers, or other containers; and maintaining, oiling,
sharpening, and repairing equipment and other tools used for shearing.
Wool or fleece grading constitutes animal shearing under the proposed
definition only where such activities are performed by workers who are
employed by the same employer as the animal shearing crew and who
travel and work with the animal shearing crew. In addition, for
purposes of this definition, hauling shearing equipment would be
considered animal shearing under the proposed definition only where
such activities are performed by workers who are employed by the same
employer as the animal shearing crew and who travel and work with the
shearing crew.
The proposed definition of commercial beekeeping describes typical
activities associated with the care or husbandry of bee colonies for
producing and collecting honey, wax, pollen, and other products for
commercial sale or providing pollination services to agricultural
producers. Those services include assembling, maintaining and repairing
hives, frames, or boxes; inspecting and monitoring colonies to detect
diseases, illnesses, or other health problems; feeding and medicating
bees to maintain the health of the colonies; installing, raising, and
moving queen bees; splitting or dividing colonies, when necessary, and
replacing combs; preparing, loading, transporting, and unloading
colonies and equipment; forcing bees from hives, inserting honeycomb of
bees into hives, or inducing swarming of bees into hives of prepared
honeycomb frames; uncapping, extracting, refining, harvesting, and
packaging honey, beeswax, or other products for commercial sale;
cultivating bees to produce bee colonies and queen bees for sale; and
maintaining and repairing equipment and other tools used to work with
bee colonies.
The proposed definition of custom combining describes typical
activities associated with combining crops for agricultural producers,
including operating self-propelled combine equipment (i.e., equipment
that reaps or harvests, threshes, and swath or winnow the crop);
performing manual or mechanical adjustments to cutters, blowers, and
conveyers; performing safety checks on harvesting equipment; and
maintaining and repairing equipment and other tools used for performing
swathing or combining work. Transporting harvested crops to elevators,
silos, or other storage areas constitute activities associated with
custom combining for the purposes of the proposed definition only where
such activities are performed by workers who are employed by the same
employer as the combining crew and who travel and work with the custom
combining crew. Though transporting equipment from one field to another
does not constitute agricultural work, the Department finds it is
appropriate to include those activities in the proposed definition of
custom combining because such activities are a necessary part of
performing combine work on an itinerary. Thus, solely for the purposes
of the proposed variance in Sec. Sec. 655.300 through 655.304,
transporting combine equipment and other tools used for custom
combining work from one field to another is included in the definition
of custom combining only where such activities are performed by workers
who are employed by the same employer as the custom combining crew and
who travel and work with the custom combining crew. Component parts of
custom combining not performed by the harvesting entity, such as grain
cleaning, do not fall within the proposed definition. The planting and
cultivation of crops, and other related activities, are not considered
custom combining for the purposes of this proposed definition.
The Department proposes a definition of reforestation for inclusion
in Sec. 655.103, as discussed above. As noted above, the proposed rule
states that reforestation activities do not include vegetation
management activities in and around utility, highway, railroad, or
other rights-of-way. As defined in proposed Sec. 655.103,
reforestation activities exclude right-of-way vegetation management
activities such as the removal of vegetation that may interfere with
utility lines or lines-of-sight, herbicide application, brush clearing,
mowing, cutting, and tree trimming around roads, railroads,
transmission lines, and other rights-of-way. Employers seeking workers
for occupations involving these activities therefore would not be
eligible to file under the provisions set forth in Sec. Sec. 655.300
through 655.304.
The Department seeks comments on all the definitions. In
particular, the Department seeks comments on whether the definitions
accurately and comprehensively reflect the activities
[[Page 36223]]
workers in these occupations perform and whether a final rule should
limit additional job duties that workers may perform under
certifications approved under Sec. Sec. 655.300 through 655.304 beyond
those duties outlined in this proposed section.
3. Section 655.302, Contents of Job Orders
a. Paragraph (a), Content of Job Offers
This provision addresses proposed variances from the job order
filing requirements in Sec. 655.121. Unless otherwise specified in
proposed Sec. Sec. 655.300 through 655.304, the employer must satisfy
the requirements for job orders under Sec. 655.121 and for the content
of job orders established under part 653, subpart F, and Sec. 655.122.
b. Paragraph (b), Job Qualifications and Requirements
The Department proposes variances addressing certain aspects of the
job qualifications and requirements to clarify those the Department
generally considers normal and accepted for these occupations, which
may be included in job orders for each of the occupations subject to
Sec. Sec. 655.300 through 655.304. The provisions in this proposed
rule, described below, are similar to those provided by the TEGLs for
the itinerant animal shearing, commercial beekeeping, and custom
combining employers in the H-2A program. The proposed rule does not
include variances from the regular H-2A job order requirements for
employers in the reforestation occupation. As with all other
applications, the CO may require the employer to submit documentation
to substantiate the appropriateness of any job qualifications and
requirements specified in the job order. Each job qualification listed
in the job offer must be bona fide. In all cases, the employer must
apply all qualifications and requirements included in the job offer
equally to U.S. and foreign workers in order to maintain compliance
with the prohibition against preferential treatment of foreign workers
contained at Sec. 655.122(a).
i. Animal Shearing
Consistent with the TEGL, the Department proposes to allow a job
offer in these occupations to include a statement that applicants must
possess up to 6 months of experience in similar occupations and require
references for the employer to verify this experience. The job offer
may also specify that applicants must possess experience with an
industry shearing method or pattern, must be willing to join the
employer at the time the job opportunity is available and at the place
the employer is located, and must be available to complete the
scheduled itinerary under the job order. In addition, U.S. worker
applicants who possess experience based on a similar or related
industry shearing method or pattern must be afforded a break-in period
of no less than 5 working days to adapt to the shearing method or
pattern preferred by the employer.
ii. Commercial Beekeeping
Consistent with the TEGL, the Department proposes to allow a job
offer in these occupations to include a statement that applicants must
possess up to 3 months of experience in similar occupations and require
references for the employer to verify this experience. The job offer
for commercial beekeeping occupations may also specify that applicants
may not have bee, pollen, or honey-related allergies, must possess a
valid commercial U.S. driver's license or be able to obtain such
license not later than 30 days after the first workday after the
arrival of the worker at the place of employment, must be willing to
join the employer at the time and place the employer is located, and
must be available to complete the scheduled itinerary under the job
order.
iii. Custom Combining
Consistent with the TEGL, the Department proposes to allow a job
offer in these occupations to include a statement that applicants must
possess up to 6 months of experience in similar occupations and require
references for the employer to verify applicant experience. The job
offer for custom combining occupations may also specify that applicants
must be willing to join the employer at the time and place the employer
is located and available to complete the scheduled itinerary under the
job order.
c. Paragraph (c), Communication Devices
Employers are obligated under Sec. 655.122(f) to provide each
worker, without charge or deposit charge, all tools, supplies, and
equipment required to perform the duties assigned. Due to the
potentially remote, isolated, and unique nature of the work to be
performed by workers in animal shearing and custom combining
occupations, the proposed procedures would require the employer to
provide each worker, without charge or deposit charge, effective means
of communicating with persons capable of responding to the worker's
needs in case of an emergency. The procedures are consistent with those
in place for workers primarily engaged in the herding and production of
livestock on the range under the H-2A program. See 20 CFR
655.210(d)(2). Communication means are necessary to perform the work
and can include, but are not limited to, satellite phones, cell phones,
wireless devices, radio transmitters, or other types of electronic
communication systems. The employer would also have to specify in the
job order the type(s) of electronic communication device(s) and that
such devices will be provided without charge or deposit.
This proposed rule is similar to the Department's current policy in
the TEGLs for the itinerant animal shearing and multi-state custom
combining occupations.\100\ Because of the remote, transient, and
unique nature of these occupations, effective means of communication
between the employer and the worker are necessary to ensure that the
employer is able to check the worker's status, and that the worker is
able to communicate an emergency to persons capable of responding.
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\100\ Specifically, the Department's current policy in the TEGLs
requires an employer to provide at no cost to each worker in animal
shearing and custom combining occupations effective means of
communicating with persons capable of responding to the worker's
needs in case of an emergency. See Department of Labor, Employment
and Training Administration, Training and Employment Guidance Letter
No. 17-06, Change 1 (June 14, 2011), https://wdr.doleta.gov/directives/attach/TEGL/TEGL17-06-Ch1.pdf. See also Department of
Labor, Employment and Training Administration, Advisory: Training
and Employment Guidance Letter No. 16-06, Change 1 (June 14, 2011),
https://wdr.doleta.gov/directives/attach/TEGL/TEGL16-06-Ch1.pdf.
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The Department's current regulation at Sec. 655.122(f) requires an
employer to provide all tools, supplies, and equipment required to
perform the duties assigned. All employers participating in the H-2A
program must comply with the requirement in Sec. 655.122(f), including
those employers in the animal shearing, beekeeping, and custom
combining industries. Similarly, the Department's current regulation at
Sec. 655.122(p) prohibits an employer from making an unlawful
deduction that is primarily for the benefit or convenience of the
employer. Though the TEGL covering reforestation may allow employers to
require workers to provide their own tools and equipment in certain
cases, the proposed rule does not provide a variance from the
requirements in Sec. 655.122(f) and (p), because all tools, supplies,
and equipment required to perform the duties assigned are primarily for
the benefit and convenience of the employer. Consequently, employers in
the animal shearing, custom combining,
[[Page 36224]]
beekeeping, and reforestation industries must comply with Sec.
655.122(f) and (p) and provide, without charge or deposit charge, to
the workers all tools, supplies, and equipment to perform the duties
assigned.
These tools, supplies, and equipment include any items required by
law, the employer, or the nature of the work to perform the job safely
and effectively. For example, if a reforestation employer requires its
employees to wear a particular brand or type of boots for safety
reasons, or for compliance with the OSHA standards or contractual
obligations with upper-tier contractors, the employer must provide the
boots without charge or deposit charge. Similarly, if an employer in
beekeeping occupations requires certain equipment for safety reasons,
such as a veil, gloves, or beekeeping suit, the employer must provide
this equipment to the workers without charge or deposit charge.
Additional examples of tools, supplies, and equipment that may be
required by law, the employer, or the nature of the work in these
occupations include combs, cutters, hand pieces, and grinders in the
animal shearing occupations; bee brushes, hive tools, smokers, veils,
and gloves in the commercial beekeeping occupations; and chainsaws,
boots, seedling satchels, planting trowel, rain gear, gloves, ear and
eye protection, and protective masks in the reforestation occupations.
The Department invites comments as to whether it should require
specific tools, supplies, and equipment in these industries, or whether
it would be helpful to include in the regulation a list of items that
typically are required by law, the employer, or the nature of the work
and location, and which must be provided to the workers without charge
or deposit.
d. Paragraph (d), Housing
For job opportunities involving animal shearing and custom
combining, the employer must specify in the job order that housing will
be provided as set forth in Sec. 655.304. As discussed below,
employers of workers in these occupations will be permitted to offer
mobile housing that meets the standards set forth in Sec. 655.304,
except for situations when the mobile housing is located on the range
as defined in Sec. 655.201. When the housing unit is on the range, the
mobile housing must meet the standards for range housing in Sec.
655.235.
4. Section 655.303, Procedures for Filing Applications for Temporary
Employment Certification
Under proposed Sec. 655.303, employers in covered occupations will
continue to satisfy the requirements for filing an Application for
Temporary Employment Certification with the NPC designated by the OFLC
Administrator as required under Sec. Sec. 655.130 through 655.132. In
addition, the Department proposes to continue to require employers
seeking workers in the covered occupations to provide the locations,
estimated start and end dates, and, if applicable, names for each
farmer or rancher for whom work will be performed under the job order
when filing an Application for Temporary Employment Certification. The
locations should be identified with as much specificity as possible in
order to apprise potential U.S. workers of where the work will be
performed and to ensure recruitment in all areas of intended
employment.
The Department proposes to continue to allow employers or
agricultural associations engaged in the covered occupations to file
applications and job orders covering work locations in multiple areas
of intended employment and within one or more contiguous States.\101\
This approach is warranted by the unique nature of work in these
occupations, particularly the itinerant nature of work crews. In
addition, the Department proposes to continue to allow an agricultural
association to file a master application as a joint employer covering
work locations in multiple areas of intended employment within two or
more contiguous States.
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\101\ This would continue the current practice that permits a
variance from the geographic scope limitations of 20 CFR 655.132(a)
for H-2ALCs engaged in these occupations, and from 20 CFR 655.131(b)
for master applications that include worksites in more than two
contiguous States.
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The Department proposes to apply the geographic limitation in Sec.
655.303(b)(1) and (2) to applications for job opportunities involving
commercial beekeeping, with the exception that those applications may
include one noncontiguous State at the beginning and end of the period
of employment for retrieving bee colonies from and returning them to
the overwintering location. For beekeepers, winter months provide an
opportunity to engage in colony health and maintenance activities, such
as splitting and building colonies, while the bees are not engaged in
the pollination, pollen collection, and honey production activities of
the rest of the year. Typically, migratory beekeeping operations
overwinter their hives in warm-winter states, such as Texas. As warmer
weather returns to the rest of the country and plants begin to flower,
beekeepers may move their hives from these overwintering locations to
the places where their pollination and honey-production activities will
take place for the rest of the year, such as cultivated fields and
orchards in California and uncultivated fields in North Dakota and
South Dakota where clover and wildflowers grow. Apart from
accommodating the initial care and gathering of the hives at
overwintering locations for transport and the hives' return to the
overwintering locations, the Department proposes to maintain the same
geographic scope criteria for all applications covered under the
provisions at Sec. Sec. 655.300 through 655.304. Once the hives are
moved from the overwintering location to their non-winter destinations,
a beekeeping Application for Temporary Employment Certification and job
order would be limited to multiple areas of intended employment in one
or more contiguous States. Where a beekeeping operation involves
pollination or honey production activities in non-contiguous States,
the employer would be required to submit separate applications. For
example, a beekeeping employer could not file an application including
an itinerary that begins and ends at a place of employment in Texas
and, in between, list places of employment in California, North Dakota,
and South Dakota. Instead, the employer could submit two separate
applications, one with an itinerary including Texas and California and
the other with an itinerary including Texas, North Dakota, and South
Dakota.
Under the proposed rule, an employer would need to file one H-2A
application for each crew of itinerant workers. This requirement is
consistent with current practice for all covered occupations except
reforestation, where employers have been permitted to submit one H-2A
application covering multiple itineraries. The Department believes
permitting multiple crews and itineraries on a single application
undermines the integrity and efficacy of U.S. worker recruitment.
Therefore, to promote the integrity of the application process in these
occupations, and provide consistency across applications in the H-2A
program, the proposed rule would require the employer to file one
application for each itinerant crew, within the parameters of
Sec. Sec. 655.300 through 655.304.
Aside from these filing variances, the usual H-2A filing
requirements would apply to job opportunities involving animal
shearing, custom combining,
[[Page 36225]]
commercial beekeeping, and reforestation. For example, all H-2ALCs
filing under the provisions of Sec. Sec. 655.300 through 655.304 would
be required to comply with Sec. 655.132(d). Thus, employers in those
occupations would have to provide fully-executed contracts for each
anticipated work location on the itinerary. See 20 CFR 655.132(d). Such
contracts would demonstrate to the Department the work to be performed
along the itinerary with sufficient specificity to allow the Department
to ensure compliance with program requirements.
5. Section 655.304, Standards for Mobile Housing
Under the Department's current and proposed regulation at Sec.
655.122(d), an employer must provide housing at no cost to H-2A workers
and those workers in corresponding employment who are not reasonably
able to return to their residence within the same day. Additionally,
employer-provided housing must meet applicable safety and health
standards.\102\ Due to the unique nature of animal shearing and custom
combining occupations, however, the Department has historically
permitted the use of mobile housing for workers engaged in these
occupations,\103\ the standards for which are found in the TEGLs. The
proposed rule continues this longstanding practice, and includes
proposed standards for mobile housing for workers engaged in these
occupations.
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\102\ Specifically, employer-provided housing must meet the OSHA
standards at 29 CFR 1910.142, or the ETA standards at Sec. Sec.
654.404 through 654.417 of this chapter, whichever standards are
applicable under Sec. 654.401 of this chapter.
\103\ See Department of Labor, Employment and Training
Administration, Training and Employment Guidance Letter No. 17-06,
Change 1, Attachment B (June 14, 2011), https://wdr.doleta.gov/directives/attach/TEGL/TEGL17-06-Ch1.pdf; Department of Labor,
Employment and Training Administration, Training and Employment
Guidance Letter No. 16-06, Change 1, Attachment A (June 14, 2011),
https://wdr.doleta.gov/directives/attach/TEGL/TEGL16-06-Ch1.pdf.
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The proposed standards largely incorporate the housing standards in
the TEGLs, with two key exceptions. First, the TEGL for workers engaged
in animal shearing occupations expressly provides that an animal
shearing contractor may lease a mobile unit owned by a crew member or
other person or make some other type of ``allowance'' to the owner.
Under the proposed rule, such an arrangement is not permitted. Upon
further consideration of this practice, the Department concludes that
this type of arrangement is inconsistent with the employer's obligation
to provide housing at no cost to all H-2A workers and those non-H-2A
workers in corresponding employment who are not reasonably able to
return to their residences within the same day. See section 218(c)(4)
of the INA, 8 U.S.C. 1188(c)(4); 20 CFR 655.122(d)(1). Allowing an
employer to compensate a worker for housing the worker owns or secures
inappropriately shifts at least part of this obligation from the
employer to the worker. By requiring animal shearing employers to
independently secure sufficient housing in advance of the start date,
as required of all other H-2A employers, this change ensures that all
housing (including mobile units) has been inspected and certified as
meeting housing standards before a temporary labor certification is
issued. This change further ensures that all prospective applicants
have access to the job opportunity without preference for applicants
who possess their own units. Second, the proposed standards align less
closely than the TEGLs with the standards for range housing found at
Sec. 655.235. Although, historically, the animal shearing and custom
combining TEGLs set out the same or similar mobile housing standards as
the standards applicable to range housing, there are important
differences in these occupations that necessitate different standards
for range housing (for workers engaged in herding or the range
production of livestock) and mobile housing (for itinerant workers
engaged in animal shearing and custom combining occupations).
Specifically, the standards for range housing anticipate that workers
generally will be on call 24 hours per day, 7 days a week in uniquely
remote, isolated areas. Animal shearing and custom combining workers,
on the other hand, though itinerant, typically work in less isolated
areas with greater access to facilities, and generally there is no
expectation that these workers continuously be on call.
The Department recognizes that itinerant workers engaged in the
animal shearing and custom combining occupations may work in locations
that meet the definition of range in Sec. 655.201 and, therefore,
requires use of housing that meets only the standards for range housing
in Sec. 655.235 for some portion of the period of employment. In these
situations, the Department proposes that mobile housing must be
inspected to ensure that it meets the standards for range housing, and
that it needs to meet the standards for range housing in Sec. 655.235
only during the period in which the housing is located on the range to
enable work to be performed on the range. The applicability of the
standards for range housing or mobile housing depends on the sites
where mobile housing units are parked. This provision intends to
address the fact that itinerant workers in the animal shearing and
custom combining occupations may, on occasion, be working in areas so
remote that it is not feasible for the employer to provide certain
amenities, such as hot and cold water under pressure. However, once the
mobile housing unit is moved to a location off of the range, the mobile
housing standards in Sec. 655.304 are once again applicable.
Therefore, a mobile housing unit that the employer anticipates using
both on and off the range is subject to both the procedure for securing
and submitting a range housing inspection approval in Sec. 655.230(b)
and (c) and the procedure for securing and submitting an inspection
approval of the mobile housing unit as proposed in Sec. 655.122(d)(6).
The Department recognizes that the mobile housing units Canadian
employers use to perform custom combining operations in the United
States are typically located in Canada when not in use, making it
unfeasible for these employers to secure pre-occupancy housing
inspection and approval from a SWA. Therefore, the Department proposes
to continue the longstanding practice reflected in the TEGL of
permitting these employers to secure approval of each mobile unit from
an authorized representative of the Federal or provincial government of
Canada, in accordance with inspection procedures and applicable
standards for such housing under Canadian law or regulation.
The proposed standards for mobile housing are for use only for
itinerant workers engaged in the animal shearing and custom combining
occupations. Although the commercial beekeeping \104\ and reforestation
\105\ occupations are also frequently itinerant, the TEGLs for these
occupations historically have not allowed for mobile housing, and
employers in these occupations tend to house their workers in fixed-
site housing, hotels, and motels. The Department invites comment from
employers engaged in commercial beekeeping and reforestation regarding
[[Page 36226]]
the current practices and their specific housing needs.
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\104\ See Department of Labor, Employment and Training
Administration, Training and Employment Guidance Letter No. 33-10
(June 14, 2011), https://wdr.doleta.gov/directives/attach/TEGL/TEGL33-10.pdf.
\105\ See Department of Labor, Employment and Training
Administration, Training and Employment Guidance Letter No. 27-06
(June 12, 2007), https://wdr.doleta.gov/directives/attach/TEGL/TEGL27-06.pdf.
---------------------------------------------------------------------------
a. Paragraph (b)
As proposed, the standards for mobile housing combine certain
provisions from the standards for range housing at Sec. 655.235 and
the ETA housing standards at Sec. Sec. 654.404 through 654.417, as did
the TEGLs. The proposed standards are intended to protect the health
and safety of workers engaged in animal shearing and custom combining
occupations, while also being sufficiently flexible to apply to a
variety of mobile housing units. In its enforcement experience, the
Department has seen a variety of mobile housing units used by workers
engaged in these occupations, including RVs, trailers, and custom bunk-
houses built in the back of tractor-trailers. Some mobile housing units
are complete with functioning bathrooms, showers, generators, and
washer/dryers, while others are smaller and simpler. Consequently, the
Department proposes to allow mobile housing units without certain
facilities (e.g., showers and laundry facilities) as long as the
employer otherwise supplements these facilities. For example, if the
mobile housing unit does not contain bathing facilities, facilities
with hot and cold water under pressure must be provided at least once
per day. This standard contemplates that some mobile housing units may
not include showers, but the mobile housing sites, such as farms,
ranches, campgrounds, RV parks, or cities and towns, should have
bathing facilities, and workers must be afforded access to these
facilities. The Department requests comments on the feasibility of
these standards in the animal shearing and custom combining
occupations, as well as if any additional standards for mobile housing
should be incorporated.
b. Paragraph (c), Housing Site
The proposed rule incorporates the standards for the housing site
from the range housing standards and the TEGLs. Specifically, the
Department proposes that mobile housing sites must be well drained and
free from depressions where water may stagnate.\106\ In addition, the
Department proposes that mobile housing sites shall be located where
the disposal of sewage is provided in a manner that neither creates,
nor is likely to create a nuisance or a hazard to health; and shall not
be in proximity to conditions that create or are likely to create
offensive odors, flies, noise, traffic, or any similar hazards. Mobile
housing sites shall also be free from debris, noxious plants (e.g.,
poison ivy, etc.), and uncontrolled weeds or brush.\107\ The Department
has determined that employers will not find it overly burdensome to
place mobile housing units at sites that comply with these provisions.
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\106\ This provision is similar to standards for range housing
found at Sec. 655.235(a)(1) and for mobile housing found in TEGL
16-06-CH-1 Attachment B and TEGL 17-06-CH-1 Attachment B.
\107\ These provisions are similar to the ETA housing standards
found at Sec. 654.404, but exclude the provision that requires that
the housing site must provide a space for recreation reasonably
related to the size of the facility and the type of occupancy. See
20 CFR 654.404(d).
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c. Paragraph (d), Drinking Water Supply
Similar to the TEGLs for these occupations, the Department proposes
that an adequate and convenient supply of potable water that meets the
standards of the local or state health authority must be provided, as
well as individual drinking cups.\108\ The Department also proposes to
require employers to provide a cold water tap within a reasonable
distance from each individual living unit when water is not provided in
the unit. Itinerant workers engaged in animal shearing and custom
combining occupations may stay in mobile housing units with water tanks
or water hookups that provide water in the unit. If no water is
available in the unit, workers may park the mobile housing unit within
a reasonable distance of a cold water tap.\109\ Additionally, adequate
drainage facilities for overflow and spillage must be provided.
---------------------------------------------------------------------------
\108\ These proposed standards are similar to the standards for
range housing found at Sec. 655.235(b); however, these standards
exclude the provision for delivery of water. These provisions are
also similar to the standards found in TEGL 16-06-CH-1 Attachment B
and TEGL 17-06-CH-1 Attachment B.
\109\ Unlike the ETA housing standards, which requires that a
cold water tap be provided within 100 feet of each living unit, the
Department's proposal does not require the water tap to be located
within a certain number of feet of the mobile housing unit because
some campgrounds may not comply with these specific standards. See
20 CFR 654.405(b).
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d. Paragraph (e), Excreta and Liquid Waste Disposal
The Department proposes to require that toilet facilities, such as
portable toilets, RV or trailer toilets, privies, or flush toilets,
must be provided and maintained for effective disposal of excreta and
liquid waste in accordance with the requirements of the applicable
local, state, or federal health authority, whichever is most stringent.
Many mobile housing units are equipped with toilet facilities that
would comply with these standards. Where mobile housing units are not
equipped with toilet facilities, the employer must provide access to
toilet facilities.
Where mobile housing units contain toilet facilities, the employer
must provide access to sewage hookups whenever feasible. Some
campgrounds or RV parks have sewage hookups; the employer must place
workers at these locations if feasible. If wastewater tanks are used
because such access to sewage hookups is unavailable or the mobile
housing units have toilet facilities but are not designed to connect to
sewage hookups, the employer must make provision to regularly empty the
wastewater tanks. Consistent with the TEGLs, if pits are used for
disposal by burying of excreta and liquid waste, they shall be kept
fly-tight when not filled in completely after each use.\110\ The
maintenance of disposal pits must be in accordance with local and state
health and sanitation requirements.
---------------------------------------------------------------------------
\110\ TEGL 16-06-CH-1 Attachment B and TEGL 17-06-CH-1
Attachment B.
---------------------------------------------------------------------------
The proposed mobile housing standards for excreta and liquid waste
disposal deviate from the standards for range housing in Sec. 655.235
and the TEGLs for these occupations, which do not require toilet
facilities. Itinerant workers in the animal shearing and custom
combining occupations frequently work in relatively more populated
areas that provide easy access to running water, indoor plumbing,
sewage hookups, vault toilets, and/or portable toilets. The Department,
therefore, concludes that it is reasonable and necessary to require
employers to provide toilet facilities. The Department invites comment
on whether any additional standards (i.e., specific toilet facilities,
a specific number of toilet facilities, etc.) should be included.
e. Paragraph (f), Housing Structure
Consistent with the TEGLs, the Department proposes to require that
housing be structurally sound, in good repair, in a sanitary condition
and must provide shelter against the elements to occupants. Similarly,
the housing must have flooring constructed of rigid materials easy to
clean and so located as to prevent ground and surface water from
entering, and each housing unit must have at least one window or a
skylight that can be opened directly to the outdoors.\111\
Acknowledging the variety of possible mobile housing units, the
Department has not proposed specific measurements for windows, but
invites comment on whether specific measurements should be required.
[[Page 36227]]
Housing standards for fire, safety, and first aid discuss a second
means of escape, which may be a window if the window is sufficiently
large to allow for escape.
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\111\ These standards are also identical to those included in
the standards for range housing in Sec. 655.235(d).
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f. Paragraph (g), Heating
The Department proposes to fully incorporate the heating standards
from Sec. 655.235(e). These standards are also substantially the same
as those contained in the TEGLs for these occupations.\112\
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\112\ TEGL 16-06-CH-1 Attachment B and TEGL 17-06-CH-1
Attachment B.
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g. Paragraph (h), Electricity and Lighting
The Department proposes that, barring unusual circumstances that
prevent access, electrical service or generators must be provided. This
may include an electrical hookup, solar panel, battery generator, or
other type of device that provides electrical service. This provision
differs from the standards for range housing promulgated in Sec.
655.235(f) and existing standards for mobile housing contained in the
TEGLs, which require only that lanterns be provided if it is not
feasible to provide electrical service to mobile housing. The
Department has determined that, in the majority of circumstances,
workers in animal shearing and custom combining occupations will be in
areas with access to electrical service; therefore, it is necessary and
reasonable to require that it be accessible to workers in mobile
housing units. Many mobile housing units, such as some RVs, will comply
with this requirement. In the rare circumstances in which it is not
feasible to provide electrical service, lanterns must be provided to
each unit, one per occupant of each unit.\113\
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\113\ This proposed standard is similar to the standards for
range housing found at Sec. 655.235(f)(2) and for mobile housing
found in TEGL 16-06-CH-1 Attachment B and TEGL 17-06-CH-1 Attachment
B.
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h. Paragraph (i), Bathing, Laundry, and Hand Washing
The Department proposes that bathing facilities, supplied with hot
and cold water under pressure, shall be provided to all occupants no
less frequently than once per day. Some mobile housing units may
contain functioning showers with hot and cold water under pressure; in
which case, the employer has complied with this provision as long as
all workers have access to the bathing facilities. If the mobile
housing units do not have bathing facilities, workers should have
access to facilities no less frequently than once per day. There are no
restrictions on how the employer may provide access to these facilities
(e.g., at a campground, RV park, ranch bunkhouse, temporary labor camp,
motel, etc.).
Similarly, the Department proposes that the employer must provide
access to laundry facilities, supplied with hot and cold water under
pressure, at no cost to all occupants no less frequently than once per
week. The Department anticipates that most mobile housing units will
not include laundry facilities; therefore, the employer must supplement
its mobile housing units with laundry facilities.
The Department also proposes that alternative bathing and laundry
facilities, such as washtubs, must be available to all occupants at all
times when water under pressure is unavailable. For example, if a
worker needs to bathe or launder clothes, but is hours away from being
provided access to a shower or days away from being provided access to
a laundry facility, a washtub must be available so that the worker is
able to bathe or launder clothes without water under pressure.
Finally, the Department proposes that hand washing facilities must
be available to all occupants at all times, even when water under
pressure is not available.
These proposed standards differ from the standards for range
housing promulgated in Sec. 655.235(g) and the existing standards for
mobile housing in the TEGLs, which require that mobile bathing,
laundry, and handwashing facilities must be provided when it is not
feasible to provide hot and cold water under pressure. However,
itinerant workers in the animal shearing and custom combining
occupations frequently work in relatively more populated areas that
provide easy access to running water with hot and cold water under
pressure, and the Department therefore concludes that it is necessary
and reasonable to provide periodic, if not constant, access to these
amenities.
i. Paragraph (j), Food Storage
The Department proposes that provisions for mechanical
refrigeration of food at a temperature of not more than 45 degrees
Fahrenheit must be provided.\114\ When mechanical refrigeration of food
is not feasible, the employer must provide another means of keeping
food fresh and preventing spoilage, such as a butane or propane gas
refrigerator.\115\
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\114\ This proposed standard is similar to the ETA housing
standards found at Sec. 654.413(a)(3).
\115\ This proposed standard is similar to the standards for
range housing found at Sec. 655.235(h) and for mobile housing found
in TEGL 16-06-CH-1 Attachment B and TEGL 17-06-CH-1 Attachment B,
but excludes references to dehydrating or salting foods.
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j. Paragraph (k), Cooking and Eating Facilities
The proposed standards for cooking and eating facilities are nearly
identical to those in the TEGLs. The Department proposes that, when
workers or their families are permitted or required to cook in their
individual unit, a space must be provided with adequate lighting and
ventilation, and stoves or hotplates. The Department also proposes that
wall surfaces next to all food preparation and cooking areas must be of
nonabsorbent, easy to clean material. Wall surfaces next to cooking
areas must be made of fire-resistant material.\116\
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\116\ These proposed provisions are similar to the standards for
range housing found at Sec. 655.235(i) and for mobile housing found
in TEGL 16-06-CH-1 Attachment B and TEGL 17-06-CH-1 Attachment B.
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k. Paragraph (l), Garbage and Other Refuse
The proposed standards for garbage and refuse are substantially the
same as those in the TEGLs. The Department proposes that durable, fly-
tight, clean containers must be provided to each housing unit for
storing garbage and other refuse. Provision must be made for collecting
refuse, which includes garbage, at least twice a week or more often if
necessary for proper disposal.\117\ The Department also proposes that
the disposal of refuse, which includes garbage, shall be in accordance
with applicable local, state, and federal law, whichever is most
stringent.\118\
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\117\ These proposed provisions are similar to the standards for
range housing found at Sec. 655.235(j) and for mobile housing found
in TEGL 16-06-CH-1 Attachment B and TEGL 17-06-CH-1 Attachment B.
\118\ This proposed provision is similar to ETA housing
standards found at Sec. 654.414.
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l. Paragraph (m), Insect and Rodent Control
With minor revisions, the proposed standards for insect and rodent
control are the same as those in the TEGLs. The Department proposes
that appropriate materials, including sprays, and sealed containers for
storing food, must be provided to aid housing occupants in combating
insects, rodents, and other vermin.\119\
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\119\ This proposed provision is similar to the standards for
range housing found at Sec. 655.235(k) and for mobile housing found
in TEGL 16-06-CH-1 Attachment B and TEGL 17-06-CH-1 Attachment B.
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m. Paragraph (n), Sleeping Facilities
The Department proposes that a separate comfortable and clean bed,
cot,
[[Page 36228]]
or bunk, with a clean mattress, must be provided for each person,
except in a family arrangement.\120\ This proposed provision is similar
to the standards for range housing found in Sec. 655.235(l) and in the
current TEGLs for animal shearing and custom combining occupations,
excluding the variance that allows for workers to share beds in certain
circumstances. The range housing standards allow workers to share a bed
for a short period of time, so long as separate bedding is provided,
while transitioning from one herder tending the livestock on the range
to another herder. However, the Department concludes that such a
variance is not necessary, and therefore not appropriate, for mobile
housing units for workers engaged in custom combining and animal
shearing not located on the range. Clean and sanitary bedding must be
provided to for each person. The Department also proposes that no more
than double deck bunks are permissible.\121\
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\120\ This proposed provision is similar to the standards for
range housing found in Sec. 655.235(l), excluding the variance that
allows for workers sharing beds in certain circumstances. The
proposed provision is also similar to the standards for mobile
housing found in TEGL 16-06-CH-1 Attachment B and TEGL 17-06-CH-1
Attachment B.
\121\ This proposal is similar to the ETA standards at Sec.
654.416(c).
---------------------------------------------------------------------------
n. Paragraph (o), Fire, Safety, and First Aid
This standard is also substantially the same as the ones in the
TEGLs. The Department proposes that all units in which people sleep or
eat must be constructed and maintained according to applicable local or
state fire and safety law; no flammable or volatile liquid or materials
may be stored in or next to rooms used for living purposes, except for
those needed for current household use; mobile housing units must have
a second means of escape through which the worker can exit the unit
without difficulty; and adequate, accessible fire extinguishers in good
working condition and first aid kits must be provided in the mobile
housing.\122\
---------------------------------------------------------------------------
\122\ These proposed provisions are also similar to those found
in the standards for range housing at Sec. 655.235(m).
---------------------------------------------------------------------------
o. Paragraph (p), Maximum Occupancy
The Department proposes that the number of occupants housed in each
mobile housing unit must not surpass the occupancy limitations set
forth in the manufacturer specifications for the unit. The Department
recognizes that implementing space standards in mobile housing is
difficult because mobile housing is, by its nature, compact. Many RVs
and trailers incorporate beds in unexpected places. However, workers
should be able to live comfortably in the space provided, and the
employer must not house more workers than that for which such space is
designed. For example, an RV intended for 5 people must not be used to
house more than 5 workers. Similarly, if the mobile housing unit in
which the employer houses 20 workers has 1 shower facility, not all
workers may have access to the shower facility. The Department welcomes
comment on whether specific space standards should be incorporated.
K. Terminology and Technical Changes
The Department proposes to revise various terms and phrases used
throughout the regulation. These modifications would improve the
regulation's internal consistency, or correct or update the relevant
terms or titles. These modifications are explained below.
The Department proposes to use the term ``Application for
Temporary Employment Certification'' throughout the regulation when
referring to Form ETA-9142A for clarity and to improve the regulation's
internal consistency.
The Department proposes to use the term ``agricultural
association'' in place of ``association'' to ensure consistency with
the terms defined in Sec. 655.103(b).
The Department proposes to change the term ``worksite'' to
``place of employment'' throughout the regulation to ensure consistency
with the terms defined in Sec. 655.103(b).
The Department proposes to add the word ``calendar''
before the word ``days'' in a number of provisions, to clarify that the
timeframe or deadline in question is based on calendar days, not
business days.
The Department proposes to change the term ``temporary
labor certification'' to ``temporary agricultural labor certification''
to ensure consistency throughout the regulation and with the definition
of ``temporary agricultural labor certification'' in Sec. 655.103(b).
The name of the U.S. Department of Justice, Civil Rights
Division, Office of Special Counsel for Unfair Immigration Related
Employment Practices, has been changed to the U.S. Department of
Justice, Civil Rights Division, Immigrant and Employee Rights Section,
to reflect its current name.
The Department proposes additional changes throughout the
text to correct typographical errors and improve clarity and
readability. Such changes are nonsubstantive and do not change the
meaning of the current text. Substantive changes to the current
regulatory text are discussed in the corresponding section of the
preamble.
III. Discussion of Proposed Revisions to 29 CFR Part 501
The Department proposes revisions to the regulations at 29 CFR part
501, which set forth the responsibilities of WHD to enforce the legal,
contractual, and regulatory obligations of employers under the H-2A
program. WHD has a statutory mandate to protect U.S. workers and H-2A
workers. The Department proposes these amendments concurrent with and
in order to complement the changes ETA proposes to its certification
procedures.
A. Conforming Changes
Where discussed and noted above in the Section-by-Section Analysis
of 20 CFR part 655, the Department proposes various revisions to 29 CFR
part 501, which will conform to revisions the Department is proposing
to 20 CFR part 655. These proposed conforming revisions include, among
others, to add or revise (including technical revisions) the following
definitions of terms in Sec. 501.3, to conform to proposed changes to
20 CFR 655.103(b): Act, Administrator, adverse effect wage rate, agent,
agricultural association, agricultural labor, applicant, Application
for Temporary Employment Certification, area of intended employment,
attorney, Certifying Officer, Chief Administrative Law Judge,
corresponding employment, Department of Homeland Security, employer,
Employment and Training Administration, first date of need, H-2A
petition, job order, joint employment, logging employment, maximum
period of employment, metropolitan statistical area, National
Processing Center, Office of Foreign Labor Certification, OFLC
Administrator, period of employment, piece rate, pine straw activities,
place of employment, reforestation activities, Secretary of Labor,
successor in interest, temporary agricultural labor certification,
United States, U.S. Citizenship and Immigration Services, U.S. worker,
wages, Wage and Hour Division, WHD Administrator, and work contract.
B. Section 501.9, Surety Bond
The Department proposes revisions to WHD's surety bond provision at
29 CFR 501.9 as described fully in the discussion of proposed 20 CFR
655.132 above.
C. Section 501.20, Debarment and Revocation
The Department proposes revisions to WHD's debarment provisions at
29 CFR
[[Page 36229]]
501.20 to maintain consistency with the proposed changes to 20 CFR
655.182(a). The Department has long had concerns about the role of
agents in the program, and has questioned whether the participation of
agents in the H-2A labor certification process is undermining
compliance with program requirements. Under the current debarment
provision, however, the Department can debar agents and attorneys only
for their participation in the employer's substantial violations. Thus,
to increase program integrity and promote compliance with program
requirements, the Department proposes to permit the debarment of agents
and attorneys for their own misconduct, rather than solely for
participating in the employer's violations. Proposed 29 CFR 501.20
would permit WHD to debar an agent or employer for substantially
violating a term or condition of the temporary agricultural labor
certification. The Department is otherwise retaining 29 CFR 501.20 as
in the current regulation.
D. Terminology and Technical Changes
In addition to proposed revisions to conform to the terminology and
technical changes proposed to 20 CFR part 655, subpart B, the
Department proposes minor changes throughout part 501 to correct
typographical errors and improve clarity and readability. Such changes
are nonsubstantive and do not change the meaning of the current text.
For example, the Department proposes throughout part 501 to replace the
phrase ``the regulations in this part'' with the phrase ``this part.''
IV. Administrative Information
A. Executive Order 12866: Regulatory Planning and Review; Executive
Order 13563: Improving Regulation and Regulatory Review; and Executive
Order 13771: Reducing Regulation and Controlling Regulatory Costs
Under E.O. 12866, the OMB's Office of Information and Regulatory
Affairs (OIRA) determines whether a regulatory action is significant
and, therefore, subject to the requirements of the E.O. and review by
OMB. 58 FR 51735. Section 3(f) of E.O. 12866 defines a ``significant
regulatory action'' as an action that is likely to result in a rule
that: (1) Has an annual effect on the economy of $100 million or more,
or adversely affects in a material way a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or state, local, or tribal governments or communities (also
referred to as economically significant); (2) creates serious
inconsistency or otherwise interferes with an action taken or planned
by another agency; (3) materially alters the budgetary impacts of
entitlement grants, user fees, or loan programs, or the rights and
obligations of recipients thereof; or (4) raises novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the E.O. Id. This proposed rule is an
economically significant regulatory action under this section and was
reviewed by OIRA.
E.O. 13563 directs agencies to propose or adopt a regulation only
upon a reasoned determination that its benefits justify its costs; the
regulation is tailored to impose the least burden on society,
consistent with achieving the regulatory objectives; and in choosing
among alternative regulatory approaches, the agency has selected those
approaches that maximize net benefits. E.O. 13563 recognizes that some
benefits are difficult to quantify and provides that, where appropriate
and permitted by law, agencies may consider and discuss qualitatively
values that are difficult or impossible to quantify, including equity,
human dignity, fairness, and distributive impacts.
E.O. 13771 directs agencies to reduce regulation and control
regulatory costs by eliminating at least two existing regulations for
each new regulation, and by controlling the cost of planned regulations
through the budgeting process. See 82 FR 9339. In relevant part, OMB
defines an ``E.O. 13771 regulatory action'' as ``a significant
regulatory action as defined in section 3(f) of E.O. 12866 that has
been finalized and that imposes total costs greater than zero.'' \123\
By contrast, an ``E.O. 13771 deregulatory action'' is defined as ``an
action that has been finalized and has total costs less than zero.''
\124\ For the purpose of E.O. 13771, this proposed rule, if finalized
as proposed, is expected to be an E.O. 13771 deregulatory action
because while the quantifiable rule familiarization, surety bond, and
recordkeeping costs associated with the rule are larger than the
quantifiable cost savings, the Department expects the total annualized
cost savings of this proposed rule would outweigh the total annualized
costs. However, the final designation of this rule's E.O. 13711 status
will be determined in any final rule. In the interim, the Department
requests public comments regarding this determination. The cost savings
associated with the rule will result from the proposed electronic
processing of applications, digitized application signatures, the
ability to stagger entry of workers under a single Application for
Temporary Employment Certification, and the electronic sharing of job
orders submitted to the NPC with the SWAs (655.150).
---------------------------------------------------------------------------
\123\ Office of Information and Regulatory Affairs, Guidance
Implementing Executive Order 13771, Titled ``Reducing Regulation and
Controlling Regulatory Costs'' (Apr. 5, 2017), https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-21-OMB.pdf.
\124\ Id.
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Outline of the Analysis
Section V.A.1 describes the need for the proposed rule, and section
V.A.2 describes the process used to estimate the costs of the rule and
the general inputs used, such as wages and number of affected entities.
Section V.A.3 explains how the provisions of the proposed rule will
result in quantifiable costs, cost savings, and transfer payments, and
presents the calculations the Department used to estimate them. In
addition, section V.A.3 describes the qualitative costs, cost-savings,
transfer payments, and benefits of the proposed rule. Section V.A.4
summarizes the estimated first-year and 10-year total and annualized
costs, cost savings, net costs, perpetuated net costs, and transfer
payments of the proposed rule. Finally, section V.A.5 describes the
regulatory alternatives that were considered during the development of
the proposed rule.
Summary of the Analysis
The Department estimates that the proposed rule will result in
costs, cost savings, and transfer payments. As shown in Exhibit 1, the
proposed rule is expected to have an average annual quantifiable cost
of $4.01 million and a total 10-year quantifiable cost of $28.18
million at a discount rate of 7 percent. The proposed rule is estimated
to have annual quantifiable cost savings of $1.32 million and total 10-
year quantifiable cost savings of $10.39 million at a discount rate of
7 percent. Also, the proposed rule is estimated to result in annual
transfer payments of $95.28 million and total 10-year transfer payments
of $673.07 million at a discount rate of 7 percent. The Department
estimates that the proposed rule would result in total annualized net
quantifiable costs of $2.62 million at a discount rate of 3 percent and
$2.53 million at a discount rate of 7 percent, both expressed in 2017
dollars. The Department was unable to quantify cost savings resulting
from fewer incomplete or incorrect applications due to lack of data.
The Department invites comments
[[Page 36230]]
regarding how this impact may be estimated.
Exhibit 1--Estimated Monetized Costs, Cost Savings, Net Costs, and Transfer Payments of the Proposed Rule
[2017 $millions]
----------------------------------------------------------------------------------------------------------------
Transfer
Costs Cost savings Net costs * payments
----------------------------------------------------------------------------------------------------------------
Undiscounted 10-Year Total...................... $40.11 $13.21 $26.89 $952.83
10-Year Total with a Discount Rate of 3%........ 34.21 11.85 22.36 803.57
10-Year Total with a Discount Rate of 7%........ 28.18 10.39 17.79 673.07
10-Year Average................................. 4.01 1.32 2.69 95.28
Annualized at a Discount Rate of 3%............. 4.01 1.39 2.62 94.20
Annualized with at a Discount Rate of 7%........ 4.01 1.48 2.53 114.41
----------------------------------------------------------------------------------------------------------------
Perpetuated Net Costs * with a Discount Rate of 7%.............. 3.24
----------------------------------------------------------------------------------------------------------------
* Net Costs = [Total Costs]-[Total Cost Savings].
The total cost of the proposed rule is associated with rule
familiarization and recordkeeping requirements for all H-2A
employers,\125\ as well as increases in the amount of surety bonds
required for H-2ALCs. The two largest contributors to the cost savings
of the proposed rule are the electronic submission of applications and
application signatures, including the use of electronic surety bonds,
and the electronic sharing of job orders submitted to the NPC with the
SWAs. Transfer payments are the results of changes to the AEWR and
changes to the requirement that employers provide or pay for
transportation and subsistence for certain workers for the trips
between the worker's place of recruitment and the place of employment.
See the costs, cost savings, and transfer payments subsections of
section V.A.3 (Subject-by-Subject Analysis) below for a detailed
explanation.
---------------------------------------------------------------------------
\125\ The Department does not consider the cost of H-2A
employers learning how to e-file. Based on H-2A Certification data
from FY 2019, 94.1 percent of applications are submitted
electronically. Almost of all the remaining 5.9% of H-2A applicants
have access to email, so very few applicants will need to learn how
to e-file.
---------------------------------------------------------------------------
The Department was unable to quantify some cost, cost-savings,
transfer payments, and the benefits of the proposed rule. The
Department describes them qualitatively in section V.A.3 (Subject-by-
Subject Analysis). The Department invites comments regarding the
assumptions, data sources, and methodologies used to estimate the
costs, cost savings, and transfer payments from this proposed rule.
1. Need for Regulation
The Department has determined that new rulemaking is necessary for
the H-2A program and furthers the goals of E.O. 13788, Buy American and
Hire American. See 82 FR 18837. The ``Hire American'' directive of the
E.O. articulates the executive branch policy to rigorously enforce and
administer the laws governing entry of nonimmigrant workers into the
United States in order to create higher wages and employment rates for
U.S. workers and to protect their economic interests. Id. sec. 2(b). It
directs federal agencies, including the Department, to propose new
rules and issue new guidance to prevent fraud and abuse in nonimmigrant
visa programs, thereby protecting U.S. workers. Id. sec. 5.
It is the policy of the Department to increase protections of U.S.
workers and vigorously enforce all laws within its jurisdiction
governing the administration and enforcement of nonimmigrant visa
programs. This includes the coordination of the administration and
enforcement activities of ETA, WHD, and the Office of the Solicitor in
the promotion of the hiring of U.S. workers and the safeguarding of
working conditions in the United States.\126\
---------------------------------------------------------------------------
\126\ See News Release, U.S. Secretary of Labor Protects
Americans, Directs Agencies to Aggressively Confront Visa Program
Fraud and Abuse (June 6, 2017), https://www.dol.gov/newsroom/releases/opa/opa20170606.
---------------------------------------------------------------------------
Consistent with the E.O.'s mandate, the Department's policy, and
the goal of modernizing the H-2A program, the Department proposes to
update its regulations to ensure that employers can access legal
agricultural labor, without undue cost or administrative burden, while
maintaining the program's strong protections for the U.S. workforce.
The changes proposed in this NPRM would streamline the Department's
review of H-2A applications and enhance WHD's enforcement capabilities,
thereby removing workforce instability that hinders the growth and
productivity of our nation's farms, while allowing aggressive
enforcement against program fraud and abuse that undermine the
interests of U.S. workers. Among other proposals to achieve these
goals, the Department proposes to: (1) Require mandatory e-filing and
accept electronic signatures; (2) revise the current wage methodology
so that the AEWR better protects against adverse effect on an
occupation-specific basis and to modernize the prevailing wage
methodology to provide accurate and reliable prevailing wage rates
consistent with modern budget realities; (3) update surety bond and
clarify recordkeeping requirements; (4) expand the definition of
``agricultural labor or services'' such that ``reforestation
activities'' and ``pine straw activities'' are included in the H-2A
program; (5) authorize SWAs (or other appropriate authorities) to
inspect and certify employer-provided housing for up to 24 months; (6)
permit the staggering of H-2A workers; (7) replace the current 50
percent rule, which requires employers of H-2A workers to hire any
qualified, eligible U.S. worker who applies to the employer during the
first 50 percent of the work contract period, with a requirement to
hire such workers through 30 days of the contract period, unless the
employer chooses to stagger the entry of H-2A workers, in which case a
longer hiring obligation applies; and (8) revise the debarment
provisions to allow the Department to debar agents and attorneys, and
their successors in interest, based on their own substantial
violations.
2. Analysis Considerations
The Department estimated the costs, cost savings, and transfer
payments of the proposed rule relative to the existing baseline (i.e.,
the current practices for complying, at a minimum, with the H-2A
program as currently codified at 20 CFR part 655, subpart B).
[[Page 36231]]
In accordance with the regulatory analysis guidance articulated in
OMB's Circular A-4 and consistent with the Department's practices in
previous rulemakings, this regulatory analysis focuses on the likely
consequences of the proposed rule (i.e., costs, cost savings, and
transfer payments that accrue to entities affected). The analysis
covers 10 years (from 2020 through 2029) to ensure it captures major
costs, cost savings, and transfer payments that accrue over time. The
Department expresses all quantifiable impacts in 2017 dollars and uses
discount rates of 3 and 7 percent, pursuant to Circular A-4.
Exhibit 2 presents the number of affected entities that are
expected to be affected by the proposed rule. The number of affected
entities is calculated using data from the OFLC certification data from
2016 and 2017. The Department provides these estimates and uses them
throughout this analysis to estimate the costs, cost savings, and
transfer payments of the proposed rule.
Exhibit 2--Number of Affected Entities by Type
[FY 2016-2017 average]
------------------------------------------------------------------------
Entity type Number
------------------------------------------------------------------------
H-2A Applications Processed................................ 9,391
Unique H-2A Applicants..................................... \127\ 7,282
Certified H-2A Employers................................... \128\ 7,023
Certified H-2A Workers..................................... \129\
187,740
------------------------------------------------------------------------
Growth Rate
The Department estimates a 14 percent annual growth rate in the
number of certified applications and in applications processed based on
historical H-2A program data on labor certifications for FY 2012-2018.
The Department also estimates a 19 percent geometric growth rate in
certified H-2A workers, a 4 percent growth rate in H-2A certified
employers, and a 16 percent growth rate in H-2A certified labor
contractors. The average annual growth rates were applied to the
estimated costs, cost savings, and transfer payments of the proposed
rule to forcast participation in the H-2A program. Employment
projections from BLS forecast that cumulative employment in the
agriculture sector will not change through FY 2026.\130\ As such, the
growth rates presented in this rule are the upmost upper bounds of
certified H-2A workers in the 10-year analysis time-frame.
---------------------------------------------------------------------------
\127\ This average includes 103 unique H-2B applicants that will
now be considered H-2A.
\128\ This average includes 55 certified H-2B employers that
will now be considered H-2A. 3,990 workers were estimated from FY
2016-2017 program data.
\129\ This average includes 3,990 certified H-2B workers that
will now be considered H-2A.
\130\ The projected growth rate for the agricultural sector was
obtained from BLS's Industrial Employment Projections and Output,
which may be accessed at https://www.bls.gov/emp/data/industry-out-and-emp.htm.
---------------------------------------------------------------------------
Estimated Number of Workers and Change in Hours
The Department presents the estimated average number of workers and
the change in hours required to comply with the proposed rule per
worker for each activity in section V.A.3 (Subject-by-Subject
Analysis). For some activities, such as rule familiarization and
application submission, all applicants will experience a change. For
other activities, the proposed will only affect certified H-2A
employers. These numbers are derived from OFLC certification data for
the years 2016 and 2017 and represent an average of the two FYs.\131\
To calculate these estimates, the Department estimated the average
amount of time (in hours) needed for each activity to meet the new
requirements relative to the baseline.
---------------------------------------------------------------------------
\131\ The total unique H-2A applicants in 2016 and 2017 were
7,560 and 7,004, respectively. The total certified H-2A employers in
2016 and 2017 were 6,780 and 7,265, respectively. This includes H-2B
applicants and employers that will now be considered H-2A.
---------------------------------------------------------------------------
Compensation Rates
In section V.A.3 (Subject-by-Subject Analysis), the Department
presents the costs, including labor, associated with the implementation
of the provisions of the proposed rule. Exhibit 3 presents the hourly
compensation rates for the occupational categories expected to
experience a change in the number of hours necessary to comply with the
proposed rule. The Department used the mean hourly wage rate for
private sector human resources specialists \132\ and the wage rate for
federal employees at the NPC (Grade 12, Step 5).\133\ To account for
fringe benefits and overhead costs, the mean hourly wage rate has been
doubled.\134\ The Department adjusted these base wage rates using a
loaded wage factor to reflect total compensation, which includes non-
wage factors such as health and retirement benefits. First, the
Department calculated a loaded wage rate of 1.44 for private industry
workers by calculating the ratio of average total compensation \135\ to
average wages and salaries in 2017 for the private sector.\136\ In
addition, the Department added 56 percent to account for overhead
costs. For the Federal Government, the Department multiplied the loaded
wage rate for private workers (1.44) by the ratio of the loaded wage
factors for Federal workers to private workers (1.13) using data from a
Congressional Budget Office report \137\ to estimate the 2017 loaded
wage rate for Federal workers of 1.63. The Department then multiplied
the loaded wage factor by the corresponding occupational category's
wage rate to calculate an hourly compensation rate. In addition, the
Department added 37 percent to account for overhead costs.
---------------------------------------------------------------------------
\132\ Bureau of Labor Statistics. (2018). May 2017 National
Occupational Employment and Wage Estimates: 13-1071--Human Resources
Specialist. Retrieved from: https://www.bls.gov/oes/current/oes131071.htm.
\133\ Office of Personnel Management, Salary Table 2018--CHI
Incorporating the 1.4% General Schedule Increase and a Locality
Payment of 27.47% for the Locality Pay Area of Chicago-Naperville,
IL-IN-WI (Jan. 2018), https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2018/CHI_h.pdf.
\134\ Source: U.S. Department of Health and Human Services,
Guidelines for Regulatory Impact Analysis (2016), https://aspe.hhs.gov/system/files/pdf/242926/HHS_RIAGuidance.pdf. In its
guidelines, HHS states, ``as an interim default, while HHS conducts
more research, analysts should assume overhead costs (including
benefits) are equal to 100 percent of pre-tax wages.'' HHS explains
that 100 percent is roughly the midpoint between 46 and 150 percent,
with 46 percent based on ECEC data that suggest benefits average 46
percent of wages and salaries, and 150 percent based on the private
sector ``rule of thumb'' that fringe benefits plus overhead equal
150 percent of wages. To isolate the overhead costs from HHS's 100
percent assumption.
\135\ Bureau of Labor Statistics, 2017 Employer Costs for
Employee Compensation, https://www.bls.gov/ncs/ect/data.htm. Total
compensation for all workers. Average Series ID CMU2010000000000D,
CMU2010000000000P. To calculate the average total compensation in
2017, the Department averaged the total compensation for all workers
for quarters 1-4.
\136\ Bureau of Labor Statistics, 2017 Employer Costs for
Employee Compensation, https://www.bls.gov/ncs/ect/data.htm. Wages
and salaries for all workers. Average Series ID CMU2020000000000D,
CMU2020000000000P. To calculate the average wage and salary in 2017,
the Department averaged the wages and salaries for all workers for
quarters 1-4.
