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

Federal RegisterOct 12, 2022

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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:

Final rule.

SUMMARY:

The Department of Labor (Department or DOL) is amending its regulations governing the certification of agricultural labor or services to be performed by temporary foreign workers in H-2A nonimmigrant status (H-2A workers) and enforcement of the contractual obligations applicable to employers of such nonimmigrant workers. These regulations are consistent with the Secretary of Labor's (Secretary) statutory responsibility to certify that there are not sufficient able, willing, and qualified workers available to fill the petitioning employer's job opportunity, and that the employment of H-2A workers in that job opportunity will not adversely affect the wages and working conditions of workers in the United States similarly employed. Among the issues addressed in this final rule are improving the minimum standards and conditions of employment that employers must offer to workers; expanding the Department's authority to use enforcement tools, such as program debarment for substantial violations of program requirements; modernizing the process by which the Department receives and processes employers' job orders and applications for temporary agricultural labor certifications, including the recruitment of United States workers (U.S. workers); and revising the standards and procedures for determining the prevailing wage rate. This final rule will strengthen protections for workers, modernize and simplify the H-2A application and temporary labor certification process, and ease regulatory burdens on employers.

DATES:

This final rule is effective November 14, 2022.

FOR FURTHER INFORMATION CONTACT:

For further information regarding 20 CFR part 653, contact Kimberly Vitelli, Administrator, Office of Workforce Investment, Employment and Training Administration, Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210, telephone: (202) 693-3980 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone numbers above via Teletypewriter (TTY)/Telecommunications Device for the Deaf (TDD) by calling the toll-free Federal Information Relay Service at 1 (877) 889-5627.

For further information regarding 20 CFR part 655, contact Brian Pasternak, Administrator, Office of Foreign Labor Certification, Employment and Training Administration, Department of Labor, 200 Constitution Avenue NW, Room N-5311, Washington, DC 20210, telephone: (202) 693-8200 (this is not a toll-free number). 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, 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) 693-0406 (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:

Table of Contents

I. Executive Summary

A. Purpose of the Regulatory Action

B. Legal Authority

C. Current Regulatory Framework

D. Summary of Major Provisions of This Final Rule

E. Summary of Costs and Benefits

F. Severability

II. Acronyms and Abbreviations

III. Background and Public Comments Received on the Notice of Proposed Rulemaking

IV. Discussion of General Comments

V. Section-by-Section Summary of This Final Rule, 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, Purpose and Scope of Subpart B

2. Section 655.101, Authority of the Agencies, Offices, and Divisions of the Department of Labor; and 29 CFR 501.1, Purpose and Scope

3. Section 655.102, Transition Procedures

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

B. Pre-Filing Procedures

1. Section 655.120, Offered Wage Rate

2. Section 655.121, Job Order Filing Requirements

3. Section 655.122, Contents of Job Offers

4. Section 655.123, Optional Pre-Filing Positive Recruitment of U.S. Workers

5. Section 655.124, Withdrawal of a Job Order

C. Applications for Temporary Employment Certification Filing Procedures

1. Section 655.130, Application Filing Requirements

2. Section 655.131, Agricultural Association and Joint Employer Filing Requirements

3. Section 655.132, H-2A Labor Contractor Filing Requirements; and 29 CFR 501.9, Enforcement of Surety Bond

4. Section 655.133, Requirements for Agents

5. Section 655.134, Emergency Situations

6. Section 655.135, Assurances and Obligations of H-2A Employers

7. Section 655.136, Withdrawal of an Application for Temporary Employment Certification and Job Order

D. Processing of Applications for Temporary Employment Certification

1. Section 655.140, Review of Applications

2. Section 655.141, Notice of Deficiency

3. Section 655.142, Submission of Modified Applications

4. Section 655.143, Notice of Acceptance

5. Section 655.144, Electronic Job Registry

6. Section 655.145, Amendments to Applications for Temporary Labor Certification

E. Post-Acceptance Requirements

1. Section 655.150, Interstate Clearance of Job Order

2. Section 655.153, Contact With Former U.S. Workers

3. Section 655.154, Additional Positive Recruitment

4. Section 655.155, Referrals of U.S. Workers

5. Section 655.156, Recruitment Report

6. Sections 655.157, Withholding of U.S. Workers Prohibited, and 655.158, Duration of Positive Recruitment

F. Labor Certification Determinations

1. Section 655.161, Criteria for Certification

2. Section 655.162, Approved Certification

3. Section 655.164, Denied Certification

4. Section 655.165, Partial Certification

5. Section 655.166, Requests for Determinations Based on Nonavailability of U.S. Workers

6. Section 655.167, Document Retention Requirements of H-2A Employers

G. Post-Certification

1. Section 655.170, Extensions

2. Section 655.171, Appeals

3. Section 655.172, Post-Certification Withdrawals

4. Section 655.173, Setting Meal Charges; Petition for Higher Meal Charges

5. Section 655.174, Public Disclosure

6. Section 655.175, Post-Certification Amendments

H. Integrity Measures

1. Section 655.180, Audit

2. Section 655.181, Revocation

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 Initiating 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, Decision of the Administrative Review Board

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

1. Modernizing Recruitment Requirements

2. Regulatory Revisions Implemented by This Final Rule

3. Other Comments

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

1. Section 655.300, Scope and Purpose

2. Section 655.301, Definition of Terms

3. Section 655.302, Contents of Job Orders

4. Section 655.303, Procedures for Filing Applications for Temporary Employment Certification

5. Section 655.304, Standards for Mobile Housing

VI. Discussion of Revisions to 29 CFR Part 501

A. Conforming Changes

B. Section 501.9, Enforcement of Surety Bond

C. Section 501.20, Debarment and Revocation

D. Terminology and Technical Changes

E. Intervening Rulemakings

VII. Administrative Information

A. Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review)

B. Regulatory Flexibility Act, Small Business Regulatory Enforcement Fairness Act, and Executive Order 13272 (Proper Consideration of Small Entities in Agency Rulemaking)

C. Paperwork Reduction Act

D. Unfunded Mandates Reform Act of 1995

E. Executive Order 13132 (Federalism)

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

I. Executive Summary

A. Purpose of the Regulatory Action

This final rule amends the standards and procedures by which the Department grants certification of agricultural labor or services to be performed by H-2A workers on a seasonal or temporary basis, and enforcement of the contractual obligations applicable to employers of H-2A workers. The major provisions contained in this final rule will strengthen protections for workers, modernize and simplify the H-2A application and temporary labor certification process, and ease regulatory burdens on employers.

It is the policy of the Department to maintain robust protections for workers and vigorously enforce all laws within its jurisdiction governing the administration and enforcement of nonimmigrant visa programs. This includes the coordination of the administration and enforcement activities of the Employment and Training Administration (ETA), Wage and Hour Division (WHD), and the Department's Office of the Solicitor in the promotion of the hiring of U.S. workers and the safeguarding of wages and working conditions 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.

The Department is updating its H-2A regulations to ensure that employers can address temporary labor needs by employing foreign agricultural workers, without undue cost or administrative burden, while maintaining the program's strong protections. The changes in this final rule will enhance WHD's enforcement capabilities, thereby ensuring that responsible employers are not faced with unfair competition and allowing for robust enforcement against program fraud and abuse that undermine the rights and interests of workers.

B. Legal Authority

The Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA), establishes an “H-2A” nonimmigrant visa classification for a worker “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services . . . of a temporary or seasonal nature.” 8 U.S.C. 1101(a)(15)(H)(ii)(a);

see also

Final Rule,

Rules Concerning Discretionary Review by the Secretary,

85 FR 30608 (May 20, 2020) (establishing a system of discretionary secretarial review over cases pending before or decided by the Board of Alien Labor Certification Appeals [BALCA] and to make technical changes to Departmental regulations governing the timing and finality of decisions of the Administrative Review Board [ARB] and the BALCA).

See

Training and Employment Guidance Letter (TEGL) No. 32-10,

Special Procedures: Labor Certification Process for Employers Engaged in Sheepherding and Goatherding Occupations under the H-2A Program

(June 14, 2011),

https://wdr.doleta.gov/directives/corr_doc.cfm?docn=3042;

TEGL No. 15-06, Change 1,

Special Procedures: Labor Certification Process for Occupations Involved in the Open Range Production of Livestock under the H-2A Program

(June 14, 2011),

https://wdr.doleta.gov/directives/corr_doc.cfm?docn=3044;

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),

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),

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),

https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3040.

Final Rule,

Temporary Agricultural Employment of H-2A Foreign Workers in the Herding or Production of Livestock on the Range in the United States,

80 FR 62958 (Oct. 16, 2015) (2015 H-2A Herder Final Rule).

Consistent with a court-approved settlement agreement in

Hispanic Affairs Project, et al.

Scalia et al.,

No. 15-cv-1562 (D.D.C.), the Department recently rescinded 20 CFR 655.215(b)(2).

D. Summary of Major Provisions of This Final Rule

After careful consideration of the public comments received, this final rule adopts much of the regulatory text proposed in the notice of proposed rulemaking (NPRM or proposed rule) published in the

Federal Register

on July 26, 2019, with some significant changes.

In particular, and as discussed in detail elsewhere in this preamble, this final rule adopts the following major changes to the Department's H-2A program regulations:

Notice of Proposed Rulemaking,

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

84 FR 36168 (July 26, 2019). In late 2020, the Department published a final rule to revise the methodology by which it determines the hourly AEWR for non-range agricultural occupations. Final Rule,

Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States,

85 FR 70445 (Nov. 5, 2020) (2020 H-2A AEWR Final Rule). The 2020 H-2A AEWR Final Rule addressed only that aspect of the NPRM. This final rule addresses the remaining aspects of the NPRM published on July 26, 2019.

Strengthening Worker Protections and Program Integrity

• Revises the standards and procedures by which employers qualifying as H-2A Labor Contractors (H-2ALCs) obtain temporary labor certification by permitting the electronic submission of surety bonds, adjusting the required surety bond amounts based on changes to adverse effect wage rates (AEWR), adopting a common bond form that includes standardized bond language, and permitting debarment of H-2ALCs that fail to provide adequate surety bonds. These provisions are intended to reduce the likelihood of program abuse by ensuring H-2ALCs are better able to meet their payroll and other program obligations to workers, streamline the process for accepting surety bonds, and strengthen the Department's authority to address noncompliant bonds.

• Clarifies the definitions of “employer” and “joint employment,” the use of these terms in the filing of

Applications for Temporary Employment Certification,

and the responsibilities of joint employers. Employers that file as joint employers are treated as such as a matter of law for purposes of compliance and enforcement. In addition, employers that do not file applications but nonetheless jointly employ workers under the common law of agency are responsible as joint employers. These provisions are intended to enhance worker protections by providing greater clarity regarding the responsibilities of joint employers, consistent with the statute and the Department's current policy and practice.

• Provides that rental and/or public accommodations secured to house workers must meet applicable local, State, or Federal standards addressing certain health or safety concerns (

e.g.,

minimum square footage per occupant, sanitary food preparation and storage areas, laundry and washing facilities), and requires employers to submit written documentation that such housing meets applicable standards and contains enough bed(s) and room(s) to accommodate all workers requested. These provisions are intended to better protect the health and safety of workers without imposing an undue burden on employers.

• Enhances the Department's debarment authority by holding agents and attorneys, and their successors in interest, accountable for their own misconduct independent of the employer's violation(s), and clarifies that

Applications for Temporary Employment Certification

filed by debarred entities during the period of debarment will be denied without review. These provisions are intended to improve program integrity and promote greater compliance with program requirements.

Modernizing the H-2A Application Process and Prevailing Wage Surveys

• Establishes a single point of entry by requiring that employers, except in limited circumstances, electronically file

Applications for Temporary Employment Certification,

job orders, and all supporting documentation through a centralized electronic system maintained by the Department, and permits the use of electronic signatures meeting valid signature standards. These provisions are intended to reduce costs and burdens for most employers, improve the quality of applications, reduce the frequency of delays associated with deficient applications, and better facilitate interagency data-sharing.

• Codifies the use of electronic methods for the OFLC Certifying Officer (CO) to send notices and requests to employers, circulate approved job orders to appropriate SWAs for

interstate clearance and recruitment of U.S. workers, and issue temporary labor certification decisions directly to the Department of Homeland Security (DHS). These provisions are intended to modernize OFLC's processing of applications to minimize delays, reduce administrative costs for the employer and the Department, and expedite the delivery of temporary agricultural labor certifications to DHS, while maintaining program integrity.

• Replaces outdated prevailing wage survey guidelines from the Department's ETA Handbook 385 (Handbook 385) with modernized standards that are more effective in producing prevailing wages for distinct crop or agricultural activities, and expands the universe of State entities that may conduct prevailing wage surveys, including SWAs, other State agencies, State colleges, or State universities. These provisions are intended to refine the minimum standards for prevailing wage surveys, including providing SWAs with the flexibility to leverage other State survey resources to expand the number and scope of surveys conducted based on information that is as reliable and representative as possible. In addition, while the minimum standards may not ensure statistically valid estimates for larger categories of workers, they are designed to provide more options for SWAs to make decisions about prioritizing precision, accuracy, granularity, or other quality factors in the data they use to inform prevailing wages.

Expanding Employer Access and Flexibilities To Use the H-2A Program

• Establishes new standards that permit individual employers possessing the same need for agricultural services or labor to file a single

Application for Temporary Employment Certification

and job order to jointly employ workers in full-time employment, consistent with the statute and the Department's longstanding practice. This provision is intended to provide small employers who cannot offer full-time work for their H-2A employees with an opportunity to participate in the H-2A program and ensure each employer will be held jointly liable for compliance with all program requirements.

• Codifies a unique set of standards and procedures, with some revisions, for employers that employ workers engaged in animal shearing, commercial beekeeping, and custom combining according to a planned itinerary across multiple areas of intended employment (AIE) in one or more contiguous States. These provisions are intended to provide appropriate flexibilities for employers engaged in these unique agricultural activities that are substantially similar to the processes formerly set out in administrative guidance letters, and greater certainty in the handling of these applications by the Department under 20 CFR part 655, subpart B.

E. Summary of Costs and Benefits

Executive Order (E.O.) 12866

and E.O. 13563

direct agencies to assess the costs and benefits of available alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rulemaking has been designated a “significant regulatory action” under section (sec.) 3(f)(1) of E.O. 12866. Accordingly, it has been reviewed by the Office of Management and Budget (OMB).

E.O. 12866,

Regulatory Planning and Review,

58 FR 51735 (Oct. 4, 1993).

E.O. 13563,

Improving Regulation and Regulatory Review,

76 FR 3821 (Jan. 21, 2011).

The Department estimates that this final rule will result in costs, cost savings, and qualitative benefits. The cost of this final rule is associated with rule familiarization and recordkeeping requirements for all H-2A employers, as well as increases in the amount of surety bonds required for H-2ALCs. This final rule is expected to have an annualized quantifiable cost of $2.75 million and a total 10-year quantifiable cost of $19.29 million at a discount rate of seven percent. The cost savings of this final 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 OFLC National Processing Center (NPC) with the SWAs. This final rule is estimated to have annualized cost savings of $0.16 million and total 10-year quantifiable cost savings of $1.12 million at a discount rate of seven percent.