\137\ Congressional Budget Office. (2012). Comparing the
compensation of federal and private-sector employees. Tables 2 and
4. Retrieved from https://www.cbo.gov/sites/default/files/112th-congress-2011-2012/reports/01-30-FedPay_0.pdf. The Department
calculated the loaded wage rate for Federal workers of all education
levels of 1.64 by dividing total compensation by wages (1.63 =
$52.50/$32.30). The Department then calculated the loaded wage rate
for private sector workers of all educations levels of 1.44 by
dividing total compensation by wages (1.44 = $45.40/$31.60).
Finally, the Department calculated the ratio of the loaded wage
factors for Federal to private sector works of 1.13 (1.13 = 1.63/
1.44).
---------------------------------------------------------------------------
The Department used the hourly compensation rates presented in
Exhibit 3 throughout this analysis to estimate the labor costs for each
provision.
[[Page 36232]]
Exhibit 3--Compensation Rates
[2017 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hourly
Position Grade level Base hourly Loaded wage factor Overhead costs compensation
wage rate rate
(a) (b) (c) d = a + b + c
--------------------------------------------------------------------------------------------------------------------------------------------------------
Private Sector Employees
--------------------------------------------------------------------------------------------------------------------------------------------------------
HR Specialist..................................... N/A $31.84 $14.01 ($31.84 x 0.44) $17.83 ($31.84 x 0.56) $63.68
--------------------------------------------------------------------------------------------------------------------------------------------------------
Federal Government Employees
--------------------------------------------------------------------------------------------------------------------------------------------------------
National Processing Center Staff.................. 12 $44.02 $27.73 ($44.02 x 0.63) $16.29 ($44.02 x 0.37) $88.04
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Subject-by-Subject Analysis
The Department's analysis below covers the estimated costs, cost
savings, and transfer payments of the proposed rule. In accordance with
Circular A-4, the Department considers transfer payments as payments
from one group to another that do not affect total resources available
to society.
The Department emphasizes that many of the provisions in the
proposed rule are existing requirements in the statute, regulations, or
regulatory guidance. The proposed rule codifies these practices under
one set of rules; therefore, they are not considered ``new'' burdens
resulting from the proposed rule. Accordingly, the regulatory analysis
focuses on the costs, cost savings, and transfer payments that can be
attributed exclusively to the new requirements in the proposed rule.
Costs
The following sections describe the costs of the proposed rule.
Quantifiable Costs
a. Rule Familiarization
When the proposed rule takes effect, H-2A employers will need to
familiarize themselves with the new regulations. Consequently, this
will impose a one-time cost in the first year.
To estimate the first-year cost of rule familiarization, the
Department applied the geometric average growth rate of H-2A
applications (14 percent) to the number of unique H-2A applications
(7,282) to determine the annual number H-2A applications impacted in
the first year. The number of H-2A applications (8,268) was multiplied
by the estimated amount of time required to review the rule (2
hours).\138\ This number was then multiplied by the hourly compensation
rate of Human Resources Specialists ($63.68 per hour). This calculation
results in a one-time undiscounted cost of $1,053,057 in the first year
after the proposed rule takes effect. This one-time cost yields a total
average annual undiscounted cost of $105,306. The annualized cost over
the 10-year period is $123,450 and $149,932 at discount rates of 3 and
7 percent, respectively. The Department invites comments regarding the
assumptions and data sources used to estimate the costs resulting from
this provision.
---------------------------------------------------------------------------
\138\ This estimate reflects the nature of the proposal. As a
proposal to amend to parts of an existing regulation, rather than to
create a new rule, the 2-hour estimate assumes a high number of
readers familiar with the existing regulation. Further, portions of
this proposal (e.g., portions of Sec. Sec. 655.200 through 655.235)
reprint existing regulatory provisions for ease of reference only.
In addition, a major component of the Department's H-2A
regulations--employer-conducted recruitment--is excluded from this
proposal; they are the subject of a separate rulemaking. See
Modernizing Recruitment Requirements for the Temporary Employment of
H-2A Foreign Workers in the United States. 83 FR 55985 (Nov. 9,
2018).
---------------------------------------------------------------------------
b. Surety Bond Amounts
An H-2ALC is required to submit with its Application for Temporary
Employment Certification proof of its ability to discharge its
financial obligations under the H-2A program in the form of a surety
bond.\139\ Based on the Department's experience implementing the
bonding requirement and its enforcement experience with H-2ALCs, the
Department proposes updates to the regulations. These updates are
intended to clarify and streamline the existing requirement and to
strengthen the Department's ability to collect on such bonds. Further,
the Department proposes adjustments to the required bond amounts to
reflect annual increases in the AEWR and to address the increasing
number of certifications that cover a significant number of workers
under a single application and surety bond.
---------------------------------------------------------------------------
\139\ See 20 CFR 655.132(b)(3); 29 CFR 501.9.
---------------------------------------------------------------------------
Currently, the required bond amounts range from $5,000 to $75,000,
depending on the number of H-2A workers employed by the H-2ALC under
the labor certification. For less than 25 workers, the required bond
amount is currently $5,000. These amounts increase to $10,000, $20,000,
$50,000, and $75,000 for 25 to 49 workers, 50 and 74 workers, 75 to 100
workers, and more than 100 workers, respectively. The Department
proposes to adjust the existing required bond amounts proportionally,
on an annual basis, to the degree that a national average AEWR exceeds
$9.25. The Department will calculate and publish an average AEWR
annually when it calculates and publishes AEWRs in accordance with
Sec. 655.120(b). The average AEWR will be calculated as a simple
average of these AEWRs. To calculate the updated bond amounts, the
Department will use the current bond amounts as a base, multiply the
base by the average AEWR, and divide that number by $9.25. Until the
Department publishes an average AEWR, the updated amount will be based
on a simple average of the 2018 AEWRs, which the Department calculates
to be $12.20. For instance, for a certification covering 100 workers,
the required bond amount would be calculated by the Department using
the following formula:
$75,000 (base amount) x $12.20 / $9.25 = $98,918.92 (updated bond
amount).
In subsequent years, the 2018 average AEWR of $12.20 would be
replaced in this calculation by the average AEWR calculated and
published in that year.
The Department also proposes to increase the required bond amounts
for certifications covering 150 or more workers. For such
certifications, the bond amount applicable to certifications covering
100 or more workers is used as a starting point and is increased for
each additional 50 workers. The interval by which the bond amount
increases will be updated annually to reflect increases in the AEWR.
This value will be based on the amount of wages earned by 50 workers
over a 2-week period and, in its
[[Page 36233]]
initial implementation, would be calculated using the 2018 average AEWR
as demonstrated:
$12.20 (2018 Average AEWR) x 80 hours x 50 workers = $48,800 in
additional bond for each additional 50 workers over 100.
For example, a certification covering a crew of 150 workers would
require additional surety in the amount of $48,800 (150-100 = 50; 1
additional set of 50 workers). For a crew of 275 workers, additional
surety of $146,400 would be required (275-100 = 175; 175 / 50 = 3.5;
this is 3 additional sets of 50 workers). As explained above, this
additional surety is added to the bond amount required for
certifications of 100 or more workers.
While this may represent a significant increase in the face value
of the required bond, the Department understands that employer premiums
for farm labor contractor surety bonds generally range from 1 to 4
percent on the standard bonding market (i.e., contractors with fair/
average credit or better).\140\
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\140\ The Department reviewed premium rates provided on the
websites of companies that offer farm labor contractor bonds and, as
noted in the discussion of sections 655.132 and 29 CFR 501.9, above,
found that employer premiums generally range from 1 to 4 percent on
the standard bonding market (i.e., contractors with fair/average
credit or better). The Department assumed contractors would have
fair/average credit and so used a premium of 4 percent to
approximate the rate on the high side for premiums on the standard
bond market. The Department seeks comments on the impact of the
proposed updates to the required bond amounts.
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For this analysis, the Department assumes that the bond premium
faced by H-2ALCs will be 4 percent. To calculate the costs of the
proposed increase in the required bond amounts, the Department first
calculated the average number of H-2ALCs (including those labor
contractors in the H-2B program that are becoming H-2A) in FYs 2016 and
2017 and the current required bond amounts. Also, the Department
calculated the average number of additional sets of 50 workers in FYs
2016 and 2017. Next, the Department calculated the proposed required
bond amounts for each category of number of workers using the 2018
national average AEWR of $12.20, as well as the proposed bond amount
for each set of additional 50 workers per H-2ALC. Exhibit 4 presents
these calculations.
Exhibit 4--Cost Increases Due to Changes in Required Bond Amounts
----------------------------------------------------------------------------------------------------------------
Average
Existing number of H- Proposed Change in
Number of workers required bond 2ALCs in FYs required bond required bond Cost increase
amount 16 and 17 amount amount
----------------------------------------------------------------------------------------------------------------
Fewer than 25................... $5,000 295 $6,594.59 $1,594.59 $63.78
25-49........................... 10,000 88 13,189.19 3,189.19 127.57
50-74........................... 20,000 54.5 26,378.38 6,378.38 255.14
75-100.......................... 50,000 38 65,945.95 15,945.95 637.84
More than 100................... 75,000 147 98,918.92 23,918.92 956.76
Each Additional Set of 50 N/A a 667.5 48,800.00 48,800.00 1,952.00
Workers Greater than 100.......
----------------------------------------------------------------------------------------------------------------
a This value represents the total number of additional sets of 50 for H-2ALCs with more than 100 workers.
The Department calculated the first-year cost for H-2ALCs with
fewer than 25 workers by multiplying the average number of H-2ALCs in
FYs 2016 and 2017 with fewer than 25 workers (295 H-2ALCs) by the
change in the required bond amount ($1,594.59) and the assumed bond
premium (4 percent). The Department calculated this for each category
of number of workers. Additionally, the Department calculated the total
cost due to the proposed required bond amounts for additional sets of
50 workers by multiplying the average additional sets of 50 workers
(667.5 H-2ALCs) in the FYs 2016 and 2017 by the required bond amount
($48,800.00) and the assumed bond premium (4 percent). The geometric
growth rate of H-2A labor contractors (16 percent) was applied to
account for anticipated increased H-2A applicants. These costs were
then summed to obtain the total annual costs resulting from the
increase in bond premiums. This calculation yields an average annual
undiscounted cost of $3.74 million.
The total cost from the proposed required bond amounts over the 10-
year period is estimated at $37.36 million undiscounted, or $31.69
million and $25.89 million at discount rates of 3 and 7 percent,
respectively. The annualized cost of the 10-year period is $3.72
million and $3.69 million at discount rates of 3 and 7 percent,
respectively. The Department invites comments regarding the assumptions
and data sources used to estimate the costs resulting from this
provision.
c. Recordkeeping
i. Earnings Records
The Department is considering whether to require an employer to
maintain a worker's email address and phone number(s) in the worker's
home country when available. This information would greatly assist the
Department in contacting an H-2A worker in the worker's home country,
should the Department need to do so to conduct employee interviews as
part of an investigation, to secure employee testimony during
litigation, or to distribute back wages.
To calculate the estimated recordkeeping costs associated with
collecting and maintaining this information, the Department first
multiplied the number of certified H-2A employers (7,023 employers) by
the 4-percent annual growth rate of ceritifed H-2A employers to
determine the annual impacted population of H-2A employers. The
impacted number was then multiplied by the estimated time required to
collect and maintain this information (2 minutes) to obtain the total
amount of recordkeeping time required. The Department then multiplied
this estimate by the hourly compensation rate for Human Resources
Specialists ($63.68 per hour). This yields an annual cost ranging from
$15,557 in 2020 to $22,839 in 2029. The Department invites comments
regarding the assumptions and data sources used to estimate the costs
resulting from this provision.
ii. Housing
The Department proposes to authorize the SWAs (or other appropriate
authorities) to inspect and issue an employer-provided housing
certification valid for up to 24 months. Under the proposal, an
employer must self-certify that the employer-provided housing remains
in compliance for a subsequent Application for Temporary Employment
Certification filed during the validity
[[Page 36234]]
period of the official housing certification.
To calculate the estimated recordkeeping costs associated with
maintaining records of these certifications, the Department first
multiplied the number of certified H-2A employers (7,023 employers) by
the 4 percent annual growth rate of ceritifed H-2A employers to
determine the annual impacted population of H-2A employers. The
impacted number was then multiplied by the assumed percentage of
employers per year that will self-certify each year (100 percent). This
amount was then multiplied by the estimated time required to maintain
this information (2 minutes) to calculate the total amount of
recordkeeping time required. This total time was then multiplied by the
hourly compensation rate for Human Resources Specialists ($63.68 per
hour). This yields an annual cost ranging from $15,557 in 2020 to
$22,839 in 2029. This assumes that the SWAs will exercise their right
to certify housing for more than 1 year. Some SWAs do not issue housing
certifications valid for more than 1 year as a rule; others do not on a
case-by-case basis. It would be accurate to say that employers would be
assumed to self-certify 100 percent whenever the SWA's certification
permitted it. The Department invites comments regarding the assumptions
and data sources used to estimate the costs resulting from this
provision.
iii. Abandonment of Employment or Termination for Cause
The Department proposes to revise Sec. 655.122(n) to require an
employer to maintain records of notification detailed in the same
section for not less than 3 years from the date of the certification.
An employer is relieved from the requirements relating to return
transportation and subsistence costs and three-fourth guarantee when
the employer notifies the NPC (and the DHS in case of an H-2A worker),
in a timely manner, if a worker voluntarily abandons employment before
the end of the contract period or is terminated for cause.
Additionally, the employer is not required to contact its former U.S.
workers, who abandoned employment or were terminated for cause, to
solicit their return to the job.
To estimate the recordkeeping costs associated with maintaining
records of these notifications, the Department first multiplied the
number of certified H-2A employers (7,023) by the 4 percent annual
growth rate of ceritifed H-2A employers to determine the annual
impacted population of H-2A employers. The impacted number was then
multiplied by the assumed percentage of employers per year that will
have 1 or more workers abandon employment or be terminated for cause
(70 percent). This amount was then multiplied by the estimated time
required to maintain these records (2 minutes) to estimate the total
amount of recordkeeping time required. This total time was then
multiplied by the hourly compensation rate for Human Resources
Specialists ($63.68 per hour). This yields an annual cost ranging from
$10,890 in 2020 to 15,988 in 2029. The Department invites comments
regarding the assumptions and data sources used to estimate the costs
resulting from this provision.
iv. Total Recordkeeping Costs
The total cost from the proposed recordkeeping requirements over
the 10-year period is estimated at $0.51 million undiscounted, or $0.45
million and $0.38 million at discount rates of 3 and 7 percent,
respectively. The annualized cost of the 10-year period is $0.052
million and $0.054 million at discount rates of 3 and 7 percent,
respectively.
d. Reforestation Applications
The proposed rule mandates all forestry employers reclassified as
H-2A employers must now submit an application per each crew, rather
than one application for multiple crews. The Department estimates that
this will increase the number of applications required from each
forestry employer by two. The change impacts the average of 75.5
forestry employers.\141\ The Department applied the growth rate of H-2A
certified employers (4 percent) to determine the annual number of
forestry employers impacted. The annual number of forestry employers
was then multiplied by the increase in applications (2) to determine
the annual number of increased applications. To estimate the costs to
forestry employers, the Department multiplied the annual number of
applications by the cost per application ($460).\142\ The Department
also multiplied the annual number of applications by the number of
hours it takes for a Human Resources Specialist to file the application
(1), the Human Resources Specialist's compensation rate ($31.84 per
hour), and the sum of the loaded wage factor and overhead cost for the
private sector (2.00). To determine the cost to DOL staff to review
increased applications, the annual number of applications was mutlipled
by the amount of time spent reviewing an application (1 hour), the
hourly wage for DOL staff ($44.02), and the sum of the loaded wage
factor and overhead cost for the federal government (2.00). Costs to
employers and DOL were then summed. This calculation yields an average
annual undiscounted cost of $117,676.
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\141\ Average annual number of unique certified forestry
employers for FY16-17 from H-2B dataset.
\142\ Cost per USDA, see https://www.farmers.gov/manage/h2a.
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The total cost from the proposed increase in forestry applications
over the 10-year period is estimated at $1.18 million undiscounted, or
$1,023,229 and $863,624 at discount rates of 3 and 7 percent,
respectively. The annualized cost of the 10-year period is $119,954 and
$122,961 at discount rates of 3 and 7 percent, respectively.
Non-Quantifiable Costs and Transfers
a. Definition of Agriculture
If finalized as proposed, the proposed rule would expand the
regulatory definition of agriculture labor or services pursuant to 8
U.S.C. 1011(a)(15)(H)(ii)(1) to include reforestation and pine straw
activities. Consequently, nonimmigrant workers engaged in reforestation
and pine straw activities, who historically have been and are currently
admitted under the H-2B visa program, will be included in the H-2A
program.
As described earlier, the Department believes that such transfer
would not impose significant burdens for the employers. Protections
that currently apply to H-2A workers are generally comparable to the
protections afforded to H-2B workers engaged in reforestation and pine
straw activities.\143\ Additionally, work in both the reforestation and
pine straw industries, as defined in the proposed rule, often meets the
definition of agricultural employment under the MSPA.\144\ In the
Department's experience in the administration and enforcement of the H-
2B visa program, the pine straw industry is not an active user of the
H-2B program, as workers engaged in pine straw activities are
frequently local seasonal agricultural workers. Consequently, the
proposed rule would not have significant effects in that industry.
Based on OFLC performance data from FY 2016 and FY 2017, 3,990
represents the average amount of reforestation and pinestraw workers
that receive H-2B visas per year. The growth rates were applied to
[[Page 36235]]
project their numbers over the course of the 10-year analysis
timeframe.
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\143\ See 80 FR 24041.
\144\ See Morante-Navarro v. T & Y Pine Straw, Inc., 350 F.3d
1163, 1170-72 (11th Cir. 2003); Bresgal v. Brock, 843 F.2d 1163,
1171-72 (9th Cir. 1987); Davis Forestry Corp. v. Smith, 707 F.2d
1325, 1328 n.3 (11th Cir. 1983).
---------------------------------------------------------------------------
The Department believes that there are three potential transfer
payments from employers to workers--transfers that result from
potential expenses workers would no longer need to bear--under the
proposed expanded definition of agricultural labor or services. First,
under the H-2A program, an employer must provide housing at no cost to
all H-2A workers. The employer must also provide housing at no cost to
those non-H-2A workers in corresponding employment who are not
reasonably able to return to their residence within the same day.\145\
Additionally, H-2A employer-provided housing must be inspected and
certified, and rental and/or public accommodations must meet certain
local, state, or federal standards.\146\ Under the H-2B program,
however, an employer is not generally required to pay for housing
unless the housing is primarily for the benefit or convenience of the
employer. For example, an H-2B employer is required to provide housing
to itinerant workers engaged in reforestation activities at no cost to
the workers due to the transient nature of the occupation.\147\ In the
Department's experience in the administration and enforcement of the H-
2B program, itinerant workers engaged in reforestation activities are
more likely to be provided with public accommodations.
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\145\ See 8 U.S.C. 1188(c)(4); 20 CFR 655.122(d)(1).
\146\ Id.
\147\ See 80 FR at 24063.
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The Department believes workers engaged in pine straw activities
for H-2B employers tend to be local workers, and typically need not be
provided with housing because they stay in their own homes. But, under
the MSPA, if an employer provides housing to workers, the employer may
charge the cost for housing to the workers, if properly disclosed.\148\
Consequently, the Department believes that the H-2A requirement at
Sec. 655.122(d)(1) would result in transfer payments from employers to
nonimmigrant workers engaged in the pine straw activities, due to a
shift in the cost of such housing.
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\148\ 29 CFR 500.75-500.76 require an employer to disclose to
each worker in writing any benefits, including transportation and
housing, and any costs to be charged for each of them. Additionally,
29 CFR 500.130 requires that a facility or real property used as
housing for any migrant agricultural worker must comply with state
and federal safety and health standards applicable to such housing.
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Second, the Department's H-2A regulation at Sec. 655.122(h)(3)
requires an employer to provide transportation for workers between
employer-provided housing and the employer's worksite at no cost to the
workers. Additionally, the employer is required to provide
transportation between the employer's worksites, if there is more than
one worksite, at no cost to the workers. Providing such transportation
is generally not a requirement under the H-2B program. However, H-2B
employers of itinerant workers, many of whom work in the reforestation
industry, must provide such transportation because of the transient
nature of these itinerant workers.\149\ Consequently, the Department
believes that the H-2A requirement at Sec. 655.122(h)(3) would impact
only employers in the pine straw industry that are currently charging
their workers for the cost of transportation, since employers would pay
for such transportation under this rule.\150\
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\149\ See 80 FR 24041 at 24063.
\150\ 29 CFR 500.75-500.76 require an employer to disclose to
each worker in writing any benefits, including transportation and
housing, and any costs to be charged for each of them.
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Finally, the Department's H-2A regulation at Sec. 655.122(g)
requires an employer to provide each worker with three meals a day or
furnish free and convenient cooking and kitchen facilities so that the
workers can prepare their own meals. Where an employer provides the
meals, the job offer must state the charge, if any, to the worker for
such meals; the employer may deduct any disclosed allowable meal
charges from the worker's pay.\151\ In contrast, the employer may not
pass on to the worker any additional costs that the employer incurs for
the provision of meals that exceed the allowable meal charge, unless a
petition for higher meal charge was submitted and granted.\152\ There
is no similar meal requirement under the H-2B program. Consequently,
the Department believes that the H-2A requirement at Sec. 655.122(g)
would lead to transfer payments from employers to nonimmigrant workers
engaged in the reforestation and pine straw activities under
circumstances in which the employer spends more than the maximum
allowable meal charge to provide three meals a day.
---------------------------------------------------------------------------
\151\ See 20 CFR 655.173(a).
\152\ See 20 CFR 655.173(b).
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The Department is unable to quantify the estimated transfers
described in this section due to a lack of data regarding the amount,
if any, charged to nonimmigrant workers by employers for housing,
transportation, and meals, and wide variations nationally in the costs
associated with providing housing, transportation, and meals. The
Department also proposes to codify existing mobile housing standards
for workers engaged in animal shearing and custom combining
occupations, with some modifications. The proposed modifications
include removing the authority for an animal sheering contractor to
lease a mobile unit owned by a crew member or other person or make some
other type of ``allowance'' to the owner. The proposed standards would
also limit the circumstances under which an employer's mobile housing
unit can comply with range housing standards, rather than the mobile
housing or standard housing regulations, to those periods when the work
is performed on the range. The proposed standards would provide
flexibility for employers to use existing mobile housing units that may
not fully comply with the modified standards at all times by allowing
the employer to supplement mobile units with required facilities (e.g.,
access to showers at a fixed-site such as an RV park) in order to
comply fully with all proposed requirements. The Department is unable
to quantify the costs of these modifications because it lacks data on
the number of animal shearing employers that currently lease a mobile
unit or make some other ``allowance'' under the current TEGLs, the
number of employers who will supplement existing mobile units with
additional facilities and to what extent, as well as on the amount of
time that workers engaged in these occupations spend on the range.
Consequently, the Department invites comment on this analysis,
including any relevant data or information that might allow for a
quantitative analysis of possible transfer effects described in this
section.
b. Housing
If adopted without change, the proposed rule includes potential
costs to H-2A employers that elect to secure rental and/or public
accommodations for workers to meet their H-2A housing obligations.
Specifically, the proposal requires that, in the absence of applicable
local standards addressing those health or safety concerns otherwise
addressed by the OSHA temporary labor camp standards at 29 CFR
1910.142(b)(2) (``each room used for sleeping purposes shall contain at
least 50 square feet for each occupant''), Sec. 1910.142(b)(3) (``beds
. . . shall be provided in every room used for sleeping purposes'');
Sec. 1910.142(b)(9) (``In a room where workers cook, live, and sleep a
minimum of 100 square feet per person shall be provided. Sanitary
facilities shall be provided for storing and preparing food.''); Sec.
1910.142(b)(11) (heating, cooking, and water heating equipment
installed properly); Sec. 1910.142(c) (water supply);
[[Page 36236]]
Sec. 1910.142(f) (laundry, handwashing, and bathing facilities); and
Sec. 1910.142(j) (insect and rodent control), the relevant state
standards will apply; in the absence of applicable state standards
addressing such concerns, the relevant OSHA temporary labor camp
standards will apply. Employers that currently provide rental and/or
public accommodations that do not meet such standards will be required
to provide different or additional accommodations. For example,
employers that currently require workers to share beds will be required
to provide each worker with a separate bed. To comply with the
proposal, such employers may be required to book additional rooms or
provide different housing.
The Department is unable to quantify an estimated cost due to a
lack of data as to the number of employers that would be required to
change current practices under this proposal. Consequently, the
Department invites comment on this analysis, including any relevant
data or information that might allow for a quantitative analysis of
possible costs in the final rule.
c. Requirement To File Electronically
Currently, about six percent of employers choose not to file
electronically. Under the proposed rule, these employers would have two
options--to file electronically or to file a request for accommodation
because they are unable or limited in their ability to use or access
electronic forms as result of a disability or lack of access to e-
filing. The Department has not estimated costs for employers' time and
travel to file electronically when they otherwise would not have. The
Department believes these costs will be small.
The Department also has not estimated any costs for accommodation
requests. The Department expects to receive very few mailed-in
accommodation requests. In its H-1B program, which has mandatory e-
filing--albeit from a very different set of industry--the Department
has not received any requests for accommodation due to a disability. Of
the handful of internet access requests received annually, none were
approved, as the requestors had public access nearby. For those
requesting an accommodation in H-2A, the Department estimates that the
cost to apply would be de minimis, consisting of the time and cost of a
letter and printing out forms.
Cost Savings
The following sections describe the cost savings of the proposed
rule.
Quantifiable Cost Savings
a. Electronic Processing and Process Streamlining
The Department proposes to modernize and clarify the procedures by
which an employer files a job order and an Application for Temporary
Employment Certification for H-2A workers under Sec. Sec. 655.121 and
655.130 through 655.132. The NPC will electronically share job orders
with SWAs, which will result in both a material cost and a time cost
savings for employers.
To ensure the most efficient processing of all applications, the
Department must receive a complete application for review. Based on the
Department's experience administering the H-2A program under the
current rule, a common reason for issuing a NOD on an employer's
application includes failure to complete all required fields on a form,
failure to submit one or more supporting documents required by the
regulation at the time of filing, or both. These incomplete
applications create unnecessary processing delays for both the NPC and
employers. In order to address this concern, the Department proposes to
require an employer to submit the Application for Temporary Employment
Certification and all required supporting documentation using an
electronic method(s) designated by the OFLC Administrator, unless the
employer cannot file electronically due to disability or lack of
internet access. The technology system used by the OFLC will not permit
an employer to submit an application until the employer completes all
required fields on the forms and uploads and saves to the pending
application an electronic copy of all required documentation, including
a copy of the job order submitted in accordance with Sec. 655.121. The
Department estimates that 80 percent of applications are currently
filed electronically and that this proposed rule would significantly
increase the number of employers who submit electronic applications.
This would result in material and time cost savings for employers.
Electronic processing would also result in a time cost savings for the
NPC. The Department also proposes that employers may file only one
Application for Temporary Employment Certification for place(s) of
employment contained within a single area of intended employment
covering the same occupation or comparable work by an employer for each
period of employment, which will reduce the number of overall
applications submitted. Finally, the Department proposes to the use of
electronic signatures as a valid form of the employer's original
signature and, if applicable, the original signature of the employer's
authorized attorney or agent.
To estimate the material cost savings to employers due to
electronic processing, the Department assumed that the proposed rule
would result in 6 percent of H-2A employers switching to electronic
processing of applications. Initially the Department reduced the number
of H-2A applications processed (9,391) by the number of applications
made unnecessary by the staggering rule (8,444) to determine an
impacted population of H-2A applications (947). The growth rate of H-2A
applications (14 percent) was then applied to determine the annual
impacted number of applications. The Department then multiplied the
percentage estimated to switch to electronic processing of applications
(6 percent) by the annual number of impacted H-2A applications to
obtain the number of employers who would no longer be submitting by
mail. For each application, a material cost was calculated by summing
the price of a stamp ($0.50), the price of an envelope ($0.04), and the
total cost of paper. The total cost of paper was calculated by
multiplying the cost of a sheet of paper ($0.02) by the number of pages
in the application (100 pages). The per-application costs were then
multiplied by the number of applications who would no longer be
submitting by mail. This yields average annual undiscounted cost
savings of $304.62.
The total material cost savings from electronic processing over the
10-year period is estimated at $43,046 undiscounted, or $24,596 and
$20,135 at discount rates of 3 and 7 percent, respectively. The
annualized cost savings over the 10-year period is $304.36 and $303.91
at discount rates of 3 and 7 percent, respectively.
To estimate the time cost savings to employers due to electronic
processing, the Department again estimated the number of affected
applications by multiplying the assumed percentage of employers that
would switch to electronic applications (6 percent) by the total number
of annually impacted H-2A applications. The Department assumed that the
time savings due to electronic submission (rather than sealing and
mailing an envelope) would be 5 minutes. The time cost savings were
calculated by multiplying 5 minutes (0.083 hours) by the hourly
compensation rate for Human Resources Specialists ($63.68 per hour).
This time cost savings was then multiplied by the estimated number of
applications expected to switch to electronic
[[Page 36237]]
submission. This yields average annual undiscounted cost savings of
$633.87.
The total time cost savings from electronic processing over the 10-
year period is estimated at $6,339 undiscounted, or $5,403 and $4,442
at discount rates of 3 and 7 percent, respectively. The annualized cost
savings over the 10-year period is $633.34 and $632.39 at discount
rates of 3 and 7 percent, respectively.
To estimate the material cost savings to employers due to the NPC
sharing job orders with the SWAs electronically, the Department assumed
that 100 percent of unique H-2A applicants would be affected. For each
annually impacted H-2A application, a material cost was calculated by
summing the price of a stamp ($0.50), the price of an envelope ($0.04),
and the total cost of paper. The total cost of paper was calculated by
multiplying the cost of a sheet of paper ($0.02) by the number of pages
in the application (100 pages). The per-application costs were then
multiplied by the number of applications who would no longer be
submitting by mail. This yields average annual undiscounted cost
savings of $5,163.
The total material cost savings over the 10-year period is
estimated at $51,630 undiscounted, or $44,004 and $36,178 at discount
rates of 3 and 7 percent, respectively. The annualized cost savings
over the 10-year period is $5,159 and $5,151 at discount rates of 3 and
7 percent, respectively.
To estimate the time cost savings to employers resulting from the
NPC electronically sharing job orders with the SWAs, the Department
again assumed that 100 percent of unique H-2A applicants would be
affected. For each annually impacted H-2A application, the Department
assumed that the time savings due to electronic submission (rather than
sealing and mailing an envelope) would be 5 minutes. The time cost
savings were calculated by multiplying 5 minutes in hours (0.083 hours)
by the hourly compensation rate for Human Resources Specialists ($63.68
per hour). This cost savings was then multiplied by the estimated
number of applications switching to electronic submission. This yields
average annual undiscounted cost savings of $10,744.
The total time cost savings over the 10-year period is estimated at
$107,436 undiscounted, or $91,568 and $75,283 at discount rates of 3
and 7 percent, respectively. The annualized cost savings over the 10-
year period is $10,735 and $10,719 at discount rates of 3 and 7
percent, respectively.
The Department assumes that the DOL staff will save approximately 1
hour for each application that is now submitted electronically. To
calculate the time cost savings to the Federal Government due to
electronic processing, the Department first calculated the number of
employers that would now submit electronically by multiplying the
assumed percentage (6percent) by the total number of annually impacted
H-2A applications. This cost savings was then multiplied by the per-
application time cost savings, calculated by multiplying the time
savings (1 hour) by the hourly compensation rate for DOL staff ($88.04
per hour). This yields average annual undiscounted cost savings of
$10,558.
The total time cost savings over the 10-year period is estimated at
$105,585 undiscounted, or $89,990 and $73,985 at discount rates of 3
and 7 percent, respectively. The annualized cost savings over the 10-
year period is $10,550 and $10,554 at discount rates of 3 and 7
percent, respectively. The Department invites comments regarding the
assumptions and data sources used to estimate the cost savings
resulting from this provision.
b. Staggering Worker Entry
The Department proposes to permit the staggered entry of H-2A
workers into the United States. This proposal permits an employer that
receives a temporary agricultural labor certification and an approved
H-2A Petition to bring nonimmigrant workers into the United States at
any time during the 120-day period after the first date of need
identified on the certified Application for Temporary Employment
Certification without filing another H-2A Petition. An employer that
chooses to stagger the entry of its workers must notify the NPC
electronically, or by mail if permitted to do so, of its intent to
stagger and identify the period of time, up to 120 days, during which
the staggering will take place. An agricultural association filing as a
joint employer with its members need only make a single request on
behalf of its members duly named on the application and provide the NPC
with the maximum staggered entry timeframe.
Employers that wish to stagger the entry of their workers must
continue to accept referrals of U.S. workers and hire those who are
qualified and eligible through the period of staggering or the first 30
days after the first date of need identified on the certified
Application for Temporary Employment Certification, whichever is
longer. Employers must also comply with the requirement to update their
recruitment reports.
The Department expects the above proposal will result in cost
savings to the employer. This is because currently, an employer that
needs agricultural workers at different points of a season must file
separate Applications for Temporary Employment Certification containing
a new start date for each group of job opportunities. In addition, an
agricultural association filing as a joint employer with a number of
its employer-members must currently coordinate the amount and timing of
labor needed across numerous employer-members growing a wide array of
different crops under the same start date of work. The same
agricultural association must then file numerous master applications,
often one every calendar month, covering substantially the same
employer-members that need workers to perform work in the same
occupational classification based on a different start date of work.
Because the proposal will reduce the number of Applications for
Temporary Employment Certification an employer that wishes to stagger
must file and decrease the time and expense of coordinating master
applications for agricultural associations, the Department expects this
proposed change to produce cost savings for the employer. Some of these
cost savings may be offset by the time and expense it will take for the
employer to notify the NPC of its intent to stagger, but the Department
expects this cost to be minimal and the overall impact of its proposal
to be one of cost savings.
To estimate employer time cost savings associated with the
staggered entry of workers into the United States, the Department first
calculated the total number of employers eligible for staggering
(4,926) and applied the annual growth rate of H-2A applications
certified (14 percent) and the total number of certifications for the
same SOC, state, and employer (13,370) and applied the H-2A certified
employer growth rate (4 percent). The Department subtracts the number
of eligible employers from the total number of duplicate certifications
to estimate the total number of repeat applications annually that would
no longer be necessary under the proposed rule (8,444). This number was
then multiplied by the assumed net time savings (1.77 hours) and the
total loaded wage rate for employers ($63.68). This yields average
annual undiscounted cost savings of $726,493.
The total time cost savings to employers due over the 10-year
period is estimated at $7.26 million undiscounted, or $6.52 million and
$5.73 million at discount rates of 3 and
[[Page 36238]]
7 percent, respectively. The annualized cost savings over the 10-year
period is $764,689 and $815,570 at discount rates of 3 and 7 percent,
respectively. The Department invites comments regarding the assumptions
and data sources used to estimate the cost savings resulting from this
provision.
To estimate time cost savings to the Federal government associated
with the staggered entry of workers into the United States, the
Department multiplied the total number of annual repeat applications
that would no longer by necessary (8,444) by the assumed time to review
each repeat application (1 hour) and the loaded wage rate for Federal
employees ($88.04). This yields average annual undiscounted cost
savings of $567,460.
The total time cost savings to the Federal government over the 10-
year period is estimated at $5.67 million undiscounted, or $5.10
million and $4.47 million at discount rates of 3 and 7 percent,
respectively. The annualized cost savings over the 10-year period is
$597,295 and $637,038 at discount rates of 3 and 7 percent,
respectively. The Department invites comments regarding the assumptions
and data sources used to estimate the cost savings resulting from this
provision.
Non-Quantifiable Cost Savings
a. Cost Savings From Modernizing the H-2A Program To Provide Employers
With Timely Access to Legal Agricultural Labors
The Department proposes to institute changes to modernize the H-2A
program and eliminate inefficiencies, which will help ensure that
employers can access legal agricultural labor, without undue cost or
administrative burden, while maintaining the program's strong
protections for the U.S. workforce. Among other proposals to achieve
these goals, the Department proposes to (1) allow employers to start
work within a 14 calendar day period after the anticipated start date
of work and stagger the entry of H-2A workers to account for factors
such as travel delays and changing climatic conditions that impact farm
operations and costs; (2) facilitate employers--especially small
growers who are unable to individually offer full-time work--jointly
employing workers to perform the same services or labor during the same
period of employment; (3) streamline application processing by
providing employers who file compliant job orders with the option to
begin positive recruitment of U.S. workers prior to filing the H-2A
application; (4) increase the stability of any given employer's
workforce by replacing the current 50 percent rule with a requirement
to hire workers through 30 days of the contract period; and (5) expand
the H-2A program to employers performing ``reforestation activities''
and ``pine straw activities'' to reflect how their workers share many
of the same characteristics as traditional agricultural crews.
Through such changes, the rule would reduce costly workforce
instability that hinders the growth and productivity of our nation's
farms. The Department believes such changes will result in cost savings
from a more viable and productive workforce alternative. At the same
time, an H-2A program that is more functional and reliable as a whole
would also reduce costs associated with available but displaced U.S.
workers, or adverse effects to their wages and working conditions.
b. Cost Savings From Efficiencies Associated With Receiving More
Complete and Accurate Applications
The Department proposes to modernize the process by which H-2A
employers submit job orders to the SWAs and applications to the
Department through e-filing and requiring the designation of a valid
email address for sending and receiving official correspondence during
application processing, except where the employer is unable or limited
in its ability to use or access electronic forms as result of a
disability, or lacks access to e-filing.
The Department believes that transitioning to electronic
submissions would result in cost savings to employers and to the NPC.
Currently, submissions that are incomplete or obviously inaccurate upon
their receipt result in a NOD on the employer's application. As a
result, employers who submit incomplete applications must start the
submission process from the beginning. This can lead to costly delays
for employers, as well as costly processing time for the NPC.
The requirement for electronic submissions would reduce the number
of instances where incomplete applications are submitted because
employers have not fully completed the form prior to submitting it. E-
filing permits automatic notification that an application is incomplete
or obviously inaccurate and provides employers with an immediate
opportunity to correct the errors or upload missing documentation.
Additionally, the adoption of electronic submissions should reduce the
amount of time it takes to correct errors because entries can simply be
deleted, rather than requiring the production of new copies of the form
after an error is detected.
For the NPC, electronic filing and communications will improve the
quality of information collected from employers, reduce unnecessary
costs of communicating with employers to resolve obvious errors or
receive complete information, and reduce the frequency of delays
related to application processing.
c. Cost Savings From Efficiencies Created by Acceptance of Electronic
Signatures
The Department also proposes to enable employers, agents, and
attorneys to use electronic methods to sign or certify any document
required under this subpart using a valid electronic signature method.
The current practice of accepting electronic (scanned) copies of
original signatures on documents has generated efficiencies in the
application process, and the Department believes leveraging modern
technologies to accept electronic signature methods can achieve even
greater efficiencies and result in cost savings to employers and the
NPC.
Accepting electronic signature methods as a means of complying with
original signature requirements for the H-2A program will reduce the
costs for employers associated with printing, mailing, or delivering
original signed paper documents or scanned copies of original
signatures on documents to the NPC. Additionally, electronic signature
methods provide employers and their authorized attorneys or agents with
greater flexibility to conduct business with the Department--at any
time and at any location with an internet connection--rather than
needing to be located in a physical office. This frees valuable time
for conducting other business tasks.
The NPC anticipates additional cost savings from use of electronic
signature methods. The acceptance of documents containing electronic
signatures will facilitate the NPC's use of a more centralized document
storage capability to more efficiently access documents during
application processing, saving time and expense.
d. Cost Savings From Efficiencies Created by the Use of Electronic
Surety Bonds
The Department also proposes to develop a process for accepting
electronic surety bonds through the iCERT system and to require the use
of a standardized bond form. The Department believes that these
proposed changes will result in a cost savings to H-2ALCs and the NPC.
Currently all H-
[[Page 36239]]
2ALCs, even the majority that submit other components of their
applications electronically, have to submit original paper surety bonds
before the labor certifications can be issued. Accepting original
electronic surety bonds will reduce the costs associated with mailing
or delivering the original surety bonds to the NPC and the costs for
NPC to transfer these bonds to WHD for enforcement purposes.
Additionally, using a standardized bond form will reduce the likelihood
of errors and the amount of time required for the NPC to review the
bonds for compliance.
The Department seeks comments from the public regarding any
additional non-quantifiable cost savings that are not included in this
analysis.
Transfer Payments
Quantifiable Transfer Payments
This section discusses the quantifiable transfer payments related
to transportation and subsistence costs and the revisions to the wage
structure.
a. Transportation and Subsistence Costs
The Department proposes to revise the beginning and end points from
and to which an employer must provide or pay for transportation and
subsistence costs for certain H-2A workers. An employer must pay a
worker for the reasonable transportation and subsistence costs incurred
when traveling to the employer's place of employment, provided that the
worker completes at least 50 percent of the work contract period and
the employer has not previously advanced or otherwise provided such
transportation and subsistence. Specifically, an employer must provide
or pay for transportation and daily subsistence from ``the place from
which the worker has come to work for the employer.'' Under the
proposed rule, for an H-2A worker that requires a visa departing to
work for the employer from a location outside of the United States,
``the place from which the worker departed'' will mean the appropriate
U.S. Consulate or Embassy. This change will result in transfer payments
from workers to employers. The Department first calculated the transfer
payment for transportation and then calculated such transfer payment
for subsistence cost.
Transportation-related transfer payments were calculated by
multiplying the total number of certified H-2A workers (187,740
workers) by the growth rate of H-2A certified workers (19 percent) to
determine the annual number of certified workers. The annual number of
certified H-2A workers was then multiplied by the number of one-way
trips per worker (2 trips). This was then multiplied by the cost of a
one-way bus ticket ($59.00) between Oaxaca, Mexico and Monterrey,
Mexico. In the Department's enforcement experience, H-2A workers are
predominantly from Mexico. Additionally, in the Department's
experience, the majority of H-2A workers from Mexico arrive in
Monterrey, Mexico for visa processing prior to arriving at the
appropriate port of entry to seek admission to the United States. This
yields average annual undiscounted transfers of $65.38 million. The
total transfer over the 10-year period is estimated at $653.76 million
undiscounted, or $551.35 million and $446.92 million at discount rates
of 3 and 7 percent, respectively. The annualized transfer over the 10-
year period is $64.63 million and $78.50 million at discount rates of 3
and 7 percent, respectively.
Subsistence-related transfer payments were also calculated by
multiplying the total annual number of certified H-2A workers (187,740
workers) by the number of one-way trips per worker (2 trips). This
amount was then multiplied by the minimum daily subsistence amount for
workers traveling ($12.26),\153\ resulting in average annual
undiscounted transfers of $13.58 million. The total transfer over the
10-year period is estimated at $135.85 million undiscounted, or $114.57
million and $92.87 million at discount rates of 3 and 7 percent,
respectively. The annualized transfer over the 10-year period is $13.43
million and $16.31 million at discount rates of 3 and 7 percent,
respectively. The Department invites comments regarding the assumptions
and data sources used to estimate the transfers resulting from this
provision.
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\153\ Department of Labor, Employment and Training
Administration, Allowable Meal Charges and Reimbursements for Daily
Subsistence (Mar. 21, 2018), https://www.foreignlaborcert.doleta.gov/meal_travel_subsistence.cfm.
---------------------------------------------------------------------------
b. Revisions to Wage Structure
Section 218(a)(1) of the INA, 8 U.S.C. 1188(a)(1), provides that an
H-2A worker is admissible only if the Secretary of Labor determines
that ``there are not sufficient workers who are able, willing, and
qualified, and who will be available at the time and place needed, to
perform the labor or services involved in the petition, and the
employment of the alien in such labor or services will not adversely
affect the wages and working conditions of workers in the United States
similarly employed.'' In 20 CFR 655.120(a), the Department currently
meets this statutory requirement by requiring the employer to offer,
advertise in its recruitment, and pay a wage that is the highest of the
AEWR, the prevailing wage, the agreed-upon collective bargaining wage,
the Federal minimum wage, or the State minimum wage. The Department
proposes to maintain this general wage-setting structure with only
minor revisions, but, as discussed below, proposes to modify the
methodology by which it establishes the AEWRs and prevailing wages.
Specifically, the Department proposes to modify the AEWR
methodology so that it is based on data more specific to the
agricultural occupation of workers in the United States similarly
employed. The Department currently sets the AEWR at the annual average
hourly gross wage for field and livestock workers (combined) for the
State or region from the FLS conducted by the USDA's NASS, which
results in a single AEWR for all agricultural workers in a State or
region. As discussed in depth in the preamble, the Department is
concerned that the current AEWR methodology may have an adverse effect
on the wages of workers in higher paid agricultural occupations, such
as supervisors of farmworkers and construction laborers on farms, whose
wages may be inappropriately lowered by an AEWR established from the
wages of field and livestock workers (combined), an occupational
category from the FLS that does not include those workers. In addition,
the use of generalized data for other agricultural occupations could
produce a wage rate that is not sufficiently tailored to the
occupation, as necessary to protect against adverse effect for those
occupations.
The Department proposes to set the AEWR at the annual average
hourly gross wage for the State or region and particular SOC applicable
to the work performed from the USDA's FLS. The Department proposes to
use the FLS to establish the AEWR for the SOC, where such a wage is
available, rather than an alternative wage source, because the FLS is
the only comprehensive wage survey of wages paid by farmers and
ranchers. When FLS State or regional data is not available for the SOC,
however, the Department proposes to set the AEWR based on BLS's OES
average wage for the SOC and the State because the OES is a
comprehensive and valid source of wage data that can be useful when
USDA cannot produce valid FLS wage data for the agricultural occupation
and geographic area. Next, if OES State data is not available, the
Department would be set the AEWR based on FLS national data for the
SOC. Lastly, if all prior data sources do not
[[Page 36240]]
have an hourly wage available, then the AEWR would be determined by OES
National data.
The Department calculated the impact on wages that would occur from
the implementation of the proposed AEWR methodology. For each H-2A
Certification in 2016 and 2017, the Department used the difference
between the projected AEWR under the proposed rule and estimated wages
under the current AEWR baseline to establish the wage impact of the
proposed AEWR methodology.
For an illustrative example in Exhibit 5, to calculate projected
AEWRs under the proposed rule, the Department multiplied the number of
certified workers by the number of hours worked each week, the number
of weeks in a given year that the employees worked, and the annual
average hourly gross wage for the State or region and particular SOC
applicable to the work performed from the USDA FLS (FLS regional SOC
wage).\154\ This example sets forth how the Department calculated the
proposed wage impact for an individual case.
---------------------------------------------------------------------------
\154\ When the USDA survey did not produce an FLS regional SOC
wage, the Department utilized a wage determination hierarchy of OES
State data followed by FLS national SOC data, then OES national SOC
data in the event that the previously mentioned wage sources were
not available.
Exhibit 5--AEWR Wage Under the Proposed Rule
[Example case]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Basic number of Number of days Number of days FLS regional SOC FLS regional SOC Total AEWR wages Total AEWR wages
certified workers hours worked in 2016 worked in 2017 wage 2016 wage 2017 2016 2017
(a) (b) (c) (d) (e) (f) (a * b * (c/7) * (a * b * (d/7) *
e) f)
--------------------------------------------------------------------------------------------------------------------------------------------------------
14 35 306 1 $10.43 $10.44 $223,410.60 $730.80
--------------------------------------------------------------------------------------------------------------------------------------------------------
After the total AEWR for the proposed rule was determined, the wage
calculation under the current AEWR was calculated. The methodology is
similar to that used to estimate the projected AEWR under the proposed
rule: The number of workers certified is multiplied by the number of
hours worked each week, the number of weeks in a given year that the
employees worked, and the AEWR baseline for the year(s) in which the
work occurred (Exhibit 6 provides an example of the calculation of the
AEWR baseline for the same case as in Exhibit 5).
Exhibit 6--Current AEWR
(Example Case)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Basic number of Number of days Number of days AEWR (baseline) AEWR (baseline)
certified workers hours worked in 2016 worked in 2017 2016 2017 AEWR wages 2016 AEWR wages 2017
(a) (b) (c) (d) (e) (f) (a * b * (c/7) * (a * b * (d/7) *
e) f)
--------------------------------------------------------------------------------------------------------------------------------------------------------
14 35 306 1 $10.69 $10.38 $228,979.80 $726.60
.................. .................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Once the wage for the AEWR baseline was obtained, the Department
estimated the wage impact of the new proposed AEWR by subtracting the
baseline AEWR wage for 2016 from the proposed wage for 2016 to
determine the AEWR wage impact ($223,410.60-$228,979,80 = -$5,569.20).
This was repeated for 2017 ($730.80-$726.60 = $4.20). The Department
also applied the growth rate of certified H-2A workers (19 percent) to
determine the annual transfer.
Forestry and conservation workers (45-4011) previously classified
as H-2B workers were segregated in the analysis from all other H-2A
workers. For these workers, a proposed AEWR was determined using the
BLS' OES average wage by SOC and State, where available, or OES
national Data if a State wage was not available for the SOC because
there is no FLS State or regional data available for SOC 45-4011.
Unfortunately, no baseline data was available to compare the proposed
wages to for these forestry workers. Because of this, the Department
was unable to determine wage impacts of the proposed rule for forestry
workers, and they are not included in the total impact for FY 2016 or
2017.\155\
---------------------------------------------------------------------------
\155\ In FY 2016 and FY 2017 there were 12,638 forestry workers,
compared to 375,480 H-2A workers overall. While the Department
expects their wages to go up, the Department does not expect a
significant impact relative to the total overall impacts of the
proposed rule.
---------------------------------------------------------------------------
The Department determined the total impact of the proposed AEWR for
each year, excluding forest and conservation workers, by summing the
AEWR impacts for all certifications in each year and these totals were
then averaged to produce an annual estimate of the proposed AEWR
impacts.
The changes in AEWR rates constitute a transfer payment from
employers to employees. The Department estimates average annual
undiscounted transfers of $16.32 million. The total transfer over the
10-year period is estimated at $163.22 million undiscounted, or $137.65
million and $111.58 million at discount rates of 3 and 7 percent,
respectively. The annualized transfer over the 10-year period is $16.14
million and $19.60 million at discount rates of 3 and 7 percent,
respectively. The Department invites comments regarding the assumptions
and data sources used to estimate the transfers resulting from this
provision.
In addition to the proposed changes to the AEWR methodology
discussed above, the Department also proposes to modernize the
methodology currently set in sub-regulatory guidance for state-
conducted prevailing wage surveys. This proposal would likely result in
a transfer from employers to workers. The Department expects the
proposal to allow SWAs and other state agencies to conduct prevailing
wage surveys using standards that are realistic in a modern budget
environment would allow the
[[Page 36241]]
Department to establish a greater number of reliable and accurate
prevailing wage rates for workers and employers. However, under the
proposal, the Department would require an employer to pay a prevailing
wage rate only if a prevailing wage rate published by the OFLC
Administrator is the highest applicable wage. Because the Department
cannot estimate the extent of the increase in the number of prevailing
wage determinations that would be issued as the highest applicable wage
under the proposed methodology, the Department is not able to quantify
these transfer payments. The Department invites comments on the
economic impacts of these proposals.
Unquantifiable Transfer Payments
a. Revisions to Wage Structure
The increase (or decrease) in the wage rates for H-2A workers
represents an important transfer from agricultural employers to
corresponding U.S. workers, not just H-2A workers. The higher (or
lower) wages for H-2A workers associated with the proposed rule's
methodology for determining the monthly AEWR will also result in wage
changes to corresponding U.S. workers. However, the Department does not
have sufficient information about the number of corresponding U.S.
workers affected and their wage structure to reasonably measure the
wage transfer to corresponding U.S workers. The Department invites
comments regarding how this impact can be calculated.
Qualitative Benefits Discussion
a. Housing
In association with the [benefits/savings] outlined above, the
proposed rule has unquantifiable benefits as well. First, if finalized
as proposed, the proposed rule would authorize the SWAs (or other
appropriate authorities) to inspect and certify employer-provided
housing for a period of up to 24 months.\156\ The SWAs and other
appropriate authorities would thus be required to conduct fewer
inspections of H-2A employer-provided housing annually, permitting
these authorities to more efficiently allocate and prioritize
resources. Moreover, the proposal would result in more timely
certifications of employer-provided housing, reducing delays in the H-
2A labor certification process. The Federal Government, employers, and
workers alike would benefit from such reduction in delays.
---------------------------------------------------------------------------
\156\ As described above, 24-month certification would be
subject to appropriate criteria and prior notice to the Department
by the certifying authority.
---------------------------------------------------------------------------
The Department is unable to quantify these estimated benefits,
given the discretion afforded the SWAs (or other appropriate
authorities) under the proposed rule to determine the exact length of a
housing inspection certification. Consequently, the Department invites
comments on this analysis, including any relevant data or information
that might allow for a quantitative analysis of possible benefits in
the final rule resulting from the housing inspection proposals.
b. Thirty-Day Rule
The Department's analysis of recruitment report data indicate that
many U.S. workers hired pursuant to the 50 percent rule voluntarily
resigned or abandoned the job shortly after beginning work; therefore,
employers who choose to displace an H-2A worker when hiring a U.S.
worker may find themselves without enough workers to fulfill their
staffing needs. However, employers who choose to retain both the H-2A
worker and the U.S. worker to prevent potential disruption to work flow
must incur the expense of doing so.
The changes proposed in this NPRM would improve the process of
submitting and reviewing H-2A applications, which would directly
enhance WHD's enforcement capabilities. This would result in the
reduction of workforce instability that hinders the growth and
productivity of our nation's farms while allowing aggressive
enforcement against program fraud and abuse that undermine the
interests of U.S. workers.
c. Surety Bonds
The proposed changes to the surety bond requirement, including the
use of electronic surety bonds and a standardized bond form, will also
result in unquantifiable benefits to the H-2ALCs in the form of a more
streamlined application process with fewer delays. Accepting electronic
surety bonds will mean that the NPC receives the required original bond
with the rest of the application and it will no longer be necessary to
wait for the bond to arrival via mail or other delivery before issuing
the certification.
Further, these changes and the changes to the required bond amounts
will enhance WHD's enforcement capabilities by making it more certain
that there will be a sufficient, compliant bond available to redress
potential violations. This will advance the Department's goal of
aggressively enforcing against program fraud and abuse that undermine
the interests of U.S. workers.
4. Summary of the Analysis
Exhibit 4 summarizes the estimated total costs, cost savings, and
transfer payments of the proposed rule over the 10-year analysis
period. The transportation and daily subsistence has the largest effect
as a transfer cost.
Exhibit 4--Estimated 10-Year Monetized Costs, Cost Savings, Net Costs, and Transfer Payments of the Proposed
Rule by Provision
[2017 $millions]
----------------------------------------------------------------------------------------------------------------
Total cost
Provision Total cost savings Total transfer
----------------------------------------------------------------------------------------------------------------
Transportation and Daily Subsistence............................ .............. .............. $789.61
Proposed Wage Option............................................ .............. .............. 163.22
Surety Bond..................................................... $37.36 .............. ..............
Record Keeping.................................................. 0.51 .............. ..............
Rule Familiarization............................................ 1.05 .............. ..............
Reforestation Applications...................................... 1.18 .............. ..............
Electronic Processing and Process Streamlining Cost Savings..... .............. $0.27 ..............
Staggered Entry................................................. .............. 12.94 ..............
Undiscounted 10-Year Total...................................... 40.11 13.21 952.83
10-Year Total with a Discount Rate of 3%........................ 34.21 11.85 803.57
[[Page 36242]]
10-Year Total with a Discount Rate of 7%........................ 28.18 10.39 673.07
----------------------------------------------------------------------------------------------------------------
Exhibit 5 summarizes the estimated total costs, cost savings, and
transfer payments of the proposed rule over the 10-year analysis
period.
The Department estimates the annualized costs of the proposed rule
at $4.01 million, the annualized cost savings at $1.48 million, and the
annualized transfer payments (from H-2A employers to workers) at
$114.41 million, at a discount rate of 7 percent. For the purpose of
E.O. 13771, even though the annualized net quantifiable cost, when
perpetuated, is $3.24 million at a discount rate of 7 percent, the
Department expects that the total annualized cost-savings of this
proposed rule would outweigh the total annualized costs, resulting in a
net cost savings due to large non-quantifiable cost savings. The
Department seeks comment on this expectation.
The Department estimates the total net cost of the proposed rule at
$17.79 million at a discount rate of 7 percent.