The Department estimates that this final rule will result in an annualized net quantifiable cost of $2.59 million and a total 10-year net cost of $18.17 million, both at a discount rate of seven percent and expressed in 2021 dollars. The Department expects that this final rule will provide qualitative benefits including: (1) clearer application of certain housing-related standards when employers choose to meet their H-2A housing obligations by providing rental and/or public accommodations, which will bolster worker health and safety protections; (2) an improved process of submitting and reviewing H-2A applications, which will reduce workforce instability; and (3) the adoption of electronic surety bonds and a standardized bond form, which will help streamline the H-2A application process and reduce delays. The Department believes that the qualitative benefits outweigh the quantitative net costs in this rule.

F. Severability

To the extent that any portion of this final rule is declared invalid by a court, the Department intends for all other parts of this final rule that can operate in the absence of the specific portion that has been invalidated to remain in effect. Thus, even if a court decision invalidating a portion of this final rule results in a partial reversion to the current regulations or to the statutory language itself, the Department intends that the rest of this final rule continue to operate, to the extent possible, in tandem with the reverted provisions.

II. Acronyms and Abbreviations

AEWR Adverse effect wage rate(s)

AIE Area(s) of intended employment

ALJ Administrative Law Judge

AOWL Agricultural Online Wage Library

ARB Administrative Review Board

ARIMA Autoregressive integrated moving average

BALCA Board of Alien Labor Certification Appeals

BLS Bureau of Labor Statistics

CBA Collective bargaining agreement

CFR Code of Federal Regulations

CO Certifying Officer(s)

COVID-19 Novel coronavirus disease

CPI Consumer Price Index

DBA Doing Business As

DC District of Columbia

DHS Department of Homeland Security

DOJ Department of Justice

DOL Department of Labor

DOS Department of State

ECI Employment Cost Index

E.O. Executive Order

E-SIGN Electronic Signatures in Global and National Commerce Act

ETA Employment and Training Administration

FEIN Federal Employer Identification Number

FICA Federal Insurance Contributions Act

FLAG Foreign Labor Application Gateway

FLC Farm Labor Contractor

FLS Farm Labor Survey

FLSA Fair Labor Standards Act

FR Federal Register

FTC Federal Trade Commission

FY Fiscal Year(s)

GPEA Government Paperwork Elimination Act

H-2ALC(s) H-2A Labor Contractor(s)

HR Human Resources

iCERT iCERT Visa Portal System

ICR Information Collection Request

IFR Interim final rule

INA Immigration and Nationality Act

IRC Internal Revenue Code

IRCA Immigration Reform and Control Act of 1986

IRS Internal Revenue Service

MSA Metropolitan Statistical Area(s)

MSPA Migrant and Seasonal Agricultural Worker Protection Act

NAICS North American Industry Classification System

NOA Notice(s) of Acceptance

NOD Notice(s) of Deficiency

NPC National Processing Center

NPRM Notice of proposed rulemaking

NPWC National Prevailing Wage Center

NW Northwest

OALJ Office of Administrative Law Judges

OEWS Occupational Employment and Wage Statistics

OFLC Office of Foreign Labor Certification

OIRA Office of Information and Regulatory Affairs

OMB Office of Management and Budget

OSHA Occupational Safety and Health Administration

PRA Paperwork Reduction Act

Pub. L. Public Law

PWD Prevailing wage determination(s)

QCEW Quarterly Census of Employment and Wages

RFA Regulatory Flexibility Act

RIN Regulation Identifier Number

RV Recreational vehicle

SBA Small Business Administration

Sec. Section of a Public Law

Secretary Secretary of Labor

SOC Standard Occupational Classification

Stat. U.S. Statutes at Large

SWA(s) State Workforce Agency(-ies)

TDD Telecommunications Device for the Deaf

TEGL Training and Employment Guidance Letter

TTY Teletypewriter

UI Unemployment insurance

UMRA Unfunded Mandates Reform Act of 1995

U.S. United States

U.S.C. United States Code

USCIS U.S. Citizenship and Immigration Services

USDA U.S. Department of Agriculture

WHD Wage and Hour Division

III. Background and Public Comments Received on the Notice of Proposed Rulemaking

On July 26, 2019, the Department published an NPRM requesting public comments on proposals intended to modernize and simplify the process by which OFLC reviews employers' job orders and applications for temporary agricultural labor certifications for use in petitioning DHS to employ H-2A workers.

See

84 FR 36168. The Department also proposed to amend the regulations for enforcement of contractual obligations applicable to the employment of H-2A workers and workers in corresponding employment administered by WHD, and to amend the Wagner-Peyser Act regulations administered by ETA to provide consistency with revisions to H-2A program regulations governing the temporary agricultural labor certification process.

Id.

The NPRM invited written comments from the public on all aspects of the proposed amendments to the regulations. A 60-day comment period allowed for the public to inspect the proposed rule and provide comments through September 24, 2019.

The Department also received requests for an extension of the comment period for the NPRM. While the Department appreciated the issues raised concerning the public's opportunity to examine the rule and comment, the Department decided not to extend the comment period. The Department continues to believe that a 60-day comment period was sufficient to allow the public to inspect the proposed rule and provide comments, and this conclusion is supported by both the volume of comments received and by the wide variety of stakeholders that submitted comments within the 60-day comment period.

The Department received a total of 83,532 public comments in docket number ETA-2019-007 in response to the NPRM. In addition, the Department received 128 comments in response to document WHD_FRDOC_0001-0070 prior to the comment submission deadline. These comments were incorporated into docket number ETA-2019-007, and each comment received a note on regulations.gov indicating that it was timely received. The commenters represented a wide range of stakeholders from the public, private, and not-for-profit sectors. The Department received comments from a geographically diverse cross-section of stakeholders within the agricultural sector, including farmworkers, workers' rights advocacy organizations, farm owners, trade associations for agricultural products and services, not-for-profit organizations representing agricultural issues, and other organizations with an interest in farming, ranching, and other agricultural activities. Public sector commenters included Federal elected officials, State officials, and agencies representing 14 State governments. Private sector commenters included business owners, recruiting companies, and law firms. Other commenters included immigration advocacy groups, public policy organizations, and trade associations interested in immigration-related issues. The vast majority of comments specifically addressed proposals and issues contained in the NPRM. The Department recognizes and appreciates the value of comments, ideas, and suggestions from all those who commented on the proposal, and this final rule was developed after review and consideration of all public comments timely received in response to the NPRM.

11 12

As explained elsewhere in this rule, the Department separately published a final rule—the 2020 H-2A AEWR Final Rule—that addressed the proposal and public comments concerning the AEWR methodology and was limited to only that aspect of the NPRM. This final rule addresses the remaining aspects of the NPRM. Previously, on January 15, 2021, the Department announced and posted on OFLC's website an unpublished final rule on these remaining aspects of the NPRM, explaining that the rule was pending publication in the

Federal Register

with a 30-day delayed effective date.

See

Announcements,

U.S. Department of Labor Withdraws Forthcoming H-2A Temporary Agricultural Program Rule for Review

(Jan. 20, 2021),

https://www.dol.gov/agencies/eta/foreign-labor/news.

On January 20, 2021, however, the Department withdrew this document from the Office of the Federal Register, prior to the document being made available for public inspection, for the purpose of reviewing issues of law, fact, and policy raised by the rule. Therefore, the unpublished draft rule (hereinafter referenced as “the January 2021 draft final rule”) never took effect. 5 U.S.C. 552(a)(1), 553;

cf. Humane Society

U.S. Dep't of Ag.,

No. 20-5291,—F.4th—, 2022 WL 2898893, at *8 (D.C. Cir. 2022) (holding that “agencies may repeal a rule made available for public inspection in the Office of the Federal Register only after complying with the [Administrative Procedure Act's] procedural requirements”). The

Federal Register

and the Code of Federal Regulations remain the official sources for regulatory information published by the Department.

Id.

Any statements in the January 2021 draft final rule do not represent the Department's formal policy. Moreover, the January 2021 draft final rule and any statements contained therein do not, and may not be relied upon to, create or confer any right or benefit, substantive or procedural, enforceable at law or equity by any individual or other party.

IV. Discussion of General Comments

Following careful consideration of the public comments received, the Department made a number of modifications to the NPRM's proposed regulatory text. Section V of this preamble sets out the Department's interpretation and rationale for the amendments adopted to 20 CFR part 655, subpart B, 20 CFR 653.501(c)(2)(i), and 29 CFR part 501, section by section. Before setting out the detailed section-by-section analysis below, however, the Department will first acknowledge and respond to general comments that did not fit readily into this organizational scheme.

Of the total public comments received, 82,893 comments were associated with form letters or letter writing campaigns. One not-for-profit organization submitted the names of 8,602 community members expressing general concerns about worker wages,

worker safety, and enforcement of immigration laws. A not-for-profit foundation and labor union letter writing campaign resulted in the submission of more than 74,000 form letters and postcards from individual farmworkers expressing general concerns over issues such as the growth of the H-2A program, worker wages, costs to workers, working conditions, housing conditions, job opportunities for U.S. workers, and enforcement and oversight of program protections. Additional letter writing campaigns were organized by agricultural associations, trade associations, local groups of farmers, and private individuals. The Department recognizes and appreciates the public's interest in this regulatory action. Where these letters discussed substantive changes within the scope of the rule, the Department has considered and addressed these issues, in detail, in the section-by-section analysis of this preamble.

Many of the comments received expressed general support for or opposition to the proposed rule, without discussing specific provisions of the NPRM. The Department received comments from individual business owners, farmers, and trade associations that expressed general support for taking action to change the H-2A program, including efforts to streamline the electronic document filing system, modernizing and improving the efficiency of the program, making the program more flexible and responsive to farmer needs, and creating an environment that fosters a more stable workforce without harming U.S. workers. Other commenters stressed the importance of protecting and improving the American farming industry through the proposed regulations. Another commenter mentioned the growth of the H-2A program in their State as evidence that the program plays a vital role in the agricultural sector. The Department values and appreciates these commenters' support for the proposed rule, as well as their unique and informed perspectives on the program's strengths and proposed points of improvement.

In addition to comments expressing general support for the rule, the Department received several comments supporting other comments that were submitted in response to the NPRM. Most of these comments were from individual farmers and ranchers expressing support for a comment submitted by an agricultural association or trade association. The Department acknowledges the time and effort undertaken by these commenters to voice their opinions on this rulemaking and lend their support for the opinions of others. Where these comments supported substantive changes within the scope of the rule, the Department has considered and addressed these issues, in detail, in the section-by-section analysis of this preamble.

The Department also received several comments in general opposition to the changes proposed in the NPRM, including from private citizens, farmworkers, and workers' rights advocacy organizations. These comments included concerns that changes to the H-2A program could disproportionately harm small farms. In accordance with the Regulatory Flexibility Act (RFA), an analysis on the impact on small farms was performed, and the results were considered in formulating this final rule. Additional commenters expressed the view that stronger protections and accountability for worker safety and living conditions are needed, asserting that the changes proposed in the NPRM would serve to weaken labor standards and increase instances of abuse within the immigration system. Some commenters feared that the proposed changes would disproportionately harm marginalized communities, including immigrants, individuals with disabilities, and people of color. One commenter opposed the changes proposed in the NPRM out of a general concern that such changes, once implemented, would encourage employers to deny jobs to U.S. farmworkers in order to hire foreign workers for less pay. Still other commenters stated that the changes proposed in the NPRM would make working and living conditions worse for farmworkers both within the H-2A program as well as farmworkers who are already lawfully present in the United States and employed in that capacity. These commenters underscored the importance of increasing protections for both U.S. workers' and H-2A workers' living and working conditions. Some commenters worried that the proposed changes would increase costs to workers, decrease their wages, or both. In contrast, one commenter expressed concern about the proposal increasing costs for employers through higher wages and labor standards for workers. Other commenters expressed general concerns about how the changes would impact food safety and the appeals process. A few commenters criticized the proposed rule for not including provisions to address recruitment fees and sectors in agriculture that have year-round needs for labor.

The Department values and appreciates the participation and input from these commenters and the perspectives they have to offer. The mission of DOL is to foster, promote, and develop the welfare of the wage earners, job seekers, and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and protection of workers' rights. Under this charge, the Department continues to be as diligent as possible in safeguarding worker rights, promoting the welfare of all workers, and investigating and preventing abuse within the U.S. agricultural economy, and it shares these commenters' concerns for the protection of all farmworkers in the United States. Where these comments supported substantive changes within the scope of the rule, the Department has considered and addressed these issues, in detail, in the section-by-section analysis of this preamble.

V. Section-by-Section Summary of This Final Rule, 20 CFR Part 655, Subpart B; 20 CFR 653.501(c)(2)(i); and 29 CFR Part 501

This section of the preamble provides the Department's responses to public comments received on the NPRM and rationale for the amendments adopted to 20 CFR part 655, subpart B, 20 CFR 653.501(c)(2)(i), and 29 CFR part 501, section by section, and generally follows the outline of the regulations. Within each section of the preamble, the Department has noted and responded to those public comments that are addressed to that particular section of this final rule. If a proposed change is not addressed in the discussion below, it is because the public comments did not substantively address that specific provision and no changes have been made to the proposed regulatory text. The Department received some comments on the NPRM that were outside the scope of the proposed regulations, and the Department offers no substantive response to such comments. The Department also has made some nonsubstantive changes to the regulatory text to correct grammatical and typographical errors, in order to improve readability and conform the document stylistically, that generally are not discussed below.

A. Introductory Sections

1. Section 655.100, Purpose and Scope of Subpart B

The NPRM proposed minor amendments to this section to clarify the purpose of the H-2A program regulations in paragraph (a) and the scope of those regulations in paragraph

(b). Proposed paragraph (a) reflected the purpose of the final rule as realizing the Department's statutory authority to establish a process through which it will make factual determinations regarding the issuance of a temporary agricultural labor certification and certify its determination to DHS.

See

8 U.S.C. 1188(a). Proposed paragraph (b) described the scope of the Department's role in receiving, reviewing, and adjudicating

Applications for Temporary Employment Certification,

including establishing standards and obligations with respect to the terms and conditions of the temporary agricultural labor certification with which H-2A employers must comply, and the rights and obligations of H-2A workers and workers in corresponding employment. The Department received some comments on this provision, but has not made any substantive changes to the regulatory text in response to these comments. Therefore, as discussed below, this provision remains unchanged from the NPRM except for minor technical changes.

Although many commenters generally applauded the Department's efforts to amend the H-2A regulations through this rulemaking activity, others stated the proposed regulations were unsatisfactory in addressing a wide array of immigration and workforce issues impacting the United States. Some called for an “overhaul” of the immigration system as it relates to agricultural labor through this rule or through a “guest” worker program, and some suggested creation of a system where the agricultural workforce would have a pathway to citizenship. Others stated that the changes proposed in this rulemaking would weaken workers' wages, protections, and U.S. worker recruitment obligations, and would not incentivize farmers' use of E-Verify administered by DHS and the Social Security Administration. However, no commenters objected to the Department's proposed language under § 655.100 stating the purpose and scope of its H-2A program regulations based on the Department's statutory authority under the INA.

To the extent commenters urged action beyond the proposed changes that the Department presented for public comment in the NPRM, their comments are outside the scope of this rulemaking. To the extent these commenters commented on the Department's proposals in specific provisions of the NPRM (

e.g.,

wage requirements or recruitment obligations), the Department has addressed their specific comments in the preamble discussion of those particular provisions. Generalized comments relating to this final rule are addressed in section IV, Discussion of General Comments. In the absence of objection to the Department's proposed revisions to this regulatory language describing the purpose and scope of its H-2A program regulations, the Department has adopted these provisions as proposed, with minor changes in § 655.100. In this final rule, the Department reversed the order of the words “purpose” and “scope” in the section heading in order to reflect the sequence of topics in paragraphs (a) and (b). The Department also revised “temporary agricultural labor or services” to now read “agricultural labor or services of a temporary or seasonal nature” and included the word “temporary” in front of “foreign workers” to better reflect the determinations made in the Department's temporary agricultural labor certification.