Exhibit 5--Estimated Monetized Costs, Cost Savings, Net Costs, and Transfer Payments of the Proposed Rule
[2017 $millions]
----------------------------------------------------------------------------------------------------------------
Transfer
Costs Cost savings Net costs* payments
----------------------------------------------------------------------------------------------------------------
2020............................................ $2.94 $1.69 $1.25 $38.44
2021............................................ 2.18 1.66 0.51 45.77
2022............................................ 2.51 1.62 0.89 54.50
2023............................................ 2.89 1.56 1.33 64.88
2024............................................ 3.34 1.48 1.86 77.25
2025............................................ 3.85 1.37 2.48 91.98
2026............................................ 4.45 1.24 3.21 109.51
2027............................................ 5.14 1.08 4.06 130.39
2028............................................ 5.94 0.87 5.06 155.25
2029............................................ 6.87 0.63 6.24 184.84
Undiscounted 10-Year Total...................... 40.11 13.21 26.89 952.83
10-Year Total with a Discount Rate of 3%........ 34.21 11.85 22.36 803.57
10-Year Total with a Discount Rate of 7%........ 28.18 10.39 17.79 673.07
10-Year Average................................. 4.01 1.32 2.69 95.28
Annualized with a Discount Rate of 3%........... 4.01 1.39 2.62 94.20
Annualized with a Discount Rate of 7%........... 4.01 1.48 2.53 114.41
----------------------------------------------------------------------------------------------------------------
Perpetuated Net Costs with a Discount Rate of 7%................ $3.24
----------------------------------------------------------------------------------------------------------------
5. Regulatory Alternatives
The Department considered two alternatives to the proposal to
establish the AEWR at the annual average hourly gross wage for the
State or region and SOC from the FLS where USDA reports such a wage.
First, the Department considered using the current FLS occupational
classifications of field and livestock workers for each State or region
to set a separate AEWR for field workers and another AEWR for livestock
workers at the annual average hourly gross wage from the FLS for
workers covered by those classifications. Under this alternative, the
Department would use the OES average hourly wage for the SOC and State
if either: (1) The occupation covered by the job order is not included
in the current FLS occupational classifications of field or livestock
workers; \157\ or (2) workers within the occupations classifications of
field or livestock workers but in a region or State where USDA cannot
produce a wage for that classification, which is expected to occur only
in Alaska. Finally, under this alternative where both OES State data is
not available, and the work performed is not covered by the field or
livestock worker categories of the FLS, the Department would use the
OES national average hourly wage for the SOC.
---------------------------------------------------------------------------
\157\ Among the workers excluded from the field and livestock
worker categories of the FLS are workers in the following SOCs:
Farmers, Ranchers and Other Agricultural Managers (SOC 11-9013) and
First Line Supervisors of Farm Workers (SOC 45-1011), Forest and
Conservation Workers (SOC 45-4011), Logging Workers (SOC 45-4020),
and Construction Laborers (SOC 47-2061).
---------------------------------------------------------------------------
The total impact of the first regulatory alternative was calculated
in the same manner as the proposed wage. The Department estimated
average annual undiscounted transfers of $23.88 million. The total
transfer over the 10-year period was estimated at $238.76 million
undiscounted, or $201.36 million and $163.23 million at discount rates
of 3 and 7 percent, respectively. The annualized transfer over the 10-
year period was $23.61 million and $28.67 million at discount rates of
3 and 7 percent, respectively.
Under the second regulatory alternative considered by the
Department, the Department would set the AEWR using the OES average
hourly wage for the SOC and State. When OES State data is not
available, the Department would set the AEWR at the OES national
average hourly wage for the SOC under this alternative. The Department
again used the same method to calculate the total impact of the
proposed regulatory alternative. The
[[Page 36243]]
Department estimated average annual undiscounted transfers of $106.20
million. The total transfer over the 10-year period was estimated at
$1.06 billion undiscounted, or $895.61 million and $725.98 million at
discount rates of 3 and 7 percent, respectively. The annualized
transfer over the 10-year period was $104.99 million and $127.51
million at discount rates of 3 and 7 percent, respectively.
Exhibit 6 summarizes the estimated transfer payments associated
with the three considered revised wage structrues over the 10-year
analysis period. The Department prefers the proposed methodology, under
which the Department would establish the AEWR at the annual average
hourly gross wage for the State or region and SOC from the FLS where
the FLS produces such a wage, to the two regulatory alternatives for
the reasons discussed more fully in the preamble. Among those reasons,
the Department prefers the proposal to the first regulatory alternative
because the proposal provides data that is more specific to the
agricultural occupation and does not combine workers performing
dissimilar duties, as might be the case if the Department used the more
general categories of field and livestock workers from the FLS to
establish the AEWR. The Department prefers the proposal to the second
regulatory alternative because the Department generally finds the FLS
to be a superior wage source to the OES for establishing the AEWR where
both surveys produce an occupation-specific wage because only the FLS
directly surveys farmers and ranchers and the FLS is recognized by the
BLS as the authoritative source for data on agricultural wages.
Exhibit 6--Estimated Monetized Wage Structure Transfer Payments and Costs of the Proposed Rule, Undiscounted
[2017 $millions]
----------------------------------------------------------------------------------------------------------------
Regulatory Regulatory
Proposed rule alternative 1 alternative 2
----------------------------------------------------------------------------------------------------------------
Total 10-Year Transfer.......................................... $163.22 $238,76 $1,061.96
Total with 3% Discount.......................................... 137.65 201.36 895.61
Total with 7% Discount.......................................... 111.58 163.23 725.98
Annualized Undiscounted Transfer................................ 16.32 23.88 106.20
Annualized Transfer with 3% Discount............................ 16.14 26.61 105.00
Annualized Transfer with 7% Discount............................ 19.60 28.67 127.51
----------------------------------------------------------------------------------------------------------------
Costs for Regulatory Alternative 3
----------------------------------------------------------------------------------------------------------------
Total 10-Year Cost.............................................. $587.72
Total with 3% Discount.......................................... 498.51
Total with 7% Discount.......................................... 407.22
Annualized Undiscounted Cost.................................... 58.77
Annualized Cost with 3% Discount................................ 58.44
Annualized Cost with 7% Discount................................ 57.98
----------------------------------------------------------------------------------------------------------------
The Department also considered a third regulatory alternative
regarding required surety bond amounts that relied on the proposed
revisions to the wage structure. Under this regulatory alternative, the
revisions to the wage structure would be the same as the proposed rule
and would be used in the formula to calculate bond amounts. This
formula is the most specific to factors that affect the likely amount
of back wages owed, including crew size and duration of certification
and therefore produces the most variability in bond amounts. It was
calculated based on information already required on the job offer: The
number of H-2A workers (``Workers''), the applicable AEWR from the
proposed wage structure, the number of hours to be worked per week
(``Hours''), and the duration of the certification (``Weeks''). Each of
these variables were multiplied to get the bond amount required for
certification. The total cost to the employer was calculated by
multiplying the required bond amount by the assumed bond premium
(0.04). This formula is the simplest for the employer because the
values are readily accessible. Because the current bond amounts
increase based on crew size in a non-linear fashion, switching to this
formula will mean the certifications for certain crew sizes will be
affected differently, with certifications for 25 to 74 workers having
the biggest increases.
The Department used the OFLC certification data to calculate
required bond amounts under this alternative for all certified H-2A
employers for FYs 2016 and 2017. These amounts were then multiplied by
the assumed bond premium (0.04) and the growth rate of H-2A certified
labor contractors (16 percent), summed by year, and averaged to
generate an estimated undiscounted annual cost due to bond amount
increases of $58.77 million. The total cost from the alternative
required bond amounts over the 10-year period is estimated at $587.72
million undiscounted, or $498.51 million and $407.22 million at
discount rates of 3 and 7 percent, respectively. The annualized cost of
the 10-year period is $58.44 million and $57.98 million at discount
rates of 3 and 7 percent, respectively.
The Department prefers the proposed methodology for surety bonds
because the proposal is easier to understand and administer and is
likely to result in less variability in the bond amounts than the
regulatory alternatives.
A. Regulatory Flexibility Analysis and Small Business Regulatory
Enforcement Fairness Act and Executive Order 13272: Proper
Consideration of Small Entities in Agency Rulemaking
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121 (March 29, 1996), requires federal agencies
engaged in rulemaking to consider the impact of their proposals on
small entities, consider alternatives to minimize that impact, and
solicit public comment on their analyses. The RFA requires the
assessment of the impact of a regulation on a wide range of small
entities, including small businesses, not-for-profit organizations, and
small
[[Page 36244]]
governmental jurisdictions. Agencies must perform a review to determine
whether a proposed or final rule would have a significant economic
impact on a substantial number of small entities. 5 U.S.C. 603, 604. If
the determination is that it would, the agency must prepare a
regulatory flexibility analysis as described in the RFA. Id.
However, if an agency determines that a proposed or final rule is
not expected to have a significant economic impact on a substantial
number of small entities, the RFA provides that the head of the agency
may so certify and a regulatory flexibility analysis is not required.
See 5 U.S.C. 605. The certification must include a statement providing
the factual basis for this determination, and the reasoning should be
clear.
The Department believes that this proposed rule will not have a
significant economic impact on a substantial number of small entities.
Despite this, it is the Department's view that due to stakeholder
interest in this proposed rule an initial regulatory flexibility
analysis should be published to aid stakeholders in understanding the
small entity impacts of the proposed rule and to obtain additional
information on the small entity impacts. The Department invites
interested persons to submit comments on the following estimates,
including the number of small entities affected by the proposed rule,
the compliance cost estimates, and whether alternatives exist that will
reduce the burden on small entities while still remaining consistent
with the objectives of the proposed rule.
1. Why the Department Is Considering Action
The Department has concluded that efforts to protect workers and
enforce laws governing the administration of nonimmigrant visa programs
requires additional notice and comment rulemaking regarding the
certification of temporary employment of nonimmigrant workers through
the H-2A program, and the enforcement of the contractual obligations
applicable to employers of such nonimmigrant workers. The Department
also seeks to further the goals of E.O. 13788, Buy American and Hire
American, by rigorously enforcing applicable laws in order to create
higher wages and employment rates for workers in the U.S. and protect
their economic interests. As a result, the Department publishes this
NPRM developing standards related to mandatory electronic filing and
electronic signatures, revising the adverse effect wage rate and
prevailing wage methodologies, incorporating certain training and
employment guidance letters into the H-2A regulatory structure, and
expanding the definition of agriculture under the H-2A program, and
seeks public input on all aspects of the proposals presented here.
2. Objectives of and Legal Basis for the Proposed Rule
The Department is proposing to amend current regulations related to
the H-2A program in a manner that modernizes and eliminates
inefficiencies in the process by which employers obtain a temporary
agricultural labor certification for use in petitioning DHS to employ a
nonimmigrant worker in H-2A status. Sections 101(a)(15)(H)(ii)(a) and
218(a)(1) of the INA, 8 U.S.C. 1101(a)(15)(H)(ii)(a) and 1188(a)(1),
establish the H-2A nonimmigrant worker visa program which enables U.S.
agricultural employers to employ foreign workers to perform temporary
or seasonal agricultural labor or services where the Secretary of DOL
certifies (1) there are not sufficient U.S. workers who are able,
willing, and qualified, and who will be available at the time and place
needed to perform the labor or services involved in the petition; and
(2) the employment of the aliens in such labor or services will not
adversely affect the wages and working conditions of workers in the
United States similarly employed. The standard and procedures for the
certification and employment of workers under the H-2A program are
found in 20 CFR part 655 and 29 CFR part 501.
The Secretary has delegated his authority to issue temporary
agricultural labor certifications to the Assistant Secretary, ETA, who
in turn has delegated that authority to ETA's OFLC. Secretary's Order
06-2010 (Oct. 20, 2010). In addition, the Secretary has delegated to
WHD the responsibility under section 218(g)(2) of the INA, 8 U.S.C.
1188(g)(2), to assure employer compliance with the terms and conditions
of employment under the H-2A program. Secretary's Order 01-2014 (Dec.
19, 2014).
3. Estimating the Number of Small Businesses Affected by the Rulemaking
The Department collected employment and annual revenue data from
the business information provider InfoUSA and merged those data into
the H-2A disclosure data for FYs 2015, 2016, and 2017. Disclosure data
for 2015 was included for cases that have certified workers in both
2015 and 2016. This process allowed the Department to identify the
number and type of small entities in the H-2A disclosure data as well
as their annual revenues. The Department was able to obtain data
matches for 5,329 H-2A cases with work in 2016 and 2017, including
employers of reforestation workers that would be classified as H-2A
employers under the proposed rule.\158\ Next, the Department used the
SBA size standards to classify 4,320 of these employers (or 81.1
percent) as small.\159\ Labor contractors determined to be small
entities were removed from the RFA analysis because their revenue is
not related to the number of temporary H-2A workers certified. This
resulted in 3,600 small, certified cases. Because a single employer can
apply for temporary H-2A workers multiple times, unique employers had
to be identified. Additionally, duplicate cases that appeared multiple
times within the dataset were removed (i.e., the same employer applying
for the same number of workers in the same occupation, in the same
state, during the same work period). Based on employer name, city, and
state, the Department determined that there were 2,514 unique employers
with work in 2016 and 2017. These unique small employers had an average
of 12 employees and average annual revenue of approximately $3.54
million. Of these unique employers, 2,465 of them had revenue data
available from InfoUSA. The Department's analysis of the impact of this
proposed rule on small businesses is based on the number of small
unique employers (2,465 with revenue data).
---------------------------------------------------------------------------
\158\ Of the 2,514 small H-2A unique employers in 2016 and 2017,
20 entities are employers of reforestation and pinestraw workers
that are currently under the H-2B program and would be reclassified
under the H-2A program in this proposal.
\159\ Small Business Administration, Table of Small Business
Size Standards Matched to North American Industry Classification
System Codes. (Oct. 2017), https://www.naics.com/wp-content/uploads/2017/10/SBA_Size_Standards_Table.pdf.
---------------------------------------------------------------------------
To provide clarity on the agricultural industries impacted by this
regulation, exhibit 7 shows the number of unique H-2A small entity
employers \160\ with certifications in 2016 and 2017 within each NAICS
code at the 6-digit and 4-digit level.
---------------------------------------------------------------------------
\160\ This table is not inclusive of H-2B employers
reclassificed as H-2A employers. There are 18 unique small entity H-
2B employers in 2017.
[[Page 36245]]
Exhibit 7--Number of H-2A Small Employers by NAICS Code
----------------------------------------------------------------------------------------------------------------
2016 2017
----------------------------------------------------------------------------------------------------------------
Number of Number of
6-Digit NAICS Description employers Percent 6-Digit NAICS Description employers Percent
----------------------------------------------------------------------------------------------------------------
111421....... Nursery and Tree 134 12 111421....... Nursery and 136 11
Production. Tree
Production.
111998....... All Other 103 9 111998....... All Other 102 8
Miscellaneous Miscellaneous
Crop Farming. Crop Farming.
111219....... Other Vegetable 68 6 115113....... Crop 72 6
(except Potato) Harvesting,
and Melon Primarily by
Farming. Machine.
111331....... Crop Harvesting, 59 5 111331....... Apple Orchards. 65 5
Primarily by
Machine.
115113....... Apple Orchards.. 58 5 111219....... Other Vegetable 65 5
(except
Potato) and
Melon Farming.
112111....... Beef Cattle 42 4 112111....... Beef Cattle 41 3
Ranching and Ranching and
Farming. Farming.
111191....... Oilseed and 27 2 111191....... Oilseed and 32 3
Grain Grain
Combination Combination
Farming. Farming.
813910....... Business 25 2 111339....... Other Noncitrus 26 2
Associations. Fruit Farming.
111339....... Other Noncitrus 23 2 115112....... Soil 23 2
Fruit Farming. Preparation,
Planting, and
Cultivating.
115112....... Soil 18 2 111211....... Potato Farming. 19 2
Preparation,
Planting, and
Cultivating.
----------------------------------------------------------------------------------------------------------------
Other NAICS codes 573 51 Other NAICS codes 603 49
No NAICS code available 4 0.4 No NAICS code available 51 4
----------------------------------------------------------------------------------------------------------------
Number of Number of
4-Digit NAICS Description employers Percent 4-Digit NAICS Description employers Percent
----------------------------------------------------------------------------------------------------------------
1119......... Other Crop 385 34 1119......... Other Crop 408 33
Farming. Farming.
1114......... Greenhouse, 152 13 1114......... Greenhouse, 156 13
Nursery, and Nursery, and
Floriculture Floriculture
Production. Production.
1113......... Vegetable and 121 11 1113......... Fruit and Tree 149 12
Melon Farming. Nut Farming.
1112......... Fruit and Tree 121 11 1112......... Vegetable and 127 10
Nut Farming. Melon Farming.
1151......... Support 99 9 1151......... Support 110 9
Activities for Activities for
Crop Production. Crop
Production.
1111......... Oilseed and 68 6 1111......... Oilseed and 67 5
Grain Farming. Grain Farming.
1121......... Cattle Ranching 61 5 1121......... Cattle Ranching 55 4
and Farming. and Farming.
1129......... Other Animal 33 3 1129......... Other Animal 34 3
Production. Production.
1125......... Aquaculture..... 29 3 1125......... Aquaculture.... 24 2
8139......... Business, 25 2 3331......... Agriculture, 14 1
Professional, Construction,
Labor, and Mining
Political, and Machinery
Similar Manufacturing.
Organizations.
----------------------------------------------------------------------------------------------------------------
Other NAICS codes 36 3 Other NAICS codes 40 3
No NAICS code available 4 0 No NAICS code available 51 4
----------------------------------------------------------------------------------------------------------------
Exhibit 8 shows the number of H-2B small entity employers that
would be classified as H-2A employers under the proposed rule. These
employers are classified as support activities for forestry under the
4-digit NAICS code 1153.
Exhibit 8--Number of H-2B Small Employers by NAICS Code
----------------------------------------------------------------------------------------------------------------
2016 number 2017 number
NAICS code NAICS description of employers of employers Percent
----------------------------------------------------------------------------------------------------------------
115310........................... Support Activities for 2 18 100
Forestry.
1153............................. Support Activities for 2 18 100
Forestry.
----------------------------------------------------------------------------------------------------------------
4. Compliance Requirements of the Proposed Rule, Including Reporting
and Recordkeeping
The Department has estimated the incremental costs for small
businesses from the baseline (i.e., the 2010 Final Rule: Temporary
Agricultural Employment of H-2A Aliens in the United States; TEGL 17-
06, Change 1; TEGL 33-10, and TEGL 16-06, Change 1) to this proposed
rule. We estimated the costs of (a) new surety bond amounts required
for H-2A labor contractors based on the number of H-2A employees as
well as the proportional adjustment of surety bond rates on an annual
basis; (b) recordkeeping costs associated with maintaining records of
employee's home address in their respective home countries; (c)
recordkeeping costs incurred by the abandonment or dismissal with cause
of employees; (d) time to read and review the proposed rule; (e)
reforestation applications; and (f) wage costs (or cost-savings). The
cost estimates included in this analysis for the provisions of the
proposed rule are consistent with those presented in the E.O. 12866
section.
The Department identified the following provisions of the proposed
rule to have an impact on industry but was not able to quantify the
impacts due to data limitations: An expansion of the regulatory
definition of agriculture as to include reforestation and pine straw
workers; and housing requirements (securing rentals or public
accommodations for H-2A employees).
5. Calculating the Impact of the Proposed Rule on Small Business Firms
The Department estimates that small businesses not classified as H-
2ALCs, 2,514 unique employers,\161\ would incur a one-time cost of
$127.36 to familiarize themselves with the rule and an annual cost of
$5.67 associated with
[[Page 36246]]
recordkeeping requirements.\162\ While the Department estimates that
small businesses would also incur annual cost savings associated with
the electronic processing of applications, the Department ignores those
cost savings for purposes of the RFA analysis. In total, the Department
estimates that small businesses not classified as labor contractors
will incur a total first-year cost of $133.03 (= $127.36 + $5.67). The
Department uses the first-year cost estimate because it is the highest
cost incurred by businesses over the analysis timeframe. Additionally,
employers of reforestation and pine straw workers (currently under the
H-2B program) that would be classified as H-2A employers under the
proposed rule will incur H-2A labor certification filing fee costs, not
applicable under the H-2B program. The Department estimates this cost
to be $551.70 per employer, and is incurred annually. Therefore, for
reforestation and pine straw employers, the total first-year cost is
$684.73, and total second-year cost is $551.70.
---------------------------------------------------------------------------
\161\ The 2,514 unique small employers includes employers of
reforestation and pine straw workers that would be classified as H-
2A employers under the proposed rule, and excludes all labor
contractors.
\162\ $127.36 = 2 hrs x $63.68, where $63.68 = $31.84 + ($31.84
x 44%) + ($31.84 x 56%). These recordkeeping requirements include
the following: $2.12 to collect and maintain records of workers'
email address and phone number(s) home, $2.12 to maintain records
for the self-certification of housing, and $2.12 to maintain records
of notification to the NPC (and DHS) of employment abandonment or
termination for cause.
---------------------------------------------------------------------------
The proposed rule includes the provision pertaining to surety bonds
that applies to only H-2ALCs, so the Department estimates the impact on
those entities separately. See 20 CFR 655.132(c). To estimate the
impact of the proposed rule on these entities, the Department used the
SBA size standards to classify an average of 81 H-2ALCs as small
employers. These small entities had an average of 54 employees and
average annual revenues of approximately $12.09 million in FYs 2016 and
2017.
The Department estimates that the average small H-2A labor
contractor would incur a one-time cost of $127.36 to familiarize
themselves with the rule, annual costs of $5.67 associated with
recordkeeping requirements, and $255.14 associated with an increase in
the required surety bond amounts.\163\ While the Department estimates
that small businesses would also incur annual cost savings associated
with the electronic processing of applications, the Department ignores
those cost savings for purposes of the RFA analysis. In total, the
Department estimates that small businesses classified as H-2ALCs will
incur a total first-year cost of $388.17 (= $127.36 + $5.67 + $255.14).
---------------------------------------------------------------------------
\163\ $255.14 is the annual incremental cost per H-2ALC with
additional 50 to 75 workers.
---------------------------------------------------------------------------
In addition to the total first- and second-year costs above, each
small entity will have an increase (or decrease) in the wage costs (or
cost-savings) due to the revisions to the wage structure. For each
small business, the estimated wage cost (or cost-savings) was
calculated as the sum of the proposed total wage minus the total
baseline wage for each small business identified from the H-2A
disclosure data in FYs 2016 and 2017. This change in the wage costs was
added to the total first-year costs to measure the total impact of the
proposed rule on the small business.
The Department determined the proportion of each small entities'
total revenue that would be impacted by the costs of the proposed rule
to determine if the proposed rule would have a significant and
substantial impact on small business. The cost impacts included
estimated first year costs and the wage burden cost introduced by the
proposed rule. The Department used a total cost estimate of 3 percent
of revenue as the threshold for a significant individual impact and set
a total of 15 percent of small businesses incurring a significant
impact as the threshold for a substantial impact on small business.
A threshold of 3 percent of revenues has been used in prior
rulemakings for the definition of significant economic impact. See,
e.g., 79 FR 60634 (October 7, 2014, Establishing a Minimum Wage for
Contractors) and 81 FR 39108 (June 15, 2016, Discrimination on the
Basis of Sex). This threshold is also consistent with that sometimes
used by other agencies. See, e.g., 79 FR 27106 (May 12, 2014,
Department of Health and Human Services rule stating that under its
agency guidelines for conducting regulatory flexibility analyses,
actions that do not negatively affect costs or revenues by more than
three percent annually are not economically significant). The
Department also believes that its use of a 20 percent of affected small
business entities substantiality criterion is appropriate. The
Department has used a threshold of 15 percent of small entities in
prior rulemakings for the definition of substantial number of small
entities. See, e.g., 79 FR 60633 (October 7, 2014, Establishing a
Minimum Wage for Contractors).
Of the 2,514 unique small employers with work occurring in 2016 and
2017 and revenue data,\164\ 94.4 percent of employers had less than 3
percent of their total revenue impacted. Exhibit 9 provides a breakdown
of small employers by the proportion of revenue affected by the costs
of the proposed rule.
---------------------------------------------------------------------------
\164\ The 2,514 unique small employers includes employers of
reforestation workers that would be classified as H-2A employers
under the proposed rule, and excludes all labor contractors.
Exhibit 9--Cost Impacts as a Proportion of Total Revenue for Small Entities
----------------------------------------------------------------------------------------------------------------
2016 2016 2017 2017
Proportion of revenue impacted Employers Percentage Employers Percentage
----------------------------------------------------------------------------------------------------------------
<1%............................................. 2,182 89 2,182 89
1%-2%........................................... 101 4 101 4
2%-3%........................................... 43 2 42 2
3%-4%........................................... 27 1 31 1
4%-5%........................................... 14 1 27 1
>5%............................................. 98 4 82 3
----------------------------------------------------------------------------------------------------------------
[[Page 36247]]
6. Relevant Federal Rules Duplicating, Overlapping, or Conflicting With
the Proposed Rule
The Department is not aware of any relevant Federal rules that
conflict with this NPRM.
7. Alternative to the Proposed Rule
The RFA directs agencies to assess the impacts that various
regulatory alternatives would have on small entities and to consider
ways to minimize those impacts. Accordingly, the Department considered
two regulatory alternatives related to the third cost component:
Employers' recordkeeping for abandonment of employment or termination
for cause. See proposed 20 CFR 655.122(n) and 655.167(c)(7). Under the
first alternative, small businesses would not need to provide notice to
the NPC within two working days of each occurrence of abandonment of
employment or termination for cause during the certification period in
order to be relieved of certain H-2A obligations (i.e., return
transportation and subsistence costs for the worker; three-fourths
guarantee to the worker; and, for U.S. workers, contact in subsequent
seasons to solicit the worker's return to the job). Rather, these small
businesses could wait until the end of the certification period to
provide this notice; the employer could amass all such notifications
into one package to submit to the NPC at the end of the certification
period. This alternative differs from the Department's proposal related
to Sec. 655.122(n) by providing flexibility in the timing of the
notice to the NPC. This first alternative would slightly decrease the
burden of small businesses having to potentially prepare and submit
multiple notifications to NPC throughout the certification period.
The Department decided not to pursue this alternative for two
reasons. First, DHS regulations require employers to notify DHS within
two work days if an H-2A worker: Fails to report to work within 5
workdays of the employment start date; absconds from the worksite
(i.e., fails to report for work for a period of 5 consecutive workdays
without the consent of the employer; \165\) or is terminated prior to
the completion of agricultural labor or services for which he or she
was hired. Under this first regulatory alternative, small businesses
would need to submit the same notification to two different agencies at
two different reporting cycles, rather than on the same reporting
cycle. The employer would have to submit potentially multiple
notifications to DHS regarding H-2A workers, each within two work days
of a triggering event, while separately amassing all notifications
regarding both H-2A workers and U.S. workers in corresponding
employment for a single submission to ETA's NPC at a later date.
---------------------------------------------------------------------------
\165\ 8 CFR 214.2(h)(5)(vi)(E).
---------------------------------------------------------------------------
This bifurcation of the reporting cycle would not relieve employers
of a contemporaneous notification requirement for H-2A workers to one
agency (i.e., DHS) and could create confusion, which could negatively
impact employers' compliance with DHS notification requirements,
thereby undermining DHS' ability to identify of H-2A workers who had
been, but may no longer be in the United States legally, as discussed
above in the section-by-section analysis of this notification
requirement. Second, in its experience of administering and enforcing
the H-2A program, the Department has found that employers are better
able to prepare such notification contemporaneous to the triggering
event. Notification that does not occur contemporaneously is more
likely to be less detailed, possibly inaccurate and incomplete, as
employers' recollections and memories of specific circumstances for
abandonment of employment or termination for cause may diminish over a
period of time, even as short as a few weeks or months. The quality of
such notifications is important to the employer, not only the
Department. The notifications both support program integrity and serve
to relieve the employer of financial burdens, if they provide adequate
information. While potentially reducing burden for compliance with DOL
regulations, this first regulatory alternative would not be less
burdensome for small businesses because they still have to meet DHS
requirements for timely notification regarding abandonment of
employment or termination for cause for H-2A workers and could increase
confusion and overall burden by imposing disparate reporting cycles.
Under the second regulatory alternative related to the third cost
component, employers' recordkeeping for abandonment of employment or
termination for cause, the Department would not require employers to
submit to the NPC the notice described in Sec. 655.122(n) with regard
to U.S. workers who abandoned employment or were terminated for cause
within two working days of the triggering event. Rather, the employers
would only need to prepare and maintain records of these notices for
not less than 3 years from the date of the certification, as proposed
in Sec. 655.167(c)(7).
This alternative would reduce small businesses' cost and burden of
preparing and submitting this documentation to the NPC. The Department
decided not to pursue this alternative because the reduction of cost
and burden to small businesses is negligible, as it would not affect
such notifications for H-2A workers and would relieve the employer only
of notice submission to the Department, not preparation, for U.S.
workers in corresponding employment. As with the alternative discussed
above, bifurcating notice requirements into separate categories (i.e.,
notification prepared and submitted within two working days for H-2A
workers, but prepared and retained for U.S. workers in corresponding
employment) is ripe for confusion and allowing delayed notification
preparation may result in less detailed, accurate, and complete
notification documentation, to the employer's detriment. Further, the
negligible reduction of cost and burden is outweighed by the value of
affirmative, contemporaneous notification to maintaining program
integrity. Absent timely notification, the Department would only be
made aware of U.S. worker abandonment under limited circumstances
(e.g., an audit), not in all cases. This would limit the Department's
ability to identify patterns of U.S. worker abandonment, which could
suggest involuntary abandonment, as discussed in the section-by-section
analysis of proposed changes. The Department's ability to assure
program integrity would be greatly diminished in exchange for a
relatively minor reduction reporting requirements.
The Department invites public comment on these alternatives and
whether other alternatives exist that would reduce the burden on small
entities while still remaining consistent with the objectives of the
proposed rule.
B. Paperwork Reduction Act
In order to meet its statutory responsibilities under the INA, the
Department collects information necessary to render determinations on
requests for temporary agricultural labor certification, which allow
employers to bring foreign labor to the United States on a seasonal or
other temporary basis under the H-2A program. The Department uses the
collected information to determine if employers are meeting their
statutory and regulatory obligations. This information collection is
subject to the PRA, 44 U.S.C. 3501 et seq. A Federal agency
[[Page 36248]]
generally cannot conduct or sponsor a collection of information, and
the public is generally not required to respond to an information
collection, unless it is approved by OMB under the PRA and displays a
currently valid OMB Control Number. In addition, notwithstanding any
other provisions of law, no person shall generally be subject to
penalty for failing to comply with a collection of information that
does not display a valid Control Number. See 5 CFR 1320.5(a), 1320.6.
The Department obtained OMB approval for this information collection
under Control Number 1205-0466.
This information collection request (ICR), concerning OMB Control
No. 1205-0466, includes the collection of information related to the
Department's temporary agricultural labor certification determination
process in the H-2A program. The PRA helps ensure that requested data
is provided in the desired format, reporting burden (time and financial
resources) is minimized, collection instruments are clearly understood,
and the impact of collection requirements on respondents can be
properly assessed.
On October 25, 2018, the Department published a 60-day notice
announcing its proposed revisions to the collection of information
under OMB Control Number 1205-0466 in the Federal Register as part of
its ongoing effort to streamline information collection, clarify
statutory and regulatory requirements, and provide greater oversight in
the H-2A program. See 83 FR 53911. In accordance with the PRA, the
Department provided the public with a notice and the opportunity to
comment on proposed revisions to the application (Form ETA-9142A, H-2A
Application for Temporary Employment Certification; Form ETA-9142A,
Appendix A; and the general instructions to those forms); to the method
of issuing temporary agricultural labor certifications, from paper-
based issuance to a new one-page electronically-issued Form ETA-9142A,
H-2A Approval Final Determination: Temporary Labor Certification
Approval; and to the agricultural clearance order.\166\ The Department
instructed the public to submit written comments on those proposed
revisions following the instructions provided in that Federal Register
notice on or before December 24, 2018.
---------------------------------------------------------------------------
\166\ The proposed Form ETA-790/790A, H-2A Agricultural
Clearance Order, and addenda, provide language to employers to
disclose necessary information regarding the material terms and
conditions of the job opportunity. A copy of Form ETA-790/790A will
be integrated with the Form ETA-9142A for purposes of the
Department's temporary agricultural labor certification
determination; the CO will review the Form ETA-790/790A in
combination with Form ETA-9142A, when the employer submits Form ETA-
9142A to the NPC. This proposal will consolidate information
collected through the agricultural clearance order Form ETA-790,
which is currently authorized under OMB Control Number 1205-0134,
into the agency's primary H-2A information collection requirements
under OMB Control Number 1205-0466. This consolidation and revision
will align all data collection for the H-2A program under a single
OMB-approved ICR.
---------------------------------------------------------------------------
The Department now proposes additional revisions to this
information collection, covered under OMB Control No. 1205-0466, to
further revise the information collection tools, based on regulatory
changes proposed in this NPRM. The additional proposed revisions to
Forms ETA-9142A and appendices and Form ETA-790/790A and addenda will
align information collection requirements with the Department's
proposed regulatory framework and continue the ongoing efforts to
provide greater clarity to employers on regulatory requirements,
standardize and streamline information collection to reduce employer
time and burden preparing applications, and promote greater efficiency
and transparency in the review and issuance of labor certification
decisions under the H-2A visa program. For example, the Department
proposes a new Form ETA-9142A, Appendix B, H-2A Labor Contractor Surety
Bond, to facilitate satisfaction of this filing requirement for H-2A
Labor Contractor employers and a field for an employer to indicate it
conducted pre-filing recruitment under proposed Sec. 655.123. The
Department also proposes to implement a revised ETA-232, Domestic
Agricultural In-Season Wage Report, and eliminate the current ETA-232A,
Wage Survey Interview Record, for SWA use to modernize the survey
process and to reflect the prevailing wage survey methodology proposed
in this proposed rule at Sec. 655.120(c).\167\
---------------------------------------------------------------------------
\167\ This is a collection of information from SWAs, not
employers, that is separately authorized under OMB Control Number
1205-0017. The Department proposes to revise and consolidate the
collection under OMB Control Number 1205-0466. The SWAs will use the
new Form ETA-232, Domestic Agricultural In-Season Wage Report, to
report to OFLC the results of wage surveys in compliance with the
revised prevailing wage determination methodology in the proposed
rule, which OFLC will use to establish prevailing wage rates for the
H-2A program.
---------------------------------------------------------------------------
Overview of Information Collection Proposed by This NPRM
Title: H-2A Temporary Agricultural Employment Certification
Program.
Type of Review: Revision of a Currently Approved Information
Collection.
OMB Number: 1205-0466.
Affected Public: Individuals or Households, Private Sector--
businesses or other for-profits, Government, State, Local and Tribal
Governments.
Form(s): ETA-9142A, H-2A Application for Temporary Employment
Certification; ETA-9142A--Appendix A; ETA-9142A--Appendix B, H-2A Labor
Contractor Surety Bond; ETA-9142A--H-2A Approval Final Determination:
Temporary Agricultural Labor Certification; ETA-790/790A, H-2A
Agricultural Clearance Order; ETA-790/790A--Addendum A; ETA-790/790A--
Addendum B; ETA-790/790A--Addendum C; ETA-232, Domestic Agricultural
In-Season Wage Report.
Total Annual Respondents: 8,982.
Annual Frequency: On Occasion.
Total Annual Responses: 290,824.45.
Estimated Time per Response (averages):
--Forms ETA 9142A, Appendix A, Appendix B--3.68 hours per response.
--Forms ETA 790/790A/790B--.75 hours per response.
--Form ETA-232--3.30 hours per response.
--Administrative Appeals--18.48 hours per response.
Estimated Total Annual Burden Hours: 56,862.86.
Total Annual Burden Cost for Respondents: $0.
The Department invites comments on all aspects of the PRA analysis.
Comments that are related to a specific form or a specific form's
instructions should identify the form or form's instructions using the
form number, e.g., ETA-9142A or Form ETA-790/790A, and should identify
the particular area of the form for comment. A copy of the proposed
revised information collection tools can be obtained by contacting the
office listed below in the addresses section of this notice. Written
comments must be submitted on or before September 24, 2019.
The Department is particularly interested in comments that:
Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
evaluate the accuracy of the agency's estimate of the
burden of the proposed collection of information, including the
validity of the methodology and assumptions used, and the agency's
estimates associated with the annual burden cost incurred by
respondents and the government cost associated with this collection of
information;
[[Page 36249]]
enhance the quality, utility, and clarity of the
information to be collected; and
minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submissions of responses.
Comments submitted in response to this notice will be considered,
summarized and/or included in the ICR the Department will submit to OMB
for approval; they will also become a matter of public record.
Commenters are encouraged not to submit sensitive information (e.g.,
confidential business information or personally identifiable
information such as a social security number).
C. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of the UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in $100 million or more expenditure (adjusted annually
for inflation) in any 1 year by State, local, and tribal governments,
in the aggregate, or by the private sector. The value equivalent of
$100 million in 1995 adjusted for inflation to 2017 levels by the
Consumer Price Index for All Urban Consumer (CPI-U) is $161 million.
This NPRM, if finalized as proposed, does not exceed the $100
million expenditure in any 1 year when adjusted for inflation ($161
million in 2017 dollars), and this rulemaking does not contain such a
mandate. The requirements of Title II of the UMRA, therefore, do not
apply, and the Department has not prepared a statement under the UMRA.
D. Executive Order 13132: Federalism
This NPRM, if finalized as proposed, does not have federalism
implications because it does not have substantial direct effects on the
states, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Accordingly, E.O. 13132 requires no
further agency action or analysis.
E. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments
This NPRM, if finalized as proposed, does not have ``tribal
implications'' because it does not have substantial direct effects on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.
Accordingly, E.O. 13175 requires no further agency action or analysis.
Appendix A
Table 1--Hourly AEWRs by Region or State Under Current Regulation
------------------------------------------------------------------------
Region or state 2016 2017 2018
------------------------------------------------------------------------
Appalachian I................................ $10.72 $11.27 $11.46
Appalachian II............................... 10.85 10.92 11.19
California................................... 11.89 12.57 13.18
Cornbelt I................................... 12.07 13.01 12.93
Cornbelt II.................................. 12.17 13.12 13.42
Delta........................................ 10.69 10.38 10.73
Florida...................................... 10.70 11.12 11.29
Hawaii....................................... 12.64 13.14 14.37
Lake......................................... 12.02 12.75 13.06
Mountain I................................... 11.75 11.66 11.63
Mountain II.................................. 11.27 11.00 10.69
Mountain III................................. 11.20 10.95 10.46
Northeast I.................................. 11.74 12.38 12.83
Northeast II................................. 11.66 12.19 12.05
Northern Plains.............................. 13.80 13.79 13.64
Pacific...................................... 12.69 13.38 14.12
Southeast.................................... 10.59 10.62 10.95
Southern Plains.............................. 11.15 11.59 11.87
------------------------------------------------------------------------
Table 2--Average Hourly Statewide Wages and Their Sources Under the Proposed Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
2016 2017 2018
Region State SOC Title --------------------------------------------------------------------------------------------
Wage Source Wage Source Wage Source .
--------------------------------------------------------------------------------------------------------------------------------------------------------
Appalachian I....... NC 11-9013 Farmers, $27.93 OES State.......... $31.43 OES State.......... $45.08 OES State.
Ranchers, and
Other
Agricultural
Managers.
Appalachian I....... NC 45-1011 First-Line 25.73 OES State.......... 28.10 OES State.......... 30.90 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Appalachian I....... NC 45-2041 Graders and 10.55 FLS Regional....... 13.29 FLS Regional....... 11.07 FLS Regional.
Sorters,
Agricultural
Products.
Appalachian I....... NC 45-2091 Agricultural 11.30 OES State.......... 12.42 OES State.......... 12.34 FLS Regional.
Equipment
Operators.
Appalachian I....... NC 45-2092 Farmworkers and 10.46 FLS Regional....... 10.96 FLS Regional....... 11.48 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Appalachian I....... NC 45-2093 Farmworkers, 12.46 OES State.......... 12.94 OES State.......... 13.22 OES State.
Farm, Ranch, and
Aquacultural
Animals.
Appalachian I....... NC 45-2099 Agricultural 13.13 OES State.......... 12.42 OES State.......... 12.53 OES State.
Workers, All
Other.
Appalachian I....... NC 53-7064 Packers and 9.67 FLS Regional....... 11.00 FLS Regional....... 10.29 FLS Regional.
Packagers, Hand.
Appalachian I....... VA 11-9013 Farmers, 20.96 FLS National....... 35.16 OES State.......... 40.07 OES State.
Ranchers, and
Other
Agricultural
Managers.
Appalachian I....... VA 35-2012 Cooks, 12.80 OES State.......... 13.49 OES State.......... 13.67 OES State.
Institution and
Cafeteria.
Appalachian I....... VA 35-2015 Cooks, Short 10.66 OES State.......... 10.88 OES State.......... 10.72 OES State.
Order.
Appalachian I....... VA 45-1011 First-Line 27.13 OES State.......... 26.03 OES State.......... 25.93 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Appalachian I....... VA 45-2041 Graders and 10.55 FLS Regional....... 13.29 FLS Regional....... 11.07 FLS Regional.
Sorters,
Agricultural
Products.
Appalachian I....... VA 45-2091 Agricultural 12.20 OES State.......... 12.89 OES State.......... 12.34 FLS Regional.
Equipment
Operators.
Appalachian I....... VA 45-2092 Farmworkers and 10.46 FLS Regional....... 10.96 FLS Regional....... 11.48 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Appalachian I....... VA 45-2093 Farmworkers, 12.41 OES State.......... 12.25 OES State.......... 12.90 OES State.
Farm, Ranch, and
Aquacultural
Animals.
Appalachian I....... VA 45-2099 Agricultural 15.31 OES National....... 16.88 OES National....... 13.36 FLS National.
Workers, All
Other.
Appalachian I....... VA 53-7064 Packers and 9.67 FLS Regional....... 11.00 FLS Regional....... 10.29 FLS Regional.
Packagers, Hand.
[[Page 36250]]
Appalachian II...... KY 11-9013 Farmers, 31.32 OES State.......... 37.75 OES State.......... 41.50 OES State.
Ranchers, and
Other
Agricultural
Managers.
Appalachian II...... KY 45-1011 First-Line 22.87 OES State.......... 23.97 OES State.......... 22.83 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Appalachian II...... KY 45-2021 Animal Breeders.. 17.97 OES State.......... 24.45 OES State.......... 20.89 OES National.
Appalachian II...... KY 45-2041 Graders and 11.42 OES State.......... 11.64 OES State.......... 10.02 FLS Regional.
Sorters,
Agricultural
Products.
Appalachian II...... KY 45-2091 Agricultural 10.78 OES State.......... 10.85 OES State.......... 12.10 FLS Regional.
Equipment
Operators.
Appalachian II...... KY 45-2092 Farmworkers and 13.43 OES State.......... 10.44 FLS Regional....... 10.77 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Appalachian II...... KY 45-2093 Farmworkers, 12.03 OES State.......... 12.75 OES State.......... 11.10 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Appalachian II...... KY 45-2099 Agricultural 14.73 OES State.......... 15.06 OES State.......... 15.36 OES State.
Workers, All
Other.
Appalachian II...... KY 53-7064 Packers and 10.53 FLS Regional....... 10.50 FLS Regional....... 12.13 OES State.
Packagers, Hand.
Appalachian II...... TN 11-9013 Farmers, 22.14 OES State.......... 25.57 OES State.......... 29.28 OES State.
Ranchers, and
Other
Agricultural
Managers.
Appalachian II...... TN 45-1011 First-Line 23.93 OES State.......... 20.61 OES State.......... 20.14 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Appalachian II...... TN 45-2041 Graders and 12.27 OES State.......... 11.65 FLS National....... 10.02 FLS Regional.
Sorters,
Agricultural
Products.
Appalachian II...... TN 45-2091 Agricultural 12.12 OES State.......... 13.26 OES State.......... 12.10 FLS Regional.
Equipment
Operators.
Appalachian II...... TN 45-2092 Farmworkers and 10.14 OES State.......... 10.44 FLS Regional....... 10.77 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Appalachian II...... TN 45-2093 Farmworkers, 10.56 OES State.......... 10.90 OES State.......... 11.10 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Appalachian II...... TN 45-2099 Agricultural 15.31 OES National....... 18.57 OES State.......... 14.54 OES State.
Workers, All
Other.
Appalachian II...... TN 53-7064 Packers and 10.53 FLS Regional....... 10.50 FLS Regional....... 11.46 OES State.
Packagers, Hand.
Appalachian II...... WV 11-9013 Farmers, 20.96 FLS National....... 21.98 FLS National....... 22.67 FLS National.
Ranchers, and
Other
Agricultural
Managers.
Appalachian II...... WV 45-1011 First-Line 25.09 OES State.......... 23.39 OES State.......... 24.66 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Appalachian II...... WV 45-2041 Graders and 11.18 OES National....... 11.65 FLS National....... 10.02 FLS Regional.
Sorters,
Agricultural
Products.
Appalachian II...... WV 45-2091 Agricultural 12.38 FLS National....... 12.85 FLS National....... 12.10 FLS Regional.
Equipment
Operators.
Appalachian II...... WV 45-2092 Farmworkers and 10.10 OES State.......... 10.44 FLS Regional....... 10.77 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Appalachian II...... WV 45-2093 Farmworkers, 12.06 OES State.......... 14.17 OES State.......... 11.10 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Appalachian II...... WV 45-2099 Agricultural 11.73 OES State.......... 13.22 OES State.......... 13.36 FLS National.
Workers, All
Other.
Appalachian II...... WV 53-7064 Packers and 10.53 FLS Regional....... 10.50 FLS Regional....... 11.51 OES State.
Packagers, Hand.
California.......... CA 11-9013 Farmers, 26.01 FLS Regional....... 27.05 FLS Regional....... 30.18 FLS Regional.
Ranchers, and
Other
Agricultural
Managers.
California.......... CA 19-4011 Agricultural and 20.07 OES State.......... 20.40 OES State.......... 20.80 OES State.
Food Science
Technicians.
California.......... CA 35-2012 Cooks, 14.99 OES State.......... 15.75 OES State.......... 16.61 OES State.
Institution and
Cafeteria.
California.......... CA 35-2021 Food Preparation 11.17 OES State.......... 12.19 OES State.......... 12.82 OES State.
Workers.
California.......... CA 45-1011 First-Line 19.48 FLS Regional....... 20.38 FLS Regional....... 22.11 FLS Regional.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
California.......... CA 45-2041 Graders and 12.34 FLS Regional....... 12.37 FLS Regional....... 13.53 FLS Regional.
Sorters,
Agricultural
Products.
California.......... CA 45-2091 Agricultural 12.27 FLS Regional....... 12.95 FLS Regional....... 13.53 FLS Regional.
Equipment
Operators.
California.......... CA 45-2092 Farmworkers and 11.49 FLS Regional....... 12.33 FLS Regional....... 12.92 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
California.......... CA 45-2093 Farmworkers, 12.74 FLS Regional....... 13.15 FLS Regional....... 13.96 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
California.......... CA 45-2099 Agricultural 12.08 FLS Regional....... 12.93 FLS Regional....... 14.40 FLS Regional.
Workers, All
Other.
California.......... CA 53-7064 Packers and 11.72 FLS Regional....... 11.79 FLS Regional....... 12.85 FLS Regional.
Packagers, Hand.
Cornbelt I.......... IL 11-9013 Farmers, 31.92 OES State.......... 33.27 OES State.......... 32.66 OES State.
Ranchers, and
Other
Agricultural
Managers.
Cornbelt I.......... IL 45-1011 First-Line 22.01 OES State.......... 20.29 OES State.......... 20.45 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Cornbelt I.......... IL 45-2021 Animal Breeders.. 21.47 OES National....... 20.35 OES National....... 20.89 OES National.
Cornbelt I.......... IL 45-2041 Graders and 13.08 FLS Regional....... 13.55 FLS Regional....... 10.43 FLS Regional.
Sorters,
Agricultural
Products.
Cornbelt I.......... IL 45-2091 Agricultural 15.83 OES State.......... 16.60 OES State.......... 14.76 FLS Regional.
Equipment
Operators.
Cornbelt I.......... IL 45-2092 Farmworkers and 11.93 FLS Regional....... 12.80 FLS Regional....... 11.53 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Cornbelt I.......... IL 45-2093 Farmworkers, 11.85 OES State.......... 12.27 OES State.......... 13.80 OES State.
Farm, Ranch, and
Aquacultural
Animals.
Cornbelt I.......... IL 45-2099 Agricultural 14.51 OES State.......... 14.14 OES State.......... 14.19 OES State.
Workers, All
Other.
[[Page 36251]]
Cornbelt I.......... IL 47-2061 Construction 25.07 OES State.......... 27.01 OES State.......... 27.55 OES State.
Laborers.
Cornbelt I.......... IL 53-7064 Packers and 12.31 OES State.......... 11.91 OES State.......... 12.31 OES State.
Packagers, Hand.
Cornbelt I.......... IN 11-9013 Farmers, 31.54 OES State.......... 21.98 FLS National....... 30.10 OES State.
Ranchers, and
Other
Agricultural
Managers.
Cornbelt I.......... IN 45-1011 First-Line 20.98 OES State.......... 22.70 OES State.......... 22.46 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Cornbelt I.......... IN 45-2041 Graders and 13.08 FLS Regional....... 13.55 FLS Regional....... 10.43 FLS Regional.
Sorters,
Agricultural
Products.
Cornbelt I.......... IN 45-2091 Agricultural 17.41 OES State.......... 17.42 OES State.......... 14.76 FLS Regional.
Equipment
Operators.
Cornbelt I.......... IN 45-2092 Farmworkers and 11.93 FLS Regional....... 12.80 FLS Regional....... 11.53 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Cornbelt I.......... IN 45-2093 Farmworkers, 12.90 OES State.......... 12.31 OES State.......... 12.29 OES State.
Farm, Ranch, and
Aquacultural
Animals.
Cornbelt I.......... IN 45-2099 Agricultural 15.31 OES National....... 16.88 OES National....... 10.12 OES State.
Workers, All
Other.
Cornbelt I.......... IN 53-7064 Packers and 11.36 OES State.......... 11.31 OES State.......... 11.96 OES State.
Packagers, Hand.
Cornbelt I.......... OH 11-9013 Farmers, 32.14 OES State.......... 40.03 OES State.......... 39.74 OES State.
Ranchers, and
Other
Agricultural
Managers.
Cornbelt I.......... OH 45-1011 First-Line 25.27 OES State.......... 25.33 OES State.......... 23.15 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Cornbelt I.......... OH 45-2041 Graders and 13.08 FLS Regional....... 13.55 FLS Regional....... 10.43 FLS Regional.
Sorters,
Agricultural
Products.
Cornbelt I.......... OH 45-2091 Agricultural 16.22 OES State.......... 16.76 OES State.......... 14.76 FLS Regional.
Equipment
Operators.
Cornbelt I.......... OH 45-2092 Farmworkers and 11.93 FLS Regional....... 12.80 FLS Regional....... 11.53 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Cornbelt I.......... OH 45-2093 Farmworkers, 12.84 OES State.......... 13.68 OES State.......... 13.92 OES State.
Farm, Ranch, and
Aquacultural
Animals.
Cornbelt I.......... OH 45-2099 Agricultural 13.65 OES State.......... 16.88 OES National....... 13.36 FLS National.
Workers, All
Other.
Cornbelt I.......... OH 47-2061 Construction 18.93 OES State.......... 19.20 OES State.......... 20.27 OES State.
Laborers.
Cornbelt I.......... OH 53-7064 Packers and 11.46 OES State.......... 11.66 OES State.......... 11.99 OES State.
Packagers, Hand.
Cornbelt II......... IA 11-9013 Farmers, 37.05 OES State.......... 37.28 OES State.......... 34.50 OES State.
Ranchers, and
Other
Agricultural
Managers.
Cornbelt II......... IA 45-1011 First-Line 26.09 OES State.......... 27.52 OES State.......... 27.02 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Cornbelt II......... IA 45-2021 Animal Breeders.. 15.74 OES State.......... 15.52 OES State.......... 14.86 OES State.
Cornbelt II......... IA 45-2041 Graders and 13.73 OES State.......... 13.56 OES State.......... 14.24 OES State.
Sorters,
Agricultural
Products.
Cornbelt II......... IA 45-2091 Agricultural 17.08 OES State.......... 17.07 OES State.......... 16.93 OES State.
Equipment
Operators.
Cornbelt II......... IA 45-2092 Farmworkers and 13.73 OES State.......... 13.12 OES State.......... 11.82 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Cornbelt II......... IA 45-2093 Farmworkers, 12.55 FLS Regional....... 13.24 FLS Regional....... 13.57 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Cornbelt II......... IA 45-2099 Agricultural 13.37 OES State.......... 14.70 OES State.......... 15.56 OES State.
Workers, All
Other.
Cornbelt II......... IA 53-7064 Packers and 11.14 OES State.......... 11.72 OES State.......... 12.38 FLS Regional.
Packagers, Hand.
Cornbelt II......... MO 11-9013 Farmers, 27.68 OES State.......... 30.33 OES State.......... 28.72 OES State.
Ranchers, and
Other
Agricultural
Managers.
Cornbelt II......... MO 45-1011 First-Line 21.63 OES State.......... 22.34 OES State.......... 23.37 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Cornbelt II......... MO 45-2041 Graders and 11.25 OES State.......... 12.63 OES State.......... 13.35 OES State.
Sorters,
Agricultural
Products.
Cornbelt II......... MO 45-2091 Agricultural 13.51 OES State.......... 14.10 OES State.......... 15.46 OES State.
Equipment
Operators.
Cornbelt II......... MO 45-2092 Farmworkers and 10.59 OES State.......... 11.80 OES State.......... 11.82 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Cornbelt II......... MO 45-2093 Farmworkers, 12.55 FLS Regional....... 13.24 FLS Regional....... 13.57 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Cornbelt II......... MO 45-2099 Agricultural 13.09 OES State.......... 14.64 OES State.......... 14.44 OES State.
Workers, All
Other.
Cornbelt II......... MO 47-2061 Construction 19.86 OES State.......... 20.51 OES State.......... 21.90 OES State.
Laborers.
Cornbelt II......... MO 53-7064 Packers and 11.42 OES State.......... 11.36 OES State.......... 12.38 FLS Regional.
Packagers, Hand.
Delta............... AR 11-9013 Farmers, 42.35 OES State.......... 41.44 OES State.......... 17.95 FLS Regional.
Ranchers, and
Other
Agricultural
Managers.
Delta............... AR 45-1011 First-Line 22.05 OES State.......... 21.37 OES State.......... 16.25 FLS Regional.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Delta............... AR 45-2041 Graders and 10.61 FLS Regional....... 9.19 FLS Regional....... 11.57 OES State.
Sorters,
Agricultural
Products.
Delta............... AR 45-2091 Agricultural 10.61 FLS Regional....... 10.27 FLS Regional....... 10.77 FLS Regional.
Equipment
Operators.
Delta............... AR 45-2092 Farmworkers and 10.43 FLS Regional....... 10.44 FLS Regional....... 10.40 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Delta............... AR 45-2093 Farmworkers, 10.27 FLS Regional....... 10.33 FLS Regional....... 11.41 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Delta............... AR 45-2099 Agricultural 12.37 OES State.......... 15.29 OES State.......... 15.38 OES State.
Workers, All
Other.
[[Page 36252]]
Delta............... AR 49-3041 Farm Equipment 16.42 OES State.......... 16.33 OES State.......... 17.20 OES State.
Mechanics and
Service
Technicians.
Delta............... AR 53-7064 Packers and 10.19 FLS Regional....... 10.21 FLS Regional....... 10.61 FLS Regional.
Packagers, Hand.
Delta............... LA 11-9013 Farmers, 30.80 OES State.......... 30.70 OES State.......... 17.95 FLS Regional.
Ranchers, and
Other
Agricultural
Managers.
Delta............... LA 45-1011 First-Line 26.52 OES State.......... 27.24 OES State.......... 16.25 FLS Regional.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Delta............... LA 45-2041 Graders and 10.61 FLS Regional....... 9.19 FLS Regional....... 16.15 OES State.
Sorters,
Agricultural
Products.
Delta............... LA 45-2091 Agricultural 10.61 FLS Regional....... 10.27 FLS Regional....... 10.77 FLS Regional.
Equipment
Operators.
Delta............... LA 45-2092 Farmworkers and 10.43 FLS Regional....... 10.44 FLS Regional....... 10.40 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Delta............... LA 45-2093 Farmworkers, 10.27 FLS Regional....... 10.33 FLS Regional....... 11.41 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Delta............... LA 45-2099 Agricultural 20.04 OES State.......... 26.79 OES State.......... 24.13 OES State.
Workers, All
Other.
Delta............... LA 53-7064 Packers and 10.19 FLS Regional....... 10.21 FLS Regional....... 10.61 FLS Regional.
Packagers, Hand.
Delta............... MS 11-9013 Farmers, 23.51 OES State.......... 21.98 FLS National....... 17.95 FLS Regional.
Ranchers, and
Other
Agricultural
Managers.
Delta............... MS 45-1011 First-Line 22.15 OES State.......... 20.71 OES State.......... 16.25 FLS Regional.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Delta............... MS 45-2041 Graders and 10.61 FLS Regional....... 9.19 FLS Regional....... 11.41 OES State.
Sorters,
Agricultural
Products.
Delta............... MS 45-2091 Agricultural 10.61 FLS Regional....... 10.27 FLS Regional....... 10.77 FLS Regional.
Equipment
Operators.
Delta............... MS 45-2092 Farmworkers and 10.43 FLS Regional....... 10.44 FLS Regional....... 10.40 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Delta............... MS 45-2093 Farmworkers, 10.27 FLS Regional....... 10.33 FLS Regional....... 11.41 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Delta............... MS 45-2099 Agricultural 11.38 OES State.......... 14.54 OES State.......... 13.36 FLS National.