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 NPRM proposed minor amendments to this section related to the delegated authorities of ETA and WHD and the division of responsibilities between the agencies in administering the H-2A program. In addition to other statutory responsibilities required by 8 U.S.C. 1188, proposed paragraph (a) addressed ETA's authority to carry out the Secretary's responsibility to issue temporary agricultural labor certifications through OFLC, while proposed paragraph (b) addressed WHD's authority to carry out the Secretary's authority to investigate and enforce the terms and conditions of H-2A temporary agricultural labor certifications under 8 U.S.C. 1188, 29 CFR part 501, and 20 CFR part 655, subpart B (“this subpart”) (collectively, “the H-2A program”). Proposed paragraph (c) reminded program users of ETA and WHD'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. The Department received a few comments on this provision, none of which necessitated substantive changes to the regulatory text. Therefore, as discussed below, this provision remains unchanged from the NPRM.

Some commenters raised concerns about potential delays or confusion related to the manner in which ETA and WHD coordinate enforcement and share authority, as well as the level of expertise of enforcement agencies to which ETA and WHD may make referrals. One commenter expressed concern about the frequency of WHD investigations of H-2A employers, as compared to non-H-2A employers, and objected to what it perceived as an expansion of WHD's enforcement authority. Another commenter suggested that the complementary regulation at 29 CFR 501.1(b) be revised to explicitly reference OFLC's authority to carry out responsibilities under 20 CFR part 655, subpart B, in addition to its authority under the statute. As the regulations are promulgated pursuant to OFLC's statutory authority, the Department considers the proposed regulations to adequately describe the scope of OFLC's authority. Further, by adding paragraph (b) to 20 CFR 655.101, the Department clarifies the role of WHD with regard to 20 CFR part 655, subpart B, within that subpart rather than solely within the complementary regulation at 29 CFR 501.1(c) and brings consistency to 20 CFR 655.101 and 29 CFR 501.1; both now address ETA's and WHD's roles. To the extent commenters raised concerns about the manner in which ETA and WHD coordinate enforcement and shared authority, in practice, those specific comments are addressed in connection with the relevant regulatory provision (

e.g.,

20 CFR 655.182(g)). As no commenter raised issues with the proposed revisions to the description of the authority of the Department's agencies, offices, and divisions under 20 CFR 655.101 and 29 CFR 501.1 that necessitate changes, the Department is adopting them in this final rule without change.

3. Section 655.102, Transition Procedures

a. Rescinding the Provision Allowing for the Creation of Special Procedures

As stated in the NPRM, the Department's H-2A regulations have, since their creation, provided authority under 20 CFR 655.102 to “establish, continue, revise, or revoke special procedures for processing certain H-2A applications,” and the Department has exercised a limited degree of flexibility in determining when specific variations from the normal labor certification processes were necessary to permit the temporary employment of foreign workers in specific industries or occupations. However, the Department proposed to rescind the special procedures provision in its H-2A regulations in light of the decision in

Mendoza

Perez,

754 F.3d 1002, 1022 (D.C. Cir. 2014), which found that the

Department's determination to establish special procedures for sheep, goat, and cattle herding under § 655.102 was subject to the Administrative Procedure Act, possessed all the hallmarks of a legislative rule, and could not be issued through sub-regulatory guidance. The Department underwent notice-and-comment rulemaking to convert the sub-regulatory guidance for sheep and goat herding and production of livestock on the range into formal regulations; those provisions appear in the Department's H-2A regulations at 20 CFR 655.200 through 655.235. 2015 H-2A Herder Final Rule, 80 FR 62958.

Accordingly, the Department proposed in the NPRM new regulatory provisions under §§ 655.300 through 655.304 to incorporate the remaining special procedures covering the specific occupations of animal shearing, commercial beekeeping, and custom combining into the H-2A regulatory framework, effectively rescinding the TEGLs covering those occupations. The Department received some comments on the Department's proposal to rescind existing § 655.102, but as discussed below, none warranted changes to the Department's proposed rescission. Therefore, the rescission of this provision remains unchanged from the NPRM.

The Department recently rescinded § 655.215(b)(2) in a separate rulemaking. Final Rule,

Adjudication of Temporary and Seasonal Need for Herding and Production of Livestock on the Range Applications Under the H-2A Program,

86 FR 71373 (Dec. 16, 2021) (2021 H-2A Herder Final Rule).

Some commenters generally supported the proposal to engage in rulemaking (

i.e.,

through the NPRM and this final rule) to incorporate the procedures and standards from the TEGLs for itinerant animal shearing, commercial beekeeping, and custom combining into the H-2A regulations, with some remarking that it provided an opportunity to comment on specific aspects of occupational variances. The Department addresses these specific comments in the preamble sections below that discuss §§ 655.300 through 655.304. Several other commenters expressed support for this proposal and cited general agreement with the conclusion that such procedures are substantive and require formal notice-and-comment rulemaking.

One trade association stated that it “takes no position” on the proposed rule's rescission of the special procedures provision, but recommended the procedures and standards set forth in TEGLs should undergo “appropriate due process” before attaining the status of regulations. Although other trade associations and individual commenters were in favor of eliminating informal special procedures, they recommended the Department retain the ability to develop formal special procedures when circumstances arise in the future. These commenters noted that U.S. agriculture will continue to evolve, and the Department must have the appropriate tools to implement immediate changes to assist farmers while protecting workers.

The Department understands the concerns expressed by a few commenters that consideration of special variances for specific industries or occupations, other than those addressed in this final rule at §§ 655.200 through 655.235 and §§ 655.300 through 655.304, may be appropriate at some point in the future. However, in light of the court's decision in

Mendoza

and the similarity between the special procedures at issue in that case and the current H-2A special procedure TEGLs, the Department has determined that it should engage in formal notice-and-comment rulemaking procedures (

i.e.,

through the NPRM and this final rule) to incorporate into the regulations its current H-2A special procedures. Rescission of the broad authority in § 655.102 to establish special procedures does not preclude the Department from engaging in future notice-and-comment rulemaking or issuing guidance; rather, it reassures the public that the Department will engage in notice-and-comment rulemaking to establish variances in the future. Accordingly, the Department is adopting its proposal to rescind from the H-2A regulations the explicit provision permitting the Department to establish special procedures for processing certain

Applications for Temporary Employment Certification

under § 655.102.

b. Transition Procedures for Implementing Changes Created by This Final Rule

As stated in the NPRM, the Department proposed to repurpose § 655.102 to clarify which set of regulations—the 2010 H-2A Final Rule

or this final rule—an employer must satisfy for each

Application for Temporary Employment Certification

that it has already submitted or that it is preparing to submit when this final rule becomes effective. The Department proposed to rename § 655.102 as “Transition procedures,” and add regulatory language to support an orderly and seamless transition between the rules.

The Department's reference to “the 2010 H-2A Final Rule” herein includes the regulatory text adopted through that rulemaking, 75 FR 6884, and in other minor revisions that took effect prior to the effective date of this final rule. 2019 H-2A Recruitment Final Rule, 84 FR 49439 (rescinding the requirement that an employer advertise its job opportunity in a print newspaper of general circulation in the area of intended employment; expanding and enhancing the Department's electronic job registry; and leveraging the expertise and existing outreach activities of SWAs to promote agricultural job opportunities);

see also

Final Rule,

Rules Concerning Discretionary Review by the Secretary,

85 FR 30608 (establishing a system of discretionary secretarial review over cases pending before or decided by the BALCA and to make technical changes to Departmental regulations governing the timing and finality of decisions of the ARB and the BALCA); 2021 H-2A Herder Final Rule, 86 FR 71373 (amending the regulations regarding the adjudication of temporary need for employers seeking to employ nonimmigrant workers in job opportunities covering the herding or production of livestock on the range).

Paragraph (a) proposed that an

Application for Temporary Employment Certification

submitted to the OFLC NPC before the effective date of the final rule would be processed under the regulations in effect when it was submitted (

i.e.,

the 2010 H-2A Final Rule). However, an employer's engagement with H-2A program requirements begins in advance of its submission of the

Application for Temporary Employment Certification

to the NPC, with its submission of a job order to the SWA for review and clearance. In order to provide similar regulatory continuity for H-2A program job orders, paragraphs (b) and (c) proposed a procedure for determining which set of regulations would apply to an

Application for Temporary Employment Certification

submitted to the NPC on or after the effective date of the final rule.

As a result, any

Application for Temporary Employment Certification

with a first date of need no later than 90 days after the effective date of this final rule would be processed under the 2010 H-2A Final Rule. All other

Applications for Temporary Employment Certification

submitted on or after the effective date of this final rule would be processed under this final rule. The Department received some comments on this provision, none of which necessitated substantive changes to the regulatory text. Therefore, as discussed below, this provision remains unchanged from the NPRM.

The majority of commenters that addressed transition procedures, including trade associations, an employer, and a SWA, generally supported the proposal. However, they expressed concern that the transition period might occur during a busy season or across calendar years, depending on the timing of the final rule's publication.

These commenters urged the Department to include sufficient time in the transition period for employers to become familiar with new requirements and for the Department and SWA to develop and implement processes associated with the changes in the final rule, ideally outside of busy filing periods (

e.g.,

September, October, and November). The Department considered these interests and concluded that the transition procedures adopted in this final rule ensure that all job orders and

Applications for Temporary Employment Certification

submitted to the SWA and/or NPC before the effective date of this final rule will continue to be governed by the 2010 H-2A Final Rule. Not only will this approach ensure that the rule change does not complicate or disrupt an employer's application process mid-stream, but it will provide an appropriate period after publication of this final rule during which the Department, SWAs, and employers can adjust to the new rule before an employer submits its first job order for processing under this final rule (

i.e.,

with a first date of need more than 90 days after the effective date of this final rule).

Three commenters remarked on the length of the transition period proposed. Two trade associations objected to what they viewed as a delay of the actual effective date of the final rule. They remarked that the final rule would not be fully in effect on the 30th day after publication. In contrast, a SWA urged the Department to consider a longer transition period, such as 180 days after the final rule's publication date, stating that both SWAs and employers need more than 90 days to adjust to the substantive changes being proposed,

e.g.,

survey methodologies and staggered entry.

The Department decided not to adopt several major changes proposed in the NPRM (

e.g.,

staggered entry), as discussed in relevant preamble sections, which mitigates the SWA's concern to some degree. In addition, as explained in the preamble discussing § 655.120, the Department anticipates the modernized prevailing wage determination (PWD) survey requirements will reduce the burden on SWAs.

The Department appreciates both the SWA's suggestion for more time as well as other commenters' concerns about prompt implementation of the new rule. The transition period implemented in this final rule balances these concerns. It allows the Department to implement necessary changes to program operations, application forms, and technology systems, and to provide training and technical assistance to the NPC, SWAs, employers, and other stakeholders in order to familiarize them with changes required by this rule. However, the transition period also balances the preparation required to properly implement the new rule with the importance of promptly implementing the modernized regulations. It requires employers to prepare job orders in compliance with the new regulations, and it requires the NPC and SWA to be prepared to receive those job orders, 46 days after publication of this final rule. Further, using employers' first date of need after this final rule's effective date, rather than a job order or

Application for Temporary Employment Certification

submission date, better ensures that workers who perform labor or services during the same season will be covered by the same set of regulations.

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. AEWR

The NPRM proposed conforming changes to the definition of AEWR to be consistent with the NPRM's proposal to adjust the methodology used to establish AEWR in the H-2A program. Subsequently, the Department issued the 2020 H-2A AEWR Final Rule (85 FR 70445), which revised the AEWR methodology for non-range agricultural occupations and included a revised definition of AEWR. On December 23, 2020, in

United Farm Workers

Dep't of Labor,

No. 20-cv-01690 (E.D. Cal. filed Nov. 30, 2020), the U.S. District Court for the Eastern District of California issued an order preliminarily enjoining the Department from further implementing the 2020 H-2A AEWR Final Rule.

On April 4, 2022, after the parties submitted summary judgment briefing, the court vacated the 2020 H-2A AEWR Final Rule and remanded the rule to the agency for further rulemaking consistent with the court's order.

In this final rule, the Department is implementing the court's vacatur of the 2020 H-2A AEWR Final Rule by removing from the CFR the regulatory text that the Department promulgated through that rulemaking at § 655.103(b) (the definition of AEWR), thereby restoring the regulatory text to appear as it did before the effective date of the 2020 H-2A AEWR Final Rule.

Order Granting Plaintiffs' Motion for a Preliminary Injunction,

United Farm Workers

U.S. Dep't of Labor,

No. 20-cv-1690 (E.D. Cal. Dec. 23, 2020), ECF No. 37. The court's order was issued two days after the effective date of the 2020 H-2A AEWR Final Rule.

Order Granting Plaintiffs' Motion for Summary Judgment,

United Farm Workers

U.S. Dep't of Labor,

No. 20-cv-1690 (E.D. Cal. Apr. 4, 2022), ECF No. 102; Judgment,

United Farm Workers

U.S. Dep't of Labor,

No. 20-cv-1690 (E.D. Cal. Apr. 4, 2022), ECF No. 103.

The Department has good cause to bypass any otherwise applicable requirements of notice and comment and a delayed effective date for this portion of the rule because they are unnecessary and would be contrary to the public interest.

See

5 U.S.C. 533(b)(B), (d). First, the changes made here carry out the ministerial task of effectuating the court's vacatur order and restores the regulatory text to the operative regulatory text in place prior to the publication of the now-vacated rule (the definition of AEWR in effect under the 2010 H-2A Final Rule). Since the court's vacatur order, no other party has sought to appeal the court's order or otherwise block it from taking effect. The Department has therefore concluded that the notice and delayed effective date requirements are unnecessary.

Second, the Department has concluded that taking comment on this change would be contrary to the public interest because it could lead to confusion, particularly among the regulated public, as to the applicable definition of the AEWR and the AEWR methodology. This is especially true in light of the Department's December 1, 2021, NPRM proposing revisions to the reinstated 2010 AEWR methodology. Continuing to include the vacated methodology in the CFR while simultaneously proposing to amend the 2010 AEWR methodology in the separate rulemaking could be unnecessarily confusing to the regulated community. This change eliminates any possible confusion over the current AEWR methodology and, more importantly, any confusion over what methodology the Department has proposed to change in its current AEWR rulemaking.

As noted below, the comment period for the 2021 H-2A AEWR NPRM closed on January 31, 2022, and the Department will address comments received in response to that proposal in that separate rulemaking.

The Department has concluded that each of these reasons—that notice and comment and a delayed effective date are unnecessary, impracticable, and contrary to the public interest—independently provides good cause to bypass any otherwise applicable requirements of notice and comment and a delayed effective date.

b. Area of Intended Employment and Place of Employment

The NPRM proposed minor amendments to the definition of AIE by

replacing the terms “place of the job opportunity” and “worksite” with a newly defined term “place(s) of employment.” The Department received some comments on this provision, none of which necessitated substantive changes to the regulatory text. Therefore, as discussed below, these definitions remain unchanged from the NPRM with one minor revision.