Workers, All
Other.
Delta............... MS 53-7064 Packers and 10.19 FLS Regional....... 10.21 FLS Regional....... 10.61 FLS Regional.
Packagers, Hand.
Florida............. FL 11-9013 Farmers, 46.15 OES State.......... 50.97 OES State.......... 41.57 OES State.
Ranchers, and
Other
Agricultural
Managers.
Florida............. FL 13-1074 Farm Labor 20.26 OES State.......... 22.74 OES National....... 11.51 OES State.
Contractors.
Florida............. FL 45-1011 First-Line 22.67 OES State.......... 22.56 OES State.......... 22.95 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Florida............. FL 45-2041 Graders and 10.75 FLS Regional....... 10.91 FLS Regional....... 9.29 OES State.
Sorters,
Agricultural
Products.
Florida............. FL 45-2091 Agricultural 13.09 OES State.......... 14.50 OES State.......... 11.75 FLS Regional.
Equipment
Operators.
Florida............. FL 45-2092 Farmworkers and 10.66 FLS Regional....... 10.95 FLS Regional....... 11.21 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Florida............. FL 45-2093 Farmworkers, 11.71 FLS Regional....... 12.80 FLS Regional....... 11.98 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Florida............. FL 45-2099 Agricultural 15.31 OES National....... 16.48 OES State.......... 10.40 FLS Regional.
Workers, All
Other.
Florida............. FL 49-3041 Farm Equipment 17.42 OES State.......... 18.27 OES State.......... 19.28 OES State.
Mechanics and
Service
Technicians.
Florida............. FL 53-3032 Heavy and Tractor- 18.19 OES State.......... 18.91 OES State.......... 19.78 OES State.
Trailer Truck
Drivers.
Florida............. FL 53-7064 Packers and 9.59 FLS Regional....... 9.92 FLS Regional....... 10.87 OES State.
Packagers, Hand.
Hawaii.............. HI 11-9013 Farmers, 20.96 FLS National....... 21.98 FLS National....... 22.67 FLS National.
Ranchers, and
Other
Agricultural
Managers.
Hawaii.............. HI 45-1011 First-Line 21.71 OES State.......... 24.83 OES State.......... 24.60 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Hawaii.............. HI 45-2041 Graders and 11.18 OES National....... 11.65 FLS National....... 12.43 FLS National.
Sorters,
Agricultural
Products.
Hawaii.............. HI 45-2091 Agricultural 14.94 FLS Regional....... 15.92 FLS Regional....... 12.86 FLS National.
Equipment
Operators.
Hawaii.............. HI 45-2092 Farmworkers and 11.37 FLS Regional....... 12.44 FLS Regional....... 15.13 OES State.
Laborers, Crop,
Nursery, and
Greenhouse.
Hawaii.............. HI 45-2093 Farmworkers, 13.99 FLS Regional....... 16.54 FLS Regional....... 16.16 OES State.
Farm, Ranch, and
Aquacultural
Animals.
Hawaii.............. HI 45-2099 Agricultural 18.56 OES State.......... 18.17 OES State.......... 19.17 OES State.
Workers, All
Other.
Hawaii.............. HI 53-7064 Packers and 11.90 OES State.......... 12.00 OES State.......... 12.31 OES State.
Packagers, Hand.
Lake................ MI 11-9013 Farmers, 28.73 OES State.......... 31.75 OES State.......... 31.02 OES State.
Ranchers, and
Other
Agricultural
Managers.
Lake................ MI 45-1011 First-Line 24.34 OES State.......... 20.83 OES State.......... 21.27 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Lake................ MI 45-2041 Graders and 11.34 OES State.......... 10.85 OES State.......... 11.34 OES State.
Sorters,
Agricultural
Products.
Lake................ MI 45-2091 Agricultural 12.94 FLS Regional....... 16.33 FLS Regional....... 15.37 FLS Regional.
Equipment
Operators.
Lake................ MI 45-2092 Farmworkers and 11.55 FLS Regional....... 11.43 FLS Regional....... 12.47 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
[[Page 36253]]
Lake................ MI 45-2093 Farmworkers, 11.80 FLS Regional....... 12.23 FLS Regional....... 12.56 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Lake................ MI 45-2099 Agricultural 11.53 FLS Regional....... 13.18 FLS Regional....... 14.87 OES State.
Workers, All
Other.
Lake................ MI 47-2061 Construction 18.15 OES State.......... 18.31 OES State.......... 18.56 OES State.
Laborers.
Lake................ MI 53-7064 Packers and 11.86 OES State.......... 12.27 OES State.......... 11.30 FLS Regional.
Packagers, Hand.
Lake................ MN 11-9013 Farmers, 35.92 OES State.......... 38.70 OES State.......... 38.56 OES State.
Ranchers, and
Other
Agricultural
Managers.
Lake................ MN 45-1011 First-Line 24.51 OES State.......... 25.19 OES State.......... 29.18 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Lake................ MN 45-2041 Graders and 14.84 OES State.......... 15.44 OES State.......... 16.26 OES State.
Sorters,
Agricultural
Products.
Lake................ MN 45-2091 Agricultural 12.94 FLS Regional....... 16.33 FLS Regional....... 15.37 FLS Regional.
Equipment
Operators.
Lake................ MN 45-2092 Farmworkers and 11.55 FLS Regional....... 11.43 FLS Regional....... 12.47 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Lake................ MN 45-2093 Farmworkers, 11.80 FLS Regional....... 12.23 FLS Regional....... 12.56 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Lake................ MN 45-2099 Agricultural 11.53 FLS Regional....... 13.18 FLS Regional....... 23.52 OES State.
Workers, All
Other.
Lake................ MN 53-7064 Packers and 11.91 OES State.......... 12.58 OES State.......... 11.30 FLS Regional.
Packagers, Hand.
Lake................ WI 11-9013 Farmers, 31.18 OES State.......... 31.01 OES State.......... 35.25 OES State.
Ranchers, and
Other
Agricultural
Managers.
Lake................ WI 35-1011 Chefs and Head 18.95 OES State.......... 22.71 OES State.......... 22.85 OES State.
Cooks.
Lake................ WI 45-1011 First-Line 23.99 OES State.......... 24.88 OES State.......... 25.20 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Lake................ WI 45-2041 Graders and 13.41 OES State.......... 13.77 OES State.......... 14.54 OES State.
Sorters,
Agricultural
Products.
Lake................ WI 45-2091 Agricultural 12.94 FLS Regional....... 16.33 FLS Regional....... 15.37 FLS Regional.
Equipment
Operators.
Lake................ WI 45-2092 Farmworkers and 11.55 FLS Regional....... 11.43 FLS Regional....... 12.47 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Lake................ WI 45-2093 Farmworkers, 11.80 FLS Regional....... 12.23 FLS Regional....... 12.56 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Lake................ WI 45-2099 Agricultural 11.53 FLS Regional....... 13.18 FLS Regional....... 13.36 FLS National.
Workers, All
Other.
Lake................ WI 53-7064 Packers and 12.43 OES State.......... 12.99 OES State.......... 11.30 FLS Regional.
Packagers, Hand.
Mountain I.......... ID 11-9013 Farmers, 37.97 OES State.......... 35.39 OES State.......... 35.37 OES State.
Ranchers, and
Other
Agricultural
Managers.
Mountain I.......... ID 45-1011 First-Line 19.60 OES State.......... 20.49 OES State.......... 21.61 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Mountain I.......... ID 45-2021 Animal Breeders.. 21.47 OES National....... 20.35 OES National....... 20.89 OES National.
Mountain I.......... ID 45-2041 Graders and 9.77 OES State.......... 10.45 OES State.......... 11.21 FLS Regional.
Sorters,
Agricultural
Products.
Mountain I.......... ID 45-2091 Agricultural 12.41 FLS Regional....... 12.60 FLS Regional....... 15.38 OES State.
Equipment
Operators.
Mountain I.......... ID 45-2092 Farmworkers and 11.51 FLS Regional....... 12.05 FLS Regional....... 10.82 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Mountain I.......... ID 45-2093 Farmworkers, 12.99 OES State.......... 13.39 OES State.......... 11.92 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Mountain I.......... ID 45-2099 Agricultural 11.27 FLS Regional....... 11.84 FLS Regional....... 14.77 OES State.
Workers, All
Other.
Mountain I.......... ID 49-9071 Maintenance and 16.81 OES State.......... 17.15 OES State.......... 17.17 OES State.
Repair Workers,
General.
Mountain I.......... ID 53-7064 Packers and 11.39 OES State.......... 11.80 OES State.......... 12.40 OES State.
Packagers, Hand.
Mountain I.......... MT 11-9013 Farmers, 20.96 FLS National....... 21.98 FLS National....... 22.67 FLS National.
Ranchers, and
Other
Agricultural
Managers.
Mountain I.......... MT 45-1011 First-Line 17.78 OES State.......... 17.33 OES State.......... 18.69 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Mountain I.......... MT 45-2041 Graders and 12.22 OES State.......... 13.10 OES State.......... 11.21 FLS Regional.
Sorters,
Agricultural
Products.
Mountain I.......... MT 45-2091 Agricultural 12.41 FLS Regional....... 12.60 FLS Regional....... 12.86 FLS National.
Equipment
Operators.
Mountain I.......... MT 45-2092 Farmworkers and 11.51 FLS Regional....... 12.05 FLS Regional....... 10.82 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Mountain I.......... MT 45-2093 Farmworkers, 12.54 OES State.......... 13.08 OES State.......... 11.92 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Mountain I.......... MT 45-2099 Agricultural 11.27 FLS Regional....... 11.84 FLS Regional....... 17.77 OES State.
Workers, All
Other.
Mountain I.......... MT 53-7064 Packers and 10.47 OES State.......... 11.48 OES State.......... 11.68 OES State.
Packagers, Hand.
Mountain I.......... WY 11-9013 Farmers, 20.96 FLS National....... 21.98 FLS National....... 22.67 FLS National.
Ranchers, and
Other
Agricultural
Managers.
Mountain I.......... WY 45-1011 First-Line 20.49 FLS National....... 19.55 FLS National....... 20.10 FLS National.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Mountain I.......... WY 45-2041 Graders and 11.18 OES National....... 11.65 FLS National....... 11.21 FLS Regional.
Sorters,
Agricultural
Products.
Mountain I.......... WY 45-2091 Agricultural 12.41 FLS Regional....... 12.60 FLS Regional....... 12.86 FLS National.
Equipment
Operators.
Mountain I.......... WY 45-2092 Farmworkers and 11.51 FLS Regional....... 12.05 FLS Regional....... 10.82 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
[[Page 36254]]
Mountain I.......... WY 45-2093 Farmworkers, 13.10 OES State.......... 14.13 OES State.......... 11.92 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Mountain I.......... WY 45-2099 Agricultural 11.27 FLS Regional....... 11.84 FLS Regional....... 13.36 FLS National.
Workers, All
Other.
Mountain I.......... WY 53-7064 Packers and 13.68 OES State.......... 13.48 OES State.......... 10.94 OES State.
Packagers, Hand.
Mountain II......... CO 11-9013 Farmers, 21.24 OES State.......... 27.99 OES State.......... 16.62 FLS Regional.
Ranchers, and
Other
Agricultural
Managers.
Mountain II......... CO 45-1011 First-Line 25.95 OES State.......... 24.63 OES State.......... 25.47 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Mountain II......... CO 45-2041 Graders and 9.48 OES State.......... 9.56 OES State.......... 10.60 FLS Regional.
Sorters,
Agricultural
Products.
Mountain II......... CO 45-2091 Agricultural 12.06 FLS Regional....... 11.40 FLS Regional....... 10.85 FLS Regional.
Equipment
Operators.
Mountain II......... CO 45-2092 Farmworkers and 10.96 FLS Regional....... 11.14 FLS Regional....... 10.02 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Mountain II......... CO 45-2093 Farmworkers, 9.84 FLS Regional....... 10.71 FLS Regional....... 15.14 OES State.
Farm, Ranch, and
Aquacultural
Animals.
Mountain II......... CO 45-2099 Agricultural 11.94 FLS Regional....... 12.64 FLS Regional....... 18.77 OES State.
Workers, All
Other.
Mountain II......... CO 53-7064 Packers and 11.26 OES State.......... 11.56 OES State.......... 12.29 OES State.
Packagers, Hand.
Mountain II......... NV 11-9013 Farmers, 20.96 FLS National....... 44.22 OES State.......... 16.62 FLS Regional.
Ranchers, and
Other
Agricultural
Managers.
Mountain II......... NV 45-1011 First-Line 22.28 OES State.......... 23.46 OES State.......... 23.93 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Mountain II......... NV 45-2041 Graders and 12.66 OES State.......... 11.65 FLS National....... 12.43 FLS National.
Sorters,
Agricultural
Products.
Mountain II......... NV 45-2091 Agricultural 12.06 FLS Regional....... 11.40 FLS Regional....... 10.85 FLS Regional.
Equipment
Operators.
Mountain II......... NV 45-2092 Farmworkers and 10.96 FLS Regional....... 11.14 FLS Regional....... 10.02 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Mountain II......... NV 45-2093 Farmworkers, 9.84 FLS Regional....... 10.71 FLS Regional....... 15.09 OES State.
Farm, Ranch, and
Aquacultural
Animals.
Mountain II......... NV 45-2099 Agricultural 11.94 FLS Regional....... 12.64 FLS Regional....... 19.27 OES State.
Workers, All
Other.
Mountain II......... NV 53-7064 Packers and 11.08 OES State.......... 10.68 OES State.......... 10.81 OES State.
Packagers, Hand.
Mountain II......... UT 11-9013 Farmers, 20.96 FLS National....... 21.98 FLS National....... 16.62 FLS Regional.
Ranchers, and
Other
Agricultural
Managers.
Mountain II......... UT 45-1011 First-Line 21.76 OES State.......... 22.51 OES State.......... 22.98 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Mountain II......... UT 45-2041 Graders and 11.18 OES National....... 11.65 FLS National....... 12.43 FLS National.
Sorters,
Agricultural
Products.
Mountain II......... UT 45-2091 Agricultural 12.06 FLS Regional....... 11.40 FLS Regional....... 10.85 FLS Regional.
Equipment
Operators.
Mountain II......... UT 45-2092 Farmworkers and 10.96 FLS Regional....... 11.14 FLS Regional....... 10.02 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Mountain II......... UT 45-2093 Farmworkers, 9.84 FLS Regional....... 10.71 FLS Regional....... 13.22 OES State.
Farm, Ranch, and
Aquacultural
Animals.
Mountain II......... UT 45-2099 Agricultural 11.94 FLS Regional....... 12.64 FLS Regional....... 13.36 FLS National.
Workers, All
Other.
Mountain II......... UT 53-7064 Packers and 10.77 OES State.......... 11.17 OES State.......... 11.74 OES State.
Packagers, Hand.
Mountain III........ AZ 11-9013 Farmers, 31.37 OES State.......... 39.04 OES State.......... 17.17 FLS Regional.
Ranchers, and
Other
Agricultural
Managers.
Mountain III........ AZ 35-2021 Food Preparation 10.33 OES State.......... 10.63 OES State.......... 11.42 OES State.
Workers.
Mountain III........ AZ 45-1011 First-Line 21.32 OES State.......... 23.48 OES State.......... 24.14 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Mountain III........ AZ 45-2041 Graders and 11.33 OES State.......... 11.99 OES State.......... 11.29 OES State.
Sorters,
Agricultural
Products.
Mountain III........ AZ 45-2091 Agricultural 11.10 FLS Regional....... 11.06 FLS Regional....... 10.65 FLS Regional.
Equipment
Operators.
Mountain III........ AZ 45-2092 Farmworkers and 9.17 OES State.......... 9.97 OES State.......... 10.23 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Mountain III........ AZ 45-2093 Farmworkers, 11.57 FLS Regional....... 11.10 FLS Regional....... 15.83 OES State.
Farm, Ranch, and
Aquacultural
Animals.
Mountain III........ AZ 45-2099 Agricultural 12.90 FLS Regional....... 12.02 FLS Regional....... 17.79 OES State.
Workers, All
Other.
Mountain III........ AZ 53-7064 Packers and 10.99 OES State.......... 11.35 OES State.......... 10.02 FLS Regional.
Packagers, Hand.
Mountain III........ NM 11-9013 Farmers, 21.63 OES State.......... 22.44 OES State.......... 17.17 FLS Regional.
Ranchers, and
Other
Agricultural
Managers.
Mountain III........ NM 45-1011 First-Line 19.54 OES State.......... 17.69 OES State.......... 20.71 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Mountain III........ NM 45-2041 Graders and 14.19 OES State.......... 14.54 OES State.......... 12.32 OES State.
Sorters,
Agricultural
Products.
Mountain III........ NM 45-2091 Agricultural 11.10 FLS Regional....... 11.06 FLS Regional....... 10.65 FLS Regional.
Equipment
Operators.
Mountain III........ NM 45-2092 Farmworkers and 9.64 OES State.......... 10.41 OES State.......... 10.23 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Mountain III........ NM 45-2093 Farmworkers, 11.57 FLS Regional....... 11.10 FLS Regional....... 12.03 OES State.
Farm, Ranch, and
Aquacultural
Animals.
Mountain III........ NM 45-2099 Agricultural 12.90 FLS Regional....... 12.02 FLS Regional....... 15.54 OES State.
Workers, All
Other.
[[Page 36255]]
Mountain III........ NM 47-2073 Operating 20.93 OES State.......... 21.05 OES State.......... 20.77 OES State.
Engineers and
Other
Construction
Equipment
Operators.
Mountain III........ NM 53-7062 Laborers and 12.76 OES State.......... 13.08 OES State.......... 13.39 OES State.
Freight, Stock,
and Material
Movers, Hand.
Mountain III........ NM 53-7064 Packers and 9.86 OES State.......... 10.21 OES State.......... 10.02 FLS Regional.
Packagers, Hand.
North Plains........ KS 11-9013 Farmers, 20.96 FLS National....... 21.98 FLS National....... 22.67 FLS National.
Ranchers, and
Other
Agricultural
Managers.
North Plains........ KS 45-1011 First-Line 23.30 OES State.......... 24.91 OES State.......... 25.13 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
North Plains........ KS 45-2041 Graders and 15.04 OES State.......... 15.70 OES State.......... 16.25 OES State.
Sorters,
Agricultural
Products.
North Plains........ KS 45-2091 Agricultural 14.43 FLS Regional....... 14.91 FLS Regional....... 17.45 OES State.
Equipment
Operators.
North Plains........ KS 45-2092 Farmworkers and 11.89 OES State.......... 12.58 OES State.......... 12.83 OES State.
Laborers, Crop,
Nursery, and
Greenhouse.
North Plains........ KS 45-2093 Farmworkers, 13.83 FLS Regional....... 12.43 FLS Regional....... 12.41 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
North Plains........ KS 45-2099 Agricultural 15.31 OES National....... 15.15 OES State.......... 16.31 OES State.
Workers, All
Other.
North Plains........ KS 53-7064 Packers and 10.80 OES State.......... 11.58 OES State.......... 12.61 OES State.
Packagers, Hand.
North Plains........ ND 11-9013 Farmers, 36.04 OES State.......... 21.98 FLS National....... 22.67 FLS National.
Ranchers, and
Other
Agricultural
Managers.
North Plains........ ND 45-1011 First-Line 25.04 OES State.......... 25.40 OES State.......... 20.10 FLS National.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
North Plains........ ND 45-2041 Graders and 14.50 OES State.......... 17.07 OES State.......... 19.15 OES State.
Sorters,
Agricultural
Products.
North Plains........ ND 45-2091 Agricultural 14.43 FLS Regional....... 14.91 FLS Regional....... 18.16 OES State.
Equipment
Operators.
North Plains........ ND 45-2092 Farmworkers and 12.82 OES State.......... 12.89 OES State.......... 14.11 OES State.
Laborers, Crop,
Nursery, and
Greenhouse.
North Plains........ ND 45-2093 Farmworkers, 13.83 FLS Regional....... 12.43 FLS Regional....... 12.41 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
North Plains........ ND 45-2099 Agricultural 15.36 OES State.......... 18.91 OES State.......... 13.36 FLS National.
Workers, All
Other.
North Plains........ ND 53-7064 Packers and 11.46 OES State.......... 12.18 OES State.......... 12.80 OES State.
Packagers, Hand.
North Plains........ NE 11-9013 Farmers, 20.96 FLS National....... 21.98 FLS National....... 24.38 OES State.
Ranchers, and
Other
Agricultural
Managers.
North Plains........ NE 45-1011 First-Line 24.23 OES State.......... 24.85 OES State.......... 26.68 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
North Plains........ NE 45-2041 Graders and 14.47 OES State.......... 14.52 OES State.......... 15.15 OES State.
Sorters,
Agricultural
Products.
North Plains........ NE 45-2091 Agricultural 14.43 FLS Regional....... 14.91 FLS Regional....... 18.01 OES State.
Equipment
Operators.
North Plains........ NE 45-2092 Farmworkers and 15.67 OES State.......... 16.01 OES State.......... 17.59 OES State.
Laborers, Crop,
Nursery, and
Greenhouse.
North Plains........ NE 45-2093 Farmworkers, 13.83 FLS Regional....... 12.43 FLS Regional....... 12.41 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
North Plains........ NE 45-2099 Agricultural 15.31 OES National....... 16.88 OES National....... 13.36 FLS National.
Workers, All
Other.
North Plains........ NE 53-7064 Packers and 11.30 OES State.......... 11.65 OES State.......... 12.41 OES State.
Packagers, Hand.
North Plains........ SD 11-9013 Farmers, 20.96 FLS National....... 21.98 FLS National....... 22.67 FLS National.
Ranchers, and
Other
Agricultural
Managers.
North Plains........ SD 45-1011 First-Line 20.49 FLS National....... 19.55 FLS National....... 20.14 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
North Plains........ SD 45-2021 Animal Breeders.. 21.19 OES State.......... 20.35 OES National....... 17.35 OES State.
North Plains........ SD 45-2041 Graders and 12.62 OES State.......... 13.18 OES State.......... 13.23 OES State.
Sorters,
Agricultural
Products.
North Plains........ SD 45-2091 Agricultural 14.43 FLS Regional....... 14.91 FLS Regional....... 15.62 OES State.
Equipment
Operators.
North Plains........ SD 45-2092 Farmworkers and 10.96 OES State.......... 10.79 OES State.......... 12.59 OES State.
Laborers, Crop,
Nursery, and
Greenhouse.
North Plains........ SD 45-2093 Farmworkers, 13.83 FLS Regional....... 12.43 FLS Regional....... 12.41 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
North Plains........ SD 45-2099 Agricultural 15.31 OES National....... 16.88 OES National....... 13.36 FLS National.
Workers, All
Other.
North Plains........ SD 53-3032 Heavy and Tractor- 18.83 OES State.......... 19.27 OES State.......... 19.64 OES State.
Trailer Truck
Drivers.
North Plains........ SD 53-7064 Packers and 11.11 OES State.......... 11.41 OES State.......... 11.76 OES State.
Packagers, Hand.
Northeast I......... CT 11-9013 Farmers, 20.96 FLS National....... 21.98 FLS National....... 36.43 OES State.
Ranchers, and
Other
Agricultural
Managers.
Northeast I......... CT 35-2012 Cooks, 16.41 OES State.......... 16.73 OES State.......... 17.57 OES State.
Institution and
Cafeteria.
Northeast I......... CT 45-1011 First-Line 23.97 OES State.......... 22.81 OES State.......... 23.79 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Northeast I......... CT 45-2041 Graders and 11.18 OES National....... 11.65 FLS National....... 13.38 FLS Regional.
Sorters,
Agricultural
Products.
Northeast I......... CT 45-2091 Agricultural 13.07 FLS Regional....... 12.97 FLS Regional....... 13.85 FLS Regional.
Equipment
Operators.
[[Page 36256]]
Northeast I......... CT 45-2092 Farmworkers and 12.01 OES State.......... 13.19 FLS Regional....... 13.11 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Northeast I......... CT 45-2093 Farmworkers, 14.35 OES State.......... 11.17 FLS Regional....... 11.81 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Northeast I......... CT 45-2099 Agricultural 15.31 OES National....... 16.88 OES National....... 13.36 FLS National.
Workers, All
Other.
Northeast I......... CT 49-3041 Farm Equipment 19.87 OES State.......... 20.19 OES State.......... 20.33 OES State.
Mechanics and
Service
Technicians.
Northeast I......... CT 51-9012 Separating, 12.92 OES State.......... 15.12 OES State.......... 15.88 OES State.
Filtering,
Clarifying,
Precipitating,
and Still
Machine Setters,
Operators, and
Tenders.
Northeast I......... CT 53-3032 Heavy and Tractor- 22.37 OES State.......... 22.80 OES State.......... 23.33 OES State.
Trailer Truck
Drivers.
Northeast I......... CT 53-7064 Packers and 13.72 OES State.......... 14.53 OES State.......... 15.43 OES State.
Packagers, Hand.
Northeast I......... MA 11-9013 Farmers, 20.96 FLS National....... 21.98 FLS National....... 31.23 OES State.
Ranchers, and
Other
Agricultural
Managers.
Northeast I......... MA 45-1011 First-Line 25.91 OES State.......... 26.35 OES State.......... 25.45 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Northeast I......... MA 45-2041 Graders and 10.70 OES State.......... 11.96 OES State.......... 13.38 FLS Regional.
Sorters,
Agricultural
Products.
Northeast I......... MA 45-2091 Agricultural 13.07 FLS Regional....... 12.97 FLS Regional....... 13.85 FLS Regional.
Equipment
Operators.
Northeast I......... MA 45-2092 Farmworkers and 12.82 OES State.......... 13.19 FLS Regional....... 13.11 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Northeast I......... MA 45-2093 Farmworkers, 12.56 OES State.......... 11.17 FLS Regional....... 11.81 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Northeast I......... MA 45-2099 Agricultural 15.31 OES National....... 16.88 OES National....... 13.36 FLS National.
Workers, All
Other.
Northeast I......... MA 53-7064 Packers and 11.89 OES State.......... 12.52 OES State.......... 13.15 OES State.
Packagers, Hand.
Northeast I......... ME 11-9013 Farmers, 20.96 FLS National....... 21.98 FLS National....... 22.67 FLS National.
Ranchers, and
Other
Agricultural
Managers.
Northeast I......... ME 45-1011 First-Line 21.27 OES State.......... 25.77 OES State.......... 25.85 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Northeast I......... ME 45-2041 Graders and 11.69 OES State.......... 13.56 OES State.......... 13.38 FLS Regional.
Sorters,
Agricultural
Products.
Northeast I......... ME 45-2091 Agricultural 13.07 FLS Regional....... 12.97 FLS Regional....... 13.85 FLS Regional.
Equipment
Operators.
Northeast I......... ME 45-2092 Farmworkers and 12.72 OES State.......... 13.19 FLS Regional....... 13.11 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Northeast I......... ME 45-2093 Farmworkers, 13.04 OES State.......... 11.17 FLS Regional....... 11.81 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Northeast I......... ME 45-2099 Agricultural 15.31 OES National....... 16.88 OES National....... 13.36 FLS National.
Workers, All
Other.
Northeast I......... ME 45-4022 Logging Equipment 17.70 OES State.......... 17.91 OES State.......... 18.00 OES State.
Operators.
Northeast I......... ME 47-2073 Operating 17.70 OES State.......... 18.53 OES State.......... 19.13 OES State.
Engineers and
Other
Construction
Equipment
Operators.
Northeast I......... ME 49-3041 Farm Equipment 15.34 OES State.......... 18.26 OES State.......... 19.60 OES State.
Mechanics and
Service
Technicians.
Northeast I......... ME 49-3042 Mobile Heavy 21.26 OES State.......... 21.31 OES State.......... 20.98 OES State.
Equipment
Mechanics,
Except Engines.
Northeast I......... ME 51-7041 Sawing Machine 14.20 OES State.......... 15.32 OES State.......... 16.06 OES State.
Setters,
Operators, and
Tenders, Wood.
Northeast I......... ME 51-9021 Crushing, 19.17 OES State.......... 20.67 OES State.......... 18.49 OES State.
Grinding, and
Polishing
Machine Setters,
Operators, and
Tenders.
Northeast I......... ME 53-3032 Heavy and Tractor- 18.53 OES State.......... 19.29 OES State.......... 19.55 OES State.
Trailer Truck
Drivers.
Northeast I......... ME 53-7041 Hoist and Winch 24.37 OES National....... 24.05 OES National....... 26.40 OES National.
Operators.
Northeast I......... ME 53-7064 Packers and 10.99 OES State.......... 11.43 OES State.......... 12.36 OES State.
Packagers, Hand.
Northeast I......... NH 11-9013 Farmers, 20.96 FLS National....... 21.98 FLS National....... 22.67 FLS National.
Ranchers, and
Other
Agricultural
Managers.
Northeast I......... NH 45-1011 First-Line 24.78 OES State.......... 25.44 OES State.......... 25.68 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Northeast I......... NH 45-2041 Graders and 11.18 OES National....... 11.65 FLS National....... 13.38 FLS Regional.
Sorters,
Agricultural
Products.
Northeast I......... NH 45-2091 Agricultural 13.07 FLS Regional....... 12.97 FLS Regional....... 13.85 FLS Regional.
Equipment
Operators.
Northeast I......... NH 45-2092 Farmworkers and 13.15 OES State.......... 13.19 FLS Regional....... 13.11 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Northeast I......... NH 45-2093 Farmworkers, 12.80 OES State.......... 11.17 FLS Regional....... 11.81 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Northeast I......... NH 45-2099 Agricultural 15.31 OES National....... 16.88 OES National....... 13.36 FLS National.
Workers, All
Other.
Northeast I......... NH 53-7064 Packers and 11.58 OES State.......... 11.26 OES State.......... 11.82 OES State.
Packagers, Hand.
Northeast I......... NY 11-9013 Farmers, 32.90 OES State.......... 36.23 OES State.......... 41.46 OES State.
Ranchers, and
Other
Agricultural
Managers.
Northeast I......... NY 35-2012 Cooks, 15.14 OES State.......... 15.70 OES State.......... 16.09 OES State.
Institution and
Cafeteria.
Northeast I......... NY 35-2019 Cooks, All Other. 13.66 OES State.......... 13.44 OES State.......... 15.08 OES State.
[[Page 36257]]
Northeast I......... NY 45-1011 First-Line 27.53 OES State.......... 27.70 OES State.......... 28.82 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Northeast I......... NY 45-2041 Graders and 10.74 OES State.......... 11.35 OES State.......... 13.38 FLS Regional.
Sorters,
Agricultural
Products.
Northeast I......... NY 45-2091 Agricultural 13.07 FLS Regional....... 12.97 FLS Regional....... 13.85 FLS Regional.
Equipment
Operators.
Northeast I......... NY 45-2092 Farmworkers and 12.56 OES State.......... 13.19 FLS Regional....... 13.11 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Northeast I......... NY 45-2093 Farmworkers, 15.11 OES State.......... 11.17 FLS Regional....... 11.81 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Northeast I......... NY 45-2099 Agricultural 15.31 OES National....... 16.88 OES National....... 13.36 FLS National.
Workers, All
Other.
Northeast I......... NY 53-7064 Packers and 12.20 OES State.......... 12.19 OES State.......... 12.80 OES State.
Packagers, Hand.
Northeast I......... RI 11-9013 Farmers, 20.96 FLS National....... 21.98 FLS National....... 22.67 FLS National.
Ranchers, and
Other
Agricultural
Managers.
Northeast I......... RI 45-1011 First-Line 20.49 FLS National....... 19.55 FLS National....... 20.10 FLS National.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Northeast I......... RI 45-2041 Graders and 11.18 OES National....... 11.65 FLS National....... 13.38 FLS Regional.
Sorters,
Agricultural
Products.
Northeast I......... RI 45-2091 Agricultural 13.07 FLS Regional....... 12.97 FLS Regional....... 13.85 FLS Regional.
Equipment
Operators.
Northeast I......... RI 45-2092 Farmworkers and 12.91 OES State.......... 13.19 FLS Regional....... 13.11 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Northeast I......... RI 45-2093 Farmworkers, 11.81 FLS National....... 11.17 FLS Regional....... 11.81 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Northeast I......... RI 45-2099 Agricultural 15.31 OES National....... 16.88 OES National....... 13.36 FLS National.
Workers, All
Other.
Northeast I......... RI 53-7064 Packers and 10.83 OES State.......... 12.06 OES State.......... 12.35 OES State.
Packagers, Hand.
Northeast I......... VT 11-9013 Farmers, 20.96 FLS National....... 21.98 FLS National....... 22.67 FLS National.
Ranchers, and
Other
Agricultural
Managers.
Northeast I......... VT 35-2012 Cooks, 14.00 OES State.......... 14.57 OES State.......... 14.65 OES State.
Institution and
Cafeteria.
Northeast I......... VT 45-1011 First-Line 22.00 OES State.......... 21.17 OES State.......... 23.81 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Northeast I......... VT 45-2041 Graders and 11.70 OES State.......... 12.66 OES State.......... 13.38 FLS Regional.
Sorters,
Agricultural
Products.
Northeast I......... VT 45-2091 Agricultural 13.07 FLS Regional....... 12.97 FLS Regional....... 13.85 FLS Regional.
Equipment
Operators.
Northeast I......... VT 45-2092 Farmworkers and 13.35 OES State.......... 13.19 FLS Regional....... 13.11 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Northeast I......... VT 45-2093 Farmworkers, 15.64 OES State.......... 11.17 FLS Regional....... 11.81 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Northeast I......... VT 45-2099 Agricultural 15.31 OES National....... 16.88 OES National....... 13.36 FLS National.
Workers, All
Other.
Northeast I......... VT 51-3022 Meat, Poultry, 14.56 OES State.......... 15.23 OES State.......... 16.28 OES State.
and Fish Cutters
and Trimmers.
Northeast I......... VT 53-7064 Packers and 12.07 OES State.......... 12.39 OES State.......... 13.22 OES State.
Packagers, Hand.
Northeast II........ DE 11-9013 Farmers, 20.96 FLS National....... 21.98 FLS National....... 22.67 FLS National.
Ranchers, and
Other
Agricultural
Managers.
Northeast II........ DE 45-1011 First-Line 25.75 OES State.......... 25.70 OES State.......... 27.07 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Northeast II........ DE 45-2041 Graders and 11.09 FLS Regional....... 12.18 FLS Regional....... 13.89 FLS Regional.
Sorters,
Agricultural
Products.
Northeast II........ DE 45-2091 Agricultural 13.27 OES State.......... 12.85 FLS National....... 12.86 FLS National.
Equipment
Operators.
Northeast II........ DE 45-2092 Farmworkers and 11.90 FLS Regional....... 11.91 FLS Regional....... 12.05 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Northeast II........ DE 45-2093 Farmworkers, 11.82 OES State.......... 13.28 OES State.......... 11.36 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Northeast II........ DE 45-2099 Agricultural 15.31 OES National....... 16.88 OES National....... 13.36 FLS National.
Workers, All
Other.
Northeast II........ DE 53-7064 Packers and 12.55 OES State.......... 11.47 OES State.......... 11.68 OES State.
Packagers, Hand.
Northeast II........ MD 11-9013 Farmers, 20.96 FLS National....... 21.98 FLS National....... 22.67 FLS National.
Ranchers, and
Other
Agricultural
Managers.
Northeast II........ MD 45-1011 First-Line 24.95 OES State.......... 27.22 OES State.......... 25.64 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Northeast II........ MD 45-2041 Graders and 11.09 FLS Regional....... 12.18 FLS Regional....... 13.89 FLS Regional.
Sorters,
Agricultural
Products.
Northeast II........ MD 45-2091 Agricultural 18.40 OES State.......... 20.31 OES State.......... 20.30 OES State.
Equipment
Operators.
Northeast II........ MD 45-2092 Farmworkers and 11.90 FLS Regional....... 11.91 FLS Regional....... 12.05 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Northeast II........ MD 45-2093 Farmworkers, 14.10 OES State.......... 13.34 OES State.......... 11.36 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Northeast II........ MD 45-2099 Agricultural 17.44 OES State.......... 17.92 OES State.......... 13.36 FLS National.
Workers, All
Other.
Northeast II........ MD 53-7064 Packers and 11.19 OES State.......... 11.85 OES State.......... 12.20 OES State.
Packagers, Hand.
Northeast II........ NJ 11-9013 Farmers, 40.26 OES State.......... 39.45 OES State.......... 39.49 OES State.
Ranchers, and
Other
Agricultural
Managers.
[[Page 36258]]
Northeast II........ NJ 45-1011 First-Line 21.24 OES State.......... 21.37 OES State.......... 21.23 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Northeast II........ NJ 45-2041 Graders and 11.09 FLS Regional....... 12.18 FLS Regional....... 13.89 FLS Regional.
Sorters,
Agricultural
Products.
Northeast II........ NJ 45-2091 Agricultural 16.33 OES State.......... 12.85 FLS National....... 11.27 OES State.
Equipment
Operators.
Northeast II........ NJ 45-2092 Farmworkers and 11.90 FLS Regional....... 11.91 FLS Regional....... 12.05 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Northeast II........ NJ 45-2093 Farmworkers, 13.43 OES State.......... 13.53 OES State.......... 11.36 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Northeast II........ NJ 45-2099 Agricultural 13.09 OES State.......... 13.11 OES State.......... 11.88 OES State.
Workers, All
Other.
Northeast II........ NJ 53-7064 Packers and 10.72 OES State.......... 11.15 OES State.......... 11.64 OES State.
Packagers, Hand.
Northeast II........ PA 11-9013 Farmers, 42.44 OES State.......... 41.83 OES State.......... 43.16 OES State.
Ranchers, and
Other
Agricultural
Managers.
Northeast II........ PA 45-1011 First-Line 25.48 OES State.......... 24.83 OES State.......... 26.49 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Northeast II........ PA 45-2041 Graders and 11.09 FLS Regional....... 12.18 FLS Regional....... 13.89 FLS Regional.
Sorters,
Agricultural
Products.
Northeast II........ PA 45-2091 Agricultural 13.60 OES State.......... 15.43 OES State.......... 18.81 OES State.
Equipment
Operators.
Northeast II........ PA 45-2092 Farmworkers and 11.90 FLS Regional....... 11.91 FLS Regional....... 12.05 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Northeast II........ PA 45-2093 Farmworkers, 13.56 OES State.......... 13.19 OES State.......... 11.36 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Northeast II........ PA 45-2099 Agricultural 15.31 OES National....... 16.88 OES National....... 13.36 FLS National.
Workers, All
Other.
Northeast II........ PA 53-7064 Packers and 12.13 OES State.......... 12.53 OES State.......... 13.32 OES State.
Packagers, Hand.
Pacific............. OR 11-9013 Farmers, 28.68 OES State.......... 26.10 OES State.......... 29.89 OES State.
Ranchers, and
Other
Agricultural
Managers.
Pacific............. OR 45-1011 First-Line 26.95 OES State.......... 25.50 OES State.......... 24.49 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Pacific............. OR 45-2041 Graders and 10.84 OES State.......... 11.43 OES State.......... 11.90 OES State.
Sorters,
Agricultural
Products.
Pacific............. OR 45-2091 Agricultural 15.12 FLS Regional....... 14.55 FLS Regional....... 14.38 FLS Regional.
Equipment
Operators.
Pacific............. OR 45-2092 Farmworkers and 13.08 FLS Regional....... 13.30 FLS Regional....... 14.32 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Pacific............. OR 45-2093 Farmworkers, 12.08 FLS Regional....... 13.71 FLS Regional....... 14.47 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Pacific............. OR 45-2099 Agricultural 15.38 OES State.......... 16.40 OES State.......... 18.08 OES State.
Workers, All
Other.
Pacific............. OR 53-7064 Packers and 12.84 FLS Regional....... 11.26 FLS Regional....... 13.48 OES State.
Packagers, Hand.
Pacific............. WA 11-9013 Farmers, 34.58 OES State.......... 38.36 OES State.......... 41.15 OES State.
Ranchers, and
Other
Agricultural
Managers.
Pacific............. WA 45-1011 First-Line 26.75 OES State.......... 27.55 OES State.......... 25.34 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Pacific............. WA 45-2041 Graders and 13.60 OES State.......... 14.40 OES State.......... 14.22 OES State.
Sorters,
Agricultural
Products.
Pacific............. WA 45-2091 Agricultural 15.12 FLS Regional....... 14.55 FLS Regional....... 14.38 FLS Regional.
Equipment
Operators.
Pacific............. WA 45-2092 Farmworkers and 13.08 FLS Regional....... 13.30 FLS Regional....... 14.32 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Pacific............. WA 45-2093 Farmworkers, 12.08 FLS Regional....... 13.71 FLS Regional....... 14.47 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Pacific............. WA 45-2099 Agricultural 16.06 OES State.......... 17.36 OES State.......... 15.78 OES State.
Workers, All
Other.
Pacific............. WA 53-7064 Packers and 12.84 FLS Regional....... 11.26 FLS Regional....... 13.94 OES State.
Packagers, Hand.
Southeast........... AL 11-9013 Farmers, 20.96 FLS National....... 21.98 FLS National....... 22.67 FLS National.
Ranchers, and
Other
Agricultural
Managers.
Southeast........... AL 45-1011 First-Line 23.23 OES State.......... 26.41 OES State.......... 28.46 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Southeast........... AL 45-2041 Graders and 11.11 OES State.......... 11.16 OES State.......... 11.04 OES State.
Sorters,
Agricultural
Products.
Southeast........... AL 45-2091 Agricultural 12.80 OES State.......... 15.80 OES State.......... 11.05 OES State.
Equipment
Operators.
Southeast........... AL 45-2092 Farmworkers and 10.83 FLS Regional....... 10.93 FLS Regional....... 11.01 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Southeast........... AL 45-2093 Farmworkers, 11.22 OES State.......... 11.99 OES State.......... 13.41 OES State.
Farm, Ranch, and
Aquacultural
Animals.
Southeast........... AL 45-2099 Agricultural 12.01 FLS Regional....... 13.14 OES State.......... 13.90 OES State.
Workers, All
Other.
Southeast........... AL 53-3032 Heavy and Tractor- 19.28 OES State.......... 18.77 OES State.......... 19.27 OES State.
Trailer Truck
Drivers.
Southeast........... AL 53-7064 Packers and 10.10 FLS Regional....... 10.31 FLS Regional....... 10.92 FLS Regional.
Packagers, Hand.
Southeast........... GA 11-9013 Farmers, 20.96 FLS National....... 21.98 FLS National....... 31.51 OES State.
Ranchers, and
Other
Agricultural
Managers.
Southeast........... GA 45-1011 First-Line 23.79 OES State.......... 23.42 OES State.......... 23.14 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
[[Page 36259]]
Southeast........... GA 45-2041 Graders and 10.40 OES State.......... 10.53 OES State.......... 10.44 OES State.
Sorters,
Agricultural
Products.
Southeast........... GA 45-2091 Agricultural 10.86 OES State.......... 11.54 OES State.......... 12.48 OES State.
Equipment
Operators.
Southeast........... GA 45-2092 Farmworkers and 10.83 FLS Regional....... 10.93 FLS Regional....... 11.01 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Southeast........... GA 45-2093 Farmworkers, 11.52 OES State.......... 12.77 OES State.......... 13.27 OES State.
Farm, Ranch, and
Aquacultural
Animals.
Southeast........... GA 45-2099 Agricultural 12.01 FLS Regional....... 19.49 OES State.......... 18.29 OES State.
Workers, All
Other.
Southeast........... GA 53-7064 Packers and 10.10 FLS Regional....... 10.31 FLS Regional....... 10.92 FLS Regional.
Packagers, Hand.
Southeast........... SC 11-9013 Farmers, 36.96 OES State.......... 40.39 OES State.......... 35.55 OES State.
Ranchers, and
Other
Agricultural
Managers.
Southeast........... SC 45-1011 First-Line 25.84 OES State.......... 27.24 OES State.......... 27.08 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Southeast........... SC 45-2041 Graders and 11.23 OES State.......... 10.50 OES State.......... 10.92 OES State.
Sorters,
Agricultural
Products.
Southeast........... SC 45-2091 Agricultural 12.30 OES State.......... 15.13 OES State.......... 16.52 OES State.
Equipment
Operators.
Southeast........... SC 45-2092 Farmworkers and 10.83 FLS Regional....... 10.93 FLS Regional....... 11.01 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Southeast........... SC 45-2093 Farmworkers, 11.97 OES State.......... 12.94 OES State.......... 13.71 OES State.
Farm, Ranch, and
Aquacultural
Animals.
Southeast........... SC 45-2099 Agricultural 12.01 FLS Regional....... 17.92 OES State.......... 13.36 FLS National.
Workers, All
Other.
Southeast........... SC 53-7064 Packers and 10.10 FLS Regional....... 10.31 FLS Regional....... 10.92 FLS Regional.
Packagers, Hand.
Southeastern Plains. OK 11-9013 Farmers, 23.66 FLS Regional....... 24.74 OES State.......... 27.39 OES State.
Ranchers, and
Other
Agricultural
Managers.
Southeastern Plains. OK 45-1011 First-Line 17.28 FLS Regional....... 18.06 FLS Regional....... 25.85 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Southeastern Plains. OK 45-2041 Graders and 11.17 OES State.......... 12.09 OES State.......... 11.70 FLS Regional.
Sorters,
Agricultural
Products.
Southeastern Plains. OK 45-2091 Agricultural 11.59 FLS Regional....... 11.76 FLS Regional....... 11.28 FLS Regional.
Equipment
Operators.
Southeastern Plains. OK 45-2092 Farmworkers and 11.60 OES State.......... 11.53 FLS Regional....... 11.53 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Southeastern Plains. OK 45-2093 Farmworkers, 11.31 FLS Regional....... 11.66 FLS Regional....... 12.12 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Southeastern Plains. OK 45-2099 Agricultural 15.31 OES National....... 16.88 OES National....... 13.36 FLS National.
Workers, All
Other.
Southeastern Plains. OK 53-3032 Heavy and Tractor- 20.27 OES State.......... 20.21 OES State.......... 20.74 OES State.
Trailer Truck
Drivers.
Southeastern Plains. OK 53-7064 Packers and 11.17 OES State.......... 11.39 OES State.......... 12.09 FLS Regional.
Packagers, Hand.
Southeastern Plains. TX 11-9013 Farmers, 23.66 FLS Regional....... 41.28 OES State.......... 37.67 OES State.
Ranchers, and
Other
Agricultural
Managers.
Southeastern Plains. TX 45-1011 First-Line 17.28 FLS Regional....... 18.06 FLS Regional....... 27.00 OES State.
Supervisors of
Farming,
Fishing, and
Forestry Workers.
Southeastern Plains. TX 45-2041 Graders and 11.10 OES State.......... 11.07 OES State.......... 11.70 FLS Regional.
Sorters,
Agricultural
Products.
Southeastern Plains. TX 45-2091 Agricultural 11.59 FLS Regional....... 11.76 FLS Regional....... 11.28 FLS Regional.
Equipment
Operators.
Southeastern Plains. TX 45-2092 Farmworkers and 9.54 OES State.......... 11.53 FLS Regional....... 11.53 FLS Regional.
Laborers, Crop,
Nursery, and
Greenhouse.
Southeastern Plains. TX 45-2093 Farmworkers, 11.31 FLS Regional....... 11.66 FLS Regional....... 12.12 FLS Regional.
Farm, Ranch, and
Aquacultural
Animals.
Southeastern Plains. TX 45-2099 Agricultural 13.04 OES State.......... 13.77 OES State.......... 16.65 OES State.
Workers, All
Other.
Southeastern Plains. TX 47-2061 Construction 14.07 OES State.......... 14.62 OES State.......... 15.02 OES State.
Laborers.
Southeastern Plains. TX 49-2093 Electrical and 27.34 OES State.......... 29.88 OES State.......... 28.40 OES State.
Electronics
Installers and
Repairers,
Transportation
Equipment.
Southeastern Plains. TX 53-7064 Packers and 10.80 OES State.......... 11.05 OES State.......... 12.09 FLS Regional.
Packagers, Hand.
--------------------------------------------------------------------------------------------------------------------------------------------------------
List of Subjects
20 CFR Part 653
Agriculture, Employment, Equal employment opportunity, Grant
programs--labor, Migrant labor, Reporting and recordkeeping
requirements.
20 CFR Part 655
Administrative practice and procedure, Foreign workers, Employment,
Employment and training, Enforcement, Forest and forest products,
Fraud, Health professions, Immigration, Labor, Passports and visas,
Penalties, Reporting and recordkeeping
[[Page 36260]]
requirements, Unemployment, Wages, Working conditions.
29 CFR Part 501
Administrative practice and procedure, Agricultural, Aliens,
Employment, Housing, Housing standards, Immigration, Labor, Migrant
labor, Penalties, Transportation, Wages.
For the reasons stated in the preamble, the Department of Labor
proposes that 20 CFR parts 653 and 655 and 29 CFR part 501 be amended
as follows:
Title 20--Employees' Benefits
PART 653--SERVICES OF THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE
SYSTEM
0
1. The authority citation for part 653 continues to read as follows:
Authority: Secs. 167, 189, 503, Pub. L. 113-128, 128 Stat. 1425
(Jul. 22, 2014); 29 U.S.C. chapter 4B; 38 U.S.C. part III, chapters
41 and 42.
0
2. Amend Sec. 653.501 by revising the first sentence of paragraph
(c)(2)(i) to read as follows:
Sec. 653.501 Requirements for processing clearance orders.
* * * * *
(c) * * *
(2) * * *
(i) The wages and working conditions offered are not less than the
prevailing wages, as defined in Sec. 655.103(b), and prevailing
working conditions among similarly employed farmworkers in the area of
intended employment or the applicable Federal or State minimum wage,
whichever is higher. * * *
* * * * *
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES
0
3. The authority citation for part 655 continues to read as follows:
Authority: Section 655.0 issued under 8 U.S.C.
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C.
1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (j), 1188, and
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978,
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206,
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat.
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR
214.2(h)(4)(i); and 8 CFR 214.2(h)(6)(iii).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c),
and 1188; and 8 CFR 214.2(h).
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec.
323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note,
Pub. L. 114-74 at section 701.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
(b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Pub.
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e),
Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461
note, Pub. L. 114-74 at section 701.
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
0
4. Revise subpart B to read as follows:
Subpart B--Labor Certification Process for Temporary Agricultural
Employment in the United States (H-2A Workers)
Sec.
655.100 Scope and purpose of this subpart.
655.101 Authority of the agencies, offices, and divisions in the
Department of Labor.
655.102 Transition procedures.
655.103 Overview of this subpart and definition of terms.
Prefiling Procedures
655.120 Offered wage rate.
655.121 Job order filing requirements.
655.122 Contents of job offers.
655.123 Positive recruitment of U.S. workers.
655.124 Withdrawal of a job order.
Application for Temporary Employment Certification Filing Procedures
655.130 Application filing requirements.
655.131 Agricultural association and joint employer filing
requirements.
655.132 H-2A labor contractor filing requirements.
655.133 Requirements for agents.
655.134 Emergency situations.
655.135 Assurances and obligations of H-2A employers.
655.136 Withdrawal of an Application for Temporary Employment
Certification and job order.
Processing of Applications for Temporary Employment Certification
655.140 Review of applications.
655.141 Notice of deficiency.
655.142 Submission of modified applications.
655.143 Notice of acceptance.
655.144 Electronic job registry.
655.145 Amendments to Applications for Temporary Employment
Certification.
Post-Acceptance Requirements
655.150 Interstate clearance of job order.
655.151 Advertising in the area of intended employment.
655.152 Advertising content requirements.
655.153 Contact with former U.S. workers.
655.154 Additional positive recruitment.
655.155 Referrals of U.S. workers.
655.156 Recruitment report.
655.157 Withholding of U.S. workers prohibited.
655.158 Duration of positive recruitment.
Labor Certification Determinations
655.160 Determinations.
655.161 Criteria for certification.
655.162 Approved certification.
655.163 Certification fee.
655.164 Denied certification.
655.165 Partial certification.
655.166 Requests for determinations based on nonavailability of U.S.
workers.
655.167 Document retention requirements of H-2A employers.
Post-Certification
655.170 Extensions.
655.171 Appeals.
655.172 Post-certification withdrawals.
655.173 Setting meal charges; petition for higher meal charges.
655.174 Public disclosure.
655.175 Post-certification amendments.
Integrity Measures
655.180 Audit.
655.181 Revocation.
655.182 Debarment.
655.183 Less than substantial violations.
655.184 Applications involving fraud or willful misrepresentation.
655.185 Job service complaint system; enforcement of work contracts.
Labor Certification Process for Temporary Agricultural Employment in
Range Sheep Herding, Goat Herding, and Production of Livestock
Occupations
655.200 Scope and purpose of herding and range livestock regulations
in Sec. Sec. 655.200 through 655.235.
655.201 Definition of herding and range livestock terms.
655.205 Herding and range livestock job orders.
655.210 Contents of herding and range livestock job orders.
655.211 Herding and range livestock wage rate.
655.215 Procedures for filing herding and range livestock
Applications for Temporary Employment Certification.
655.220 Processing herding and range livestock Applications for
Temporary Employment Certification.
655.225 Post-acceptance requirements for herding and range
livestock.
655.230 Range housing.
655.235 Standards for range housing.
Labor Certification Process for Temporary Agricultural Employment in
Animal Shearing, Commercial Beekeeping, Custom Combining, and
Reforestation Occupations
655.300 Scope and purpose.
655.301 Definition of terms.
655.302 Contents of job orders.
655.303 Procedures for filing Applications for Temporary Employment
Certification.
655.304 Standards for mobile housing.
[[Page 36261]]
Sec. 655.100 Scope and purpose of this subpart.
(a) Purpose. (1) A temporary agricultural labor certification
issued under this subpart reflects a determination by the Secretary of
Labor (Secretary), pursuant to 8 U.S.C. 1188(a), that:
(i) There are not sufficient able, willing, and qualified United
States (U.S.) workers available to perform the temporary agricultural
labor or services for which an employer desires to hire foreign
workers; and
(ii) The employment of the H-2A worker(s) will not adversely affect
the wages and working conditions of workers in the United States
similarly employed.
(2) This subpart describes the process by which the Department of
Labor (Department or DOL) makes such a determination and certifies its
determination to the Department of Homeland Security (DHS).
(b) Scope. This subpart sets forth the procedures governing the
labor certification process for the temporary employment of foreign
workers in the H-2A nonimmigrant classification, as defined in 8 U.S.C.
1101(a)(15)(H)(ii)(a). It also establishes standards and obligations
with respect to the terms and conditions of the temporary agricultural
labor certification with which H-2A employers must comply, as well as
the rights and obligations of H-2A workers and workers in corresponding
employment. Additionally, this subpart sets forth integrity measures
for ensuring employers' continued compliance with the terms and
conditions of the temporary agricultural labor certification.
Sec. 655.101 Authority of the agencies, offices, and divisions in
the Department of Labor.
(a) Authority and role of the Office of Foreign Labor
Certification. The Secretary has delegated authority to the Assistant
Secretary for the Employment and Training Administration (ETA), who in
turn has delegated that authority to the Office of Foreign Labor
Certification (OFLC), to issue certifications and carry out other
statutory responsibilities as required by 8 U.S.C. 1188. Determinations
on an Application for Temporary Employment Certification are made by
the OFLC Administrator who, in turn, may delegate this responsibility
to designated staff, e.g., a Certifying Officer (CO).
(b) Authority of the Wage and Hour Division. The Secretary has
delegated authority to the Wage and Hour Division (WHD) to conduct
certain investigatory and enforcement functions with respect to terms
and conditions of employment under 8 U.S.C. 1188, 29 CFR part 501, and
this subpart (``the H-2A program''), and to carry out other statutory
responsibilities required by 8 U.S.C. 1188. The regulations governing
WHD's investigatory and enforcement functions, including those related
to the enforcement of temporary agricultural labor certifications
issued under this subpart, are in 29 CFR part 501.
(c) Concurrent authority. OFLC and WHD have concurrent authority to
impose a debarment remedy pursuant to Sec. 655.182 and 29 CFR 501.20.
Sec. 655.102 Transition procedures.
(a) The NPC shall continue to process an Application for Temporary
Employment Certification submitted prior to [effective date of the
final rule] in accordance with 20 CFR part 655, subpart B, in effect as
of [date 1 day before the effective date of the final rule].
(b) The NPC shall process an Application for Temporary Employment
Certification submitted on or after [effective date of the final rule],
and that has a first date of need no later than [date 90 calendar days
after the effective date of the final rule], in accordance with 20 CFR
part 655, subpart B, in effect as of [date 1 day before the effective
date of the final rule].
(c) The NPC shall process an Application for Temporary Employment
Certification submitted on or after [effective date of the final rule],
and that has a first date of need later than [date 90 calendar days
after the effective date of the final rule], in accordance with all job
order and application filing requirements under this supbart.
Sec. 655.103 Overview of this subpart and definition of terms.
(a) Overview. In order to bring nonimmigrant workers to the United
States to perform agricultural work, an employer must first demonstrate
to the Secretary that there are not sufficient U.S. workers able,
willing, and qualified to perform the work in the area of intended
employment at the time needed and that the employment of foreign
workers will not adversely affect the wages and working conditions of
workers in the United States similarly employed. This subpart describes
a process by which the Department of Labor (Department or DOL) makes
such a determination and certifies its determination to the Department
of Homeland Security (DHS).