As explained in the NPRM, the CO will continue using the definition of AIE to assess whether each place of employment—defined as a worksite or physical location where work under the job order actually is performed by the H-2A workers and workers in corresponding employment—is within normal commuting distance from the first place of employment listed on the job order as a work location or, if designated, the centralized “pick-up” point (

e.g.,

worker housing) to every other place of employment identified in the application and job order. After considering comments, as discussed below, the Department adopts the proposed definitions of AIE and place of employment with one minor change, to use the term “place of employment” in the singular in the definition of AIE.

Some commenters suggested the Department make substantive revisions to the proposed definition of “place of employment,” given how it is applied in the proposed definition of AIE at 20 CFR 655.103(b), and the explicit limitation of an

Application for Temporary Employment Certification

to one AIE that the Department proposed to incorporate at § 655.130(e). Some commenters asserted that travel time from one point on a farm to another (

e.g.,

from one field to another noncontiguous field, or from a field to a packing facility) and/or incidental travel off the farm to places outside of the AIE should not be considered in the Department's AIE evaluation. Several commenters, including a trade association, agent, and employers, used job opportunities involving trucking duties (

e.g.,

delivering an employer's crops to storage or market) as examples of their concerns. These commenters objected to listing all of a trucker's delivery and pick-up locations on the

Application for Temporary Employment Certification

as worksites, which the CO would analyze under the definition of AIE at § 655.103(b) and subject to the geographic limitation at § 655.130(e). Several trade associations, agents, and employers commented that the Department should adopt the H-1B definition of place of employment at § 655.715, asserting that the Board of Alien Labor Certification Appeals (BALCA) has done so in some appeal decisions. One commenter stated that adopting the H-1B definition would ensure that certain locations where work is performed for short durations are excluded from consideration in analysis of the AIE. An employer supported this approach as flexible and efficient, while other commenters stated it would provide clarity and certainty to the AIE evaluation. An agent acknowledged that the H-1B definition might be “less-than-ideal for the H-2A program for other reasons” and proposed a slightly modified version of the H-1B definition.

The Department declines to adopt the H-1B definition of “place of employment” for the H-2A program because doing so would be a major change that commenters and stakeholders generally could not have anticipated as an outcome of the rulemaking, thus warranting additional public notice and opportunity for comment. Additionally, the H-1B definition of “place of employment” is tailored to the specialty occupations eligible for the H-1B program, and this definition is not easily retrofitted or modified to apply to agricultural occupations eligible for the H-2A program.

Finally, such a change is not necessary to address commenters' concerns.

For example, the H-1B regulations provide the following examples of non-worksites (

i.e.,

locations that do not constitute a place of employment) for an H-1B worker: “[a] computer engineer sent to customer locations to `troubleshoot' complaints regarding software malfunctions; a sales representative making calls on prospective customers or established customers within a `home office' sales territory; a manager monitoring the performance of out-stationed employees; an auditor providing advice or conducting reviews at customer facilities; a physical therapist providing services to patients in their homes within an area of employment; an individual making a court appearance; an individual lunching with a customer representative at a restaurant; or an individual conducting research at a library.”

See

§ 655.715. These examples have limited parallels within the agricultural economy.

The Department's proposed definition of AIE considers the normal commuting distance to the place of employment where the workday begins, not the geographic scope of a worker's route after the workday begins. Under the proposed definition of “place of employment,” a truck driver's delivery locations, for example, are places of employment, as they are worksites or other physical locations at which the truck driver performs work under the job order. However, those delivery locations are not considered in the AIE analysis of normal commute to the place of employment because the workday for the job opportunity begins before a worker travels to those locations. The geographic scope limitation on such places of employment (

i.e.,

after the workday begins) are addressed under § 655.130(e), which, as revised, accommodates work at “places of employment outside of a single [AIE] only as is necessary to perform the duties specified in the

Application for Temporary Employment Certification,

and provided that the worker can reasonably return to the worker's residence or the employer-provided housing within the same workday.”

While not assessed as part of an AIE review, an employer must identify on the

Application for Temporary Employment Certification

and job order all places of employment, including those after the workday begins, to allow both for the Department to review, and U.S. workers to be apprised of, the material terms and conditions of the job opportunity. If specific addresses are unknown, such as in the case of crop delivery to storage or market, the employer may describe the places to which deliveries will be made with as much specificity as possible (

e.g.,

county or city names). To be clear, all worksites and physical locations where work will be performed under the job order, both those to which a worker must commute and those to which a worker must travel after their workday begins, must be disclosed in the

Application for Temporary Employment Certification

and job order; however, those worksites and physical locations to which a worker must travel after the workday begins to perform work under the job order will not be analyzed under the definition of AIE. These comments and the limitation of an

Application for Temporary Employment Certification

to one AIE, absent an exception, are discussed further in relation to the geographic scope provision at § 655.130(e).

A State employment agency expressed concern that the term “places of employment” may result in employer misrepresentation of the actual worksite, lead to confusion around where the “actual worksite” is located when reviewing a job order, and require the SWAs to identify more deficiencies in cases where the employer does not specify the worksite as a place of employment. A forestry employer expressed concern that the proposed definition would be unworkable because the employer performs work at places of employment across areas wider than normal commuting distances, considers employer-provided housing to be home, and does not expect workers to return home to their permanent residence each day.

To add clarity, the Department has revised the definition of AIE so that “place of employment” is singular. As discussed above, there may be a number of places of employment listed on an

Application for Temporary Employment Certification,

as an employer must identify each worksite or physical location where work under the job order will be performed. However, the CO uses only one place—the first place of employment identified or, if designated, the centralized “pick-up” point (

e.g.,

worker housing)—to determine the normal commuting distance around that place and whether all of the worksites or physical locations to which a worker may commute to begin the workday are within that normal commute. Where an employer's job opportunity involves a planned itinerary (

e.g.,

animal shearing subject to § 655.300), and in the event an AIE analysis is required, the normal commute at each place along the planned itinerary would be analyzed.

Some commenters asserted that a normal-commuting-distance analysis should focus on the location of the housing or pick-up point employers provide for workers, rather than the places of employment listed on an employer's

Application for Temporary Employment Certification

. A trade association, with support from other commenters, stated that, because employers are required to provide transportation to worksites from the housing the employer provides or a pick-up point, a normal commuting distance for U.S. workers should be measured from their home to the housing or pick-up point, not the worksite(s); and thus argued that worksites have little bearing on the AIE labor market test. Another trade association similarly remarked that the “housing or pick-up point, rather than the worksite” should be the determining factor, asserting that this would reflect the commuting patterns of agricultural workers more accurately. An employer urged adoption of a standard that would consider a worksite to be within the AIE if the employer has provided housing at the worksite; as normal commuting distance would be measured from each of the various locations where the employer provided housing to workers, employers could file fewer

Applications for Temporary Employment Certification,

each application covering multiple AIEs. Similarly, an agent stated that employers are required to provide housing within a normal commuting distance, which “would allow for multiple work/housing locations on a single application.”

The Department disagrees with commenters who assert that the location of one or more places of employment is not relevant to evaluating normal commuting distance whenever an employer provides transportation from a designated pick-up point, such as the housing it provides to H-2A workers and those workers in corresponding employment who are not reasonably able to return to their own residence within the same day, as provided in § 655.122(d)(1). The Department likewise disagrees that providing additional housing at the place of employment negates the need for the AIE analysis. A worker who does not reside at the pick-up point must commute either to the pick-up point or to the place of employment directly. Further, if the workday does not begin at the pick-up point, the commute for a worker who travels to the pick-up point using their own transportation continues from the pick-up point to the place of employment using the employer's transportation. To the extent a commute involves multiple segments, workers in corresponding employment may not be able to reasonably return to their own residences within the same day. Although an employer would be required to provide such workers with housing, the Department noted in the NPRM (and farmworkers and their advocates agreed in comments) that longer-than-normal commuting distance, transportation issues, and any requirement to live away from home and family are all factors that can discourage U.S. workers from accepting temporary agricultural job opportunities, impacting recruitment and the Department's ability to assess the labor market prior to issuing a final determination. Should a worker in corresponding employment choose not to live in employer-provided housing to reduce the commute, the Department has health and safety concerns, such as driver fatigue that can be exacerbated by increased commute times. In a comment addressing transportation safety under § 655.122(h), a State employment agency noted that driver fatigue in agriculture is a “real and concerning issue,” stating that it is not uncommon to see workers at worksites that are hours away from housing sites. (To the extent these commenters are discussing workers' movement between various places of employment after the workday begins, the Department has addressed this issue above and in § 655.130(e).)