(b) Definitions. For the purposes of this subpart:
Act. The Immigration and Nationality Act, as amended (INA), 8
U.S.C. 1101 et seq.
Administrative Law Judge. A person within the Department's Office
of Administrative Law Judges appointed pursuant to 5 U.S.C. 3105.
Administrator. See definitions of OFLC Administrator and WHD
Administrator below.
Adverse effect wage rate. The wage rate published by the OFLC
Administrator in the Federal Register for the occupational
classification and state based on either the U.S. Department of
Agriculture's (USDA's) Farm Labor Survey (FLS) or the Bureau of Labor
Statistics' (BLS') Occupational Employment Statistics (OES) survey, as
set forth in Sec. 655.120(b).
Agent. A legal entity or person, such as an association of
agricultural employers, or an attorney for an association, that:
(i) Is authorized to act on behalf of the employer for temporary
agricultural labor certification purposes;
(ii) Is not itself an employer, or a joint employer, as defined in
this subpart with respect to a specific application; and
(iii) Is not under suspension, debarment, expulsion, or disbarment
from practice before any court, the Department, or the Executive Office
for Immigration Review or DHS under 8 CFR 292.3 or 1003.101.
Agricultural association. Any nonprofit or cooperative association
of farmers, growers, or ranchers (including, but not limited to,
processing establishments, canneries, gins, packing sheds, nurseries,
or other similar fixed-site agricultural employers), incorporated or
qualified under applicable state law, that recruits, solicits, hires,
employs, furnishes, houses, or transports any worker that is subject to
8 U.S.C. 1188. An agricultural association may act as the agent of an
employer, or may act as the sole or joint employer of any worker
subject to 8 U.S.C. 1188.
Applicant. A U.S. worker who is applying for a job opportunity for
which an employer has filed an Application for Temporary Employment
Certification and job order.
Application for Temporary Employment Certification. The Office of
Management and Budget (OMB)-approved Form ETA-9142A and appropriate
appendices submitted by an employer to secure a temporary agricultural
labor certification determination from DOL.
Area of intended employment. The geographic area within normal
commuting distance of the place(s) of
[[Page 36262]]
employment for which temporary agricultural labor certification is
sought. There is no rigid measure of distance that constitutes a normal
commuting distance or normal commuting area, because there may be
widely varying factual circumstances among different areas (e.g.,
average commuting times, barriers to reaching the place(s) of
employment, or quality of the regional transportation network). If a
place of employment is within a Metropolitan Statistical Area (MSA),
including a multi-state MSA, any place within the MSA is deemed to be
within normal commuting distance of the place of employment. The
borders of MSAs are not controlling in the identification of the normal
commuting area; a place of employment outside of an MSA may be within
normal commuting distance of a place of employment that is inside
(e.g., near the border of) the MSA.
Attorney. Any person who is a member in good standing of the bar of
the highest court of any state, possession, territory, or commonwealth
of the United States, or the District of Columbia (DC). Such a person
is also permitted to act as an agent under this subpart. No attorney
who is under suspension, debarment, expulsion, or disbarment from
practice before any court, the Department, or the Executive Office for
Immigration Review or DHS under 8 CFR 292.3 or 8 CFR 1003.101, may
represent an employer under this subpart.
Average adverse effect wage rate. The simple average of the first
adverse effect wage rates (AEWRs) applicable to the SOC 45-2092
(Farmworkers and Laborers, Crop, Nursery, and Greenhouse) that the OFLC
Administrator publishes in a calendar year in accordance with Sec.
655.120(b).
Board of Alien Labor Certification Appeals. The permanent Board
established by part 656 of this chapter, chaired by the Chief
Administrative Law Judge (Chief ALJ), and consisting of Administrative
Law Judges (ALJs) appointed pursuant to 5 U.S.C. 3105 and designated by
the Chief ALJ to be members of Board of Alien Labor Certification
Appeals (BALCA or Board).
Certifying Officer. The person who makes a determination on an
Application for Temporary Employment Certification filed under the H-2A
program. The OFLC Administrator is the national CO. Other COs may be
designated by the OFLC Administrator to also make the determinations
required under this subpart.
Chief Administrative Law Judge. The chief official of the
Department's Office of Administrative Law Judges or the Chief ALJ's
designee.
Corresponding employment. The employment of workers who are not H-
2A workers by an employer who has an approved Application for Temporary
Employment Certification in any work included in the job order, or in
any agricultural work performed by the H-2A workers. To qualify as
corresponding employment, the work must be performed during the
validity period of the job order, including any approved extension
thereof.
Department of Homeland Security. The Federal department having
jurisdiction over certain immigration-related functions, acting through
its component agencies, including U.S. Citizenship and Immigration
Services (USCIS).
Employee. A person who is engaged to perform work for an employer,
as defined under the general common law of agency. Some of the factors
relevant to the determination of employee status include: The hiring
party's right to control the manner and means by which the work is
accomplished; the skill required to perform the work; the source of the
instrumentalities and tools for accomplishing the work; the location of
the work; the hiring party's discretion over when and how long to work;
and whether the work is part of the regular business of the hiring
party. Other applicable factors may be considered and no one factor is
dispositive.
Employer. A person (including any individual, partnership,
association, corporation, cooperative, firm, joint stock company,
trust, or other organization with legal rights and duties) that:
(i) Has an employment relationship (such as the ability to hire,
pay, fire, supervise, or otherwise control the work of employee) with
respect to an H-2A worker or a worker in corresponding employment; or
(ii) Files an Application for Temporary Employment Certification
other than as an agent; or
(iii) A person on whose behalf an Application for Temporary
Employment Certification is filed.
Employment and Training Administration. The agency within the
Department that includes OFLC and has been delegated authority by the
Secretary to fulfill the Secretary's mandate under the INA and DHS'
implementing regulations for the administration and adjudication of an
Application for Temporary Employment Certification and related
functions.
Federal holiday. Legal public holiday as defined at 5 U.S.C. 6103.
First date of need. The first date the employer anticipates
requiring the labor or services of H-2A workers as indicated in the
Application for Temporary Employment Certification.
Fixed-site employer. Any person engaged in agriculture who meets
the definition of an employer, as those terms are defined in this
subpart; who owns or operates a farm, ranch, processing establishment,
cannery, gin, packing shed, nursery, or other similar fixed-site
location where agricultural activities are performed; and who recruits,
solicits, hires, employs, houses, or transports any worker subject to 8
U.S.C. 1188, 29 CFR part 501, or this subpart as incident to or in
conjunction with the owner's or operator's own agricultural operation.
H-2A labor contractor. Any person who meets the definition of
employer under this subpart and is not a fixed-site employer, an
agricultural association, or an employee of a fixed-site employer or
agricultural association, as those terms are used in this subpart, who
recruits, solicits, hires, employs, furnishes, houses, or transports
any worker subject to 8 U.S.C. 1188, 29 CFR part 501, or this subpart.
H-2A worker. Any temporary foreign worker who is lawfully present
in the United States and authorized by DHS to perform agricultural
labor or services of a temporary or seasonal nature pursuant to 8
U.S.C. 1101(a)(15)(H)(ii)(a), as amended.
H-2A Petition. The USCIS Form I-129, Petition for a Nonimmigrant
Worker, with H Supplement or successor form or supplement, and
accompanying documentation required by DHS for employers seeking to
employ foreign persons as H-2A nonimmigrant workers.
Job offer. The offer made by an employer or potential employer of
H-2A workers to both U.S. and H-2A workers describing all the material
terms and conditions of employment, including those relating to wages,
working conditions, and other benefits.
Job opportunity. Full-time employment at a place in the United
States to which U.S. workers can be referred.
Job order. The document containing the material terms and
conditions of employment that is posted by the State Workforce Agency
(SWA) on its interstate and intrastate job clearance systems based on
the employer's Agricultural Clearance Order (Form ETA-790/ETA-790A and
all appropriate addenda), as submitted to the NPC.
Joint employment. (i) Where two or more employers each have
sufficient
[[Page 36263]]
definitional indicia of being a joint employer of a worker under the
common law of agency, they are, at all times, joint employers of that
worker.
(ii) An agricultural association that files an Application for
Temporary Employment Certification as a joint employer is, at all
times, a joint employer of all the H-2A workers sponsored under the
Application for Temporary Employment Certification and all workers in
corresponding employment. An employer-member of an agricultural
association that files an Application for Temporary Employment
Certification as a joint employer is a joint employer of the H-2A
workers sponsored under the joint employer Application for Temporary
Employment Certification along with the agricultural association during
the period that the employer-member employs the H-2A workers sponsored
under the Application for Temporary Employment Certification.
(iii) Employers that jointly file a joint employer Application for
Temporary Employment Certification under Sec. 655.131(b) are, at all
times, joint employers of all the H-2A workers sponsored under the
Application for Temporary Employment Certification and all workers in
corresponding employment.
Master application. An Application for Temporary Employment
Certification filed by an association of agricultural producers as a
joint employer with its employer-members. A master application must
cover the same occupations or comparable agricultural employment; the
first date of need for all employer-members listed on the Application
for Temporary Employment Certification may be separated by no more than
14 calendar days; and may cover multiple areas of intended employment
within a single state but no more than two contiguous states.
Metropolitan Statistical Area. A geographic entity defined by OMB
for use by Federal statistical agencies in collecting, tabulating, and
publishing Federal statistics. A Metropolitan Statistical Area contains
a core urban area of 50,000 or more population, and a Micropolitan
Statistical Area contains an urban core of at least 10,000 (but fewer
than 50,000) population. Each metropolitan or micropolitan area
consists of one or more counties and includes the counties containing
the core urban area, as well as any adjacent counties that have a high
degree of social and economic integration (as measured by commuting to
work) with the urban core.
National Processing Center. The offices within OFLC in which the
COs operate and which are charged with the adjudication of Applications
for Temporary Employment Certification.
Office of Foreign Labor Certification. OFLC means the
organizational component of ETA that provides national leadership and
policy guidance, and develops regulations and procedures to carry out
the responsibilities of the Secretary under the INA concerning the
admission of foreign workers to the United States to perform work
described in 8 U.S.C. 1101(a)(15)(H)(ii)(a).
OFLC Administrator. The primary official of OFLC, or the OFLC
Administrator's designee.
Period of employment. The time during which the employer requires
the labor or services of H-2A workers as indicated by the first and
last dates of need provided in the Application for Temporary Employment
Certification.
Piece rate. A form of wage compensation based upon a worker's
quantitative output or one unit of work or production for the crop or
agricultural activity.
Place of employment. A worksite or physical location where work
under the job order actually is performed by the H-2A workers and
workers in corresponding employment.
Positive recruitment. The active participation of an employer or
its authorized hiring agent, performed under the auspices and direction
of OFLC, in recruiting and interviewing individuals in the area where
the employer's job opportunity is located, and any other state
designated by the Secretary as an area of traditional or expected labor
supply with respect to the area where the employer's job opportunity is
located, in an effort to fill specific job openings with U.S. workers.
Prevailing practice. A practice engaged in by employers, that:
(i) Fifty percent or more of employers in an area and for an
occupation engage in the practice or offer the benefit; and
(ii) This 50 percent or more of employers also employs 50 percent
or more of U.S. workers in the occupation and area (including H-2A and
non-H-2A employers) for purposes of determinations concerning the
provision of family housing, and frequency of wage payments, but non-H-
2A employers only for determinations concerning the provision of
advance transportation and the utilization of labor contractors.
Prevailing wage. A wage rate established by the OFLC Administrator
for a crop activity or agricultural activity and geographic area based
on a survey conducted by a state that meets the requirements in Sec.
655.120(c).
Secretary of Labor. The chief official of the Department, or the
Secretary's designee.
Secretary of Homeland Security. The chief official of DHS or the
Secretary of Homeland Security's designee.
State Workforce Agency. State government agency that receives funds
pursuant to the Wagner-Peyser Act, 29 U.S.C. 49 et seq., to administer
the state's public labor exchange activities.
Strike. A concerted stoppage of work by employees as a result of a
labor dispute, or any concerted slowdown or other concerted
interruption of operation (including stoppage by reason of the
expiration of a collective bargaining agreement).
Successor in interest. (i) Where an employer, agent, or attorney
has violated 8 U.S.C. 1188, 29 CFR part 501, or this subpart, and has
ceased doing business or cannot be located for purposes of enforcement,
a successor in interest to that employer, agent, or attorney may be
held liable for the duties and obligations of the violating employer,
agent, or attorney in certain circumstances. The following factors, as
used under Title VII of the Civil Rights Act and the Vietnam Era
Veterans' Readjustment Assistance Act, may be considered in determining
whether an employer, agent, or attorney is a successor in interest; no
one factor is dispositive, but all of the circumstances will be
considered as a whole:
(A) Substantial continuity of the same business operations;
(B) Use of the same facilities;
(C) Continuity of the work force;
(D) Similarity of jobs and working conditions;
(E) Similarity of supervisory personnel;
(F) Whether the former management or owner retains a direct or
indirect interest in the new enterprise;
(G) Similarity in machinery, equipment, and production methods;
(H) Similarity of products and services; and
(I) The ability of the predecessor to provide relief.
(ii) For purposes of debarment only, the primary consideration will
be the personal involvement of the firm's ownership, management,
supervisors, and others associated with the firm in the violation(s) at
issue.
Temporary agricultural labor certification. Certification made by
the OFLC Administrator, based on the Application for Temporary
Employment Certification, job order, and all supporting documentation,
with respect to an employer seeking to file with DHS a visa petition to
employ one or more foreign nationals as an H-2A worker,
[[Page 36264]]
pursuant to 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(a) and (c), and 1188,
and this subpart.
United States. The continental United States, Alaska, Hawaii, the
Commonwealth of Puerto Rico, and the territories of Guam, the U.S.
Virgin Islands, and the Commonwealth of the Northern Mariana Islands.
U.S. Citizenship and Immigration Services. The Federal agency
within DHS that makes the determination under the INA whether to grant
petitions filed by employers seeking H-2A workers to perform temporary
or seasonal agricultural labor or services in the United States.
U.S. worker. A worker who is:
(i) A citizen or national of the United States;
(ii) An individual who is lawfully admitted for permanent residence
in the United States, is admitted as a refugee under 8 U.S.C. 1157, is
granted asylum under 8 U.S.C. 1158, or is an immigrant otherwise
authorized by the INA or DHS to be employed in the United States; or
(iii) An individual who is not an unauthorized alien, as defined in
8 U.S.C. 1324a(h)(3), with respect to the employment in which the
worker is engaging.
Wages. All forms of cash remuneration to a worker by an employer in
payment for labor or services.
Wage and Hour Division. The agency within the Department with
authority to conduct certain investigatory and enforcement functions,
as delegated by the Secretary, under 8 U.S.C. 1188, 29 CFR part 501,
and this subpart.
WHD Administrator. The primary official of WHD, or the WHD
Administrator's designee.
Work contract. All the material terms and conditions of employment
relating to wages, hours, working conditions, and other benefits,
including those required by 8 U.S.C. 1188, 29 CFR part 501, or this
subpart. The contract between the employer and the worker may be in the
form of a separate written document. In the absence of a separate
written work contract incorporating the required terms and conditions
of employment, agreed to by both the employer and the worker, the work
contract at a minimum will be the terms and conditions of the job order
and any obligations required under 8 U.S.C. 1188, 28 CFR part 501, or
this subpart.
(c) Definition of agricultural labor or services. For the purposes
of this subpart, agricultural labor or services, pursuant to 8 U.S.C.
1011(a)(15)(H)(ii)(a), is defined as: agricultural labor as defined and
applied in section 3121(g) of the Internal Revenue Code of 1986 at 26
U.S.C. 3121(g); agriculture as defined and applied in section 3(f) of
the Fair Labor Standards Act of 1938, as amended (FLSA) at 29 U.S.C.
203(f); the pressing of apples for cider on a farm; logging employment;
reforestation activities; or pine straw activities. An occupation
included in either statutory definition is agricultural labor or
services, notwithstanding the exclusion of that occupation from the
other statutory definition. For informational purposes, the statutory
provisions are listed in paragraphs (c)(1) thorough (6) of this
section.
(1) Agricultural labor. (i) For the purpose of paragraph (c) of
this section, agricultural labor means all service performed:
(A) On a farm, in the employ of any person, in connection with
cultivating the soil, or in connection with raising or harvesting any
agricultural or horticultural commodity, including the raising,
shearing, feeding, caring for, training, and management of livestock,
bees, poultry, and fur-bearing animals and wildlife;
(B) In the employ of the owner or tenant or other operator of a
farm, in connection with the operation, management, conservation,
improvement, or maintenance of such farm and its tools and equipment,
or in salvaging timber or clearing land of brush and other debris left
by a hurricane, if the major part of such service is performed on a
farm;
(C) In connection with the production or harvesting of any
commodity defined as an agricultural commodity in section 15(g) of the
Agricultural Marketing Act, as amended, 12 U.S.C. 1141j, or in
connection with the ginning of cotton, or in connection with the
operation or maintenance of ditches, canals, reservoirs, or waterways,
not owned or operated for profit, used exclusively for supplying and
storing water for farming purposes;
(D) In the employ of the operator of a farm in handling, planting,
drying, packing, packaging, processing, freezing, grading, storing, or
delivering to storage or to market or to a carrier for transportation
to market, in its unmanufactured state, any agricultural or
horticultural commodity; but only if such operator produced more than
one-half of the commodity with respect to which such service is
performed;
(E) In the employ of a group of operators of farms (other than a
cooperative organization) in the performance of service described in
paragraph (c)(1)(i)(D) of this section but only if such operators
produced all of the commodity with respect to which such service is
performed. For purposes of this paragraph (c)(1)(i)(E), any
unincorporated group of operators shall be deemed a cooperative
organization if the number of operators comprising such group is more
than 20 at any time during the calendar year in which such service is
performed;
(F) The provisions of paragraphs (c)(1)(i)(D) and (E) of this
section shall not be deemed to be applicable with respect to service
performed in connection with commercial canning or commercial freezing
or in connection with any agricultural or horticultural commodity after
its delivery to a terminal market for distribution for consumption; or
(G) On a farm operated for profit if such service is not in the
course of the employer's trade or business or is domestic service in a
private home of the employer.
(ii) As used in this section, the term ``farm'' includes stock,
dairy, poultry, fruit, fur-bearing animal, and truck farms,
plantations, ranches, nurseries, ranges, greenhouses, or other similar
structures used primarily for the raising of agricultural or
horticultural commodities, and orchards.
(2) Agriculture. For purposes of paragraph (c) of this section,
agriculture means farming in all its branches and among other things
includes the cultivation and tillage of the soil, dairying, the
production, cultivation, growing, and harvesting of any agricultural or
horticultural commodities (including commodities defined as
agricultural commodities in 12 U.S.C. 1141j(g), the raising of
livestock, bees, fur-bearing animals, or poultry, and any practices
(including any forestry or lumbering operations) performed by a farmer
or on a farm as an incident to or in conjunction with such farming
operations, including preparation for market, delivery to storage or to
market or to carriers for transportation to market. See 29 U.S.C.
203(f), as amended. Under 12 U.S.C. 1141j(g), agricultural commodities
include, in addition to other agricultural commodities, crude gum
(oleoresin) from a living tree, and the following products as processed
by the original producer of the crude gum (oleoresin) from which
derived: Gum spirits of turpentine and gum rosin. In addition, as
defined in 7 U.S.C. 92, gum spirits of turpentine means spirits of
turpentine made from gum (oleoresin) from a living tree and gum rosin
means rosin remaining after the distillation of gum spirits of
turpentine.
(3) Apple pressing for cider. The pressing of apples for cider on a
farm, as the term farm is defined and applied
[[Page 36265]]
in section 3121(g) of the Internal Revenue Code at 26 U.S.C. 3121(g),
or as applied in section 3(f) of the FLSA at 29 U.S.C. 203(f), pursuant
to 29 CFR part 780, is agricultural labor or services for purposes of
paragraph (c) of this section.
(4) Logging employment. Operations associated with felling and
moving trees and logs from the stump to the point of delivery, such as,
but not limited to, marking danger trees, marking trees or logs to be
cut to length, felling, limbing, bucking, debarking, chipping, yarding,
loading, unloading, storing, and transporting machines, equipment and
personnel to, from, and between logging sites, is agricultural labor or
services for purposes of paragraph (c) of this section.
(5) Reforestation activities. Reforestation activities are
predominantly manual forestry operations associated with developing,
maintaining, or protecting forested areas, including, but not limited
to, planting tree seedlings in specified patterns using manual tools;
and felling, pruning, pre-commercial thinning, and removing trees and
brush from forested areas. Reforestation activities may include some
forest fire prevention or suppression duties, such as constructing fire
breaks or performing prescribed burning tasks, when such duties are in
connection with and incidental to other reforestation activities.
Reforestation activities do not include vegetation management
activities in and around utility, highway, railroad, or other rights-
of-way.
(6) Pine straw activities. Operations associated with clearing the
ground of underlying vegetation, pine cones, and debris; and raking,
lifting, gathering, harvesting, baling, grading, and loading of pine
straw for transport from pine forests, woodlands, pine stands, or
plantations, is agricultural labor or services for purposes of
paragraph (c) of this section.
(d) Definition of a temporary or seasonal nature. For the purposes
of this subpart, employment is of a seasonal nature where it is tied to
a certain time of year by an event or pattern, such as a short annual
growing cycle or a specific aspect of a longer cycle, and requires
labor levels far above those necessary for ongoing operations.
Employment is of a temporary nature where the employer's need to fill
the position with a temporary worker will, except in extraordinary
circumstances, last no longer than 1 year.
Prefiling Procedures
Sec. 655.120 Offered wage rate.
(a) Employer obligation. Except for occupations covered by
Sec. Sec. 655.200 through 655.235, to comply with its obligation under
Sec. 655.122(l), an employer must offer, advertise in its recruitment,
and pay a wage that is the highest of:
(1) The AEWR;
(2) A prevailing wage rate, if the OFLC Administrator has approved
a prevailing wage survey for the applicable crop activity or
agricultural activity meeting the requirements of paragraph (c) of this
section;
(3) The agreed-upon collective bargaining wage;
(4) The Federal minimum wage; or
(5) The state minimum wage.
(b) AEWR determinations. (1) The OFLC Administrator will determine
the AEWR for each state and occupational classification as follows:
(i) If an annual average hourly gross wage for the occupational
classification in the State or region is reported by the USDA's FLS,
that wage shall be the AEWR for the occupational classification and
geographic area;
(ii) If an annual average hourly gross wage for the occupational
classification in the state or region is not reported by the FLS, the
AEWR for the occupational classification and state shall be the
statewide annual average hourly wage for the standard occupational
classification (SOC) if one is reported by the OES survey;
(iii) If only a national wage for the occupational classification
is reported by both the FLS and OES survey for the geographic area, the
AEWR for the geographic area shall be the national annual average
hourly gross wage for the occupational classification from the FLS; and
(iv) If only a national wage for the SOC is reported by the OES
survey for the geographic area and no wage is reported for the
occupational classification by the FLS, the AEWR for the geographic
area shall be the national average hourly wage for the SOC from the OES
survey.
(2) The OFLC Administrator will publish, at least once in each
calendar year, on a date to be determined by the OFLC Administrator, an
update to each AEWR as a notice in the Federal Register.
(3) If an updated AEWR for the occupational classification and
geographic area is published in the Federal Register during the work
contract, and the updated AEWR is higher than the highest of the
previous AEWR, a prevailing wage for the crop activity or agricultural
activity and geographic area, the agreed-upon collective bargaining
wage, the Federal minimum wage, or the state minimum wage, the employer
must pay the updated AEWR not later than 14 calendar days after the
updated AEWR is published in the Federal Register.
(4) If an updated AEWR for the occupational classification and
geographic area is published in the Federal Register during the work
contract, and the updated AEWR is lower than the rate guaranteed on the
job order, the employer must continue to pay the rate guaranteed on the
job order.
(5) If the job duties on the Application for Temporary Employment
Certification do not fall within a single occupational classification,
the CO will determine the applicable AEWR based on the highest AEWR for
all applicable occupational classifications.
(c) Prevailing wage determinations. (1) The OFLC Administrator will
issue a prevailing wage for a crop activity or agricultural activity if
all of the following requirements are met:
(i) The SWA submits to the Department a wage survey for the crop
activity or agricultural activity and a Form ETA-232 providing the
methodology of the survey;
(ii) The survey was independently conducted by the state, including
any state agency, state college, or state university;
(iii) The survey covers a distinct work task or tasks performed in
a single crop activity or agricultural activity;
(iv) The surveyor either made a reasonable, good faith attempt to
contact all employers employing workers performing the work task(s) in
the crop activity or agricultural activity and geographic area surveyed
or conducted a randomized sampling of such employers;
(v) The survey reports the average wage of U.S. workers in the crop
activity or agricultural activity and geographic area using the unit of
pay used to compensate at least 50 percent of the workers whose wages
are surveyed;
(vi) The survey covers an appropriate geographic area based on
available resources to conduct the survey, the size of the agricultural
population covered by the survey, and any different wage structures in
the crop activity or agricultural activity within the state;
(vii) The survey includes the wages of at least 30 U.S. workers;
(viii) The survey includes wages of U.S. workers employed by at
least 5 employers; and
[[Page 36266]]
(ix) The wages paid by a single employer represent no more than 25
percent of the sampled wages.
(2) A prevailing wage issued by the OFLC Administrator will remain
valid for 1 year after the wage is posted on the OFLC website or until
replaced with an adjusted prevailing wage, whichever comes first,
except that if a prevailing wage that was guaranteed on the job order
expires during the work contract, the employer must continue to
guarantee at least the expired prevailing wage rate.
(3) If a prevailing wage for the geographic area and crop activity
or agricultural activity is adjusted during a work contract, and is
higher than the highest of the AEWR, a previous prevailing wage for the
geographic area and crop activity or agricultural activity, the agreed-
upon collective bargaining wage, the Federal minimum wage, or the state
minimum wage, the employer must pay that higher prevailing wage not
later than 14 calendar days after the Department notifies the employer
of the new prevailing wage.
(4) If a prevailing wage for the geographic area and crop activity
or agricultural activity is adjusted during a work contract, and is
lower than the rate guaranteed on the job order, the employer must
continue to pay at least the rate guaranteed on the job order.
(d) Appeals. (1) If the employer does not include the appropriate
offered wage rate on the Application for Temporary Employment
Certification, the CO will issue a Notice of Deficiency (NOD) requiring
the employer to correct the wage rate.
(2) If the employer disagrees with the wage rate required by the
CO, the employer may appeal only after the Application for Temporary
Employment Certification is denied, and the employer must follow the
procedures in Sec. 655.171.
Sec. 655.121 Job order filing requirements.
(a) What to file. (1) Prior to filing an Application for Temporary
Employment Certification, the employer must submit a completed job
order, Form ETA-790/790A, including all required addenda, to the NPC
designated by the OFLC Administrator, and must identify it as a job
order to be placed in connection with a future Application for
Temporary Employment Certification for H-2A workers. The employer must
include in its submission to the NPC a valid Federal Employer
Identification Number (FEIN) as well as a valid place of business
(physical location) in the United States and a means by which it may be
contacted for employment.
(2) Where the job order is being placed in connection with a future
master application to be filed by an agricultural association as a
joint employer with its employer-members, the agricultural association
may submit a single job order to be placed in the name of the
agricultural association on behalf of all employers named on the job
order and the future Application for Temporary Employment
Certification.
(3) Where the job order is being placed in connection with a future
application to be jointly filed by two or more employers seeking to
jointly employ a worker(s) (but is not a master application), any one
of the employers may submit a single job order to be placed on behalf
of all joint employers named on the job order and the future
Application for Temporary Employment Certification.
(4) The job order must satisfy the requirements for agricultural
clearance orders set forth in 20 CFR part 653, subpart F, and the
requirements set forth in Sec. 655.122.
(b) Timeliness. The employer must submit a completed job order to
the NPC no more than 75 calendar days and no fewer than 60 calendar
days before the employer's first date of need.
(c) Location and method of filing. The employer must submit a
completed job order to the NPC using the electronic method(s)
designated by the OFLC Administrator. The NPC will return without
review any job order submitted using a method other than the designated
electronic method(s), unless the employer submits the job order by mail
as set forth in Sec. 655.130(c)(2) or requests a reasonable
accommodation as set forth in Sec. 655.130(c)(3).
(d) Original signature. The job order must contain an electronic
(scanned) copy of the original signature of the employer or a
verifiable electronic signature method, as directed by the OFLC
Administrator. If submitted by mail, the Application for Temporary
Employment Certification must bear the original signature of the
employer and, if applicable, the employer's authorized agent or
attorney.
(e) SWA review. (1) Upon receipt of the job order, the NPC will
transmit an electronic copy of the job order to the SWA serving the
area of intended employment for intrastate clearance. If the job
opportunity is located in more than one state within the same area of
intended employment, the NPC will transmit the job order to any one of
the SWAs having jurisdiction over the place(s) of employment.
(2) The SWA will review the contents of the job order for
compliance with the requirements set forth in 20 CFR part 653, subpart
F, and this subpart, and will work with the employer to address any
noted deficiencies. The SWA must notify the employer in writing of any
deficiencies in its job order not later than 7 calendar days from the
date the SWA received the job order. The SWA notification will state
the reason(s) the job order fails to meet the applicable requirements,
state the modification(s) needed for the SWA to accept the job order,
and offer the employer an opportunity to respond to the deficiencies
within 5 calendar days from the date the notification was issued by the
SWA. Upon receipt of a response, the SWA will review the response and
notify the employer in writing of its acceptance or denial of the job
order within 3 calendar days from the date the response was received by
the SWA. If the employer's response is not received within 12 calendar
days after the notification was issued, the SWA will notify the
employer in writing that the job order is deemed abandoned, and the
employer will be required to submit a new job order to the NPC meeting
the requirements of this section. Any notice sent by the SWA to an
employer that requires a response must be sent using methods to assure
next day delivery, including email or other electronic methods, with a
copy to the employer's representative, as applicable.
(3) If, after providing responses to the deficiencies noted by the
SWA, the employer is not able to resolve the deficiencies with the SWA,
the employer may file an Application for Temporary Employment
Certification pursuant to the emergency filing procedures contained in
Sec. 655.134, with a statement describing the nature of the dispute
and demonstrating compliance with its requirements under this section.
In the event the SWA does not respond within the stated timelines, the
employer may use the emergency filing procedures noted above. The CO
will process the emergency Application for Temporary Employment
Certification in a manner consistent with the provisions set forth in
Sec. Sec. 655.140 through 655.145 and make a determination on the
Application for Temporary Employment Certification in accordance with
Sec. Sec. 655.160 through 655.167.
(f) Intrastate and interstate clearance. Upon its acceptance of the
job order, the SWA must promptly place the job order in intrastate
clearance, commence recruitment of U.S. workers, and notify the NPC
that the approved job order must be placed into interstate clearance.
Upon receipt of the SWA notification, the NPC will promptly transmit an
electronic copy of the approved job
[[Page 36267]]
order for interstate clearance to any other SWAs in a manner consistent
with the procedures set forth in Sec. 655.150.
(g) Duration of job order posting. The SWA must keep the job order
on its active file until the end of the recruitment period, as set
forth in Sec. 655.135(d), and must refer each U.S. worker who applies
(or on whose behalf an application is made) for the job opportunity.
(h) Modifications to the job order. (1) Prior to the issuance of a
final determination on an Application for Temporary Employment
Certification, the CO may require modifications to the job order when
the CO determines that the offer of employment does not contain all the
minimum benefits, wages, and working condition provisions. Such
modifications must be made, or certification will be denied pursuant to
Sec. 655.164.
(2) The employer may request a modification of the job order, Form
ETA-790/790A, prior to the submission of an Application for Temporary
Employment Certification. However, the employer may not reject
referrals against the job order based upon a failure on the part of the
applicant to meet the amended criteria, if such referral was made prior
to the amendment of the job order. The employer may not request a
modification of the job order on or after the date of filing an
Application for Temporary Employment Certification.
(3) The employer must provide all workers recruited in connection
with the Application for Temporary Employment Certification with a copy
of the modified job order or work contract which reflects the amended
terms and conditions, on the first day of employment, in accordance
with Sec. 655.122(q), or as soon as practicable, whichever comes
first.
Sec. 655.122 Contents of job offers.
(a) Prohibition against preferential treatment of H-2A workers. The
employer's job offer must offer to U.S. workers no less than the same
benefits, wages, and working conditions that the employer is offering,
intends to offer, or will provide to H-2A workers. Job offers may not
impose on U.S. workers any restrictions or obligations that will not be
imposed on the employer's H-2A workers. This does not relieve the
employer from providing to H-2A workers at least the same level of
minimum benefits, wages, and working conditions that must be offered to
U.S. workers consistent with this section.
(b) Job qualifications and requirements. Each job qualification and
requirement listed in the job offer must be bona fide and consistent
with the normal and accepted qualifications required by employers that
do not use H-2A workers in the same or comparable occupations and
crops. Either the CO or the SWA may require the employer to submit
documentation to substantiate the appropriateness of any job
qualification specified in the job offer.
(c) Minimum benefits, wages, and working conditions. Every job
order accompanying an Application for Temporary Employment
Certification must include each of the minimum benefit, wage, and
working condition provisions listed in paragraphs (d) through (q) of
this section.
(d) Housing--(1) Obligation to provide housing. The employer must
provide housing at no cost to the H-2A workers and those workers in
corresponding employment who are not reasonably able to return to their
residence within the same day. Housing must be provided through one of
the following means:
(i) Employer-provided housing. Employer-provided housing must meet
the full set of the DOL Occupational Safety and Health Administration
(OSHA) standards set forth at 29 CFR 1910.142, or the full set of
standards at Sec. Sec. 654.404 through 654.417 of this chapter,
whichever are applicable under Sec. 654.401 of this chapter. Requests
by employers whose housing does not meet the applicable standards for
conditional access to the interstate clearance system will be processed
under the procedures set forth at Sec. 654.403 of this chapter; or
(ii) Rental and/or public accommodations. Rental or public
accommodations or other substantially similar class of habitation must
meet local standards for such housing. In the absence of applicable
local standards addressing those health or safety concerns otherwise
addressed by the DOL OSHA standards at 29 CFR 1910.142(b)(2) (square
footage per occupant); Sec. 1910.142(b)(3) (provision of beds); Sec.
1910.142(b)(9) (requirement for rooms where wookers cook, live, and
sleep); Sec. 1910.142(b)(11) (heating, cooking, and water heating
equipment installed properly); Sec. 1910.142(c) (water supply); Sec.
1910.142(f) (laundry, handwashing, and bathing facilities); and Sec.
1910.142(j) (insect and rodent control), state standards addressing
such concerns will apply. In the absence of applicable local or state
standards addressing such concerns, the relevant DOL OSHA standards at
29 CFR 1910.142(b)(2), (3), (9), and (11), (f), and (j) will apply. Any
charges for rental housing must be paid directly by the employer to the
owner or operator of the housing.
(2) Standards for range housing. An employer employing workers
under Sec. Sec. 655.200 through 655.235 must comply with the housing
requirements in Sec. Sec. 655.230 and 655.235.
(3) Deposit charges. Charges in the form of deposits for bedding or
other similar incidentals related to housing must not be levied upon
workers. However, employers may require workers to reimburse them for
damage caused to housing by the individual worker(s) found to have been
responsible for damage that is not the result of normal wear and tear
related to habitation.
(4) Charges for public housing. If public housing provided for
migrant agricultural workers under the auspices of a local, county, or
state government is secured by the employer, the employer must pay any
charges normally required for use of the public housing units directly
to the housing's management.
(5) Family housing. When it is the prevailing practice in the area
of intended employment and the occupation to provide family housing, it
must be provided to workers with families who request it.
(6) Compliance with applicable standards--(i) Timeframe. The
determination as to whether housing provided to workers under this
section meets the applicable standards must be made not later than 30
calendar days before the first date of need identified in the
Application for Temporary Employment Certification.
(ii) Certification of employer-provided housing. (A) Except as
provided under paragraph (d)(6)(ii)(B) of this section, the SWA (or
another local, state, or Federal authority acting on behalf of the SWA)
with jurisdiction over the location of the employer-provided housing
must inspect and provide to the employer and CO documentation
certifying that the employer-provided housing is sufficient to
accommodate the number of workers requested and meets all applicable
standards under paragraph (d)(1)(i) of this section. The inspector must
indicate the validity period of the housing certification. Where
appropriate, and only if the SWA has notified the Department that the
SWA lacks resources to conduct timely, preoccupancy inspections of all
employer-provided housing, the inspector may certify the employer-
provided housing for a period of up to 24 months.
(B) Where the employer-provided housing has been previously
inspected and certified under paragraph (d)(6)(ii)(A) of this section,
the employer may self-inspect and -certify the
[[Page 36268]]
employer-provided housing. To self-inspect and -certify the employer-
provided housing under this paragraph (d)(6)(ii)(B), the employer must
inspect the housing and submit to the SWA and the CO a copy of the
currently valid certification for the employer-provided housing and a
written statement, signed and dated by the employer, attesting that the
employer has inspected the housing, the housing is available and
sufficient to accommodate the number of workers being requested, and
continues to meet all of the applicable standards under paragraph
(d)(1)(i) of this section.
(iii) Certification of rental and/or public accommodations. The
employer must provide to the CO a written statement, signed and dated,
that attests that the accommodations are compliant with the applicable
standards under paragraph (d)(1)(ii) of this section and are sufficient
to accommodate the number of workers requested. This statement must
include the number of bed(s) and room(s) that the employer will secure
for the worker(s). If applicable local or state rental or public
accommodation standards under paragraph (d)(1)(ii) of this section
require an inspection, the employer also must submit a copy of the
inspection report or other official documentation from the relevant
authority. If the applicable standards do not require an inspection,
the employer's written statement must confirm that no inspection is
required.
(iv) Certified housing that becomes unavailable. If after a request
to certify housing, such housing becomes unavailable for reasons
outside the employer's control, the employer may substitute other
rental or public accommodation housing that is in compliance with the
local, state, or Federal housing standards applicable under this
section. The employer must promptly notify the SWA in writing of the
change in accommodations and the reason(s) for such change and provide
the SWA evidence of compliance with the applicable local, state, or
Federal safety and health standards, in accordance with the
requirements of this section. If, upon inspection, the SWA determines
the substituted housing does not meet the applicable housing standards,
the SWA must promptly provide written notification to the employer to
cure the deficiencies with a copy to the CO. An employer's failure to
provide housing that complies with the applicable standards will result
in either a denial of a pending Application for Temporary Employment
Certification or revocation of the temporary agricultural labor
certification granted under this subpart.
(e) Workers' compensation. (1) The employer must provide workers'
compensation insurance coverage in compliance with state law covering
injury and disease arising out of and in the course of the worker's
employment. If the type of employment for which the certification is
sought is not covered by or is exempt from the state's workers'
compensation law, the employer must provide, at no cost to the worker,
insurance covering injury and disease arising out of and in the course
of the worker's employment that will provide benefits at least equal to
those provided under the state workers' compensation law for other
comparable employment.
(2) Prior to issuance of the temporary agricultural labor
certification, the employer must provide the CO with proof of workers'
compensation insurance coverage meeting the requirements of this
paragraph (e), including the name of the insurance carrier, the
insurance policy number, and proof of insurance for the entire period
of employment, or, if appropriate, proof of state law coverage.
(f) Employer-provided items. The employer must provide to the
worker, without charge or deposit charge, all tools, supplies, and
equipment required to perform the duties assigned.
(g) Meals. The employer either must provide each worker with three
meals a day or must furnish free and convenient cooking and kitchen
facilities to the workers that will enable the workers to prepare their
own meals. Where the employer provides the meals, the job offer must
state the charge, if any, to the worker for such meals. The amount of
meal charges is governed by Sec. 655.173.
(h) Transportation; daily subsistence--(1) Transportation to place
of employment. If the employer has not previously advanced such
transportation and subsistence costs to the worker or otherwise
provided such transportation or subsistence directly to the worker by
other means, and if the worker completes 50 percent of the work
contract period, the employer must pay the worker for reasonable costs
incurred by the worker for transportation and daily subsistence from
the place from which the worker departed to the employer's place of
employment. For an H-2A worker who must obtain a visa departing to work
for the employer from a location outside of the United States, ``the
place from which the worker departed'' will mean the appropriate U.S.
Consulate or Embassy. When it is the prevailing practice of non-H-2A
agricultural employers in the occupation in the area to do so, or when
the employer extends such benefits to similarly situated H-2A workers,
the employer must advance the required transportation and subsistence
costs (or otherwise provide them) to workers in corresponding
employment who are traveling to the employer's place of employment. The
amount of the transportation payment must be no less (and is not
required to be more) than the most economical and reasonable common
carrier transportation charges for the distances involved. The amount
of the daily subsistence payment must be at least as much as the
employer would charge the worker for providing the worker with three
meals a day during employment (if applicable), but in no event less
than the amount permitted under Sec. 655.173(a). Note that the FLSA
applies independently of the H-2A requirements and imposes obligations
on employers regarding payment of wages.
(2) Transportation from place of employment. If the worker
completes the work contract period, or if the employee is terminated
without cause, and the worker has no immediate subsequent H-2A
employment, the employer must provide or pay for the worker's
transportation and daily subsistence from the place of employment to
the place from which the worker, disregarding intervening employment,
departed to work for the employer. If the worker has contracted with a
subsequent employer who has not agreed in such work contract to provide
or pay for the worker's transportation and daily subsistence expenses
from the employer's place of employment to such subsequent employer's
place of employment, the employer must provide or pay for such
expenses. If the worker has contracted with a subsequent employer who
has agreed in such work contract to provide or pay for the worker's
transportation and daily subsistence expenses from the employer's place
of employment to such subsequent employer's place of employment, the
subsequent employer must provide or pay for such expenses. The employer
is not relieved of its obligation to provide or pay for return
transportation and subsistence if an H-2A worker is displaced as a
result of the employer's compliance with its obligation to hire U.S.
workers who apply or are referred after the employer's date of need as
described in Sec. 655.135(d).
(3) Transportation between living quarters and place of employment.
The employer must provide transportation between housing provided or
secured by the employer and the employer's place of employment at no
cost to the worker.
[[Page 36269]]
(4) Employer-provided transportation. All employer-provided
transportation must comply with all applicable Federal, state, or local
laws and regulations, and must provide, at a minimum, the same
transportation safety standards, driver licensure, and vehicle
insurance as required under 29 U.S.C. 1841, 29 CFR 500.104 through
500.105, and 29 CFR 500.120 through 500.128. If workers' compensation
is used to cover transportation, in lieu of vehicle insurance, the
employer must either ensure that the workers' compensation covers all
travel or that vehicle insurance exists to provide coverage for travel
not covered by workers' compensation and it must have property damage
insurance.
(i) Three-fourths guarantee--(1) Offer to worker. The employer must
guarantee to offer the worker employment for a total number of work
hours equal to at least three-fourths of the workdays of the total
period beginning with the first workday after the arrival of the worker
at the place of employment or the advertised contractual first date of
need, whichever is later, and ending on the expiration date specified
in the work contract or in its extensions, if any.
(i) For purposes of this paragraph (i)(1) a workday means the
number of hours in a workday as stated in the job order and excludes
the worker's Sabbath and Federal holidays. The employer must offer a
total number of hours to ensure the provision of sufficient work to
reach the three-fourths guarantee. The work hours must be offered
during the work period specified in the work contract, or during any
modified work contract period to which the worker and employer have
mutually agreed and that has been approved by the CO.
(ii) The work contract period can be shortened by agreement of the
parties only with the approval of the CO. In the event the worker
begins working later than the specified beginning date of the contract,
the guarantee period begins with the first workday after the arrival of
the worker at the place of employment, and continues until the last day
during which the work contract and all extensions thereof are in
effect.
(iii) Therefore, if, for example, a work contract is for a 10-week
period, during which a normal workweek is specified as 6 days a week, 8
hours per day, the worker would have to be guaranteed employment for at
least 360 hours (10 weeks x 48 hours/week = 480 hours x 75 percent =
360). If a Federal holiday occurred during the 10-week span, the 8
hours would be deducted from the total hours for the work contract,
before the guarantee is calculated. Continuing with the above example,
the worker would have to be guaranteed employment for 354 hours (10
weeks x 48 hours/week = (480 hours - 8 hours (Federal holiday)) x 75
percent = 354 hours).
(iv) A worker may be offered more than the specified hours of work
on a single workday. For purposes of meeting the guarantee, however,
the worker will not be required to work for more than the number of
hours specified in the job order for a workday, or on the worker's
Sabbath or Federal holidays. However, all hours of work actually
performed may be counted by the employer in calculating whether the
period of guaranteed employment has been met. If during the total work
contract period the employer affords the U.S. or H-2A worker less
employment than that required under this paragraph (i)(1), the employer
must pay such worker the amount the worker would have earned had the
worker, in fact, worked for the guaranteed number of days. An employer
will not be considered to have met the work guarantee if the employer
has merely offered work on three-fourths of the workdays if each
workday did not consist of a full number of hours of work time as
specified in the job order.
(2) Guarantee for piece rate paid worker. If the worker is paid on
a piece rate basis, the employer must use the worker's average hourly
piece rate earnings or the required hourly wage rate, whichever is
higher, to calculate the amount due under the guarantee.
(3) Failure to work. Any hours the worker fails to work, up to a
maximum of the number of hours specified in the job order for a
workday, when the worker has been offered an opportunity to work in
accordance with paragraph (i)(1) of this section, and all hours of work
actually performed (including voluntary work over 8 hours in a workday
or on the worker's Sabbath or Federal holidays), may be counted by the
employer in calculating whether the period of guaranteed employment has
been met. An employer seeking to calculate whether the number of hours
has been met must maintain the payroll records in accordance with this
subpart.
(4) Displaced H-2A worker. The employer is not liable for payment
of the three-fourths guarantee to an H-2A worker whom the CO certifies
is displaced because of the employer's compliance with its obligation
to hire U.S. workers who apply or are referred after the employer's
date of need described in Sec. 655.135(d) with respect to referrals
made during that period.
(5) Obligation to provide housing and meals. Notwithstanding the
three-fourths guarantee contained in this section, employers are
obligated to provide housing and meals in accordance with paragraphs
(d) and (g) of this section for each day of the contract period up
until the day the workers depart for other H-2A employment, depart to
the place outside of the United States from which the worker departed,
or, if the worker voluntarily abandons employment or is terminated for
cause, the day of such abandonment or termination.
(j) Earnings records. (1) An employer must keep accurate and
adequate records with respect to each worker's earnings, including, but
not limited to, field tally records, supporting summary payroll
records, and records showing the nature and amount of the work
performed; the number of hours of work offered each day by the employer
(broken out by hours offered both in accordance with and over and above
the three-fourths guarantee at paragraph (i)(3) of this section); the
hours actually worked each day by the worker; the time the worker began
and ended each workday; the rate of pay (both piece rate and hourly, if
applicable); the worker's earnings per pay period; the worker's
permanent address; and the amount of and reasons for any and all
deductions taken from the worker's wages. In the case of H-2A workers,
the permanent address must be the worker's permanent address in the
worker's home country.
(2) Each employer must keep the records required by paragraph (j)
of this section, including field tally records and supporting summary
payroll records, safe and accessible at the place or places of
employment, or at one or more established central recordkeeping offices
where such records are customarily maintained. All records must be
available for inspection and transcription by the Secretary or a duly
authorized and designated representative, and by the worker and
representatives designated by the worker as evidenced by appropriate
documentation (an Entry of Appearance as Attorney or Representative,
Form G-28, signed by the worker, or an affidavit signed by the worker
confirming such representation). Where the records are maintained at a
central recordkeeping office, other than in the place or places of
employment, such records must be made available for inspection and
copying within 72 hours following notice from the Secretary, or a duly
authorized and designated representative, and by the worker and
designated representatives as described in this paragraph (j)(2).
(3) To assist in determining whether the three-fourths guarantee in
paragraph (i) of this section has been met, if the
[[Page 36270]]
number of hours worked by the worker on a day during the work contract
period is less than the number of hours offered, as specified in the
job offer, the records must state the reason or reasons therefore.
(4) The employer must retain the records for not less than 3 years
after the date of the certification.
(k) Hours and earnings statements. The employer must furnish to the
worker on or before each payday in one or more written statements the
following information:
(1) The worker's total earnings for the pay period;
(2) The worker's hourly rate and/or piece rate of pay;
(3) The hours of employment offered to the worker (showing offers
in accordance with the three-fourths guarantee as determined in
paragraph (i) of this section, separate from any hours offered over and
above the guarantee);
(4) The hours actually worked by the worker;
(5) An itemization of all deductions made from the worker's wages;
(6) If piece rates are used, the units produced daily;
(7) Beginning and ending dates of the pay period; and
(8) The employer's name, address, and FEIN.
(l) Rates of pay. Except for occupations covered by Sec. Sec.
655.200 through 655.235, the employer must pay the worker at least the
AEWR, a prevailing wage, if the OFLC Administrator has approved a
prevailing wage survey for the applicable crop activity or agricultural
activity meeting the requirements of Sec. 655.120(c), the agreed-upon
collective bargaining rate, the Federal minimum wage, or the state
minimum wage rate, whichever is highest, for every hour or portion
thereof worked during a pay period.
(1) The offered wage may not be based on commission, bonuses, or
other incentives, unless the employer guarantees a wage paid on a
weekly, semi-monthly, or monthly basis that equals or exceeds the AEWR,
prevailing wage rate, the Federal minimum wage, the state minimum wage,
or any agreed-upon collective bargaining rate, whichever is highest; or
(2) If the worker is paid on a piece rate basis and at the end of
the pay period the piece rate does not result in average hourly piece
rate earnings during the pay period at least equal to the amount the
worker would have earned had the worker been paid at the appropriate
hourly rate:
(i) The worker's pay must be supplemented at that time so that the
worker's earnings are at least as much as the worker would have earned
during the pay period if the worker had instead been paid at the
appropriate hourly wage rate for each hour worked;
(ii) The piece rate must be no less than the prevailing piece rate
for the crop activity or agricultural activity in the geographic area
if one has been issued by the OFLC Administrator; and
(iii) If the employer who pays by the piece rate requires one or
more minimum productivity standards of workers as a condition of job
retention, such standards must be specified in the job offer and be no
more than those required by the employer in 1977, unless the OFLC
Administrator approves a higher minimum, or, if the employer first
applied for temporary agricultural labor certification after 1977, such
standards must be no more than those normally required (at the time of
the first Application for Temporary Employment Certification) by other
employers for the activity in the area of intended employment.
(m) Frequency of pay. The employer must state in the job offer the
frequency with which the worker will be paid, which must be at least
twice monthly or according to the prevailing practice in the area of
intended employment, whichever is more frequent. Employers must pay
wages when due.
(n) Abandonment of employment or termination for cause. If a worker
voluntarily abandons employment before the end of the contract period,
or is terminated for cause, and the employer notifies the NPC, and DHS
in the case of an H-2A worker, in writing or by any other method
specified by the Department or DHS in a manner specified in a notice
published in the Federal Register not later than 2 working days after
such abandonment occurs, the employer will not be responsible for
providing or paying for the subsequent transportation and subsistence
expenses of that worker under this section, and that worker is not
entitled to the three-fourths guarantee described in paragraph (i) of
this section. Abandonment will be deemed to begin after a worker fails
to report to work at the regularly scheduled time for 5 consecutive
working days without the consent of the employer. The employer is
required to maintain records of such notification to the NPC, and DHS
in the case of an H-2A worker, for not less than 3 years from the date
of the certification.
(o) Contract impossibility. If, before the expiration date
specified in the work contract, the services of the worker are no
longer required for reasons beyond the control of the employer due to
fire, weather, or other Act of God that makes the fulfillment of the
contract impossible, the employer may terminate the work contract.
Whether such an event constitutes a contract impossibility will be
determined by the CO. In the event of such termination of a contract,
the employer must fulfill a three-fourths guarantee for the time that
has elapsed from the start of the work contract to the time of its
termination, as described in paragraph (i)(1) of this section. The
employer must make efforts to transfer the worker to other comparable
employment acceptable to the worker, consistent with existing
immigration law, as applicable. If such transfer is not affected, the
employer must:
(1) Return the worker, at the employer's expense, to the place from
which the worker (disregarding intervening employment) departed to work
for the employer, or transport the worker to the worker's next
certified H-2A employer, whichever the worker prefers;
(2) Reimburse the worker the full amount of any deductions made
from the worker's pay by the employer for transportation and
subsistence expenses to the place of employment; and
(3) Pay the worker for any costs incurred by the worker for
transportation and daily subsistence to that employer's place of
employment. Daily subsistence must be computed as set forth in
paragraph (h) of this section. The amount of the transportation payment
must not be less (and is not required to be more) than the most
economical and reasonable common carrier transportation charges for the
distances involved.
(p) Deductions. (1) The employer must make all deductions from the
worker's paycheck required by law. The job offer must specify all
deductions not required by law which the employer will make from the
worker's paycheck. All deductions must be reasonable. The employer may
deduct the cost of the worker's transportation and daily subsistence
expenses to the place of employment which were borne directly by the
employer. In such circumstances, the job offer must state that the
worker will be reimbursed the full amount of such deduction upon the
worker's completion of 50 percent of the work contract period. However,
an employer subject to the FLSA may not make deductions that would
violate the FLSA.
(2) A deduction is not reasonable if it includes a profit to the
employer or to any affiliated person. A deduction that is primarily for
the benefit or convenience of the employer will not be recognized as
reasonable and therefore the cost of such an item may not be
[[Page 36271]]
included in computing wages. The wage requirements of Sec. 655.120
will not be met where undisclosed or unauthorized deductions, rebates,
or refunds reduce the wage payment made to the employee below the
minimum amounts required under this subpart, or where the employee
fails to receive such amounts free and clear because the employee kicks
back directly or indirectly to the employer or to another person for
the employer's benefit the whole or part of the wage delivered to the
employee. The principles applied in determining whether deductions are
reasonable and payments are received free and clear, and the
permissibility of deductions for payments to third persons are
explained in more detail in 29 CFR part 531.
(q) Disclosure of work contract. The employer must provide to an H-
2A worker not later than the time at which the worker applies for the
visa, or to a worker in corresponding employment not later than on the
day work commences, a copy of the work contract between the employer
and the worker in a language understood by the worker as necessary or
reasonable. For an H-2A worker going from an H-2A employer to a
subsequent H-2A employer, the copy must be provided not later than the
time an offer of employment is made by the subsequent H-2A employer.
For an H-2A worker that does not require a visa for entry, the copy
must be provided not later than the time of an offer of employment. At
a minimum, the work contract must contain all of the provisions
required by this section. In the absence of a separate, written work
contract entered into between the employer and the worker, the work
contract at a minimum will be the terms of the job order and any
obligations required under 8 U.S.C. 1188, 28 CFR part 501, or this
subpart.
Sec. 655.123 Positive recruitment of U.S. workers.
(a) Employer obligations. Employers must conduct recruitment of
U.S. workers within a multi-state region of traditional or expected
labor supply for the place(s) of employment as designated by the OFLC
Administrator under Sec. 655.154(d) to ensure that there are not able,
willing, and qualified U.S. workers who will be available for the labor
or services listed in the Application for Temporary Employment
Certification. Positive recruitment under this section is in addition
to, and must be conducted within the same time period as, circulation
of the job order through the SWA interstate clearance system.
(b) Positive recruitment steps. Upon acceptance of the job order
and prior to filing an Application for Temporary Employment
Certification, the employer may commence the required positive
recruitment, as set forth in Sec. Sec. 655.151 through 655.154.
(c) Positive recruitment period. Unless otherwise instructed by the
CO, if the employer chooses to engage in pre-filing positive
recruitment, the employer must begin the recruitment required by this
section within 7 calendar days of the date on which the job order was
accepted. The positive recruitment period will terminate on the date
specified in Sec. 655.158.
(d) Interviewing U.S. workers. Employers that wish to require
interviews must conduct those interviews by phone or provide a
procedure for the interviews to be conducted in the location where the
U.S. worker is being recruited so that the worker incurs little or no
cost due to the interview. Employers cannot provide potential H-2A
workers with more favorable treatment than U.S. workers with respect to
the requirement for, and conduct of, interviews.
(e) Qualified and available U.S. workers. The employer must
consider all U.S. applicants for the job opportunity until the end of
the recruitment period, as set forth in Sec. 655.135(d). The employer
must accept and hire all applicants who are qualified and who will be
available for the job opportunity. U.S. applicants can be rejected only
for lawful, job-related reasons, and those not rejected on this basis
will be hired.
(f) Pre-filing recruitment report. No more than 50 calendar days
before the date of need and where positive recruitment efforts have
commenced, the employer may prepare a recruitment report, consistent
with the requirements set forth in Sec. 655.156, for submission with
the Application for Temporary Employment Certification.
Sec. 655.124 Withdrawal of a job order.
(a) The employer may withdraw a job order if the employer no longer
plans to file an Application for Temporary Employment Certification.
However, the employer is still obligated to comply with the terms and
conditions of employment contained in the job order with respect to all
workers recruited in connection with that job order.
(b) To request withdrawal, the employer must submit a request in
writing to the NPC identifying the job order and stating the reason(s)
for the withdrawal.
Application for Temporary Employment Certification Filing Procedures
Sec. 655.130 Application filing requirements.
All employers who desire to hire H-2A foreign agricultural workers
must apply for a certification from the Secretary by filing an
Application for Temporary Employment Certification with the NPC
designated by the OFLC Administrator. The following section provides
the procedures employers must follow when filing.
(a) What to file. An employer that desires to apply for temporary
agricultural labor certification of one or more nonimmigrant workers
must file a completed Application for Temporary Employment
Certification, all supporting documentation and information required at
the time of filing under Sec. Sec. 655.131 through 655.135, and,
unless a specific exemption applies, a copy of Form ETA-790/790A,
submitted as set forth in Sec. 655.121(a). The Application for
Temporary Employment Certification must include a valid FEIN as well as
a valid place of business (physical location) in the United States and
a means by which it may be contacted for employment.
(b) Timeliness. A completed Application for Temporary Employment
Certification must be filed no less than 45 calendar days before the
employer's first date of need.
(c) Location and method of filing--(1) E-filing. The employer must
file the Application for Temporary Employment Certification and all
required supporting documentation with the NPC using the electronic
method(s) designated by the OFLC Administrator. The NPC will return
without review any application submitted using a method other than the
designated electronic method(s), unless the employer submits the
application in accordance with paragraph (c)(2) or (3) of this section.
(2) Filing by mail. Employers that lack adequate access to
electronic filing may file the application by mail. The employer must
indicate that it is filing by mail due to lack of adequate access to
electronic filing. The OFLC Administrator will identify the address to
which such filing must be mailed by public notice(s) and by
instructions on DOL's website.
(3) Reasonable accommodation. Employers who are unable or limited
in their ability to use and/or access the electronic Application for
Temporary Employment Certification, or any other form or documentation
required under this subpart, as a result of a disability may request a
reasonable accommodation to enable them to
[[Page 36272]]
participate in the H-2A program. An employer in need of such an
accommodation may contact the NPC in writing to the address designated
in a notice published in the Federal Register or 202-513-7350 (this is
not a toll-free number), or for individuals with hearing or speech
impairments, 1-877-889-5627 (this is the TTY toll-free Federal
Information Relay Service number) for assistance in using, accessing,
or filing any form or documentation required under this subpart,
including the Application for Temporary Employment Certification. All
requests for an accommodation should include the employer's name, a
detailed description of the accommodation needed, and the preferred
method of contact. The NPC will respond to the request for a reasonable
accommodation within 10 business days of the date of receipt.
(d) Original signature. The Application for Temporary Employment
Certification must contain an electronic (scanned) copy of the original
signature of the employer (and that of the employer's authorized
attorney or agent if the employer is represented by an attorney or
agent) or a verifiable electronic signature method, as directed by the
OFLC Administrator. If submitted by mail, the Application for Temporary
Employment Certification must bear the original signature of the
employer and, if applicable, the employer's authorized attorney or
agent.
(e) Scope of applications. Except as otherwise permitted by this
subpart, an Application for Temporary Employment Certification must be
limited to places of employment within a single area of intended
employment. An employer may file only one Application for Temporary
Employment Certification covering the same area of intended employment,
period of employment, and occupation or comparable work to be
performed.
(f) Staggered entry of H-2A workers. (1) If a petition for H-2A
workers filed by an employer, including a joint employer filing an
Application for Temporary Employment Certification under Sec.
655.131(b), is granted, the employer may bring those workers described
in the petition, who are otherwise admissible, into the United States
at any time up to 120 days from the first date of need stated on the
certified Application for Temporary Employment Certification, including
any approved modifications, without filing another H-2A petition with
DHS.
(2) In order to comply with the provision in paragraph (f)(1) of
this section, the employer must satisfy the following obligations:
(i) Notice. (A) At any time after the Application for Temporary
Employment Certification is filed through 14 calendar days after the
first date of need, as indicated in the certified Application for
Temporary Employment Certification, notify the NPC electronically,
unless the employer was permitted to file by mail as set forth in Sec.
655.130(c), of its intent to stagger the entry of its H-2A workers into
the United States, and the latest date on which such workers will
enter.
(B) An agricultural association filing as a joint employer with its
members must provide a single notice on behalf of all its members duly
named on the application and must provide the latest date on which any
of its members expects H-2A workers to enter the United States.
(ii) Recruitment. Comply with the duty to accept and hire U.S.
worker applicants set forth in Sec. 655.135(d)(2).
(iii) Records. Continue to maintain the recruitment report until
the end of the additional recruitment period, as set forth in Sec.
655.135(d)(2), and retain all recruitment documentation for a period of
3 years from the date of certification, consistent with the document
retention requirements under Sec. 655.167. The updated recruitment
report and recruitment documentation is not to be submitted to the
Department, unless requested by the Department or as set forth in Sec.
655.156.
(3) Once the NPC receives the notice described in paragraph
(f)(2)(i) of this section, it will inform all SWAs that received a copy
of the employer's job order to extend the period of recruitment by the
time period provided in the employer's written notice, if that period
exceeds 30 days. In accordance with Sec. 655.121(g), the SWA(s) will
keep the employer's job order on its active file and refer any U.S.
worker who applies for the job opportunity through the end of the new
recruitment period.
(g) Information dissemination. Information received in the course
of processing Applications for Temporary Employment Certification or in
the course of conducting program integrity measures such as audits may
be forwarded from OFLC to WHD or any other Federal agency, as
appropriate, for investigative or enforcement purposes.
Sec. 655.131 Agricultural association and joint employer filing
requirements.
(a) Agricultural association filing requirements. If an
agricultural association files an Application for Temporary Employment
Certification, in addition to complying with all the assurances,
guarantees, and other requirements contained in this subpart and in
part 653, subpart F, of this chapter, the following requirements also
apply.
(1) The agricultural association must identify in the Application
for Temporary Employment Certification for H-2A workers whether it is
filing as a sole employer, a joint employer, or an agent. The
agricultural association must retain documentation substantiating the
employer or agency status of the agricultural association and be
prepared to submit such documentation in response to a NOD from the CO
prior to issuing a Final Determination, or in the event of an audit or
investigation.
(2) The agricultural association may file a master application on
behalf of its employer-members. The master application is available
only when the agricultural association is filing as a joint employer.
An agricultural association may submit a master application covering
the same occupation or comparable work available with a number of its
employer-members in multiple areas of intended employment, as long as
the first dates of need for each employer-member named in the
Application for Temporary Employment Certification are separated by no
more than 14 calendar days and all places of employment are located in
no more than two contiguous states. The agricultural association must
identify in the Application for Temporary Employment Certification by
name, address, total number of workers needed, period of employment,
first date of need, and the crops and agricultural work to be
performed, each employer-member that will employ H-2A workers.
(3) An agricultural association filing a master application as a
joint employer may sign the Application for Temporary Employment
Certification on behalf of its employer-members. An agricultural
association filing as an agent may not sign on behalf of its employer-
members but must obtain each employer-member's signature on the
Application for Temporary Employment Certification prior to filing.
(4) If the application is approved, the agricultural association,
as appropriate, will receive a Final Determination certifying the
Application for Temporary Employment Certification in accordance with
the procedures contained in Sec. 655.162.
(b) Joint employer filing requirements. (1) If an employer files an
Application for Temporary Employment Certification on behalf of one or
more other employers seeking to jointly employ H-2A workers in the same
area of intended employment, in addition to complying with all the
assurances,
[[Page 36273]]
guarantees, and other requirements contained in this subpart and in
part 653, subpart F, of this chapter, the following requirements also
apply:
(i) The Application for Temporary Employment Certification must
identify the name, address, and the crop(s) and agricultural work to be
performed for each employer seeking to jointly employ the H-2A workers;
(ii) All H-2A workers must work for each employer for at least 1
workday, or its equivalent, each workweek; and
(iii) The Application for Temporary Employment Certification must
be signed and dated by each joint employer named in the application, in
accordance with the procedures contained in Sec. 655.130(e). By
signing the Application for Temporary Employment Certification, each
joint employer attests to the conditions of employment required of an
employer participating in the H-2A program, and assumes full
responsibility for the accuracy of the representations made in the
Application for Temporary Employment Certification and for compliance
with all of the assurances and obligations of an employer in the H-2A
program at all times during the period of employment on the Application
for Temporary Employment Certification; and
(2) If the application is approved, the joint employer who submits
the Application for Temporary Employment Certification will receive, on
behalf of the other joint employers, a Final Determination certifying
the Application for Temporary Employment Certification in accordance
with the procedures contained in Sec. 655.162.
Sec. 655.132 H-2A labor contractor filing requirements.
An H-2ALC must meet all of the requirements of the definition of
employer in Sec. 655.103(b) and comply with all the assurances,
guarantees, and other requirements contained in this part, including
Sec. 655.135, and in part 653, subpart F, of this chapter. The H-2ALC
must include in or with its Application for Temporary Employment
Certification at the time of filing the following:
(a) The name and location of each fixed-site agricultural business
to which the H-2ALC expects to provide H-2A workers, the expected
beginning and ending dates when the H-2ALC will be providing the
workers to each fixed-site, and a description of the crops and
activities the workers are expected to perform at such fixed-site.
(b) A copy of the Migrant and Seasonal Agricultural Worker
Protection Act (MSPA) Farm Labor Contractor (FLC) Certificate of
Registration, if required under MSPA at 29 U.S.C. 1801 et seq.,
identifying the specific farm labor contracting activities the H-2ALC
is authorized to perform as an FLC.
(c) Proof of its ability to discharge financial obligations under
the H-2A program by including with the Application for Temporary
Employment Certification an original surety bond meeting the following
requirements.
(1) Requirements for the bond. The bond must be payable to the
Administrator, Wage and Hour Division, United States Department of
Labor, 200 Constitution Avenue NW, Room S-3502, Washington, DC 20210.
Consistent with the enforcement procedure set forth at 29 CFR 501.9(b),
the bond must obligate the surety to pay any sums to the WHD
Administrator for wages and benefits, including any assessment of
interest, owed to an H-2A worker or to a worker engaged in
corresponding employment, or to a U.S. worker improperly rejected or
improperly laid off or displaced, based on a final decision finding a
violation or violations of this part or 29 CFR part 501 relating to the
labor certification the bond is intended to cover. The aggregate
liability of the surety shall not exceed the face amount of the bond.
The bond must remain in full force and effect for all liabilities
incurred during the period of the labor certification, including any
extension thereof. The bond may not be cancelled absent a finding by
the WHD Administrator that the labor certification has been revoked.
(2) Amount of the bond. Unless a higher amount is sought by the WHD
Administrator pursuant to 29 CFR 501.9(a), the required bond amount is
the base amount adjusted to reflect the average AEWR, as defined in
Sec. 655.103, and any employment of 150 or more workers.
(i) The base amounts are $5,000 for a labor certification for which
an H-2ALC employs fewer than 25 workers; $10,000 for a labor
certification for which an H-2ALC employs 25 to 49 workers; $20,000 for
a labor certification for which an H-2ALC employs 50 to 74 workers;
$50,000 for a labor certification for which an H-2ALC employs 75 to 99
workers; and $75,000 for a labor certification for which an H-2ALC
employs 100 or more workers.
(ii) The bond amount is calculated by multiplying the base amount
by the average AEWR and dividing by $9.25. Thus, the required bond
amounts will vary annually based on changes in the average AEWR.
(iii) For a labor certification for which an H-2ALC employs 150 or
more workers, the bond amount applicable to the certification of 100 or
more workers is further adjusted for each additional 50 workers as
follows: The bond amount is increased by a value which represents 2
weeks of wages for 50 workers, calculated using the average AEWR (i.e.,
80 hours x 50 workers x Average AEWR); this increase is applied to the
bond amount for each additional group of 50 workers.
(iv) The required bond amounts shall be calculated and published in
the Federal Register on an annual basis.
(3) Form of the bond and method of filing. The bond shall consist
of an executed Form ETA-9142A--Appendix B, and must contain the name,
address, phone number, and contact person for the surety, and valid
documentation of power of attorney. The bond must be filed using the
method directed by the OFLC Administrator at the time of filing:
(i) Electronic surety bonds. When the OFLC Administrator directs
the use of electronic surety bonds, this will be the required method of
filing bonds for all applications subject to mandatory electronic
filing. Consistent with the application filing requirements of Sec.
655.130(c) and (d), the bond must be completed, signed by the employer
and the surety using a verifiable electronic signature method, and
submitted electronically with the Application for Temporary Employment
Certification and supporting materials unless the employer is permitted
to file by mail or a different accommodation under Sec. 655.130(c)(2)
or (3).
(ii) Electronic submission of copy. Until such time as the OFLC
Administrator directs the use of electronic surety bonds, employers may
submit an electronic (scanned) copy of the surety bond with the
application, provided that the original bond is received within 30 days
of the date that the certification is issued.
(iii) Mailing original bond with application. For applications not
subject to mandatory electronic filing due under Sec. 655.130(c)(2) or
(3), employers may submit the original bond as part of its mailed,
paper application package, or consistent with the accommodation
provided.
(d) Copies of the fully-executed work contracts with each fixed-
site agricultural business identified under paragraph (a) of this
section.
(e) Where the fixed-site agricultural business will provide housing
or transportation to the workers, proof that:
(1) All housing used by workers and owned, operated or secured by
the fixed-site agricultural business complies with the applicable
standards as set forth in Sec. 655.122(d) and certified by the SWA;
and
[[Page 36274]]
(2) All transportation between all places of employment and the
workers' living quarters that is provided by the fixed-site
agricultural business complies with all applicable Federal, state, or
local laws and regulations and must provide, at a minimum, the same
vehicle safety standards, driver licensure, and vehicle insurance as
required under 29 U.S.C. 1841 and 29 CFR 500.104 through 500.105 and
500.120 through 500.128, except where workers' compensation is used to
cover such transportation as described in Sec. 655.122(h).
Sec. 655.133 Requirements for agents.
(a) An agent filing an Application for Temporary Employment
Certification on behalf of an employer must provide a copy of the agent
agreement or other document demonstrating the agent's authority to
represent the employer.
(b) In addition the agent must provide a copy of the MSPA FLC
Certificate of Registration, if required under MSPA at 29 U.S.C. 1801
et seq., identifying the specific farm labor contracting activities the
agent is authorized to perform.
Sec. 655.134 Emergency situations.
(a) Waiver of time period. The CO may waive the time period for
filing for employers who did not make use of temporary foreign
agricultural workers during the prior year's agricultural season or for
any employer that has other good and substantial cause, provided the CO
has sufficient time to test the domestic labor market on an expedited
basis to make the determinations required by Sec. 655.100.
(b) Employer requirements. The employer requesting a waiver of the
required time period must submit to the NPC all documentation required
at the time of filing by Sec. 655.130(a) except evidence of a job
order submitted pursuant to Sec. 656.121 of this chapter, a completed
job order on the Form ETA-790/790A and all required addenda, and a
statement justifying the request for a waiver of the time period
requirement. The statement must indicate whether the waiver request is
due to the fact that the employer did not use H-2A workers during the
prior year's agricultural season or whether the request is for good and
substantial cause. If the waiver is requested for good and substantial
cause, the employer's statement must also include detailed information
describing the good and substantial cause that has necessitated the
waiver request. Good and substantial cause may include, but is not
limited to, the substantial loss of U.S. workers due to Acts of God or
similar unforeseeable man-made catastrophic events (e.g., a hazardous
materials emergency or government-controlled flooding), unforeseeable
changes in market conditions, pandemic health issues, or similar
conditions that are wholly outside of the employer's control.
(c) Processing of emergency applications. (1) Upon receipt of a
complete emergency situation(s) waiver request, the CO promptly will
transmit a copy of the job order to the SWA serving the area of
intended employment. The SWA will review the contents of the job order
for compliance with the requirements set forth in Sec. 653.501(c) of
this chapter and Sec. 655.122. If the SWA determines that the job
order does not comply with the applicable criteria, the SWA must inform
the CO of the noted deficiencies within 5 calendar days of the date the
job order is received by the SWA.
(2) The CO will process emergency Applications for Temporary
Employment Certification in a manner consistent with the provisions set
forth in Sec. Sec. 655.140 through 655.145 and make a determination on
the Application for Temporary Employment Certification in accordance
with Sec. Sec. 655.160 through 655.167. The CO may notify the
employer, in accordance with the procedures contained in Sec. 655.141,
that the application cannot be accepted because, pursuant to paragraph
(a) of this section, the request for emergency filing was not justified
and/or there is not sufficient time to test the availability of U.S.
workers such that the CO can make a determination on the Application
for Temporary Employment Certification in accordance with Sec.
655.161. Such notification will so inform the employer of the
opportunity to submit a modified Application for Temporary Employment
Certification and/or job order in accordance with the procedures
contained in Sec. 655.142.
Sec. 655.135 Assurances and obligations of H-2A employers.
An employer seeking to employ H-2A workers must agree as part of
the Application for Temporary Employment Certification and job offer
that it will abide by the requirements of this subpart and make each of
the following additional assurances:
(a) Non-discriminatory hiring practices. The job opportunity is,
and through the period set forth in paragraph (d) of this section must
continue to be, open to any qualified U.S. worker regardless of race,
color, national origin, age, sex, religion, handicap, or citizenship.
Rejections of any U.S. workers who applied or apply for the job must be
only for lawful, job-related reasons, and those not rejected on this
basis have been or will be hired. In addition, the employer has and
will continue to retain records of all hires and rejections as required
by Sec. 655.167.
(b) No strike or lockout. The place(s) of employment for which the
employer is requesting a temporary agricultural labor certification
does not currently have employees on strike or being locked out in the
course of a labor dispute.
(c) Recruitment requirements. The employer has and will continue to
cooperate with the SWA by accepting referrals of all eligible U.S.
workers who apply (or on whose behalf an application is made) for the
job opportunity until the end of the period as specified in paragraph
(d) of this section and must independently conduct the positive
recruitment activities, as specified in Sec. Sec. 655.123 and 655.154,
until the date on which the H-2A workers depart for the place of
employment. Unless the SWA is informed in writing of a different date,
the date that is the third day preceding the employer's first date of
need will be determined to be the date the H-2A workers departed for
the employer's place of employment.
(d) Thirty-day rule. (1) Subject to paragraph (d)(2) of this
section, the employer must provide employment to any qualified,
eligible U.S. worker who applies for the job opportunity until 30
calendar days after the first date of need stated on the Application
for Temporary Employment Certification under which the H-2A worker who
is in the job was hired, including any approved modifications.
(2) If an employer chooses to use the procedures for the staggered
entry of H-2A workers at Sec. 655.130(f), the employer must provide
employment to any qualified, eligible U.S. worker who applies for the
job opportunity through the date provided on the employer's notice
described at Sec. 655.130(f)(2) or the end of the 30-day period
described in paragraph (d)(1) of this section, whichever is longer.
(e) Compliance with applicable laws. During the period of
employment that is the subject of the Application for Temporary
Employment Certification, the employer must comply with all applicable
Federal, state, and local laws and regulations, including health and
safety laws. In compliance with such laws, including the William
Wilberforce Trafficking Victims Protection Reauthorization Act of 2008,
Public Law 110-457, 18 U.S.C. 1592(a), the employer may not hold or
confiscate workers' passports, visas, or other immigration documents.
H-2A employers may also be subject to the
[[Page 36275]]
FLSA. The FLSA operates independently of the H-2A program and has
specific requirements that address payment of wages, including
deductions from wages, the payment of Federal minimum wage and payment
of overtime.
(f) Job opportunity is full-time. The job opportunity is a full-
time temporary position, calculated to be at least 35 hours per
workweek.
(g) No recent or future layoffs. The employer has not laid off and
will not lay off any worker in the United States similarly employed in
the occupation that is the subject of the Application for Temporary
Employment Certification in the area of intended employment except for
lawful, job-related reasons within 60 days of the first date of need,
or if the employer has laid off such workers, it has offered the job
opportunity that is the subject of the Application for Temporary
Employment Certification to those laid-off U.S. worker(s) and the U.S.
worker(s) refused the job opportunity, was rejected for the job
opportunity for lawful, job-related reasons, or was hired. A layoff for
lawful, job-related reasons such as lack of work or the end of the
growing season is permissible if all H-2A workers are laid off before
any U.S. worker in corresponding employment.
(h) No unfair treatment. The employer has not and will not
intimidate, threaten, restrain, coerce, blacklist, discharge or in any
manner discriminate against, and has not and will not cause any person
to intimidate, threaten, restrain, coerce, blacklist, or in any manner
discriminate against, any person who has:
(1) Filed a complaint under or related to 8 U.S.C. 1188, or this
subpart or any other Department regulation promulgated under or related
to 8 U.S.C. 1188;
(2) Instituted or caused to be instituted any proceeding under or
related to 8 U.S.C. 1188 or this subpart or any other Department
regulation promulgated under or related to 8 U.S.C. 1188;
(3) Testified or is about to testify in any proceeding under or
related to 8 U.S.C. 1188 or this subpart or any other Department
regulation promulgated under or related to 8 U.S.C. 1188;
(4) Consulted with an employee of a legal assistance program or an
attorney on matters related to 8 U.S.C. 1188 or this subpart or any
other Department regulation promulgated under or related to 8 U.S.C.
1188; or
(5) Exercised or asserted on behalf of himself/herself or others
any right or protection afforded by 8 U.S.C. 1188 or this subpart or
any other Department regulation promulgated under or related to 8
U.S.C. 1188.
(i) Notify workers of duty to leave United States. (1) The employer
must inform H-2A workers of the requirement that they leave the United
States at the end of the period certified by the Department or
separation from the employer, whichever is earlier, as required under
paragraph (i)(2) of this section, unless the H-2A worker is being
sponsored by another subsequent H-2A employer.
(2) As defined further in the DHS regulations, a temporary
agricultural labor certification limits the validity period of an H-2A
Petition, and therefore, the authorized period of stay for an H-2A
worker. See 8 CFR 214.2(h)(5)(vii). A foreign worker may not remain
beyond his or her authorized period of stay, as determined by DHS, nor
beyond separation from employment prior to completion of the H-2A
contract, absent an extension or change of such worker's status under
the DHS regulations. See 8 CFR 214.2(h)(5)(viii)(B).
(j) Comply with the prohibition against employees paying fees. The
employer and its agents have not sought or received payment of any kind
from any employee subject to 8 U.S.C. 1188 for any activity related to
obtaining H-2A labor certification, including payment of the employer's
attorney fees, application fees, or recruitment costs. For purposes of
this paragraph (j), payment includes, but is not limited to, monetary
payments, wage concessions (including deductions from wages, salary, or
benefits), kickbacks, bribes, tributes, in kind payments, and free
labor. The provision in this paragraph (j) does not prohibit employers
or their agents from receiving reimbursement for costs that are the
responsibility and primarily for the benefit of the worker, such as
government-required passport fees.
(k) Contracts with third parties comply with prohibitions. The
employer must contractually prohibit in writing any foreign labor
contractor or recruiter (or any agent of such foreign labor contractor
or recruiter) whom the employer engages, either directly or indirectly,
in international recruitment of H-2A workers to seek or receive
payments or other compensation from prospective employees. The contract
must include the following statement: ``Under this agreement, [name of
foreign labor contractor or recruiter] and any agent or employee of
[name of foreign labor contractor or recruiter] are prohibited from
seeking or receiving payments from any prospective employee of
[employer name] at any time, including before or after the worker
obtains employment. Payments include but are not limited to any direct
or indirect fees paid by such employees for recruitment, job placement,
processing, maintenance, attorney fees, agent fees, application fees,
or any other fees related to obtaining H-2A labor certification.'' This
documentation is to be made available upon request by the CO or another
Federal party.
(l) Notice of worker rights. The employer must post and maintain in
a conspicuous location at the place of employment, a poster provided by
the Secretary in English, and, to the extent necessary, any language
common to a significant portion of the workers if they are not fluent
in English, which sets out the rights and protections for workers
employed pursuant to 8 U.S.C. 1188.
Sec. 655.136 Withdrawal of an Application for Temporary Employment
Certification and job order.
(a) The employer may withdraw an Application for Temporary
Employment Certification and the related job order at any time before
the CO makes a determination under Sec. 655.160. However, the employer
is still obligated to comply with the terms and conditions of
employment contained in the Application for Temporary Employment
Certification and job order with respect to all workers recruited in
connection with that application and job order.
(b) To request withdrawal, the employer must submit a request in
writing to the NPC identifying the Application for Temporary Employment
Certification and job order and stating the reason(s) for the
withdrawal.
Processing of Applications for Temporary Employment Certification
Sec. 655.140 Review of applications.
(a) NPC review. The CO will promptly review the Application for
Temporary Employment Certification and job order for compliance with
all applicable program requirements, including compliance with the
requirements set forth in this subpart, and make a decision to issue a
NOD under Sec. 655.141, a Notice of Acceptance (NOA) under Sec.
655.143, or a Final Determination under Sec. 655.160.
(b) Mailing and postmark requirements. Any notice or request sent
by the CO(s) to an employer requiring a response will be sent
electronically or via traditional methods to assure next day delivery
using the address, including electronic mail address, provided on the
Application for Temporary Employment Certification. The employer's
response to such a
[[Page 36276]]
notice or request must be filed electronically or via traditional
methods to assure next day delivery. The employer's response must be
sent by the date due or the next business day if the due date falls on
a Sunday or Federal holiday.
Sec. 655.141 Notice of deficiency.
(a) Notification timeline. If the CO determines the Application for
Temporary Employment Certification or job order is incomplete, contains
errors or inaccuracies, or does not meet the requirements set forth in
this subpart, the CO will notify the employer within 7 calendar days of
the CO's receipt of the Application for Temporary Employment
Certification. A copy of this notification will be sent to the SWA
serving the area of intended employment.
(b) Notice content. The notice will:
(1) State the reason(s) the Application for Temporary Employment
Certification or job order fails to meet the criteria for acceptance;
(2) Offer the employer an opportunity to submit a modified
Application for Temporary Employment Certification or job order within
5 business days from date of receipt stating the modification that is
needed for the CO to issue the NOA;
(3) State that the CO's determination on whether to grant or deny
the Application for Temporary Employment Certification will be made not
later than 30 calendar days before the first date of need, provided
that the employer submits the requested modification to the Application
for Temporary Employment Certification or job order within 5 business
days and in a manner specified by the CO; and
(4) State that if the employer does not comply with the
requirements of Sec. 655.142, the CO will deny the Application for
Temporary Employment Certification.
Sec. 655.142 Submission of modified applications.
(a) Submission requirements and certification delays. If in
response to a NOD the employer chooses to submit a modified Application
for Temporary Employment Certification or job order, the CO's Final
Determination will be postponed by 1 calendar day for each day that
passes beyond the 5-business-day period allowed under Sec. 655.141(b)
to submit a modified Application for Temporary Employment Certification
or job order, up to a maximum of 5 calendar days. The CO may issue one
or more additional NODs before issuing a Final Determination. The
Application for Temporary Employment Certification will be deemed
abandoned if the employer does not submit a modified Application for
Temporary Employment Certification or job order within 12 calendar days
after the NOD was issued.
(b) Provisions for denial of modified Application for Temporary
Employment Certification. If the modified Application for Temporary
Employment Certification or job order does not cure the deficiencies
cited in the NOD(s) or otherwise fails to satisfy the criteria required
for certification, the CO will deny the Application for Temporary
Employment Certification in accordance with the labor certification
determination provisions in Sec. 655.164.
(c) Appeal from denial of modified Application for Temporary
Employment Certification. The procedures for appealing a denial of a
modified Application for Temporary Employment Certification are the
same as for a non-modified Application for Temporary Employment
Certification as long as the employer timely requests an expedited
administrative review or de novo hearing before an ALJ by following the
procedures set forth in Sec. 655.171.
Sec. 655.143 Notice of acceptance.
(a) Notification timeline. When the CO determines the Application
for Temporary Employment Certification and job order meet the
requirements set forth in this subpart, the CO will notify the employer
within 7 calendar days of the CO's receipt of the Application for
Temporary Employment Certification. A copy of the notice will be sent
to the SWA serving the area of intended employment.
(b) Notice content. The notice must:
(1) When recruitment of U.S. workers, as specified in Sec. Sec.
655.151 through 655.154, has not commenced prior to the filing of the
Application for Temporary Employment Certification, or when recruitment
has commenced but not concluded prior to the filing of the Application
for Temporary Employment Certification, and the CO has determined that
the recruitment activities undertaken are compliant with positive
recruitment requirements:
(i) Authorize conditional access to the interstate clearance system
and direct each SWA receiving a copy of the job order to commence
recruitment of U.S. workers as specified in Sec. 655.150;
(ii) Direct the employer to engage in positive recruitment of U.S.
workers under Sec. Sec. 655.151 through 655.154 and to submit a report
of its positive recruitment efforts meeting the requirements of Sec.
655.156; and
(iii) State that positive recruitment is in addition to and will
occur during the period of time that the job order is being circulated
by the SWA(s) for interstate clearance under Sec. 655.150 of this
subpart and will terminate on the date specified in Sec. 655.158.
(2) When recruitment of U.S. workers, as specified in Sec. Sec.
655.151 through 655.154, has commenced prior to the filing of the
Application for Temporary Employment Certification, but the CO has
determined the employer failed to comply with one or more of its
positive recruitment obligations:
(i) Direct the employer to engage in corrective positive
recruitment of U.S. workers and submit proof of compliant advertising
concurrently with a report of its positive recruitment efforts meeting
the requirements of Sec. 655.156;
(ii) State that positive recruitment is in addition to and will
occur during the period of time that the job order is being circulated
for interstate clearance under Sec. 655.150 and will terminate on the
date specified in Sec. 655.158;
(3) State any other documentation or assurances needed for the
Application for Temporary Employment Certification to meet the
requirements for certification under this subpart; and
(4) State that the CO will make a determination either to grant or
deny the Application for Temporary Employment Certification not later
than 30 calendar days before the first date of need, except as provided
for under Sec. 655.142 for modified Applications for Temporary
Employment Certification or when the Application for Temporary
Employment Certification does not meet the requirements for
certification but is expected to before the first date of need.
Sec. 655.144 Electronic job registry.
(a) Location of and placement in the electronic job registry. Upon
acceptance of the Application for Temporary Employment Certification
under Sec. 655.143, the CO will promptly place for public examination
a copy of the job order on an electronic job registry maintained by the
Department, including any required modifications approved by the CO, as
specified in Sec. 655.142.
(b) Length of posting on electronic job registry. Unless otherwise
provided, the Department will keep the job order posted on the
electronic job registry in active status until the end of the
recruitment period, as set forth in Sec. 655.135(d).
Sec. 655.145 Amendments to Applications for Temporary Employment
Certification.
(a) Increases in number of workers. The Application for Temporary
Employment Certification may be amended at any time before the CO's
[[Page 36277]]
certification determination to increase the number of workers requested
in the initial Application for Temporary Employment Certification by
not more than 20 percent (50 percent for employers requesting less than
10 workers) without requiring an additional recruitment period for U.S.
workers. Requests for increases above the percent prescribed, without
additional recruitment, may be approved by the CO only when the
employer demonstrates that the need for additional workers could not
have been foreseen, and the crops or commodities will be in jeopardy
prior to the expiration of an additional recruitment period. All
requests for increasing the number of workers must be made in writing.
(b) Minor changes to the period of employment. The Application for
Temporary Employment Certification may be amended to make minor changes
in the total period of employment. Changes will not be effective until
submitted in writing and approved by the CO. In considering whether to
approve the request, the CO will review the reason(s) for the request,
determine whether the reason(s) are on the whole justified, and take
into account the effect any change(s) would have on the adequacy of the
underlying test of the domestic labor market for the job opportunity.
An employer must demonstrate that the change to the period of
employment could not have been foreseen, and the crops or commodities
will be in jeopardy prior to the expiration of an additional
recruitment period. If the request is for a delay in the first date of
need and is made after workers have departed for the employer's place
of employment, the CO may only approve the change if the employer
includes with the request a written assurance signed and dated by the
employer that all workers who are already traveling to the place of
employment will be provided housing and subsistence, without cost to
the workers, until work commences. Upon acceptance of an amendment, the
CO will submit to the SWA any necessary modification to the job order.
Post-Acceptance Requirements
Sec. 655.150 Interstate clearance of job order.
(a) CO approves for interstate clearance. The CO will promptly
transmit a copy of the approved job order for interstate clearance to
all states listed in the job order as anticipated place(s) of
employment and all other states designated by the OFLC Administrator as
states of traditional or expected labor supply for the anticipated
place(s) of employment under Sec. 655.154(d).
(b) Duration of posting. Each of the SWAs to which the CO transmits
the job order must keep the job order on its active file until the end
of the recruitment period, as set forth in Sec. 655.135(d), and must
refer each qualified U.S. worker who applies (or on whose behalf an
application is made) for the job opportunity.
Sec. 655.151 Advertising in the area of intended employment.
(a) The employer must place an advertisement (in a language other
than English, where the CO determines appropriate) on 2 separate days,
which may be consecutive, one of which must be a Sunday (except as
provided in paragraph (b) of this section), in a newspaper of general
circulation serving the area of intended employment and is appropriate
to the occupation and the workers likely to apply for the job
opportunity. Newspaper advertisements must satisfy the requirements set
forth in Sec. 655.152.
(b) If the job opportunity is located in a rural area that does not
have a newspaper with a Sunday edition, the CO may direct the employer,
in place of a Sunday edition, to advertise in the regularly published
daily edition with the widest circulation in the area of intended
employment.
Sec. 655.152 Advertising content requirements.
All advertising conducted to satisfy the required recruitment
activities under Sec. Sec. 655.151 and 655.154 must meet the
requirements set forth in this section and must contain terms and
conditions of employment which are not less favorable than those
offered to the H-2A workers. All advertising must contain the following
information:
(a) The employer's name, each joint employer's name, or in the
event that a master application will be filed by an agricultural
association, the agricultural association's name and a statement
indicating that the name and location of each member of the
agricultural association can be obtained from the SWA of the state in
which the advertisement is run;
(b) The geographic area of intended employment with enough
specificity to apprise applicants of any travel requirements and where
applicants will likely have to reside to perform the labor or services;
(c) A description of the job opportunity for which certification is
sought with sufficient information to apprise U.S. workers of labor or
services to be performed and the anticipated start and end dates of
employment of the job opportunity;
(d) The wage offer, or in the event that there are multiple wage
offers (e.g., where a master application will be filed by an
agricultural association and/or where there are multiple crop
activities for a single employer), the range of applicable wage offers
and, where a master application will be filed by an agricultural
association, a statement indicating that the rate(s) applicable to each
employer can be obtained from the SWA of the State in which the
advertisement is run;
(e) The three-fourths guarantee specified in Sec. 655.122(i);
(f) If applicable, a statement that work tools, supplies, and
equipment will be provided at no cost to the worker;
(g) A statement that housing will be made available at no cost to
workers, including U.S. workers who cannot reasonably return to their
permanent residence at the end of each working day;
(h) A statement that transportation and subsistence expenses to the
place of employment will be provided by the employer or paid by the
employer upon completion of 50 percent of the work contract, or
earlier, if appropriate;
(i) A statement that the position is temporary and a specification
of the total number of job openings the employer intends to fill;
(j) A statement directing applicants to apply for the job
opportunity at the nearest office of the SWA in the state in which the
advertisement appeared; and
(k) Contact information for the applicable SWA and, if available,
the job order number.
Sec. 655.153 Contact with former U.S. workers.
The employer must contact, by mail or other effective means, U.S.
workers employed by the employer in the occupation at the place of
employment during the previous year and solicit their return to the
job. This contact must occur during the period of time that the job
order is being circulated by the SWA(s) for interstate clearance under
Sec. 655.150 and before the date specified in Sec. 655.158.
Documentation sufficient to prove contact must be maintained in the
event of an audit or investigation. An employer has no obligation to
contact U.S. workers it terminated for cause or who abandoned
employment at any time during the previous year if the employer
provided timely notice to the NPC of the termination or abandonment in
the manner described in Sec. 655.122(n).
Sec. 655.154 Additional positive recruitment.
(a) Where to conduct additional positive recruitment. The employer
[[Page 36278]]
must conduct positive recruitment within a multistate region of
traditional or expected labor supply where the OFLC Administrator finds
that there are a significant number of qualified U.S. workers who, if
recruited, would be willing to make themselves available for work at
the time and place needed.
(b) Additional requirements should be comparable to non-H-2A
employers in the area. The CO will ensure that the effort, including
the location(s) and method(s) of the positive recruitment required of
the employer must be no less than the normal recruitment efforts of
non-H-2A agricultural employers of comparable or smaller size in the
area of intended employment, and the kind and degree of recruitment
efforts which the employer made to obtain foreign workers.
(c) Nature of the additional positive recruitment. The CO will
describe the precise nature of the additional positive recruitment, but
the employer will not be required to conduct positive recruitment in
more than three states for each area of intended employment listed on
the employer's Application for Temporary Employment Certification and
job order.
(d) Determination of labor supply states. (1) The OFLC
Administrator will make an annual determination with respect to each
state whether there are other traditional or expected labor supply
states in which there are a significant number of qualified U.S.
workers who, if recruited, would be willing to make themselves
available for work in that state. The OFLC Administrator will publish
the determination annually on the OFLC's website. The traditional or
expected labor supply states designated by the OFLC Administrator will
become effective on the date of publication on the OFLC's website for
employers who have not commenced positive recruitment under this
subpart and will remain valid until the OFLC Administrator publishes a
new determination.
(2) The determination as to whether any state is a source of
traditional or expected labor supply to another state will be based
primarily upon information provided by the SWAs to the OFLC
Administrator within 120 calendar days preceding the determination.
Sec. 655.155 Referrals of U.S. workers.
SWAs may only refer for employment individuals who have been
apprised of all the material terms and conditions of employment and
have indicated, by accepting referral to the job opportunity, that they
are qualified, able, willing, and available for employment.
Sec. 655.156 Recruitment report.
(a) Requirements of a recruitment report. The employer must
prepare, sign, and date a written recruitment report. The recruitment
report must contain the following information:
(1) Identify the name of each recruitment source and date of
advertisement;
(2) State the name and contact information of each U.S. worker who
applied or was referred to the job opportunity up to the date of the
preparation of the recruitment report, and the disposition of each
worker;
(3) Confirm that former U.S. employees were contacted and by what
means or state there are no former U.S. employees to contact; and
(4) If applicable, for each U.S. worker who applied for the
position but was not hired, explain the lawful job-related reason(s)
for not hiring the U.S. worker.
(b) Duty to update recruitment report. The employer must continue
to update the recruitment report until the end of the recruitment
period, as set forth in Sec. 655.135(d). The updated report is not to
be submitted to the Department, unless requested by the Department. The
updated report mustbe made available in the event of a post-
certification audit or upon request by the Department or any other
Federal agency.
Sec. 655.157 Withholding of U.S. workers prohibited.
(a) Filing a complaint. Any employer who has reason to believe that
a person or entity has willfully and knowingly withheld U.S. workers
prior to the arrival at the place of employment of H-2A workers in
order to force the hiring of U.S. workers during the recruitment
period, as set forth in Sec. 655.135(d), may submit a written
complaint to the CO. The complaint must clearly identify the person or
entity who the employer believes has withheld the U.S. workers, and
must specify sufficient facts to support the allegation (e.g., dates,
places, numbers and names of U.S. workers) which will permit an
investigation to be conducted by the CO.
(b) Duty to investigate. Upon receipt, the CO must immediately
investigate the complaint. The investigation must include interviews
with the employer who has submitted the complaint, the person or entity
named as responsible for withholding the U.S. workers, and the
individual U.S. workers whose availability has purportedly been
withheld.
(c) Duty to suspend the recruitment period. Where the CO
determines, after conducting the interviews required by paragraph (b)
of this section, that the employer's complaint is valid and justified,
the CO will immediately suspend the applicable recruitment period, as
set forth in Sec. 655.135(d), to the employer. The CO's determination
is the final decision of the Secretary.
Sec. 655.158 Duration of positive recruitment.
Except as otherwise noted, the obligation to engage in positive
recruitment described in Sec. Sec. 655.150 through 655.154 will
terminate on the date H-2A workers depart for the employer's place of
employment. Unless the SWA is informed in writing of a different date,
the date that is the third day preceding the employer's first date of
need will be determined to be the date the H-2A workers departed for
the employer's place of employment.
Labor Certification Determinations
Sec. 655.160 Determinations.
Except as otherwise noted in this section, the CO will make a
determination either to grant or deny the Application for Temporary
Employment Certification not later than 30 calendar days before the
first date of need identified in the Application for Temporary
Employment Certification. An Application for Temporary Employment
Certification that is modified under Sec. 655.142 or that otherwise
does not meet the requirements for certification in this subpart is not
subject to the 30-day timeframe for certification.
Sec. 655.161 Criteria for certification.
(a) The criteria for certification include whether the employer has
complied with the applicable requirements of parts 653 and 654 of this
chapter, and all requirements of this subpart, which are necessary to
grant the labor certification.
(b) In making a determination as to whether there are insufficient
U.S. workers to fill the employer's job opportunity, the CO will count
as available any U.S. worker referred by the SWA or any U.S. worker who
applied (or on whose behalf an application is made) directly to the
employer, whom the employer has not rejected for a lawful, job-related
reason.
Sec. 655.162 Approved certification.
If temporary agricultural labor certification is granted, the CO
will send a Final Determination notice and a copy of the certified
Application for Temporary Employment Certification and job order to the
employer and a copy, if applicable, to the employer's agent or attorney
using an electronic
[[Page 36279]]
method(s) designated by the OFLC Administrator. For employers permitted
to file by mail as set forth in Sec. 655.130(c), the CO will send the
Final Determination notice and a copy of the certified Application for
Temporary Employment Certification and job order by means normally
assuring next day delivery. The CO will send the certified Application
for Temporary Employment Certification and job order, including any
approved modifications, on behalf of the employer, directly to USCIS
using an electronic method(s) designated by the OFLC Administrator.
Sec. 655.163 Certification fee.
A determination by the CO to grant an Application for Temporary
Employment Certification in whole or in part will include a bill for
the required certification fees. Each employer of H-2A workers under
the Application for Temporary Employment Certification (except joint
employer agricultural associations, which may not be assessed a fee in
addition to the fees assessed to the members of the agricultural
association) must pay in a timely manner a non-refundable fee upon
issuance of the certification granting the Application for Temporary
Employment Certification (in whole or in part), as follows:
(a) Amount. The Application for Temporary Employment Certification
fee for each employer receiving a temporary agricultural labor
certification is $100 plus $10 for each H-2A worker certified under the
Application for Temporary Employment Certification, provided that the
fee to an employer for each temporary agricultural labor certification
received will be no greater than $1,000. There is no additional fee to
the association filing the Application for Temporary Employment
Certification. The fees must be paid by check or money order made
payable to United States Department of Labor. In the case of an
agricultural association acting as a joint employer applying on behalf
of its H-2A employer-members, the aggregate fees for all employers of
H-2A workers under the Application for Temporary Employment
Certification must be paid by one check or money order.
(b) Timeliness. Fees must be received by the CO no more than 30
calendar days after the date of the certification. Non-payment or
untimely payment may be considered a substantial violation subject to
the procedures in Sec. 655.182.
Sec. 655.164 Denied certification.
If temporary agricultural labor certification is denied, the CO
will send a Final Determination notice to the employer and a copy, if
appropriate, to the employer's agent or attorney using an electronic
method(s) designated by the OFLC Administrator. For employers permitted
to file by mail as set forth in Sec. 655.130(c), the CO will send the
Final Determination notice by means normally assuring next day
delivery. The Final Determination notice will:
(a) State the reason(s) certification is denied, citing the
relevant regulatory standards;
(b) Offer the employer an opportunity to request an expedited
administrative review or a de novo administrative hearing before an ALJ
of the denial under Sec. 655.171; and
(c) State that if the employer does not request an expedited
administrative judicial review or a de novo hearing before an ALJ in
accordance with Sec. 655.171, the denial is final, and the Department
will not accept any appeal on that Application for Temporary Employment
Certification.
Sec. 655.165 Partial certification.
The CO may issue a partial certification, reducing either the
period of employment or the number of H-2A workers being requested or
both for certification, based upon information the CO receives during
the course of processing the Application for Temporary Employment
Certification, an audit, or otherwise. The number of workers certified
will be reduced by one for each U.S. worker who is able, willing, and
qualified, and who will be available at the time and place needed and
has not been rejected for lawful, job-related reasons, to perform the
labor or services. If a partial labor certification is issued, the CO
will send the Final Determination notice approving partial
certification using the procedures at Sec. 655.162. The Final
Determination notice will:
(a) State the reason(s) the period of employment and/or the number
of H-2A workers requested has been reduced, citing the relevant
regulatory standards;
(b) Offer the employer an opportunity to request an expedited
administrative review or a de novo administrative hearing before an ALJ
of the partial certification under Sec. 655.171; and
(c) State that if the employer does not request an expedited
administrative judicial review or a de novo hearing before an ALJ in
accordance with Sec. 655.171, the partial certification is final, and
the Department will not accept any appeal on that Application for
Temporary Employment Certification.
Sec. 655.166 Requests for determinations based on nonavailability of
U.S. workers.
(a) Standards for requests. If a temporary agricultural labor
certification has been partially granted or denied based on the CO's
determination that able, willing, available, eligible, and qualified
U.S. workers are available, and, on or after 30 calendar days before
the first date of need, some or all of those U.S. workers are, in fact,
no longer able, willing, eligible, qualified, or available, the
employer may request a new temporary agricultural labor certification
determination from the CO. Prior to making a new determination, the CO
will promptly ascertain (which may be through the SWA or other sources
of information on U.S. worker availability) whether specific able,
willing, eligible and qualified replacement U.S. workers are available
or can be reasonably expected to be present at the employer's
establishment within 72 hours from the date the employer's request was
received. The CO will expeditiously, but in no case later than 72 hours
after the time a complete request (including the signed statement
included in paragraph (b) of this section) is received, make a
determination on the request under paragraph (c) of this section. An
employer may appeal a denial of such a determination in accordance with
the procedures contained in Sec. 655.171.
(b) Unavailability of U.S. workers. The employer's request for a
new determination must be made directly to the CO in writing using an
electronic method(s) designated by the OFLC Administrator, unless the
employer requests to file the request by mail as set forth in Sec.
655.130(c). If the employer requests the new determination by asserting
solely that U.S. workers have become unavailable, the employer must
submit to the CO a signed statement confirming such assertion. If such
signed statement is not received by the CO within 72 hours of the CO's
receipt of the request for a new determination, the CO will deny the
request.
(c) Notification of determination. If the CO determines that U.S.
workers have become unavailable and cannot identify sufficient
available U.S. workers who are able, willing, eligible, and qualified
or who are likely to become available, the CO will grant the employer's
request for a new determination on the Application for Temporary
Employment Certification in accordance with the procedures contained in
Sec. 655.162 or Sec. 655.165. However, this does not preclude an
employer from submitting subsequent requests for new determinations, if
warranted, based on subsequent facts
[[Page 36280]]
concerning purported nonavailability of U.S. workers or referred
workers not being eligible workers or not able, willing, or qualified
because of lawful, job-related reasons.
Sec. 655.167 Document retention requirements of H-2A employers.
(a) Entities required to retain documents. All employers must
retain documents and records demonstrating compliance with this
subpart.
(b) Period of required retention. Records and documents must be
retained for a period of 3 years from the date of certification of the
Application for Temporary Employment Certification or from the date of
determination if the Application for Temporary Employment Certification
is denied or withdrawn.
(c) Documents and records to be retained by all employers. All
employers must retain:
(1) Proof of recruitment efforts, including:
(i) Job order placement as specified in Sec. 655.121;
(ii) Advertising as specified in Sec. 655.152, or, if used,
professional, trade, or ethnic publications;
(iii) Contact with former U.S. workers as specified in Sec.
655.153; and
(iv) Additional positive recruitment efforts (as specified in Sec.
655.154).
(2) Substantiation of information submitted in the recruitment
report prepared in accordance with Sec. 655.156, such as evidence of
nonapplicability of contact of former employees as specified in Sec.
655.153.
(3) The final recruitment report and any supporting resumes and
contact information as specified in Sec. 655.156(b).
(4) Proof of workers' compensation insurance or state law coverage
as specified in Sec. 655.122(e).
(5) Records of each worker's earnings as specified in Sec.
655.122(j).
(6) The work contract or a copy of the Application for Temporary
Employment Certification as defined in 29 CFR 501.10 and specified in
Sec. 655.122(q).
(7) If applicable, records of notice to the NPC and DHS of the
abandonment of employment or termination for cause of a worker as set
forth in Sec. 655.122(n).
(d) Additional retention requirement for agricultural associations
filing an Application for Temporary Employment Certification. In
addition to the documents specified in paragraph (c) of this section,
associations must retain documentation substantiating their status as
an employer or agent, as specified in Sec. 655.131.
Post-Certification
Sec. 655.170 Extensions.
An employer may apply for extensions of the period of employment in
the following circumstances.
(a) Short-term extension. Employers seeking extensions of 2 weeks
or less of the certified Application for Temporary Employment
Certification must apply directly to DHS for approval. If granted, the
Application for Temporary Employment Certification will be deemed
extended for such period as is approved by DHS.
(b) Long-term extension. Employers seeking extensions of more than
2 weeks may apply to the CO. Such requests must be related to weather
conditions or other factors beyond the control of the employer (which
may include unforeseen changes in market conditions). Such requests
must be supported in writing, with documentation showing that the
extension is needed and that the need could not have been reasonably
foreseen by the employer. The CO will notify the employer of the
decision in writing if time allows, or will otherwise notify the
employer of the decision. The CO will not grant an extension where the
total work contract period under that Application for Temporary
Employment Certification and extensions would last longer than 1 year,
except in extraordinary circumstances. The employer may appeal a denial
of a request for an extension by following the procedures in Sec.
655.171.
(c) Disclosure. The employer must provide to the workers a copy of
any approved extension in accordance with Sec. 655.122(q), as soon as
practicable.
Sec. 655.171 Appeals.
(a) Request for review. Where authorized in this subpart, an
employer wishing review of a decision of the CO must request an
administrative review or de novo hearing before an ALJ of that decision
to exhaust its administrative remedies. In such cases, the request for
review:
(1) Must be received by the Chief ALJ, and the CO who issued the
decision, within 10 business days from the date of the CO's decision;
(2) Must clearly identify the particular decision for which review
is sought;
(3) Must include a copy of the CO's decision;
(4) Must clearly state whether the employer is seeking
administrative review or a de novo hearing. If the request does not
clearly state the employer is seeking a de novo hearing, then the
employer waives its right to a hearing, and the case will proceed as a
request for administrative review;
(5) Must set forth the particular grounds for the request,
including the specific factual issues the requesting party alleges
needs to be examined in connection with the CO's decision in question;
(6) May contain any legal argument that the employer believes will
rebut the basis of the CO's action, including any briefing the employer
wishes to submit where the request is for administrative review;
(7) May contain only such evidence as was actually before the CO at
the time of the CO's decision, where the request is for administrative
review; and
(8) May contain new evidence for the ALJ's consideration, where the
request is for a de novo hearing, provided that the new evidence is
introduced at the hearing.
(b) Appeal file. After the receipt of the request for review, the
CO will send a copy of the OFLC administrative file to the Chief ALJ as
soon as practicable by means normally assuring next-day delivery.
(c) Assignment. The Chief ALJ will immediately assign an ALJ to
consider the particular case, which may be a single member or a three-
member panel of the BALCA.
(d) Administrative review--(1) Briefing schedule. If the employer
wishes to submit a brief on appeal, it must do so as part of its
request for review. Within 7 business days of receipt of the OFLC
administrative file, the counsel for the CO may submit a brief in
support of the CO's decision and, if applicable, in response to the
employer's brief.
(2) Standard of review. The ALJ must uphold the CO's decision
unless shown by the employer to be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law.
(3) Scope of review. The ALJ will affirm, reverse, or modify the
CO's decision, or remand to the CO for further action. The ALJ will
reach this decision after due consideration of the documents in the
OFLC administrative file that were before the CO at the time of the
CO's decision and any written submissions from the parties or amici
curiae that do not contain new evidence. The ALJ may not consider
evidence not before the CO at the time of the CO's decision, even if
such evidence is in the administrative file.
(4) Decision. The decision of the ALJ must specify the reasons for
the action taken and must be immediately provided to the employer, the
CO, and counsel for the CO within 7 business
[[Page 36281]]
days of the submission of the CO's brief or 10 business days after
receipt of the OFLC administrative file, whichever is later, using
means normally assuring next-day delivery.
(e) De novo hearing--(1) Conduct of hearing. Where the employer has
requested a de novo hearing the procedures in 29 CFR part 18 apply to
such hearings, except that:
(i) The appeal will not be considered to be a complaint to which an
answer is required;
(ii) The ALJ will ensure that the hearing is scheduled to take
place within 14 business days after the ALJ's receipt of the OFLC
administrative file, if the employer so requests, and will allow for
the introduction of new evidence during the hearing as appropriate;
(iii) The ALJ may authorize discovery and the filing of pre-hearing
motions, and so limit them to the types and quantities which in the
ALJ's discretion will contribute to a fair hearing without unduly
burdening the parties;
(iv) The ALJ's decision must be rendered within 10 calendar days
after the hearing; and
(v) If the employer waives the right to a hearing, such as by
asking for a decision on the record, or if the ALJ determines there are
no disputed material facts to warrant a hearing, then the standard and
scope of review for administrative review applies.
(2) Standard and scope of review. The ALJ will review the evidence
presented during the hearing and the CO's decision de novo. The ALJ may
determine that there is no genuine issue covering some or all material
facts and limit the hearing to any issues of material fact as to which
there is a genuine dispute. If new evidence is submitted with a request
for a de novo hearing, and the ALJ subsequently determines that a
hearing is warranted, the new evidence provided with the request must
be introduced at the hearing to be considered by the ALJ. After a de
novo hearing, the ALJ must affirm, reverse, or modify the CO's
decision, or remand to the CO for further action.
(3) Decision. The decision of the ALJ must specify the reasons for
the action taken and must be immediately provided to the employer, the
CO, and counsel for the CO by means normally assuring next-day
delivery.
Sec. 655.172 Post-certification withdrawals.
(a) The employer may withdraw an Application for Temporary
Employment Certification and the related job order after the CO grants
certification under Sec. 655.160. However, the employer is still
obligated to comply with the terms and conditions of employment
contained in the Application for Temporary Employment Certification and
job order with respect to all workers recruited in connection with that
application and job order.
(b) To request withdrawal, the employer must submit a request in
writing to the NPC identifying the certification and stating the
reason(s) for the withdrawal.
Sec. 655.173 Setting meal charges; petition for higher meal charges.
(a) Meal charges. An employer may only charge workers up to a
maximum amount per day for providing them with three meals. The maximum
charge allowed by this paragraph (a) will begin at $12.26 per day and
will be updated annually by the same percentage as the 12-month
percentage change for the Consumer Price Index for all Urban Consumers
for Food between December of the year just concluded and December of
the year prior to that. The annual adjustments will be effective not
later than 14 calendar days following the date of their publication by
the OFLC Administrator of a document in the Federal Register. When a
charge or deduction for the cost of meals would bring the employee's
wage below the minimum wage set by the FLSA at 29 U.S.C. 206, the
charge or deduction must meet the requirements of 29 U.S.C. 203(m) of
the FLSA, including the recordkeeping requirements found at 29 CFR
516.27.
(b) Petitions for higher meal charges. The employer may file a
petition with the CO to request approval to charge more than the
applicable amount set under paragraph (a) of this section, up to
$14.94, until a new maximum higher meal charge is set. The maximum
higher meal charge allowed by this paragraph (b) will be changed
annually following the same methodology and procedure as paragraph (a).
(1) Filing higher meal charge request. To request approval to
charge up to the maximum higher meal charge, the employer must submit
the documentation required by either paragraph (b)(1)(i) or (ii) of
this section. A higher meal charge request will be denied, in whole or
in part, if the employer's documentation does not justify the higher
meal charge requested, if the amount requested exceeds the current
maximum higher meal charge permitted, or both.
(i) Meals prepared directly by the employer. Documentation
submitted must include only the cost of goods and services directly
related to the preparation and serving of meals, the number of workers
fed, the number of meals served, and the number of days meals were
provided. The cost of the following items may be included in the
employer's charge to workers for providing prepared meals: Food;
kitchen supplies other than food, such as lunch bags and soap; labor
costs that have a direct relation to food service operations, such as
wages of cooks and dining hall supervisors; fuel, water, electricity,
and other utilities used for the food service operation; and other
costs directly related to the food service operation. Charges for
transportation, depreciation, overhead, and similar charges may not be
included. Receipts and other cost records for a representative pay
period must be retained and must be available for inspection for a
period of 3 years.
(ii) Meals provided through a third party. Documentation submitted
must identify each third party that the employer will engage to prepare
meals, describe how the employer will fulfill its obligation to provide
three meals per day to workers through its agreement with the third
party, and document the third party's charge(s) to the employer for the
meals to be provided. Neither the third party's charge(s) to the
employer nor the employer's meal charge to workers may include a
profit, kick back, or other direct or indirect benefit to the employer,
a person affiliated with the employer, or to another person for the
employer's benefit. Receipts and other cost records documenting
payments made to the third party that prepared the meals and meal
charge deductions from employee pay must be retained for the period
provided in Sec. 655.167(b) and must be available for inspection by
the CO and WHD during an investigation.
(2) Effective date and scope of validity of a higher meal charge
approval. The employer may begin charging the higher rate upon receipt
of approval from the CO, unless the CO sets a later effective date in
the decision, and after disclosing to workers any change in the meal
charge or deduction. A favorable decision from the CO is valid only for
the meal provision arrangement documented under paragraph (b)(1) of
this section and the approved higher meal charge amount. If the
approved meal provision arrangement changes, the employer may charge no
more than the maximum permitted under paragraph (a) of this section
until a new petition for a higher meal charge based on the new
arrangement is approved.
(3) Appeal rights. In the event the employer's petition for a
higher meal charge is denied in whole or in part, the employer may
appeal the denial.
[[Page 36282]]
Appeals will be filed with the Chief ALJ, pursuant to Sec. 655.171.
Sec. 655.174 Public disclosure.
The Department will maintain an electronic file accessible to the
public with information on all employers applying for temporary
agricultural labor certifications. The database will include such
information as the number of workers requested, the date filed, the
date decided, and the final disposition.
Sec. 655.175 Post-certification amendments.
(a) Scope of post-certification amendments. A certified Application
for Temporary Employment Certification and job order may be amended to
make minor changes to the certified place(s) of employment, provided
the employer has good and substantial cause for the amendment
requested, the circumstance(s) underlying the request for amendment
could not have been reasonably foreseen before certification and is
wholly outside the employer's control, the material terms and
conditions of the job order are not affected, and the amendment
requested is within the certified area(s) of intended employment.
(b) Employer requirements. The employer must submit to the NPC a
written request to amend the certified place(s) of employment. The
written request must:
(1) Specify each place of employment the employer requests to add
to or remove from the certified Application for Temporary Employment
Certification and job order, the expected beginning and ending dates of
work at each place of employment, and, if applicable, the name of each
fixed-site agricultural business;
(2) Describe the good and substantial cause justifying the need for
the requested amendment, as that term is defined in Sec. 655.134, and
explain how the circumstance could not have been reasonably foreseen
before certification and is wholly outside the employer's control;
(3) Assure the amendment requested will not change the material
terms and conditions of the job order;
(4) Assure the employer will provide to the workers a copy of the
amendment as soon as practicable after receiving notice that the
requested amendment is approved by the CO, consistent with Sec.
655.122(q); and
(5) Assure the employer will retain and make available all
documentation substantiating the requested amendment, where approved by
the CO and required by Sec. 655.167, in the event of a post-
certification audit or upon request by the Department.
(c) Processing and effective date of amendments. The CO will
expeditiously, but in no case later than 3 business days after the date
the request is received, decide whether to grant the requested
amendment and provide notification of the decision to the employer. In
considering whether to approve the request, the CO will determine
whether the requested amendment is sufficiently justified, whether the
employer has provided assurances that it will satisfy all program
requirements and obligations to workers, and how the amendment will
affect the underlying labor market test for the job opportunity.
Requests that do not satisfy all requirements will not be approved.
Changes will not be effective until approved by the CO. Upon approval
of an amendment, the CO will submit to the SWA any necessary changes to
the job order.
Integrity Measures
Sec. 655.180 Audit.
The CO may conduct audits of applications for which certifications
have been granted.
(a) Discretion. The CO has the sole discretion to choose the
certified applications selected for audit.
(b) Audit letter. Where an application is selected for audit, the
CO will issue an audit letter to the employer and a copy, if
appropriate, to the employer's agent or attorney. The audit letter
will:
(1) Specify the documentation that must be submitted by the
employer;
(2) Specify a date, no more than 30 calendar days from the date the
audit letter is issued, by which the required documentation must be
sent to the CO; and
(3) Advise that failure to fully comply with the audit process may
result in the revocation of the certification or program debarment.
(c) Supplemental information request. During the course of the
audit examination, the CO may request supplemental information and/or
documentation from the employer in order to complete the audit. If
circumstances warrant, the CO can issue one or more requests for
supplemental information.
(d) Potential referrals. In addition to measures in this subpart,
the CO may decide to provide the audit findings and underlying
documentation to DHS, WHD, or other appropriate enforcement agencies.
The CO may refer any findings that an employer discouraged an eligible
U.S. worker from applying, or failed to hire, discharged, or otherwise
discriminated against an eligible U.S. worker, to the Department of
Justice, Civil Rights Division, Immigrant and Employee Rights Section.
Sec. 655.181 Revocation.
(a) Basis for DOL revocation. The OFLC Administrator may revoke a
temporary agricultural labor certification approved under this subpart,
if the OFLC Administrator finds:
(1) The issuance of the temporary agricultural labor certification
was not justified due to fraud or misrepresentation in the application
process;
(2) The employer substantially violated a material term or
condition of the approved temporary agricultural labor certification,
as defined in Sec. 655.182;
(3) The employer failed to cooperate with a DOL investigation or
with a DOL official performing an investigation, inspection, audit (as
discussed in Sec. 655.180), or law enforcement function under 8 U.S.C.
1188, 29 CFR part 501, or this subpart; or
(4) The employer failed to comply with one or more sanctions or
remedies imposed by WHD, or with one or more decisions or orders of the
Secretary or a court order secured by the Secretary under 8 U.S.C.
1188, 29 CFR part 501, or this subpart.
(b) DOL procedures for revocation--(1) Notice of Revocation. If the
OFLC Administrator makes a determination to revoke an employer's
temporary agricultural labor certification, the OFLC Administrator will
send to the employer (and its attorney or agent) a Notice of
Revocation. The Notice will contain a detailed statement of the grounds
for the revocation, and it will inform the employer of its right to
submit rebuttal evidence or to appeal. If the employer does not file
rebuttal evidence or an appeal within 14 calendar days of the date of
the Notice of Revocation, the Notice is the final agency action and
will take effect immediately at the end of the 14-day period.
(2) Rebuttal. The employer may submit evidence to rebut the grounds
stated in the Notice of Revocation within 14 calendar days of the date
the Notice is issued. If rebuttal evidence is timely filed by the
employer, the OFLC Administrator will inform the employer of the OFLC
Administrator's final determination on the revocation within 14
calendar days of receiving the rebuttal evidence. If the OFLC
Administrator determines that the certification should be revoked, the
OFLC Administrator will inform the
[[Page 36283]]
employer of its right to appeal according to the procedures of Sec.
655.171. If the employer does not appeal the final determination, it
will become the final agency action.
(3) Appeal. An employer may appeal a Notice of Revocation, or a
final determination of the OFLC Administrator after the review of
rebuttal evidence, according to the appeal procedures of Sec. 655.171.
The ALJ's decision is the final agency action.
(4) Stay. The timely filing of rebuttal evidence or an
administrative appeal will stay the revocation pending the outcome of
those proceedings.
(5) Decision. If the temporary agricultural labor certification is
revoked, the OFLC Administrator will send a copy of the final agency
action to DHS and the Department of State (DOS).
(c) Employer's obligations in the event of revocation. If an
employer's temporary agricultural labor certification is revoked, the
employer is responsible for:
(1) Reimbursement of actual inbound transportation and subsistence
expenses, as if the worker meets the requirements for payment under
Sec. 655.122(h)(1);
(2) The worker's outbound transportation and subsistence expenses,
as if the worker meets the requirements for payment under Sec.
655.122(h)(2);
(3) Payment to the worker of the amount due under the three-fourths
guarantee as required by Sec. 655.122(i); and
(4) Any other wages, benefits, and working conditions due or owing
to the worker under this subpart.
Sec. 655.182 Debarment.
(a) Debarment of an employer, agent, or attorney. The OFLC
Administrator may debar an employer, agent, or attorney, or any
successor in interest to that employer, agent, or attorney, from
participating in any action under 8 U.S.C. 1188, this subpart, or 29
CFR part 501 subject to the time limits set forth in paragraph (c) of
this section, if the OFLC Administrator finds that the employer, agent,
or attorney substantially violated a material term or condition of the
temporary agricultural labor certification, with respect to H-2A
workers; workers in corresponding employment; or U.S. workers
improperly rejected for employment, or improperly laid off or
displaced.
(b) Effect on future applications. No application for H-2A workers
may be filed by a debarred employer, or by an employer represented by a
debarred agent or attorney, or by any successor in interest to any
debarred agent or attorney, subject to the term limits set forth in
paragraph (c) of this section. If such an application is filed, it will
be denied without review.
(c) Statute of limitations and period of debarment. (1) The OFLC
Administrator must issue any Notice of Debarment not later than 2 years
after the occurrence of the violation.
(2) No employer, agent, or attorney may be debarred under this
subpart for more than 3 years from the date of the final agency
decision.
(d) Definition of violation. For the purposes of this section, a
violation includes:
(1) One or more acts of commission or omission on the part of the
employer or the employer's agent which involve:
(i) Failure to pay or provide the required wages, benefits, or
working conditions to the employer's H-2A workers and/or workers in
corresponding employment;
(ii) Failure, except for lawful, job-related reasons, to offer
employment to qualified U.S. workers who applied for the job
opportunity for which certification was sought;
(iii) Failure to comply with the employer's obligations to recruit
U.S. workers;
(iv) Improper layoff or displacement of U.S. workers or workers in
corresponding employment;
(v) Failure to comply with one or more sanctions or remedies
imposed by the WHD Administrator for violation(s) of contractual or
other H-2A obligations, or with one or more decisions or orders of the
Secretary or a court under 8 U.S.C. 1188, 29 CFR part 501, or this
subpart;
(vi) Impeding an investigation of an employer under 8 U.S.C. 1188
or 29 CFR part 501, or an audit under Sec. 655.180;
(vii) Employing an H-2A worker outside the area of intended
employment, in an activity/activities not listed in the job order or
outside the validity period of employment of the job order, including
any approved extension thereof;
(viii) A violation of the requirements of Sec. 655.135(j) or (k);
(ix) A violation of any of the provisions listed in 29 CFR
501.4(a); or
(x) A single heinous act showing such flagrant disregard for the
law that future compliance with program requirements cannot reasonably
be expected;
(2) The employer's failure to pay a necessary certification fee in
a timely manner;
(3) The H-2ALC's failure to submit an original surety bond meeting
the requirements of Sec. 655.132(c) within 30 days of the date the
temporary agricultural labor certification was issued or failure to
submit additional surety within 30 days of a finding under 20 CFR
501.9(a) that the face value of the bond is insufficient;
(4) Fraud involving the Application for Temporary Employment
Certification; or
(5) A material misrepresentation of fact during the application
process.
(e) Determining whether a violation is substantial. In determining
whether a violation is so substantial so as to merit debarment, the
factors the OFLC Administrator may consider include, but are not
limited to, the following:
(1) Previous history of violation(s) of 8 U.S.C. 1188, 29 CFR part
501, or this subpart;
(2) The number of H-2A workers, workers in corresponding
employment, or U.S. workers who were and/or are affected by the
violation(s);
(3) The gravity of the violation(s);
(4) Efforts made in good faith to comply with 8 U.S.C. 1188, 29 CFR
part 501, and this subpart;
(5) Explanation from the person charged with the violation(s);
(6) Commitment to future compliance, taking into account the public
health, interest, or safety, and whether the person has previously
violated 8 U.S.C. 1188; or
(7) The extent to which the violator achieved a financial gain due
to the violation(s), or the potential financial loss or potential
injury to the worker(s).
(f) Debarment procedure--(1) Notice of Debarment. If the OFLC
Administrator makes a determination to debar an employer, agent, or
attorney, the OFLC Administrator will send the party a Notice of
Debarment. The Notice will state the reason for the debarment finding,
including a detailed explanation of the grounds for and the duration of
the debarment, and it will inform the party subject to the Notice of
its right to submit rebuttal evidence or to request a debarment
hearing. If the party does not file rebuttal evidence or request a
hearing within 30 calendar days of the date of the Notice of Debarment,
the Notice will be the final agency action and the debarment will take
effect at the end of the 30-day period.
(2) Rebuttal. The party who received the Notice of Debarment may
choose to submit evidence to rebut the grounds stated in the Notice
within 30 calendar days of the date the Notice is issued. If rebuttal
evidence is timely filed, the OFLC Administrator will issue a final
determination on the debarment within 30 calendar days of receiving the
rebuttal evidence. If the OFLC Administrator determines that the party
[[Page 36284]]
should be debarred, the OFLC Administrator will inform the party of its
right to request a debarment hearing according to the procedures of
paragraph (f)(3) of this section. The party must request a hearing
within 30 calendar days after the date of the OFLC Administrator's
final determination, or the OFLC Administrator's determination will be
the final agency action and the debarment will take effect at the end
of the 30-calendar-day period.
(3) Hearing. The recipient of a Notice of Debarment may request a
debarment hearing within 30 calendar days of the date of a Notice of
Debarment or the date of a final determination of the OFLC
Administrator after review of rebuttal evidence submitted pursuant to
paragraph (f)(2) of this section. To obtain a debarment hearing, the
debarred party must, within 30 calendar days of the date of the Notice
or the final determination, file a written request to the Chief
Administrative Law Judge, United States Department of Labor, 800 K
Street NW, Suite 400-N, Washington, DC 20001-8002, and simultaneously
serve a copy to the OFLC Administrator. The debarment will take effect
30 calendar days from the date the Notice of Debarment or final
determination is issued, unless a request for review is properly filed
within 30 calendar days from the issuance of the Notice of Debarment or
final determination. The timely filing of a request for a hearing stays
the debarment pending the outcome of the hearing. Within 10 calendar
days of receipt of the request for a hearing, the OFLC Administrator
will send a certified copy of the ETA case file to the Chief ALJ by
means normally assuring next day delivery. The Chief ALJ will
immediately assign an ALJ to conduct the hearing. The procedures in 29
CFR part 18 apply to such hearings, except that the request for a
hearing will not be considered to be a complaint to which an answer is
required.
(4) Decision. After the hearing, the ALJ must affirm, reverse, or
modify the OFLC Administrator's determination. The ALJ will prepare the
decision within 60 calendar days after completion of the hearing and
closing of the record. The ALJ's decision will be provided immediately
to the parties to the debarment hearing by means normally assuring next
day delivery. The ALJ's decision is the final agency action, unless
either party, within 30 calendar days of the ALJ's decision, seeks
review of the decision with the Administrative Review Board (ARB).
(5) Review by the ARB. (i) Any party wishing review of the decision
of an ALJ must, within 30 calendar days of the decision of the ALJ,
petition the ARB to review the decision. Copies of the petition must be
served on all parties and on the ALJ. The ARB will decide whether to
accept the petition within 30 calendar days of receipt. If the ARB
declines to accept the petition, or if the ARB does not issue a notice
accepting a petition within 30 calendar days after the receipt of a
timely filing of the petition, the decision of the ALJ will be deemed
the final agency action. If a petition for review is accepted, the
decision of the ALJ will be stayed unless and until the ARB issues an
order affirming the decision. The ARB must serve notice of its decision
to accept or not to accept the petition upon the ALJ and upon all
parties to the proceeding.
(ii) Upon receipt of the ARB's notice to accept the petition, the
Office of Administrative Law Judges will promptly forward a copy of the
complete hearing record to the ARB.
(iii) Where the ARB has determined to review such decision and
order, the ARB will notify each party of the issue(s) raised, the form
in which submissions must be made (e.g., briefs or oral argument), and
the time within which such presentation must be submitted.
(6) ARB decision. The ARB's final decision must be issued within 90
calendar days from the notice granting the petition and served upon all
parties and the ALJ. If the ARB fails to provide a decision within 90
calendar days from the notice granting the petition, the ALJ's decision
will be the final agency decision.
(g) Concurrent debarment jurisdiction. OFLC and WHD have concurrent
jurisdiction to impose a debarment remedy under this section or under
29 CFR 501.20. When considering debarment, OFLC and WHD may inform one
another and may coordinate their activities. A specific violation for
which debarment is imposed will be cited in a single debarment
proceeding. Copies of final debarment decisions will be forwarded to
DHS promptly.
(h) Debarment involving members of agricultural associations. If
the OFLC Administrator determines that an individual employer-member of
an agricultural association has committed a substantial violation, the
debarment determination will apply only to that member unless the OFLC
Administrator determines that the agricultural association or another
agricultural association member participated in the violation, in which
case the debarment will be invoked against the agricultural association
or other complicit agricultural association member(s) as well.
(i) Debarment involving agricultural associations acting as joint
employers. If the OFLC Administrator determines that an agricultural
association acting as a joint employer with its members has committed a
substantial violation, the debarment determination will apply only to
the agricultural association, and will not be applied to any individual
employer-member of the agricultural association. However, if the OFLC
Administrator determines that the member participated in, had knowledge
of, or had reason to know of the violation, the debarment may be
invoked against the complicit agricultural association member as well.
An agricultural association debarred from the H-2A temporary labor
certification program will not be permitted to continue to file as a
joint employer with its members during the period of the debarment.
(j) Debarment involving agricultural associations acting as sole
employers. If the OFLC Administrator determines that an agricultural
association acting as a sole employer has committed a substantial
violation, the debarment determination will apply only to the
agricultural association and any successor in interest to the debarred
agricultural association.
Sec. 655.183 Less than substantial violations.
(a) Requirement of special procedures. If the OFLC Administrator
determines that a less than substantial violation has occurred but has
reason to believe that past actions on the part of the employer (or
agent or attorney) may have had and may continue to have a chilling or
otherwise negative effect on the recruitment, employment, and retention
of U.S. workers, the OFLC Administrator may require the employer to
conform to special procedures before and after the temporary
agricultural labor certification determination. These special
procedures may include special on-site positive recruitment and
streamlined interviewing and referral techniques. The special
procedures are designed to enhance U.S. worker recruitment and
retention in the next year as a condition for receiving a temporary
agricultural labor certification. Such requirements will be reasonable;
will not require the employer to offer better wages, working
conditions, and benefits than those specified in Sec. 655.122; and
will be no more than deemed necessary to assure employer compliance
with the test of U.S. worker availability and adverse effect criteria
of this subpart.
(b) Notification of required special procedures. The OFLC
Administrator will notify the employer (or agent or
[[Page 36285]]
attorney) in writing of the special procedures that will be required in
the coming year. The notification will state the reasons for the
imposition of the requirements, state that the employer's agreement to
accept the conditions will constitute inclusion of them as bona fide
conditions and terms of a temporary agricultural labor certification,
and will offer the employer an opportunity to request an administrative
review or a de novo hearing before an ALJ. If an administrative review
or de novo hearing is requested, the procedures prescribed in Sec.
655.171 will apply.
(c) Failure to comply with special procedures. If the OFLC
Administrator determines that the employer has failed to comply with
special procedures required pursuant to paragraph (a) of this section,
the OFLC Administrator will send a written notice to the employer,
stating that the employer's otherwise affirmative H-2A certification
determination will be reduced by 25 percent of the total number of H-2A
workers requested (which cannot be more than those requested in the
previous year) for a period of 1 year. Notice of such a reduction in
the number of workers requested will be conveyed to the employer by the
OFLC Administrator in a written temporary agricultural labor
certification determination. The notice will offer the employer an
opportunity to request administrative review or a de novo hearing
before an ALJ. If administrative review or a de novo hearing is
requested, the procedures prescribed in Sec. 655.171 will apply,
provided that if the ALJ affirms the OFLC Administrator's determination
that the employer has failed to comply with special procedures required
by paragraph (a) of this section, the reduction in the number of
workers requested will be 25 percent of the total number of H-2A
workers requested (which cannot be more than those requested in the
previous year) for a period of 1 year.
Sec. 655.184 Applications involving fraud or willful
misrepresentation.
(a) Referral for investigation. If the CO discovers possible fraud
or willful misrepresentation involving an Application for Temporary
Employment Certification, the CO may refer the matter to DHS and the
Department's Office of the Inspector General for investigation.
(b) Sanctions. If WHD, a court, or DHS determines that there was
fraud or willful misrepresentation involving an Application for
Temporary Employment Certification and certification has been granted,
a finding under this paragraph will be cause to revoke the
certification. The finding of fraud or willful misrepresentation may
also constitute a debarrable violation under Sec. 655.182.
Sec. 655.185 Job service complaint system; enforcement of work
contracts.
(a) Filing with DOL. Complaints arising under this subpart must be
filed through the Job Service Complaint System, as described in 20 CFR
part 658, subpart E. Complaints involving allegations of fraud or
misrepresentation must be referred by the SWA to the CO for appropriate
handling and resolution. Complaints that involve work contracts must be
referred by the SWA to WHD for appropriate handling and resolution, as
described in 29 CFR part 501. As part of this process, WHD may report
the results of its investigation to the OFLC Administrator for
consideration of employer penalties or such other action as may be
appropriate.
(b) Filing with the Department of Justice. Complaints alleging that
an employer discouraged an eligible U.S. worker from applying, failed
to hire, discharged, or otherwise discriminated against an eligible
U.S. worker, or discovered violations involving the same, will be
referred to the U.S. Department of Justice, Civil Rights Division,
Immigrant and Employee Rights Section, in addition to any activity,
investigation, and/or enforcement action taken by ETA or a SWA.
Likewise, if the Immigrant and Employee Rights Section becomes aware of
a violation of the regulations in this subpart, it may provide such
information to the appropriate SWA and the CO.
Labor Certification Process for Temporary Agricultural Employment in
Range Sheep Herding, Goat Herding, and Production of Livestock
Occupations
Sec. 655.200 Scope and purpose of herding and range livestock
regulations in Sec. Sec. 655.200 through 655.235.
(a) Purpose. The purpose of Sec. Sec. 655.200 through 655.235 is
to establish certain procedures for employers who apply to the
Department to obtain labor certifications to hire temporary
agricultural foreign workers to perform herding or production of
livestock on the range, as defined in Sec. 655.201. Unless otherwise
specified in Sec. Sec. 655.200 through 655.235, employers whose job
opportunities meet the qualifying criteria under Sec. Sec. 655.200
through 655.235 must fully comply with all of the requirements of
Sec. Sec. 655.100 through 655.185; part 653, subparts B and F, of this
chapter; and part 654 of this chapter.
(b) Jobs subject to Sec. Sec. 655.200 through 655.235. The
procedures in Sec. Sec. 655.200 through 655.235 apply to job
opportunities with the following unique characteristics:
(1) The work activities involve the herding or production of
livestock (which includes work that is closely and directly related to
herding and/or the production of livestock), as defined under Sec.
655.201;
(2) The work is performed on the range for the majority (meaning
more than 50 percent) of the workdays in the work contract period. Any
additional work performed at a place other than the range must
constitute the production of livestock (which includes work that is
closely and directly related to herding and/or the production of
livestock); and
(3) The work activities generally require the workers to be on call
24 hours per day, 7 days a week.
Sec. 655.201 Definition of herding and range livestock terms.
The following are terms that are not defined in Sec. Sec. 655.100
through 655.185 and are specific to applications for labor
certifications involving the herding or production of livestock on the
range.
Herding. Activities associated with the caring, controlling,
feeding, gathering, moving, tending, and sorting of livestock on the
range.
Livestock. An animal species or species group such as sheep,
cattle, goats, horses, or other domestic hooved animals. In the context
of Sec. Sec. 655.200 through 655.235, livestock refers to those
species raised on the range.
Production of livestock. The care or husbandry of livestock
throughout one or more seasons during the year, including guarding and
protecting livestock from predatory animals and poisonous plants;
feeding, fattening, and watering livestock; examining livestock to
detect diseases, illnesses, or other injuries; administering medical
care to sick or injured livestock; applying vaccinations and spraying
insecticides on the range; and assisting with the breeding, birthing,
raising, weaning, castration, branding, and general care of livestock.
This term also includes duties performed off the range that are closely
and directly related to herding and/or the production of livestock. The
following are non-exclusive examples of ranch work that is closely and
directly related: Repairing fences used to contain the herd; assembling
lambing jugs; cleaning out lambing jugs; feeding and caring for the
dogs that the workers use on the range to assist with herding or
[[Page 36286]]
guarding the flock; feeding and caring for the horses that the workers
use on the range to help with herding or to move the sheep camps and
supplies; and loading animals into livestock trucks for movement to the
range or to market. The following are examples of ranch work that is
not closely and directly related: Working at feedlots; planting,
irrigating and harvesting crops; operating or repairing heavy
equipment; constructing wells or dams; digging irrigation ditches;
applying weed control; cutting trees or chopping wood; constructing or
repairing the bunkhouse or other ranch buildings; and delivering
supplies from the ranch to the herders on the range.
Range. The range is any area located away from the ranch
headquarters used by the employer. The following factors are indicative
of the range: It involves land that is uncultivated; it involves wide
expanses of land, such as thousands of acres; it is located in a
remote, isolated area; and typically range housing is required so that
the herder can be in constant attendance to the herd. No one factor is
controlling, and the totality of the circumstances is considered in
determining what should be considered range. The range does not include
feedlots, corrals, or any area where the stock involved would be near
ranch headquarters. Ranch headquarters, which is a place where the
business of the ranch occurs and is often where the owner resides, is
limited and does not embrace large acreage; it only includes the
ranchhouse, barns, sheds, pen, bunkhouse, cookhouse, and other
buildings in the vicinity. The range also does not include any area
where a herder is not required to be available constantly to attend to
the livestock and to perform tasks, including but not limited to,
ensuring the livestock do not stray, protecting them from predators,
and monitoring their health.
Range housing. Range housing is housing located on the range that
meets the standards articulated under Sec. 655.235.
Sec. 655.205 Herding and range livestock job orders.
An employer whose job opportunity has been determined to qualify
for the procedures in Sec. Sec. 655.200 through 655.235 is not
required to comply with the job order filing timeframe requirements in
Sec. 655.121(a) and (b) or the job order review process in Sec.
655.121(e) and (f). Rather, the employer must submit the job order
along with a completed Application for Temporary Employment
Certification, as required in Sec. 655.215, to the designated NPC for
the NPC's review.
Sec. 655.210 Contents of herding and range livestock job orders.
(a) Content of job offers. Unless otherwise specified in Sec. Sec.
655.200 through 655.235, the employer must satisfy the requirements for
job orders established under Sec. 655.121 and for the content of job
offers established under part 653, subpart F, of this chapter and Sec.
655.122.
(b) Job qualifications and requirements. The job offer must include
a statement that the workers are on call for up to 24 hours per day, 7
days per week and that the workers spend the majority (meaning more
than 50 percent) of the workdays during the contract period in the
herding or production of livestock on the range. Duties may include
activities performed off the range only if such duties constitute the
production of livestock (which includes work that is closely and
directly related to herding and/or the production of livestock). All
such duties must be specifically disclosed on the job order. The job
offer may also specify that applicants must possess up to 6 months of
experience in similar occupations involving the herding or production
of livestock on the range and require reference(s) for the employer to
verify applicant experience. An employer may specify other appropriate
job qualifications and requirements for its job opportunity. Job offers
may not impose on U.S. workers any restrictions or obligations that
will not be imposed on the employer's H-2A workers engaged in herding
or the production of livestock on the range. Any such requirements must
be applied equally to both U.S. and foreign workers. Each job
qualification and requirement listed in the job offer must be bona
fide, and the CO may require the employer to submit documentation to
substantiate the appropriateness of any other job qualifications and
requirements specified in the job offer.
(c) Range housing. The employer must specify in the job order that
range housing will be provided. The range housing must meet the
requirements set forth in Sec. 655.235.
(d) Employer-provided items. (1) The employer must provide to the
worker, without charge or deposit charge, all tools, supplies, and
equipment required by law, by the employer, or by the nature of the
work to perform the duties assigned in the job offer safely and
effectively. The employer must specify in the job order which items it
will provide to the worker.
(2) Because of the unique nature of the herding or production of
livestock on the range, this equipment must include effective means of
communicating with persons capable of responding to the worker's needs
in case of an emergency including, but not limited to, satellite
phones, cell phones, wireless devices, radio transmitters, or other
types of electronic communication systems. The employer must specify in
the job order:
(i) The type(s) of electronic communication device(s) and that such
device(s) will be provided without charge or deposit charge to the
worker during the entire period of employment; and
(ii) If there are periods of time when the workers are stationed in
locations where electronic communication devices may not operate
effectively, the employer must specify in the job order, the means and
frequency with which the employer plans to make contact with the
workers to monitor the worker's well-being. This contact must include
either arrangements for the workers to be located, on a regular basis,
in geographic areas where the electronic communication devices operate
effectively, or arrangements for regular, pre-scheduled, in-person
visits between the workers and the employer, which may include visits
between the workers and other persons designated by the employer to
resupply the workers' camp.
(e) Meals. The employer must specify in the job offer and provide
to the worker, without charge or deposit charge:
(1) Either three sufficient meals a day, or free and convenient
cooking facilities and adequate provision of food to enable the worker
to prepare his or her own meals. To be sufficient or adequate, the
meals or food provided must include a daily source of protein,
vitamins, and minerals; and
(2) Adequate potable water, or water that can be easily rendered
potable and the means to do so. Standards governing the provision of
water to range workers are also addressed in Sec. 655.235(e).
(f) Hours and earnings statements. (1) The employer must keep
accurate and adequate records with respect to the worker's earnings and
furnish to the worker on or before each payday a statement of earnings.
The employer is exempt from recording the hours actually worked each
day, the time the worker begins and ends each workday, as well as the
nature and amount of work performed, but all other regulatory
requirements in Sec. 655.122(j) and (k) apply.
[[Page 36287]]
(2) The employer must keep daily records indicating whether the
site of the employee's work was on the range or off the range. If the
employer prorates a worker's wage pursuant to paragraph (g)(2) of this
section because of the worker's voluntary absence for personal reasons,
it must also keep a record of the reason for the worker's absence.
(g) Rates of pay. The employer must pay the worker at least the
monthly AEWR, as specified in Sec. 655.211, the agreed-upon collective
bargaining wage, or the applicable minimum wage imposed by Federal or
state law or judicial action, in effect at the time work is performed,
whichever is highest, for every month of the job order period or
portion thereof.
(1) The offered wage shall not be based on commissions, bonuses, or
other incentives, unless the employer guarantees a wage that equals or
exceeds the monthly AEWR, the agreed-upon collective bargaining wage,
or the applicable minimum wage imposed by Federal or state law or
judicial action, or any agreed-upon collective bargaining rate,
whichever is highest, and must be paid to each worker free and clear
without any unauthorized deductions.
(2) The employer may prorate the wage for the initial and final pay
periods of the job order period if its pay period does not match the
beginning or ending dates of the job order. The employer also may
prorate the wage if a worker is voluntarily unavailable to work for
personal reasons.
(h) Frequency of pay. The employer must state in the job offer the
frequency with which the worker will be paid, which must be at least
twice monthly. Employers must pay wages when due.
Sec. 655.211 Herding and range livestock wage rate.
(a) Compliance with rates of pay. (1) To comply with its obligation
under Sec. 655.210(g), an employer must offer, advertise in its
recruitment, and pay each worker employed under Sec. Sec. 655.200
through 655.235 a wage that is the highest of the monthly AEWR
established under this section, the agreed-upon collective bargaining
wage, or the applicable minimum wage imposed by Federal or state law or
judicial action.
(2) If the monthly AEWR established under this section is adjusted
during a work contract, and is higher than both the agreed-upon
collective bargaining wage and the applicable minimum wage imposed by
Federal or state law or judicial action in effect at the time the work
is performed, the employer must pay that adjusted monthly AEWR not
later than 14 calendar days following the date of publication by the
Department in the Federal Register.
(b) Publication of the monthly AEWR. The OFLC Administrator will
publish, at least once in each calendar year, on a date to be
determined by the OFLC Administrator, an update to the monthly AEWR as
a notice in the Federal Register.
(c) Monthly AEWR rate. (1) The monthly AEWR shall be $7.25
multiplied by 48 hours, and then multiplied by 4.333 weeks per month;
and
(2) Beginning for calendar year 2017, the monthly AEWR shall be
adjusted annually based on the ECI for wages and salaries published by
BLS for the preceding October--October period.
(d) Transition rates. (1) For the period from November 16, 2015
through calendar year 2016, the Department shall set the monthly AEWR
at 80 percent of the result of the formula in paragraph (c) of this
section.
(2) For calendar year 2017, the Department shall set the monthly
AEWR at 90 percent of the result of the formula in paragraph (c) of
this section.
(3) For calendar year 2018 and beyond, the Department shall set the
monthly AEWR at 100 percent of the result of the formula in paragraph
(c) of this section.
Sec. 655.215 Procedures for filing herding and range livestock
Applications for Temporary Employment Certification.
(a) Compliance with Sec. Sec. 655.130 through 655.132. Unless
otherwise specified in Sec. Sec. 655.200 through 655.235, the employer
must satisfy the requirements for filing an Application for Temporary
Employment Certification with the NPC designated by the OFLC
Administrator as required under Sec. Sec. 655.130 through 655.132.
(b) What to file. An employer must file a completed Application for
Temporary Employment Certification and job order.
(1) The Application for Temporary Employment Certification and job
order may cover multiple areas of intended employment and one or more
contiguous states.
(2) The period of need identified on the Application for Temporary
Employment Certification and job order for range sheep or goat herding
or production occupations must be no more than 364 calendar days. The
period of need identified on the Application for Temporary Employment
Certification and job order for range herding or production of cattle,
horses, or other domestic hooved livestock, except sheep and goats,
must be for no more than 10 months.
(3) An agricultural association filing as a joint employer may
submit a single job order and master Application for Temporary
Employment Certification on behalf of its employer-members located in
more than two contiguous states with different first dates of need.
Unless modifications to a sheep or goat herding or production of
livestock job order are required by the CO or requested by the
employer, pursuant to Sec. 655.121(h), the agricultural association is
not required to re-submit the job order during the calendar year with
its Application for Temporary Employment Certification.
Sec. 655.220 Processing herding and range livestock Applications for
Temporary Employment Certification.
(a) NPC review. Unless otherwise specified in Sec. Sec. 655.200
through 655.235, the CO will review and process the Application for
Temporary Employment Certification and job order in accordance with the
requirements outlined in Sec. Sec. 655.140 through 655.145, and will
work with the employer to address any deficiencies in the job order in
a manner consistent with Sec. Sec. 655.140 through 655.141.
(b) Notice of acceptance. Once the job order is determined to meet
all regulatory requirements, the NPC will issue a NOA consistent with
Sec. 655.143(b), provide notice to the employer authorizing
conditional access to the interstate clearance system, and transmit an
electronic copy of the approved job order to each SWA with jurisdiction
over the anticipated place(s) of employment. The CO will direct the SWA
to place the job order promptly in clearance and commence recruitment
of U.S. workers. Where an agricultural association files as a joint
employer and submits a single job order on behalf of its employer-
members, the CO will transmit a copy of the job order to the SWA having
jurisdiction over the location of the agricultural association, those
SWAs having jurisdiction over other States where the work will take
place, and to the SWAs in all States designated under Sec. 655.154(d),
directing each SWA to place the job order in intrastate clearance and
commence recruitment of U.S. workers.
(c) Electronic job registry. Under Sec. 655.144(b), where a single
job order is approved for an agricultural association filing as a joint
employer on behalf of its employer-members with different first dates
of need, the Department will keep the job order posted on the OFLC
electronic job registry until the end of the recruitment period, as set
forth in Sec. 655.135(d), has elapsed for all
[[Page 36288]]
employer-members identified on the job order.
Sec. 655.225 Post-acceptance requirements for herding and range
livestock.
(a) Unless otherwise specified in this section, the requirements
for recruiting U.S. workers by the employer and SWA must be satisfied,
as specified in Sec. Sec. 655.150 through 655.158.
(b) Pursuant to Sec. 655.150(b), where a single job order is
approved for an agricultural association filing as a joint employer on
behalf of its employer-members with different first dates of need, each
of the SWAs to which the job order was transmitted by the CO or the SWA
having jurisdiction over the location of the agricultural association
must keep the job order on its active file the end of the recruitment
period, as set forth in Sec. 655.135(d), has elapsed for all employer-
members identified on the job order, and must refer to the agricultural
association each qualified U.S. worker who applies (or on whose behalf
an application is made) for the job opportunity.
(c) Any eligible U.S. worker who applies (or on whose behalf an
application is made) for the job opportunity and is hired will be
placed at the location nearest to him or her absent a request for a
different location by the U.S. worker. Employers must make reasonable
efforts to accommodate such placement requests by the U.S. worker.
(d) The employer will not be required to place an advertisement in
a newspaper of general circulation serving the area of intended
employment, as required in Sec. 655.151.
(e) An agricultural association that fulfills the recruitment
requirements for its members is required to maintain a written
recruitment report containing the information required by Sec. 655.156
for each individual employer-member identified in the application or
job order, including any approved modifications.
Sec. 655.230 Range housing.
(a) Housing for work performed on the range must meet the minimum
standards contained in Sec. Sec. 655.235 and 655.122(d)(2).
(b) The SWA with jurisdiction over the location of the range
housing must inspect and certify that such housing used on the range is
sufficient to accommodate the number of certified workers and meets all
applicable standards contained in Sec. 655.235. The SWA must conduct a
housing inspection no less frequently than once every three calendar
years after the initial inspection and provide documentation to the
employer certifying the housing for a period lasting no more than 36
months. If the SWA determines that an employer's housing cannot be
inspected within a 3-year timeframe or, when it is inspected, the
housing does not meet all the applicable standards, the CO may deny the
H-2A application in full or in part or require additional inspections,
to be carried out by the SWA, in order to satisfy the regulatory
requirement.
(c)(1) The employer may self-certify its compliance with the
standards contained in Sec. 655.235 only when the employer has
received a certification from the SWA for the range housing it seeks to
use within the past 36 months.
(2) To self-certify the range housing, the employer must submit a
copy of the valid SWA housing certification and a written statement,
signed and dated by the employer, to the SWA and the CO assuring that
the housing is available, sufficient to accommodate the number of
workers being requested for temporary agricultural labor certification,
and meets all the applicable standards for range housing contained in
Sec. 655.235.
(d) The use of range housing at a location other than the range,
where fixed-site employer-provided housing would otherwise be required,
is permissible only when the worker occupying the housing is performing
work that constitutes the production of livestock (which includes work
that is closely and directly related to herding and/or the production
of livestock). In such a situation, workers must be granted access to
facilities, including but not limited to toilets and showers with hot
and cold water under pressure, as well as cooking and cleaning
facilities, that would satisfy the requirements contained in Sec.
655.122(d)(1)(i). When such work does not constitute the production of
livestock, workers must be housed in housing that meets all the
requirements of Sec. 655.122(d).
Sec. 655.235 Standards for range housing.
An employer employing workers under Sec. Sec. 655.200 through
655.235 may use a mobile unit, camper, or other similar mobile housing
vehicle, tents, and remotely located stationary structures along
herding trails, which meet the following standards:
(a) Housing site. Range housing sites must be well drained and free
from depressions where water may stagnate.
(b) Water supply. (1) An adequate and convenient supply of water
that meets the standards of the state or local health authority must be
provided.
(2) The employer must provide each worker at least 4.5 gallons of
potable water, per day, for drinking and cooking, delivered on a
regular basis, so that the workers will have at least this amount
available for their use until this supply is next replenished.
Employers must also provide an additional amount of water sufficient to
meet the laundry and bathing needs of each worker. This additional
water may be non-potable, and an employer may require a worker to rely
on natural sources of water for laundry and bathing needs if these
sources are available and contain water that is clean and safe for
these purposes. If an employer relies on alternate water sources to
meet any of the workers' needs, it must take precautionary measures to
protect the worker's health where these sources are also used to water
the herd, dogs, or horses, to prevent contamination of the sources if
they collect runoff from areas where these animals excrete.
(3) The water provided for use by the workers may not be used to
water dogs, horses, or the herd.
(4) In situations where workers are located in areas that are not
accessible by motorized vehicle, an employer may request a variance
from the requirement that it deliver potable water to workers, provided
the following conditions are satisfied:
(i) It seeks the variance at the time it submits its Application
for Temporary Employment Certification;
(ii) It attests that it has identified natural sources of water
that are potable or may be easily rendered potable in the area in which
the housing will be located, and that these sources will remain
available during the period the worker is at that location;
(iii) It attests that it shall provide each worker an effective
means to test whether the water is potable and, if not potable, the
means to easily render it potable; and
(iv) The CO approves the variance.
(5) Individual drinking cups must be provided.
(6) Containers appropriate for storing and using potable water must
be provided and, in locations subject to freezing temperatures,
containers must be small enough to allow storage in the housing unit to
prevent freezing.
(c) Excreta and liquid waste disposal. (1) Facilities, including
shovels, must be provided and maintained for effective disposal of
excreta and liquid waste in accordance with the requirements of the
state health authority or involved Federal agency; and
(2) If pits are used for disposal by burying of excreta and liquid
waste, they must be kept fly-tight when not
[[Page 36289]]
filled in completely after each use. The maintenance of disposal pits
must be in accordance with state and local health and sanitation
requirements.
(d) Housing structure. (1) Housing must be structurally sound, in
good repair, in a sanitary condition and must provide shelter against
the elements to occupants;
(2) Housing, other than tents, must have flooring constructed of
rigid materials easy to clean and so located as to prevent ground and
surface water from entering;
(3) Each housing unit must have at least one window that can be
opened or skylight opening directly to the outdoors; and
(4) Tents appropriate to weather conditions may be used only where
the terrain and/or land use regulations do not permit the use of other
more substantial housing.
(e) Heating. (1) Where the climate in which the housing will be
used is such that the safety and health of a worker requires heated
living quarters, all such quarters must have properly installed
operable heating equipment that supplies adequate heat. Where the
climate in which the housing will be used is mild and the low
temperature for any day in which the housing will be used is not
reasonably expected to drop below 50 degrees Fahrenheit, no separate
heating equipment is required as long as proper protective clothing and
bedding are made available, free of charge or deposit charge, to the
workers.
(2) Any stoves or other sources of heat using combustible fuel must
be installed and vented in such a manner as to prevent fire hazards and
a dangerous concentration of gases. If a solid or liquid fuel stove is
used in a room with wooden or other combustible flooring, there must be
a concrete slab, insulated metal sheet, or other fireproof material on
the floor under each stove, extending at least 18 inches beyond the
perimeter of the base of the stove.
(3) Any wall or ceiling within 18 inches of a solid or liquid fuel
stove or stove pipe must be made of fireproof material. A vented metal
collar must be installed around a stovepipe or vent passing through a
wall, ceiling, floor, or roof.
(4) When a heating system has automatic controls, the controls must
be of the type that cuts off the fuel supply when the flame fails or is
interrupted or whenever a predetermined safe temperature or pressure is
exceeded.
(5) A heater may be used in a tent if the heater is approved by a
testing service and if the tent is fireproof.
(f) Lighting. (1) In areas where it is not feasible to provide
electrical service to range housing units, including tents, lanterns
must be provided (kerosene wick lights meet the definition of lantern);
and
(2) Lanterns, where used, must be provided in a minimum ratio of
one per occupant of each unit, including tents.
(g) Bathing, laundry, and hand washing. Bathing, laundry, and hand
washing facilities must be provided when it is not feasible to provide
hot and cold water under pressure.
(h) Food storage. When mechanical refrigeration of food is not
feasible, the worker must be provided with another means of keeping
food fresh and preventing spoilage, such as a butane or propane gas
refrigerator. Other proven methods of safeguarding fresh foods, such as
dehydrating or salting, are acceptable.
(i) Cooking and eating facilities. (1) When workers or their
families are permitted or required to cook in their individual unit, a
space must be provided with adequate lighting and ventilation; and
(2) Wall surfaces next to all food preparation and cooking areas
must be of nonabsorbent, easy to clean material. Wall surfaces next to
cooking areas must be made of fire-resistant material.
(j) Garbage and other refuse. (1) Durable, fly-tight, clean
containers must be provided to each housing unit, including tents, for
storing garbage and other refuse; and
(2) Provision must be made for collecting or burying refuse, which
includes garbage, at least twice a week or more often if necessary,
except where the terrain in which the housing is located cannot be
accessed by motor vehicle and the refuse cannot be buried, in which
case the employer must provide appropriate receptacles for storing the
refuse and for removing the trash when the employer next transports
supplies to the location.
(k) Insect and rodent control. Appropriate materials, including
sprays, and sealed containers for storing food, must be provided to aid
housing occupants in combating insects, rodents and other vermin.
(l) Sleeping facilities. A separate comfortable and clean bed, cot,
or bunk, with a clean mattress, must be provided for each person,
except in a family arrangement, unless a variance is requested from and
granted by the CO. When filing an application for certification and
only where it is demonstrated to the CO that it is impractical to
provide a comfortable and clean bed, cot, or bunk, with a clean
mattress, for each range worker, the employer may request a variance
from this requirement to allow for a second worker to join the range
operation. Such a variance must be used infrequently, and the period of
the variance will be temporary (i.e., the variance shall be for no more
than 3 consecutive days). Should the CO grant the variance, the
employer must supply a sleeping bag or bed roll for the second occupant
free of charge or deposit charge.
(m) Fire, safety, and first aid. (1) All units in which people
sleep or eat must be constructed and maintained according to applicable
state or local fire and safety law.
(2) No flammable or volatile liquid or materials may be stored in
or next to rooms used for living purposes, except for those needed for
current household use.
(3) Housing units for range use must have a second means of escape
through which the worker can exit the unit without difficulty.
(4) Tents are not required to have a second means of escape, except
when large tents with walls of rigid material are used.
(5) Adequate, accessible fire extinguishers in good working
condition and first aid kits must be provided in the range housing.
Labor Certification Process for Temporary Agricultural Employment in
Animal Shearing, Commercial Beekeeping, Custom Combining, and
Reforestation Occupations
Sec. 655.300 Scope and purpose.
(a) Purpose. The purpose of Sec. Sec. 655.300 through 655.304 is
to establish certain procedures for employers who apply to the
Department of Labor to obtain labor certifications to hire temporary
agricultural foreign workers to perform animal shearing, commercial
beekeeping, custom combining, and reforestation, as defined in this
subpart. Unless otherwise specified in Sec. Sec. 655.300 through
655.304, employers whose job opportunities meet the qualifying criteria
under Sec. Sec. 655.300 through 655.304 must fully comply with all of
the requirements of Sec. Sec. 655.100 through 655.185; part 653,
subparts B and F, of this chapter; and part 654 of this chapter.
(b) Jobs subject to Sec. Sec. 655.300 through 655.304. The
procedures in Sec. Sec. 655.300 through 655.304 apply to job
opportunities for animal shearing, commercial beekeeping, custom
combining, and reforestation as defined under Sec. Sec. 655.103 and
655.301, where workers are required to perform agricultural work on a
scheduled itinerary covering multiple areas of intended employment in
one or more contiguous states.
[[Page 36290]]
Sec. 655.301 Definition of terms.
The following are terms that are not defined in Sec. Sec. 655.100
through 655.185 and are specific to applications for labor
certifications involving animal shearing, commercial beekeeping, and
custom combining.
Animal shearing. Activities associated with the shearing and
crutching of sheep, goats, or other animals producing wool or fleece,
including gathering, moving, and sorting animals into shearing yards,
stations, or pens; placing animals into position, whether loose, tied,
or otherwise immobilized, prior to shearing; selecting and using
suitable handheld or power-driven equipment and tools for shearing;
shearing animals with care according to industry standards; marking,
sewing, or disinfecting any nicks and cuts on animals due to shearing;
cleaning and washing animals after shearing is complete; gathering,
storing, loading, and delivering wool or fleece to storage yards,
trailers or other containers; and maintaining, oiling, sharpening, and
repairing equipment and other tools used for shearing. Transporting
equipment and other tools used for shearing qualifies as an activity
associated with animal shearing for the purposes of this definition
only where such activities are performed by workers who are employed by
the same employer as the animal shearing crew and who travel and work
with the animal shearing crew. Wool or fleece grading, which involve
examining, sorting, and placing unprocessed wool or fleece into
containers according to government or industry standards, qualify as
activities associated with animal shearing for the purposes of this
definition only where such activities are performed by workers who are
employed by the same employer as the animal shearing crew and who
travel and work with the animal shearing crew.
Commercial beekeeping. Activities associated with the care or
husbandry of bee colonies for producing and collecting honey, wax,
pollen, and other products for commercial sale or providing pollination
services to agricultural producers, including assembling, maintaining,
and repairing hives, frames, or boxes; inspecting and monitoring
colonies to detect diseases, illnesses, or other health problems;
feeding and medicating bees to maintain the health of the colonies;
installing, raising, and moving queen bees; splitting or dividing
colonies, when necessary, and replacing combs; preparing, loading,
transporting, and unloading colonies and equipment; forcing bees from
hives, inserting honeycomb of bees into hives, or inducing swarming of
bees into hives of prepared honeycomb frames; uncapping, extracting,
refining, harvesting, and packaging honey, beeswax, or other products
for commercial sale; cultivating bees to produce bee colonies and queen
bees for sale; and maintaining and repairing equipment and other tools
used to work with bee colonies.
Custom combining. Activities associated with combining crops for
agricultural producers, including operating self-propelled combine
equipment (i.e., equipment that reaps or harvests, threshes, and swath
or winnow the crop); performing manual or mechanical adjustments to
cutters, blowers and conveyers; performing safety checks on harvesting
equipment; and maintaining and repairing equipment and other tools used
for performing swathing or combining work. Transporting harvested crops
to elevators, silos, or other storage areas, and transporting combine
equipment and other tools used for custom combining work from one field
to another, qualify as activities associated with custom combining for
the purposes of this definition only where such activities are
performed by workers who are employed by the same employer as the
custom combining crew and who travel and work with the custom combining
crew. Component parts of custom combining not performed by the
harvesting entity (e.g., grain cleaning), are not eligible for the
variance granted by this provision. The planting and cultivation of
crops, and other related activities, are not considered custom
combining or activities associated with custom combining for the
purposes of this definition.
Sec. 655.302 Contents of job orders.
(a) Content of job offers. Unless otherwise specified in Sec. Sec.
655.300 through 655.304, the employer must satisfy the requirements for
job orders established under Sec. 655.121 and for the content of job
offers established under part 653, subpart F, of this chapter and Sec.
655.122.
(b) Job qualifications and requirements. (1) For job opportunities
involving animal shearing, the job offer may specify that applicants
must possess up to 6 months of experience in similar occupations and
require reference(s) for the employer to verify applicant experience.
The job offer may also specify that applicants must possess experience
with an industry shearing method or pattern, must be willing to join
the employer at the time the job opportunity is available and at the
place the employer is located, and must be available to complete the
scheduled itinerary under the job order. U.S. applicants whose
experience is based on a similar or related industry shearing method or
pattern must be afforded a break-in period of no less than 5 working
days to adapt to the employer's preferred shearing method or pattern.
(2) For job opportunities involving commercial beekeeping, the job
offer may specify that applicants must possess up to 3 months of
experience in similar occupations and require reference(s) for the
employer to verify applicant experience. The job offer may also specify
that applicants may not have bee, pollen, or honey-related allergies,
must possess a valid commercial U.S. driver's license or be able to
obtain such license not later than 30 days after the first workday
after the arrival of the worker at the place of employment, must be
willing to join the employer at the time and place the employer is
located, and must be available to complete the scheduled itinerary
under the job order.
(3) For job opportunities involving custom combining, the job offer
may specify that applicants must possess up to 6 months of experience
in similar occupations and require reference(s) for the employer to
verify applicant experience. The job offer may also specify that
applicants must be willing to join the employer at the time and place
the employer is located and must be available to complete the scheduled
itinerary under the job order.
(4) An employer may specify other appropriate job qualifications
and requirements for its job opportunity, subject to Sec. 655.122(a)
and (b).
(c) Employer-provided communication devices. For job opportunities
involving animal shearing and custom combining, the employer must
provide to the worker, without charge or deposit charge, effective
means of communicating with persons capable of responding to the
worker's needs in case of an emergency, including, but not limited to,
satellite phones, cell phones, wireless devices, radio transmitters, or
other types of electronic communication systems. The employer must
specify in the job order the type(s) of electronic communication
device(s) and that such devices will be provided without charge or
deposit charge to the worker during the entire period of employment.
(d) Housing. For job opportunities involving animal shearing and
custom combining, the employer must specify
[[Page 36291]]
in the job order that housing will be provided as set forth in Sec.
655.304.
Sec. 655.303 Procedures for filing Applications for Temporary
Employment Certification.
(a) Compliance with Sec. Sec. 655.130 through 655.132. Unless
otherwise specified in Sec. Sec. 655.300 through 655.304 the employer
must satisfy the requirements for filing an Application for Temporary
Employment Certification with the NPC designated by the OFLC
Administrator as required under Sec. Sec. 655.130 through 655.132.
(b) What to file. An employer must file a completed Application for
Temporary Employment Certification. The employer must identify each
place of employment with as much geographic specificity as possible,
including the names of each farmer/rancher, the names, physical
locations and estimated period of employment where work will be
performed under the job order.
(1) The Application for Temporary Employment Certification and job
order may cover multiple areas of intended employment in one or more
contiguous states. An Application for Temporary Employment
Certification and job order for opportunities involving commercial
beekeeping may include one noncontiguous state at the beginning and end
of the period of employment for the overwintering of bee colonies.
(2) An agricultural association filing as a joint employer may
submit a single job order and master Application for Temporary
Employment Certification on behalf of its employer-members located in
more than two contiguous states. An agricultural association filing as
a joint employer may file an Application for Temporary Employment
Certification and job order for opportunities involving commercial
beekeeping may include one noncontiguous state at the beginning and end
of the period of employment for the overwintering of bee colonies.
Sec. 655.304 Standards for mobile housing.
(a) Use of mobile housing. An employer employing workers engaged in
animal shearing or custom combining, as defined by Sec. 655.301, may
use a mobile unit, camper, or other similar mobile housing unit that
complies with all of the following standards, except as provided in
paragraph (a)(1) or (2) of this section:
(1) When the mobile housing unit is located on the range as defined
in Sec. 655.201 to enable work to be performed on the range, the
mobile housing is subject only to the standards for range housing in
Sec. 655.235. As soon as the mobile housing unit is moved to a
location off of the range, the mobile housing standards in this section
apply. An employer whose mobile housing unit is or will be located on
the range must have the housing unit inspected and approved by an a SWA
with jurisdiction over the location of the mobile unit when not in use,
at least once every 36 months, subject to the procedures for range
housing inspection and self-certification in Sec. 655.230(b) and (c).
(2) A Canadian employer performing custom combining operations in
the United States whose mobile housing unit is located in Canada when
not in use must have the housing unit inspected and approved by an
authorized representative of the federal or provincial government of
Canada, in accordance with inspection procedures and applicable
standards for such housing under Canadian law or regulation.
(b) Compliance with mobile housing standards. The employer may
comply with the standards for mobile housing in this section in one of
two ways:
(1) The employer may provide a mobile housing unit that complies
with all applicable standards; or
(2) The employer may provide a mobile housing unit and supplemental
facilities (e.g., located at a fixed housing site) if workers are
afforded access to all facilities contained in these standards.
(c) Housing site. (1) Mobile housing sites must be well drained and
free from depressions where water may stagnate. They shall be located
where the disposal of sewage is provided in a manner that neither
creates, nor is likely to create, a nuisance or a hazard to health.
(2) Mobile housing sites shall not be in proximity to conditions
that create or are likely to create offensive odors, flies, noise,
traffic, or any similar hazards.
(3) Mobile housing sites shall be free from debris, noxious plants
(e.g., poison ivy, etc.), and uncontrolled weeds or brush.
(d) Drinking water supply. (1) An adequate and convenient supply of
potable water that meets the standards of the local or state health
authority must be provided.
(2) Individual drinking cups must be provided.
(3) A cold water tap shall be available within a reasonable
distance of each individual living unit when water is not provided in
the unit.
(4) Adequate drainage facilities shall be provided for overflow and
spillage.
(e) Excreta and liquid waste disposal. (1) Toilet facilities, such
as portable toilets, RV or trailer toilets, privies, or flush toilets,
must be provided and maintained for effective disposal of excreta and
liquid waste in accordance with the requirements of the applicable
local, state, or Federal health authority, whichever is most stringent.
(2) Where mobile housing units contain RV or trailer toilets, such
facilities must be connected to sewage hookups whenever feasible (i.e.,
in campgrounds or RV parks).
(3) If wastewater tanks are used, the employer must make provisions
to regularly empty the wastewater tanks.
(4) If pits are used for disposal by burying of excreta and liquid
waste, they shall be kept fly-tight when not filled in completely after
each use. The maintenance of disposal pits must be in accordance with
local and state health and sanitation requirements.
(f) Housing structure. (1) Housing must be structurally sound, in
good repair, in a sanitary condition, and must provide shelter against
the elements to occupants.
(2) Housing must have flooring constructed of rigid materials easy
to clean and so located as to prevent ground and surface water from
entering.
(3) Each housing unit must have at least one window or a skylight
that can be opened directly to the outdoors.
(g) Heating. (1) Where the climate in which the housing will be
used is such that the safety and health of a worker requires heated
living quarters, all such quarters must have properly installed
operable heating equipment that supplies adequate heat. Where the
climate in which the housing will be used is mild and the low
temperature for any day in which the housing will be used is not
reasonably expected to drop below 50 degrees Fahrenheit, no separate
heating equipment is required as long as proper protective clothing and
bedding are made available, free of charge or deposit charge, to the
workers.
(2) Any stoves or other sources of heat using combustible fuel must
be installed and vented in such a manner as to prevent fire hazards and
a dangerous concentration of gases. If a solid or liquid fuel stove is
used in a room with wooden or other combustible flooring, there must be
a concrete slab, insulated metal sheet, or other fireproof material on
the floor under each stove, extending at least 18 inches beyond the
perimeter of the base of the stove.
(3) Any wall or ceiling within 18 inches of a solid or liquid fuel
stove or stove pipe must be made of fireproof material. A vented metal
collar must be installed around a stovepipe or vent passing through a
wall, ceiling, floor, or roof.
[[Page 36292]]
(4) When a heating system has automatic controls, the controls must
be of the type that cuts off the fuel supply when the flame fails or is
interrupted or whenever a predetermined safe temperature or pressure is
exceeded.
(h) Electricity and lighting. (1) Barring unusual circumstances
that prevent access, electrical service or generators must be provided.
(2) In areas where it is not feasible to provide electrical service
to mobile housing units, lanterns must be provided (e.g., battery
operated lights).
(3) Lanterns, where used, must be provided in a minimum ratio of
one per occupant of each unit.
(i) Bathing, laundry, and hand washing. (1) Bathing facilities,
supplied with hot and cold water under pressure, shall be provided to
all occupants no less frequently than once per day.
(2) Laundry facilities, supplied with hot and cold water under
pressure, shall be provided to all occupants no less frequently than
once per week.
(3) Alternative bathing and laundry facilities must be available to
occupants at all times when water under pressure is unavailable.
(4) Hand washing facilities must be available to all occupants at
all times.
(j) Food storage. (1) Provisions for mechanical refrigeration of
food at a temperature of not more than 45 degrees Fahrenheit must be
provided.
(2) When mechanical refrigeration of food is not feasible, the
employer must provide another means of keeping food fresh and
preventing spoilage (e.g., a butane or propane gas refrigerator).
(k) Cooking and eating facilities. (1) When workers or their
families are permitted or required to cook in their individual unit, a
space must be provided with adequate lighting and ventilation, and
stoves or hotplates.
(2) Wall surfaces next to all food preparation and cooking areas
must be of nonabsorbent, easy to clean material. Wall surfaces next to
cooking areas must be made of fire-resistant material.
(l) Garbage and other refuse. (1) Durable, fly-tight, clean
containers must be provided to each housing unit, for storing garbage
and other refuse.
(2) Provision must be made for collecting refuse, which includes
garbage, at least twice a week or more often if necessary for proper
disposal in accordance with applicable local, state, or Federal law,
whichever is most stringent.
(m) Insect and rodent control. Appropriate materials, including
sprays, and sealed containers for storing food, must be provided to aid
housing occupants in combating insects, rodents, and other vermin.
(n) Sleeping facilities. (1) A separate comfortable and clean bed,
cot, or bunk, with a clean mattress, must be provided for each person,
except in a family arrangement.
(2) Clean and sanitary bedding must be provided for each person.
(3) No more than two deck bunks are permissible.
(o) Fire, safety, and first aid. (1) All units in which people
sleep or eat must be constructed and maintained according to applicable
local or state fire and safety law.
(2) No flammable or volatile liquid or materials may be stored in
or next to rooms used for living purposes, except for those needed for
current household use.
(3) Mobile housing units must have a second means of escape through
which the worker can exit the unit without difficulty.
(4) Adequate, accessible fire extinguishers in good working
condition and first aid kits must be provided in the mobile housing.
(p) Maximum occupancy. The number of occupants housed in each
mobile housing unit must not surpass the occupancy limitations set
forth in the manufacturer specifications for the unit.
Title 29--Labor
0
5. Revise part 501 to read as follows:
PART 501--ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY
AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION
AND NATIONALITY ACT
Subpart A--General Provisions
Sec.
501.0 Introduction.
501.1 Purpose and scope.
501.2 Coordination between Federal agencies.
501.3 Definitions.
501.4 Discrimination prohibited.
501.5 Waiver of rights prohibited.
501.6 Investigation authority of the Secretary.
501.7 Cooperation with Federal officials.
501.8 Accuracy of information, statements, and data.
501.9 Enforcement of surety bond.
Subpart B--Enforcement
501.15 Enforcement.
501.16 Sanctions and remedies--general.
501.17 Concurrent actions.
501.18 Representation of the Secretary.
501.19 Civil money penalty assessment.
501.20 Debarment and revocation.
501.21 Failure to cooperate with investigations.
501.22 Civil money penalties--payment and collection.
Subpart C--Administrative Proceedings
501.30 Applicability of procedures and rules.
Procedures Relating to Hearing
501.31 Written notice of determination required.
501.32 Contents of notice.
501.33 Request for hearing.
Rules of Practice
501.34 General.
501.35 Commencement of proceeding.
501.36 Caption of proceeding.
Referral for Hearing
501.37 Referral to Administrative Law Judge.
501.38 Notice of docketing.
501.39 Service upon attorneys for the Department of Labor--number of
copies.
Procedures Before Administrative Law Judge
501.40 Consent findings and order.
Post-Hearing Procedures
501.41 Decision and order of Administrative Law Judge.
Review of Administrative Law Judge's Decision
501.42 Procedures for initiating and undertaking review.
501.43 Responsibility of the Office of Administrative Law Judges.
501.44 Additional information, if required.
501.45 Final decision of the Administrative Review Board.
Record
501.46 Retention of official record.
501.47 Certification.
Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188.
Subpart A--General Provisions
Sec. 501.0 Introduction.
The regulations in this part cover the enforcement of all
contractual obligations, including requirements under 8 U.S.C. 1188 and
20 CFR part 655, subpart B, applicable to the employment of H-2A
workers and workers in corresponding employment, including obligations
to offer employment to eligible United States (U.S.) workers and to not
lay off or displace U.S. workers in a manner prohibited by the
regulations in this part or 20 CFR part 655, subpart B.
Sec. 501.1 Purpose and scope.
(a) Statutory standards. 8 U.S.C. 1188 provides that:
(1) A petition to import an H-2A worker, as defined at 8 U.S.C.
1188, may not be approved by the Secretary of the Department of
Homeland Security (DHS) unless the petitioner has applied for and
received a temporary agricultural labor certification from the
Secretary of Labor (Secretary). The
[[Page 36293]]
temporary agricultural labor certification establishes that:
(i) There are not sufficient workers who are able, willing, and
qualified, and who will be available at the time and place needed, to
perform the labor or services involved in the petition; and
(ii) The employment of the H-2A worker in such labor or services
will not adversely affect the wages and working conditions of workers
in the United States similarly employed.
(2) The Secretary is authorized to take actions that assure
compliance with the terms and conditions of employment under 8 U.S.C.
1188, the regulations at 20 CFR part 655, subpart B, or the regulations
in this part, including imposing appropriate penalties, and seeking
injunctive relief and specific performance of contractual obligations.
See 8 U.S.C. 1188(g)(2).
(b) Authority and role of the Office of Foreign Labor
Certification. The Secretary has delegated authority to the Assistant
Secretary for the Employment and Training Administration (ETA), who in
turn has delegated that authority to the Office of Foreign Labor
Certification (OFLC), to issue certifications and carry out other
statutory responsibilities as required by 8 U.S.C. 1188. Determinations
on an Application for Temporary Employment Certification are made by
the OFLC Administrator who, in turn, may delegate this responsibility
to designated staff, e.g., a Certifying Officer (CO).
(c) Authority of the Wage and Hour Division. The Secretary has
delegated authority to the Wage and Hour Division (WHD) to conduct
certain investigatory and enforcement functions with respect to terms
and conditions of employment under 8 U.S.C. 1188, 20 CFR part 655,
subpart B, and this part (``the H-2A program''), and to carry out other
statutory responsibilities required by 8 U.S.C. 1188. Certain
investigatory, inspection, and law enforcement functions to carry out
the provisions under 8 U.S.C. 1188 have been delegated by the Secretary
to the WHD. In general, matters concerning the obligations under a work
contract between an employer of H-2A workers and the H-2A workers and
workers in corresponding employment are enforced by WHD, including
whether employment was offered to U.S. workers as required under 8
U.S.C. 1188 or 20 CFR part 655, subpart B, or whether U.S. workers were
laid off or displaced in violation of program requirements. Included
within the enforcement responsibility of WHD are such matters as the
payment of required wages, transportation, meals, and housing provided
during the employment. WHD has the responsibility to carry out
investigations, inspections, and law enforcement functions and in
appropriate instances to impose penalties, to debar from future
certifications, to recommend revocation of existing certification(s),
and to seek injunctive relief and specific performance of contractual
obligations, including recovery of unpaid wages and reinstatement of
laid off or displaced U.S. workers.
(d) Concurrent authority. OFLC and WHD have concurrent authority to
impose a debarment remedy pursuant to 20 CFR 655.182 and Sec. 501.20.
(e) Effect of regulations. The enforcement functions carried out by
WHD under 8 U.S.C. 1188, 20 CFR part 655, subpart B, and this part
apply to the employment of any H-2A worker and any other worker in
corresponding employment as the result of any Application for Temporary
Employment Certification processed under 20 CFR 655.102(c).
Sec. 501.2 Coordination between Federal agencies.
(a) Complaints received by ETA or any State Workforce Agency (SWA)
regarding contractual H-2A labor standards between the employer and the
worker will be immediately forwarded to the appropriate WHD office for
appropriate action under the regulations in this part.
(b) Information received in the course of processing applications,
program integrity measures, or enforcement actions may be shared
between OFLC and WHD or, where applicable to employer enforcement under
the H-2A program, other Departments or agencies as appropriate,
including the Department of State (DOS) and DHS.
(c) A specific violation for which debarment is imposed will be
cited in a single debarment proceeding. OFLC and WHD may coordinate
their activities to achieve this result. Copies of final debarment
decisions will be forwarded to DHS promptly.
Sec. 501.3 Definitions.
(a) Definitions of terms used in this part. The following defined
terms apply to this part: Act. The Immigration and Nationality Act, as
amended (INA), 8 U.S.C. 1101 et seq.
Administrative Law Judge. A person within the Department's Office
of Administrative Law Judges (OALJ) appointed pursuant to 5 U.S.C.
3105.
Administrator. See definitions of OFLC Administrator and WHD
Administrator in this section.
Adverse effect wage rate. The wage rate published by the OFLC
Administrator in the Federal Register for the occupational
classification and State based on either the U.S. Department of
Agriculture's Farm Labor Survey or the Bureau of Labor Statistics'
Occupational Employment Statistics survey, as set forth in 20 CFR
655.120(b).
Agent. A legal entity or person, such as an association of
agricultural employers, or an attorney for an association, that:
(i) Is authorized to act on behalf of the employer for temporary
agricultural labor certification purposes;
(ii) Is not itself an employer, or a joint employer, as defined in
this part with respect to a specific application; and
(iii) Is not under suspension, debarment, expulsion, or disbarment
from practice before any court, the Department, the Executive Office
for Immigration Review, or DHS under 8 CFR 292.3 or 1003.101.
Agricultural association. Any nonprofit or cooperative association
of farmers, growers, or ranchers (including, but not limited to,
processing establishments, canneries, gins, packing sheds, nurseries,
or other similar fixed-site agricultural employers), incorporated or
qualified under applicable State law, that recruits, solicits, hires,
employs, furnishes, houses, or transports any worker that is subject to
8 U.S.C. 1188. An agricultural association may act as the agent of an
employer, or may act as the sole or joint employer of any worker
subject to 8 U.S.C. 1188.
Applicant. A U.S. worker who is applying for a job opportunity for
which an employer has filed an Application for Temporary Employment
Certification and job order.
Application for Temporary Employment Certification. The Office of
Management and Budget (OMB)-approved Form ETA-9124A and appropriate
appendices submitted by an employer to secure a temporary agricultural
labor certification determination from DOL.
Area of intended employment. The geographic area within normal
commuting distance of the place(s) of employment for which the
temporary agricultural labor certification is sought. There is no rigid
measure of distance that constitutes a normal commuting distance or
normal commuting area, because there may be widely varying factual
circumstances among different areas (e.g., average commuting times,
barriers to reaching the place(s) of employment, or quality of the
regional transportation network). If a place of employment is within a
Metropolitan Statistical Area (MSA), including a
[[Page 36294]]
multi-State MSA, any place within the MSA is deemed to be within normal
commuting distance of the place of employment. The borders of MSAs are
not controlling in the identification of the normal commuting area; a
place of employment outside of an MSA may be within normal commuting
distance of a place of employment that is inside (e.g., near the border
of) the MSA.
Attorney. Any person who is a member in good standing of the bar of
the highest court of any State, possession, territory, or commonwealth
of the United States, or the District of Columbia (DC). Such a person
is also permitted to act as an agent under this part. No attorney who
is under suspension, debarment, expulsion, or disbarment from practice
before any court, the Department, the Executive Office for Immigration
Review under 8 CFR 1003.101, or DHS under 8 CFR 292.3 may represent an
employer under this part.
Certifying Officer. The person who makes a determination on an
Application for Temporary Employment Certification filed under the H-2A
program. The OFLC Administrator is the National CO. Other COs may be
designated by the OFLC Administrator to also make the determination
required under 20 CFR part 655, subpart B.
Chief Administrative Law Judge. The chief official of the
Department's OALJ or the Chief ALJ's designee.
Corresponding employment. The employment of workers who are not H-
2A workers by an employer who has an approved Application for Temporary
Employment Certification in any work included in the job order, or in
any agricultural work performed by the H-2A workers. To qualify as
corresponding employment, the work must be performed during the
validity period of the job order, including any approved extension
thereof.
Department of Homeland Security. The Federal department having
jurisdiction over certain immigration-related functions, acting through
its component agencies, including U.S. Citizenship and Immigration
Services (USCIS).
Employee. A person who is engaged to perform work for an employer,
as defined under the general common law of agency. Some of the factors
relevant to the determination of employee status include: The hiring
party's right to control the manner and means by which the work is
accomplished; the skill required to perform the work; the source of the
instrumentalities and tools for accomplishing the work; the location of
the work; the hiring party's discretion over when and how long to work;
and whether the work is part of the regular business of the hiring
party. Other applicable factors may be considered and no one factor is
dispositive.
Employer. A person (including any individual, partnership,
association, corporation, cooperative, firm, joint stock company,
trust, or other organization with legal rights and duties) that:
(i) Has an employment relationship (such as the ability to hire,
pay, fire, supervise, or otherwise control the work of employee) with
respect to an H-2A worker or a worker in corresponding employment; or
(ii) Files an Application for Temporary Employment Certification
other than as an agent; or
(iii) A person on whose behalf an Application of Temporary
Employment Certification is filed.
Employment and Training Administration. The agency within the
Department that includes OFLC and has been delegated authority by the
Secretary to fulfill the Secretary's mandate under the INA and DHS'
implementing regulations from the administration and adjudication of an
Application for Temporary Employment Certification and related
functions.
Federal holiday. Legal public holiday as defined at 5 U.S.C. 6103.
First date of need. The first date the employer anticipates
requiring the labor or services of H-2A workers as indicated in the
Application for Temporary Employment Certification.
Fixed-site employer. Any person engaged in agriculture who meets
the definition of an employer, as those terms are defined in this part;
who owns or operates a farm, ranch, processing establishment, cannery,
gin, packing shed, nursery, or other similar fixed-site location where
agricultural activities are performed; and who recruits, solicits,
hires, employs, houses, or transports any worker subject to 8 U.S.C.
1188, 20 CFR part 655, subpart B, or this part as incident to or in
conjunction with the owner's or operator's own agricultural operation.
H-2A labor contractor. Any person who meets the definition of
employer under this part and is not a fixed-site employer, an
agricultural association, or an employee of a fixed-site employer or
agricultural association, as those terms are used in this part, who
recruits, solicits, hires, employs, furnishes, houses, or transports
any worker subject to 8 U.S.C. 1188, 20 CFR part 655, subpart B, or
this part.
H-2A worker. Any temporary foreign worker who is lawfully present
in the United States and authorized by DHS to perform agricultural
labor or services of a temporary or seasonal nature pursuant to 8
U.S.C. 1101(a)(15)(H)(ii)(a), as amended.
H-2 A Petition. The USCIS Form I-129, Petition for a Nonimmigrant
Worker, with H Supplement or successor form or supplement, and
accompanying documentation required by DHS for employers seeking to
employ foreign persons as H-2A nonimmigrant workers.
Job offer. The offer made by an employer or potential employer of
H-2A workers to both U.S. and H-2A workers describing all the material
terms and conditions of employment, including those relating to wages,
working conditions, and other benefits.
Job opportunity. Full-time employment at a place in the United
States to which U.S. workers can be referred.
Job order. The document containing the material terms and
conditions of employment that is posted by the SWA on its interstate
and intrastate job clearance systems based on the employer's
Agricultural Clearance Order (Form ETA-790/ETA-790A and all appropriate
addenda), as submitted to the National Processing Center.
Joint employment. (i) Where two or more employers each have
sufficient definitional indicia of being a joint employer of a worker
under the common law of agency, they are, at all times, joint employers
of that worker.
(ii) An agricultural association that files an Application for
Temporary Employment Certification as a joint employer is, at all
times, a joint employer of all the H-2A workers sponsored under the
Application for Temporary Employment Certification and all workers in
corresponding employment. An employer-member of an agricultural
association that files an Application for Temporary Employment
Certification as a joint employer is a joint employer of the H-2A
workers sponsored under the joint employer Application for Temporary
Employment Certification along with the agricultural association during
the period that the employer-member employs the H-2A workers sponsored
under the Application for Temporary Employment Certification.
(iii) Employers that jointly file a joint employer Application for
Temporary Employment Certification under 20 CFR 655.131(b) are, at all
times, joint employers of all H-2A workers sponsored under the
Application for Temporary Employment Certification and all workers in
corresponding employment.
Metropolitan Statistical Area. A geographic entity defined by OMB
for
[[Page 36295]]
use by Federal statistical agencies in collecting, tabulating, and
publishing Federal statistics. A Metropolitan Statistical Area contains
a core urban area of 50,000 or more population, and a Micropolitan
Statistical Area contains an urban core of at least 10,000 (but fewer
than 50,000) population. Each metropolitan or micropolitan area
consists of one or more counties and includes the counties containing
the core urban area, as well as any adjacent counties that have a high
degree of social and economic integration (as measured by commuting to
work) with the urban core.
National Processing Center. The offices within OFLC in which the
COs operate and which are charged with the adjudication of Applications
for Temporary Employment Certification.
Office of Foreign Labor Certification. OFLC means the
organizational component of ETA that provides national leadership and
policy guidance, and develops regulations and procedures to carry out
the responsibilities of the Secretary under the INA concerning the
admission of foreign workers to the United States to perform work
described in 8 U.S.C. 1101(a)(15)(H)(ii)(a).
OFLC Administrator. The primary official of OFLC, or the OLFC
Administrator's designee.
Period of employment. The time during which the employer requires
the labor or services of H-2A workers as indicated by the first and
last dates of need provided in the Application for Temporary Employment
Certification.
Piece rate. A form of wage compensation based upon a worker's
quantitative output or one unit of work or production for the crop or
agricultural activity.
Place of employment. A worksite or physical location where work
under the job order actually is performed by the H-2A workers and
workers in corresponding employment.
Secretary of Labor. The chief official of the Department, or the
Secretary's designee.
State Workforce Agency. State government agency that receives funds
pursuant to the Wagner-Peyser Act, 29 U.S.C. 49 et seq., to administer
the state's public labor exchange activities.
Successor in interest. (i) Where an employer, agent, or attorney
has violated 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part,
and has ceased doing business or cannot be located for purposes of
enforcement, a successor in interest to that employer, agent, or
attorney may be held liable for the duties and obligations of the
violating employer, agent, or attorney in certain circumstances. The
following factors, as used under Title VII of the Civil Rights Act and
the Vietnam Era Veterans' Readjustment Assistance Act, may be
considered in determining whether an employer, agent, or attorney is a
successor in interest; no one factor is dispositive, but all of the
circumstances will be considered as a whole:
(A) Substantial continuity of the same business operations;
(B) Use of the same facilities;
(C) Continuity of the work force;
(D) Similarity of jobs and working conditions;
(E) Similarity of supervisory personnel;
(F) Whether the former management or owner retains a direct or
indirect interest in the new enterprise;
(G) Similarity in machinery, equipment, and production methods;
(H) Similarity of products and services; and
(I) The ability of the predecessor to provide relief.
(ii) For purposes of debarment only, the primary consideration will
be the personal involvement of the firm's ownership, management,
supervisors, and others associated with the firm in the violation(s) at
issue.
Temporary agricultural labor certification. Certification made by
the OFLC Administrator, based on the Application for Temporary
Employment Certification, job order, and all supporting documentation,
with respect to an employer seeking to file with DHS a visa petition to
employ one or more foreign nationals as an H-2A worker, pursuant to 8
U.S.C. 1101(a)(15)(H)(ii)(a), 1184(a) and (c), and 1188, and 20 CFR
part 655, subpart B.
United States. The continental United States, Alaska, Hawaii, the
Commonwealth of Puerto Rico, and the territories of Guam, the U.S.
Virgin Islands, and the Commonwealth of the Northern Mariana Islands.
U.S. Citizenship and Immigration Services. The Federal agency
within DHS that makes the determination under the INA whether to grant
petitions filed by employers seeking H-2A workers to perform temporary
or seasonal agricultural labor or services in the United States.
U.S. worker. A worker who is:
(i) A citizen or national of the United States;
(ii) An individual who is lawfully admitted for permanent residence
in the United States, is admitted as a refugee under 8 U.S.C. 1157, is
granted asylum under 8 U.S.C. 1158, or is an immigrant otherwise
authorized by the INA or DHS to be employed in the United States; or
(iii) An individual who is not an unauthorized alien, as defined in
8 U.S.C. 1324a(h)(3), with respect to the employment in which the
worker is engaging.
Wages. All forms of cash remuneration to a worker by an employer in
payment for labor or services.
Wage and Hour Division. The agency within the Department with
authority to conduct certain investigatory and enforcement functions,
as delegated by the Secretary, under 8 U.S.C. 1188, 20 CFR part 655,
subpart B, and this part.
WHD Administrator. The primary official of the WHD, or the WHD
Administrator's designee.
Work contract. All the material terms and conditions of employment
relating to wages, hours, working conditions, and other benefits,
including those required by 8 U.S.C. 1188, 20 CFR part 655, subpart B,
or this part. The contract between the employer and the worker may be
in the form of a separate written document. In the absence of a
separate written work contract incorporating the required terms and
conditions of employment, agreed to by both the employer and the
worker, the work contract at a minimum will be the terms and conditions
of the job order and any obligations required under 8 U.S.C. 1188, 20
CFR part 655, subpart B, or this part.
(b) Definition of agricultural labor or services. For the purposes
of this part, agricultural labor or services, pursuant to 8 U.S.C.
1101(a)(15)(H)(ii)(a), is defined as: Agricultural labor as defined and
applied in section 3121(g) of the Internal Revenue Code of 1986 at 26
U.S.C. 3121(g); agriculture as defined and applied in section 3(f) of
the Fair Labor Standards Act of 1938, as amended (FLSA) at 29 U.S.C.
203(f); the pressing of apples for cider on a farm; logging employment;
reforestation activities; or pine straw activities. An occupation
included in either statutory definition is agricultural labor or
services, notwithstanding the exclusion of that occupation from the
other statutory definition. For informational purposes, the statutory
provisions are listed in paragraphs (b)(1) through (6) of this section.
(1) Agricultural labor. (i) For the purpose of paragraph (b) of
this section, agricultural labor means all service performed:
(A) On a farm, in the employ of any person, in connection with
cultivating the soil, or in connection with raising or harvesting any
agricultural or horticultural commodity, including the raising,
shearing, feeding, caring for, training, and management of livestock,
[[Page 36296]]
bees, poultry, and fur-bearing animals and wildlife;
(B) In the employ of the owner or tenant or other operator of a
farm, in connection with the operation, management, conservation,
improvement, or maintenance of such farm and its tools and equipment,
or in salvaging timber or clearing land of brush and other debris left
by a hurricane, if the major part of such service is performed on a
farm;
(C) In connection with the production or harvesting of any
commodity defined as an agricultural commodity in section 15(g) of the
Agricultural Marketing Act, as amended, 12 U.S.C. 1141j, or in
connection with the ginning of cotton, or in connection with the
operation or maintenance of ditches, canals, reservoirs, or waterways,
not owned or operated for profit, used exclusively for supplying and
storing water for farming purposes;
(D) In the employ of the operator of a farm in handling, planting,
drying, packing, packaging, processing, freezing, grading, storing, or
delivering to storage or to market or to a carrier for transportation
to market, in its unmanufactured state, any agricultural or
horticultural commodity; but only if such operator produced more than
one-half of the commodity with respect to which such service is
performed;
(E) In the employ of a group of operators of farms (other than a
cooperative organization) in the performance of service described in
paragraph (b)(1)(i)(D) of this section but only if such operators
produced all of the commodity with respect to which such service is
performed. For purposes of this paragraph, any unincorporated group of
operators shall be deemed a cooperative organization if the number of
operators comprising such group is more than 20 at any time during the
calendar year in which such service is performed;
(F) The provisions of paragraphs (b)(1)(i)(D) and (E) of this
section shall not be deemed to be applicable with respect to service
performed in connection with commercial canning or commercial freezing
or in connection with any agricultural or horticultural commodity after
its delivery to a terminal market for distribution for consumption; or
(G) On a farm operated for profit if such service is not in the
course of the employer's trade or business or is domestic service in a
private home of the employer.
(ii) As used in this section, the term ``farm'' includes stock,
dairy, poultry, fruit, fur-bearing animal, and truck farms,
plantations, ranches, nurseries, ranges, greenhouses, or other similar
structures used primarily for the raising of agricultural or
horticultural commodities, and orchards.
(2) Agriculture. For purposes of paragraph (b) of this section,
agriculture means farming in all its branches and among other things
includes the cultivation and tillage of the soil, dairying, the
production, cultivation, growing, and harvesting of any agricultural or
horticultural commodities (including commodities defined as
agricultural commodities in 12 U.S.C. 1141j(g), the raising of
livestock, bees, fur-bearing animals, or poultry, and any practices
(including any forestry or lumbering operations) performed by a farmer
or on a farm as an incident to or in conjunction with such farming
operations, including preparation for market, delivery to storage or to
market or to carriers for transportation to market. See 29 U.S.C.
203(f), as amended. Under 12 U.S.C. 1141j(g), agricultural commodities
include, in addition to other agricultural commodities, crude gum
(oleoresin) from a living tree, and the following products as processed
by the original producer of the crude gum (oleoresin) from which
derived: Gum spirits of turpentine and gum rosin. In addition, as
defined in 7 U.S.C. 92, gum spirits of turpentine means spirits of
turpentine made from gum (oleoresin) from a living tree and gum rosin
means rosin remaining after the distillation of gum spirits of
turpentine.
(3) Apple pressing for cider. The pressing of apples for cider on a
farm, as the term farm is defined and applied in section 3121(g) of the
Internal Revenue Code at 26 U.S.C. 3121(g), or as applied in section
3(f) of the FLSA at 29 U.S.C. 203(f), pursuant to 29 CFR part 780, is
agricultural labor or services for purposes of paragraph (b) of this
section.
(4) Logging employment. Operations associated with felling and
moving trees and logs from the stump to the point of delivery, such as,
but not limited to, marking danger trees, marking trees or logs to be
cut to length, felling, limbing, bucking, debarking, chipping, yarding,
loading, unloading, storing, and transporting machines, equipment and
personnel to, from, and between logging sites, is agricultural labor or
services for purposes of paragraph (b) of this section.
(5) Reforestation activities. Reforestation activities are
predominantly manual forestry operations associated with developing,
maintaining, or protecting forested areas, including, but not limited
to, planting tree seedlings in specified patterns using manual tools;
and felling, pruning, pre-commercial thinning, and removing trees and
brush from forested areas. Reforestation activities may include some
forest fire prevention or suppression duties, such as constructing fire
breaks or performing prescribed burning tasks, when such duties are in
connection with and incidental to other reforestation activities.
Reforestation activities do not include vegetation management
activities in and around utility, highway, railroad, or other rights-
of-way.
(6) Pine straw activities. Operations associated with clearing the
ground of underlying vegetation, pine cones, and debris; and raking,
lifting, gathering, harvesting, baling, grading, and loading of pine
straw for transport from pine forests, woodlands, pine stands, or
plantations, is agricultural labor or services for purposes of
paragraph (b) of this section.
(c) Definition of a temporary or seasonal nature. For the purposes
of this subpart, employment is of a seasonal nature where it is tied to
a certain time of year by an event or pattern, such as a short annual
growing cycle or a specific aspect of a longer cycle, and requires
labor levels far above those necessary for ongoing operations.
Employment is of a temporary nature where the employer's need to fill
the position with a temporary worker will, except in extraordinary
circumstances, last no longer than 1 year.
Sec. 501.4 Discrimination prohibited.
(a) A person may not intimidate, threaten, restrain, coerce,
blacklist, discharge, or in any manner discriminate against any person
who has:
(1) Filed a complaint under or related to 8 U.S.C. 1188 or this
part;
(2) Instituted or caused to be instituted any proceedings related
to 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part;
(3) Testified or is about to testify in any proceeding under or
related to 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part;
(4) Consulted with an employee of a legal assistance program or an
attorney on matters related to 8 U.S.C. 1188, 20 CFR part 655, subpart
B, or this part; or
(5) Exercised or asserted on behalf of himself or herself or others
any right or protection afforded by 8 U.S.C. 1188, 20 CFR part 655,
subpart B, or this part.
(b) Allegations of discrimination against any person under
paragraph (a) of this section will be investigated by WHD. Where WHD
has determined through investigation that such allegations have been
substantiated,
[[Page 36297]]
appropriate remedies may be sought. WHD may assess civil money
penalties, seek injunctive relief, and/or seek additional remedies
necessary to make the worker whole as a result of the discrimination,
as appropriate, initiate debarment proceedings, and recommend to OFLC
revocation of any such violator's current temporary agricultural labor
certification. Complaints alleging discrimination against workers or
immigrants based on citizenship or immigration status may also be
forwarded by WHD to the Department of Justice, Civil Rights Division,
Immigrant and Employee Rights Section.
Sec. 501.5 Waiver of rights prohibited.
A person may not seek to have an H-2A worker, a worker in
corresponding employment, or a U.S. worker improperly rejected for
employment or improperly laid off or displaced waive any rights
conferred under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this
part. Any agreement by a worker purporting to waive or modify any
rights given to said person under these provisions shall be void as
contrary to public policy except as follows:
(a) Waivers or modifications of rights or obligations hereunder in
favor of the Secretary shall be valid for purposes of enforcement; and
(b) Agreements in settlement of private litigation are permitted.
Sec. 501.6 Investigation authority of the Secretary.
(a) General. The Secretary, through WHD, may investigate to
determine compliance with obligations under 8 U.S.C. 1188, 20 CFR part
655, subpart B, or this part, either pursuant to a complaint or
otherwise, as may be appropriate. In connection with such an
investigation, WHD may enter and inspect any premises, land, property,
housing, vehicles, and records (and make transcriptions thereof),
question any person, and gather any information as may be appropriate.
(b) Confidential investigation. WHD shall conduct investigations in
a manner that protects the confidentiality of any complainant or other
person who provides information to the Secretary in good faith.
(c) Report of violations. Any person may report a violation of the
obligations imposed by 8 U.S.C. 1188, 20 CFR part 655, subpart B, or
this part to the Secretary by advising any local office of the SWA,
ETA, WHD, or any other authorized representative of the Secretary. The
office or person receiving such a report shall refer it to the
appropriate office of WHD for the geographic area in which the reported
violation is alleged to have occurred.
Sec. 501.7 Cooperation with Federal officials.
All persons must cooperate with any Federal officials assigned to
perform an investigation, inspection, or law enforcement function
pursuant to 8 U.S.C. 1188 and this part during the performance of such
duties. WHD will take such action as it deems appropriate, including
initiating debarment proceedings, seeking an injunction to bar any
failure to cooperate with an investigation, and/or assessing a civil
money penalty therefor. In addition, WHD will report the matter to
OFLC, and may recommend to OFLC that the person's existing temporary
agricultural labor certification be revoked. In addition, Federal
statutes prohibiting persons from interfering with a Federal officer in
the course of official duties are found at 18 U.S.C. 111 and 18 U.S.C.
114.
Sec. 501.8 Accuracy of information, statements, and data.
Information, statements, and data submitted in compliance with 8
U.S.C. 1188 or this part are subject to 18 U.S.C. 1001, which provides,
with regard to statements or entries generally, that whoever, in any
matter within the jurisdiction of any department or agency of the
United States, knowingly and willfully falsifies, conceals, or covers
up a material fact by any trick, scheme, or device, or makes any false,
fictitious, or fraudulent statements or representations, or makes or
uses any false writing or document knowing the same to contain any
false, fictitious, or fraudulent statement or entry, shall be fined not
more than $10,000 or imprisoned not more than 5 years, or both.
Sec. 501.9 Enforcement of surety bond.
Every H-2A labor contractor (H-2ALC) must obtain a surety bond
demonstrating its ability to discharge financial obligations as set
forth in 20 CFR 655.132(c).
(a) Notwithstanding the required bond amounts set forth in 20 CFR
655.132(c), the WHD Administrator may require that an H-2ALC obtain a
bond with a higher face value amount after notice and opportunity for
hearing when it is shown based on objective criteria that the amount of
the bond is insufficient to meet potential liabilities.
(b) Upon a final decision reached pursuant to the administrative
proceedings of subpart C of this part, including any timely appeal, or
resulting from an enforcement action brought directly in a District
Court of the United States finding a violation or violations of 20 CFR
part 655, subpart B, or this part, the WHD Administrator may make a
written demand on the surety for payment of any wages and benefits,
including the assessment of interest, owed to an H-2A worker, a worker
engaged in corresponding employment, or a U.S. worker improperly
rejected or improperly laid off or displaced. The WHD Administrator
shall have 3 years from the expiration of the certification, including
any extension thereof, to make such written demand for payment on the
surety. This 3-year period for making a demand on the surety is tolled
by commencement of any enforcement action of the WHD Administrator
pursuant to Sec. 501.6, Sec. 501.15, or Sec. 501.16 or the
commencement of any enforcement action in a District Court of the
United States.
Subpart B--Enforcement
Sec. 501.15 Enforcement.
The investigation, inspection, and law enforcement functions to
carry out the provisions of 8 U.S.C. 1188, 20 CFR part 655, subpart B,
or this part, as provided in this part for enforcement by WHD, pertain
to the employment of any H-2A worker, any worker in corresponding
employment, or any U.S. worker improperly rejected for employment or
improperly laid off or displaced. Such enforcement includes the work
contract provisions as defined in Sec. 501.3(a).
Sec. 501.16 Sanctions and remedies--general.
Whenever the WHD Administrator believes that 8 U.S.C. 1188, 20 CFR
part 655, subpart B, or this part have been violated, such action shall
be taken and such proceedings instituted as deemed appropriate,
including, but not limited to, the following:
(a)(1) Institute appropriate administrative proceedings, including:
The recovery of unpaid wages (including recovery of recruitment fees
paid in the absence of required contract clauses (see 20 CFR
655.135(k)); the enforcement of provisions of the work contract, 8
U.S.C. 1188, 20 CFR part 655, subpart B, or this part; the assessment
of a civil money penalty; make whole relief for any person who has been
discriminated against; reinstatement and make whole relief for any U.S.
worker who has been improperly rejected for employment, or improperly
laid off or displaced; or debarment for up to 3 years.
(2) The remedies referenced in paragraph (a)(1) of this section
will be sought either directly from the
[[Page 36298]]
employer, agent, or attorney, or from its successor in interest, as
appropriate. In the case of an H-2ALC, the remedies will be sought from
the H-2ALC directly and/or monetary relief (other than civil money
penalties) from the insurer who issued the surety bond to the H-2ALC,
as required by 20 CFR part 655, subpart B, and Sec. 501.9.
(b) Petition any appropriate District Court of the United States
for temporary or permanent injunctive relief, including to prohibit the
withholding of unpaid wages and/or for reinstatement, or to restrain
violation of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part,
by any person.
(c) Petition any appropriate District Court of the United States
for an order directing specific performance of covered contractual
obligations.
Sec. 501.17 Concurrent actions.
OFLC has primary responsibility to make all determinations
regarding the issuance, denial, or revocation of a labor certification
as described in 20 CFR part 655, subpart B, and Sec. 501.1(b) . WHD
has primary responsibility to make all determinations regarding the
enforcement functions as described in Sec. 501.1(c). The taking of any
one of the actions referred to above shall not be a bar to the
concurrent taking of any other action authorized by 8 U.S.C. 1188, 20
CFR part 655, subpart B, or this part. OFLC and WHD have concurrent
jurisdiction to impose a debarment remedy pursuant to 20 CFR 655.182
and Sec. 501.20.
Sec. 501.18 Representation of the Secretary.
The Solicitor of Labor, through authorized representatives, shall
represent the WHD Administrator and the Secretary in all administrative
hearings under 8 U.S.C. 1188 and this part.
Sec. 501.19 Civil money penalty assessment.
(a) A civil money penalty may be assessed by the WHD Administrator
for each violation of the work contract, or the obligations imposed by
8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part. Each failure
to pay an individual worker properly or to honor the terms or
conditions of a worker's employment required by 8 U.S.C. 1188, 20 CFR
part 655, subpart B, or this part constitutes a separate violation.
(b) In determining the amount of penalty to be assessed for each
violation, the WHD Administrator shall consider the type of violation
committed and other relevant factors. The factors that the WHD
Administrator may consider include, but are not limited to, the
following:
(1) Previous history of violation(s) of 8 U.S.C. 1188, 20 CFR part
655, subpart B, or this part;
(2) The number of H-2A workers, workers in corresponding
employment, or U.S. workers who were and/or are affected by the
violation(s);
(3) The gravity of the violation(s);
(4) Efforts made in good faith to comply with 8 U.S.C. 1188, 20 CFR
part 655, subpart B, and this part;
(5) Explanation from the person charged with the violation(s);
(6) Commitment to future compliance, taking into account the public
health, interest, or safety, and whether the person has previously
violated 8 U.S.C. 1188; and
(7) The extent to which the violator achieved a financial gain due
to the violation(s), or the potential financial loss or potential
injury to the worker(s).
(c) A civil money penalty for each violation of the work contract
or a requirement of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this
part will not exceed $1,692 per violation, with the following
exceptions:
(1) A civil money penalty for each willful violation of the work
contract or a requirement of 8 U.S.C. 1188, 20 CFR part 655, subpart B,
or this part, or for each act of discrimination prohibited by Sec.
501.4 shall not exceed $5,695.
(2) A civil money penalty for a violation of a housing or
transportation safety and health provision of the work contract, or any
obligation under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this
part, that proximately causes the death or serious injury of any worker
shall not exceed $56,391 per worker.
(3) For purposes of paragraphs (c)(2) and (4) this section, the
term serious injury includes, but is not limited to:
(i) Permanent loss or substantial impairment of one of the senses
(sight, hearing, taste, smell, tactile sensation);
(ii) Permanent loss or substantial impairment of the function of a
bodily member, organ or mental faculty, including the loss of all or
part of an arm, leg, foot, hand, or other body part; or
(iii) Permanent paralysis or substantial impairment that causes
loss of movement or mobility of an arm, leg, foot, hand, or other body
part.
(4) A civil money penalty for a repeat or willful violation of a
housing or transportation safety and health provision of the work
contract, or any obligation under 8 U.S.C. 1188, 20 CFR part 655,
subpart B, or this part, that proximately causes the death or serious
injury of any worker, shall not exceed $112,780 per worker.
(d) A civil money penalty for failure to cooperate with a WHD
investigation shall not exceed $5,695 per investigation.
(e) A civil money penalty for laying off or displacing any U.S.
worker employed in work or activities that are encompassed by the
approved Application for Temporary Employment Certification for H-2A
workers in the area of intended employment either within 60 calendar
days preceding the first date of need or during the validity period of
the job order, including any approved extension thereof, other than for
a lawful, job-related reason, shall not exceed $16,917 per violation
per worker.
(f) A civil money penalty for improperly rejecting a U.S. worker
who is an applicant for employment, in violation of 8 U.S.C. 1188, 20
CFR part 655, subpart B, or this part, shall not exceed $16,917 per
violation per worker.
Sec. 501.20 Debarment and revocation.
(a) Debarment of an employer, agent, or attorney. The WHD
Administrator may debar an employer, agent, or attorney, or any
successor in interest to that employer, agent, or attorney from
participating in any action under 8 U.S.C. 1188, 20 CFR part 655,
subpart B, or this part, subject to the time limits set forth in
paragraph (c) of this section, if the WHD Administrator finds that the
employer, agent, or attorney substantially violated a material term or
condition of the temporary agricultural labor certification, with
respect to H-2A workers, workers in corresponding employment, or U.S.
workers improperly rejected for employment, or improperly laid off or
displaced, by issuing a Notice of Debarment.
(b) Effect on future applications. No application for H-2A workers
may be filed by a debarred employer, or any successor in interest to a
debarred employer, or by an employer represented by a debarred agent or
attorney, or by any successor in interest to any debarred agent or
attorney, subject to the time limits set forth in paragraph (c) of this
section. If such an application is filed, it will be denied without
review.
(c) Statute of limitations and period of debarment. (1) The WHD
Administrator must issue any Notice of Debarment not later than 2 years
after the occurrence of the violation.
(2) No employer, agent, or attorney, or their successors in
interest, may be debarred under this part for more than 3 years from
the date of the final agency decision.
(d) Definition of violation. For the purposes of this section, a
violation includes:
[[Page 36299]]
(1) One or more acts of commission or omission on the part of the
employer or the employer's agent which involve:
(i) Failure to pay or provide the required wages, benefits, or
working conditions to the employer's H-2A workers and/or workers in
corresponding employment;
(ii) Failure, except for lawful, job-related reasons, to offer
employment to qualified U.S. workers who applied for the job
opportunity for which certification was sought;
(iii) Failure to comply with the employer's obligations to recruit
U.S. workers;
(iv) Improper layoff or displacement of U.S. workers or workers in
corresponding employment;
(v) Failure to comply with one or more sanctions or remedies
imposed by the WHD Administrator for violation(s) of contractual or
other H-2A obligations, or with one or more decisions or orders of the
Secretary or a court under 8 U.S.C. 1188, 20 CFR part 655, subpart B,
or this part;
(vi) Impeding an investigation of an employer under 8 U.S.C. 1188
or this part, or an audit under 20 CFR part 655, subpart B;
(vii) Employing an H-2A worker outside the area of intended
employment, or in an activity/activities not listed in the job order or
outside the validity period of employment of the job order, including
any approved extension thereof;
(viii) A violation of the requirements of 20 CFR 655.135(j) or (k);
(ix) A violation of any of the provisions listed in Sec. 501.4(a);
or
(x) A single heinous act showing such flagrant disregard for the
law that future compliance with program requirements cannot reasonably
be expected.
(2) In determining whether a violation is so substantial as to
merit debarment, the factors set forth in Sec. 501.19(b) shall be
considered.
(e) Procedural requirements. The Notice of Debarment must be in
writing, must state the reason for the debarment finding, including a
detailed explanation of the grounds for and the duration of the
debarment, must identify appeal opportunities under Sec. 501.33 and a
timeframe under which such rights must be exercised and must comply
with Sec. 501.32. The debarment will take effect 30 calendar days from
the date the Notice of Debarment is issued, unless a request for review
is properly filed within 30 calendar days from the issuance of the
Notice of Debarment. The timely filing of an administrative appeal
stays the debarment pending the outcome of the appeal as provided in
Sec. 501.33(d).
(f) Debarment involving members of agricultural associations. If,
after investigation, the WHD Administrator determines that an
individual employer-member of an agricultural association has committed
a substantial violation, the debarment determination will apply only to
that member unless the WHD Administrator determines that the
agricultural association or another agricultural association member
participated in the violation, in which case the debarment will be
invoked against the agricultural association or other complicit
agricultural association member(s) as well.
(g) Debarment involving agricultural associations acting as sole
employers. If, after investigation, the WHD Administrator determines
that an agricultural association acting as a sole employer has
committed a substantial violation, the debarment determination will
apply only to the agricultural association and any successor in
interest to the debarred agricultural association.
(h) Debarment involving agricultural associations acting as joint
employers. If, after investigation, the WHD Administrator determines
that an agricultural association acting as a joint employer with its
members has committed a substantial violation, the debarment
determination will apply only to the agricultural association, and will
not be applied to any individual employer-member of the agricultural
association. However, if the WHD Administrator determines that the
member participated in, had knowledge of, or had reason to know of the
violation, the debarment may be invoked against the complicit
agricultural association member as well. An agricultural association
debarred from the H-2A temporary labor certification program will not
be permitted to continue to file as a joint employer with its members
during the period of the debarment.
(i) Revocation. WHD may recommend to the OFLC Administrator the
revocation of a temporary agricultural labor certification if WHD finds
that the employer:
(1) Substantially violated a material term or condition of the
approved temporary agricultural labor certification;
(2) Failed to cooperate with a DOL investigation or with a DOL
official performing an investigation, inspection, or law enforcement
function under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or this part;
or
(3) Failed to comply with one or more sanctions or remedies imposed
by WHD, or with one or more decisions or orders of the Secretary or a
court order secured by the Secretary under 8 U.S.C. 1188, 20 CFR part
655, subpart B, or this part.
Sec. 501.21 Failure to cooperate with investigations.
(a) No person shall refuse to cooperate with any employee of the
Secretary who is exercising or attempting to exercise this
investigative or enforcement authority.
(b) Where an employer (or employer's agent or attorney) does not
cooperate with an investigation concerning the employment of an H-2A
worker, a worker in corresponding employment, or a U.S. worker who has
been improperly rejected for employment or improperly laid off or
displaced, WHD may make such information available to OFLC and may
recommend that OFLC revoke the existing certification that is the basis
for the employment of the H-2A workers giving rise to the
investigation. In addition, WHD may take such action as appropriate,
including initiating proceedings for the debarment of the employer,
agent, or attorney from future certification for up to 3 years, seeking
an injunction, and/or assessing civil money penalties against any
person who has failed to cooperate with a WHD investigation. The taking
of any one action shall not bar the taking of any additional action.
Sec. 501.22 Civil money penalties--payment and collection.
Where a civil money penalty is assessed in a final order by the WHD
Administrator, an ALJ, or the Administrative Review Board (ARB), the
amount of the penalty must be received by the WHD Administrator within
30 calendar days of the date of the final order. The person assessed
such penalty shall remit the amount ordered to the WHD Administrator by
certified check or money order, made payable to ``Wage and Hour
Division, United States Department of Labor.'' The remittance shall be
delivered or mailed to the WHD Regional Office for the area in which
the violations occurred.
Subpart C--Administrative Proceedings
Sec. 501.30 Applicability of procedures and rules in this subpart.
The procedures and rules contained in this subpart prescribe the
administrative process that will be applied with respect to a
determination to assess civil money penalties, debar, or increase the
amount of a surety bond and which may be applied to the enforcement of
provisions of the work contract, or obligations under 8 U.S.C. 1188, 20
CFR part 655, subpart B, or this part, or to the collection of monetary
[[Page 36300]]
relief due as a result of any violation. Except with respect to the
imposition of civil money penalties, debarment, or an increase in the
amount of a surety bond, the Secretary may, in the Secretary's
discretion, seek enforcement action in a District Court of the United
States without resort to any administrative proceedings.
Procedures Relating to Hearing
Sec. 501.31 Written notice of determination required.
Whenever the WHD Administrator decides to assess a civil money
penalty, debar, increase a surety bond, or proceed administratively to
enforce contractual obligations, or obligations under 8 U.S.C. 1188, 20
CFR part 655, subpart B, or this part, including for the recovery of
the monetary relief, the person against whom such action is taken shall
be notified in writing of such determination.
Sec. 501.32 Contents of notice.
The notice required by Sec. 501.31 shall:
(a) Set forth the determination of the WHD Administrator including
the amount of any monetary relief due or actions necessary to fulfill a
contractual obligation or obligations under 8 U.S.C. 1188, 20 CFR part
655, subpart B, or this part; the amount of any civil money penalty
assessment; whether debarment is sought and if so its term; and any
change in the amount of the surety bond, and the reason or reasons
therefor.
(b) Set forth the right to request a hearing on such determination.
(c) Inform any affected person or persons that in the absence of a
timely request for a hearing, the determination of the WHD
Administrator shall become final and unappealable.
(d) Set forth the time and method for requesting a hearing, and the
procedures relating thereto, as set forth in Sec. 501.33.
Sec. 501.33 Request for hearing.
(a) Any person desiring review of a determination referred to in
Sec. 501.32, including judicial review, shall make a written request
for an administrative hearing to the official who issued the
determination at the WHD address appearing on the determination notice,
no later than 30 calendar days after the date of issuance of the notice
referred to in Sec. 501.32.
(b) No particular form is prescribed for any request for hearing
permitted by this part. However, any such request shall:
(1) Be typewritten or legibly written;
(2) Specify the issue or issues stated in the notice of
determination giving rise to such request;
(3) State the specific reason or reasons the person requesting the
hearing believes such determination is in error;
(4) Be signed by the person making the request or by an authorized
representative of such person; and
(5) Include the address at which such person or authorized
representative desires to receive further communications relating
thereto.
(c) The request for such hearing must be received by the official
who issued the determination, at the WHD address appearing on the
determination notice, within the time set forth in paragraph (a) of
this section. Requests may be made by certified mail or by means
normally assuring overnight delivery.
(d) The determination shall take effect on the start date
identified in the written notice of determination, unless an
administrative appeal is properly filed. The timely filing of an
administrative appeal stays the determination pending the outcome of
the appeal proceedings, provided that any surety bond remains in effect
until the conclusion of any such proceedings.
Rules of Practice
Sec. 501.34 General.
(a) Except as specifically provided in this part, the Rules of
Practice and Procedure for Administrative Hearings before the Office of
Administrative Law Judges established by the Secretary at 29 CFR part
18 shall apply to administrative proceedings described in this part.
(b) As provided in the Administrative Procedure Act, 5 U.S.C. 556,
any oral or documentary evidence may be received in proceedings under
this part. The Federal Rules of Evidence and subpart B of the Rules of
Practice and Procedure for Administrative Hearings before the Office of
Administrative Law Judges (29 CFR part 18, subpart B) will not apply,
but principles designed to ensure production of relevant and probative
evidence shall guide the admission of evidence. The ALJ may exclude
evidence that is immaterial, irrelevant, or unduly repetitive.
Sec. 501.35 Commencement of proceeding.
Each administrative proceeding permitted under 8 U.S.C. 1188 and
the regulations in this part shall be commenced upon receipt of a
timely request for hearing filed in accordance with Sec. 501.33.
Sec. 501.36 Caption of proceeding.
(a) Each administrative proceeding instituted under 8 U.S.C. 1188
and the regulations in this part shall be captioned in the name of the
person requesting such hearing, and shall be styled as follows:
In the Matter of____, Respondent.
(b) For the purposes of such administrative proceedings, the WHD
Administrator shall be identified as plaintiff and the person
requesting such hearing shall be named as respondent.
Referral for Hearing
Sec. 501.37 Referral to Administrative Law Judge.
(a) Upon receipt of a timely request for a hearing filed pursuant
to and in accordance with Sec. 501.33, the WHD Administrator, by the
Associate Solicitor for the Division of Fair Labor Standards or the
Regional Solicitor for the Region in which the action arose, will, by
Order of Reference, promptly refer a copy of the notice of
administrative determination complained of, and the original or a
duplicate copy of the request for hearing signed by the person
requesting such hearing or the authorized representative of such
person, to the Chief ALJ, for a determination in an administrative
proceeding as provided herein. The notice of administrative
determination and request for hearing shall be filed of record in the
Office of the Chief Administrative Law Judge and shall, respectively,
be given the effect of a complaint and answer thereto for purposes of
the administrative proceeding, subject to any amendment that may be
permitted under 29 CFR part 18 or this part.
(b) A copy of the Order of Reference, together with a copy of this
part, shall be served by counsel for the WHD Administrator upon the
person requesting the hearing, in the manner provided in 29 CFR 18.3.
Sec. 501.38 Notice of docketing.
Upon receipt of an Order of Reference, the Chief ALJ shall appoint
an ALJ to hear the case. The ALJ shall promptly notify all interested
parties of the docketing of the matter and shall set the time and place
of the hearing. The date of the hearing shall be not more than 60
calendar days from the date on which the Order of Reference was filed.
Sec. 501.39 Service upon attorneys for the Department of Labor--
number of copies.
Two copies of all pleadings and other documents required for any
administrative proceeding provided herein shall be served on the
attorneys for DOL. One copy shall be served on the Associate Solicitor,
Division of Fair Labor Standards, Office of the Solicitor, U.S.
Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210,
and one copy on the attorney
[[Page 36301]]
representing the Department in the proceeding.
Procedures Before Administrative Law Judge
Sec. 501.40 Consent findings and order.
(a) General. At any time after the commencement of a proceeding
under this part, but prior to the reception of evidence in any such
proceeding, a party may move to defer the receipt of any evidence for a
reasonable time to permit negotiation of an agreement containing
consent findings and an order disposing of the whole or any part of the
proceeding. The allowance of such deferment and the duration thereof
shall be at the discretion of the ALJ, after consideration of the
nature of the proceeding, the requirements of the public interest, the
representations of the parties, and the probability of an agreement
being reached which will result in a just disposition of the issues
involved.
(b) Content. Any agreement containing consent findings and an order
disposing of a proceeding or any part thereof shall also provide:
(1) That the order shall have the same force and effect as an order
made after full hearing;
(2) That the entire record on which any order may be based shall
consist solely of the notice of administrative determination (or
amended notice, if one is filed), and the agreement;
(3) A waiver of any further procedural steps before the ALJ; and
(4) A waiver of any right to challenge or contest the validity of
the findings and order entered into in accordance with the agreement.
(c) Submission. On or before the expiration of the time granted for
negotiations, the parties or their authorized representatives or their
counsel may:
(1) Submit the proposed agreement for consideration by the ALJ; or
(2) Inform the ALJ that agreement cannot be reached.
(d) Disposition. In the event an agreement containing consent
findings and an order is submitted within the time allowed therefor,
the ALJ, within 30 calendar days thereafter, shall, if satisfied with
its form and substance, accept such agreement by issuing a decision
based upon the agreed findings.
Post-Hearing Procedures
Sec. 501.41 Decision and order of Administrative Law Judge.
(a) The ALJ will prepare, within 60 calendar days after completion
of the hearing and closing of the record, a decision on the issues
referred by the WHD Administrator.
(b) The decision of the ALJ shall include a statement of the
findings and conclusions, with reasons and basis therefor, upon each
material issue presented on the record. The decision shall also include
an appropriate order which may affirm, deny, reverse, or modify, in
whole or in part, the determination of the WHD Administrator. The
reason or reasons for such order shall be stated in the decision.
(c) The decision shall be served on all parties and the ARB.
(d) The decision concerning civil money penalties, debarment,
monetary relief, and/or enforcement of other contractual obligations
under 8 U.S.C. 1188, 20 CFR part 655, subpart B, and/or this part, when
served by the ALJ shall constitute the final agency order unless the
ARB, as provided for in Sec. 501.42, determines to review the
decision.
Review of Administrative Law Judge's Decision
Sec. 501.42 Procedures for initiating and undertaking review.
(a) A respondent, WHD, or any other party wishing review, including
judicial review, of the decision of an ALJ must, within 30 calendar
days of the decision of the ALJ, petition the ARB to review the
decision. Copies of the petition must be served on all parties and on
the ALJ. If the ARB does not issue a notice accepting a petition for
review of the decision within 30 calendar days after receipt of a
timely filing of the petition, or within 30 calendar days of the date
of the decision if no petition has been received, the decision of the
ALJ will be deemed the final agency action.
(b) Whenever the ARB, either on the ARB's own motion or by
acceptance of a party's petition, determines to review the decision of
an ALJ, a notice of the same shall be served upon the ALJ and upon all
parties to the proceeding.
Sec. 501.43 Responsibility of the Office of Administrative Law
Judges.
Upon receipt of the ARB's notice to accept the petition, the OALJ
will promptly forward a copy of the complete hearing record to the ARB.
Sec. 501.44 Additional information, if required.
Where the ARB has determined to review such decision and order, the
ARB will notify each party of:
(a) The issue or issues raised;
(b) The form in which submissions must be made (e.g., briefs or
oral argument); and
(c) The time within which such presentation must be submitted.
Sec. 501.45 Final decision of the Administrative Review Board.
The ARB's final decision must be issued within 90 calendar days
from the notice granting the petition and served upon all parties and
the ALJ.
Record
Sec. 501.46 Retention of official record.
The official record of every completed administrative hearing
provided by the regulations in this part shall be maintained and filed
under the custody and control of the Chief ALJ, or, where the case has
been the subject of administrative review, the ARB.
Sec. 501.47 Certification.
Upon receipt of a complaint seeking review of a decision issued
pursuant to this part filed in a District Court of the United States,
after the administrative remedies have been exhausted, the Chief ALJ
or, where the case has been the subject of administrative review, the
ARB shall promptly index, certify, and file with the appropriate
District Court of the United States, a full, true, and correct copy of
the entire record, including the transcript of proceedings.
Molly E. Conway,
Acting Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2019-15307 Filed 7-19-19; 8:45 am]
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