Separately, a workers' rights advocacy organization discussed the use of the definition of AIE for other purposes, for example, to frame the geographic area for prevailing practice and wage surveys, asserting that regulatory language at §§ 655.122(d)(5) and 653.501(c)(2)(i) limits AIE in those contexts to a single State. Those comments with regard to prevailing wage surveys are addressed in the discussion of prevailing wage determinations (PWDs) at § 655.120(c).

In addition to soliciting comments on the proposed definitional changes, the Department invited input on whether it should further revise the definition of AIE either to continue making fact-based determinations on a case-by-case basis, with the consideration of other objective factors such as commuting or labor market area designation systems or other comprehensive commuting studies and data, or to implement a uniform standard, like a maximum commuting distance or time above which a commute would be considered unreasonable in all cases. The Department asked that comments address the advantages and disadvantages of different alternatives and how implementation would provide greater clarity and ensure the integrity of the labor market test.

Commenters varyingly expressed general concerns that the current definition of AIE is too broad, too narrow, or too ambiguous, but without offering an alternative framework. A trade association stated that AIE “varies by the nature of the employer's need and does not fit neatly into one defined box,” while an employer expressed concern that the current definition created such a broad standard that it could result in subjective review of an application. An agent suggested the definition of AIE should be expanded to reflect that agricultural employers now have statewide and interstate production to “reduce crop failure risks, expand marketing windows, and improve capital utilization”; otherwise, the commenter suggested, the definition failed to accommodate modernization of agricultural operations. Many farmworkers emphasized that it is important to them to work close either in distance or time to where they live due to the lack of a driver's license, post-work obligations like schoolwork, and the need to care for their children and be available if family emergencies occur. A workers' rights advocacy organization expressed concern that the definition of AIE leads to a large AIE and results in fewer U.S. worker applicants for job opportunities because the regulation does not require employers to provide transportation to local workers.

Some commenters objected to the use of Metropolitan Statistical Areas (MSAs) in the H-2A program's definition of AIE as an objective means of evaluating a

normal commute in particular areas, but did not offer an alternative. Some trade associations, with support from other commenters, asserted that MSAs and commuting distance have no correlation with the nature of agricultural work. For example, one commenter stated that commute times associated with MSAs “bear little resemblance to how agricultural workers get to their jobs.” A workers' rights advocacy organization expressed concern that many farmworkers will have difficulty traveling to and between distant points within large MSAs and cited language from OMB stating that MSAs “are not designed as a general-purpose framework for nonstatistical activities.”

See 2010 Standards for Delineating Metropolitan and Micropolitan Statistical Areas; Notice,

75 FR 37246 (June 28, 2010). One of the trade associations, with other commenters echoing its statement, noted that the widely varying commute times associated with different MSAs will make it difficult for a Farm Labor Contractor (FLC) to contract with a farmer with certainty about whether the farm will be determined to be inside or outside an arbitrary commute time for that specific MSA.

The commenters who addressed whether the Department should impose a more uniform standard for all employers, such as a maximum commuting distance or time above which a commute would be considered unreasonable in all cases, generally did not support a rigid measure of time or distance applicable in all cases. Several trade associations and an agent stated that use of a specific metric to determine reasonable commuting distance would be difficult due to various factors. An agent commented that employers transport workers to “wherever the work is available,” and the Department should not limit transportation to commute times that may vary widely based on factors like traffic patterns. One stated that measuring commutes in miles would be inappropriate because it would not account for areas in which distance can be traveled quickly, and measuring in time would penalize those who travel difficult terrain or encounter heavy traffic during daily commutes. One trade association stated that there is too much variation in terrain, weather, population concentration, road quality, and traffic across the country to apply a rigid definition of normal commuting distance. Another trade association similarly remarked that it would be impossible to use a definitive rigid measure of reasonable commuting distance due to variation in agriculture across the country, and urged the Department to provide more flexibility. While one agent suggested that a rigid commuting distance could be consistently applied, an employer urged the Department to adopt a flexible approach and not apply a rigid definition of normal commuting distance.

The commenters who suggested a maximum commute distance or commute time disagreed as to an appropriate limit. Trade associations, individual employers, and an agent suggested the Department should not consider a commute time to be unreasonable unless, for example, the worksite is at least 2 hours from the housing, the pick-up point, or both. One viewed it as a more easily understood approach that “would prevent any misunderstanding of whether a specific farm will fit an MSA's commute time and better conform to the realities of agricultural employment.” An agent commented that a smaller, more restrictive AIE is not helpful to anyone, neither the small local workforce that is not large enough for farmers' needs, nor the farmer who will have to artificially separate parts of its widespread operation to fit into discrete AIEs. This commenter argued that the Department has “no statistics that legal, local or domestic workers would take jobs if they were just confined to about a 60-mile radius of any one farm.” By comparison, a workers' rights advocacy organization urged the Department to limit the definition of “normal commuting distance” to distances “considerably shorter than the 60+ mile figure” requested by employers and suggested that a more reasonable maximum distance might be 45 miles. Some commenters who opposed a maximum commuting distance stated that if the Department were to adopt a maximum distance standard, it should provide flexibility to account for typical travel delays.

Upon careful consideration of all comments received, the Department declines to further modify the definition of AIE. Although using MSAs as a proxy for commuting area may result in broader geographic areas than might seem typical for jobs in rural areas, employers are required to provide housing to any worker in corresponding employment unable to reasonably return home at the end of the workday, including those who reside within the broadly identified commuting area. Some commenters appeared to conflate the concept of “reasonable commuting distance” as used in this section with the requirement that the employer provide housing to workers in corresponding employment who are not reasonably able to return to their residence within the same day. The Department notes that reasonable commuting distance as it relates to AIE is a general concept, whereas a determination as to whether a worker in corresponding employment is reasonably able to return to their residence at the end of the day is specific to the worker in question. Therefore, it is possible that a worker in corresponding employment could reside within a reasonable commuting distance of the place of employment, but could not reasonably return to their residence at the end of the day due to personal circumstances (

e.g.,

lack of a private vehicle or public transportation). In such a situation, the employer would be required to offer housing to the worker in corresponding employment. Therefore, while commenters provided certain arguments that MSAs might be an imperfect fit in some situations, these comments neglect to consider the continued value in using MSAs to provide a level of predictability and adjudicatory consistency for employers nationwide, which the Department and many commenters both consider important. As commenters have not identified any clearly superior alternative, this final rule continues to rely on a case-by-case approach to assessing AIE given the varying circumstances across areas that affect travel and commuting times.

c. Average AEWR

The NPRM proposed to define a new term “average adverse effect wage rate” (average AEWR). The term is necessary to effectuate the Department's proposal to make adjustments to the H-2ALC surety bond amounts based on changes to a nationwide average AEWR. The Department proposed to calculate the average AEWR as a simple average of the published AEWRs applicable to the Standard Occupational Classification (SOC) 45-2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse) and publish an updated average AEWR annually to serve as the benchmark for future adjustments to the required bond amounts.

The Department received only two comments specifically relating to the proposal to define the average AEWR. Both commenters misunderstood the nature of this proposal, believing that the Department was proposing an alternative to the wage sources listed in § 655.120(a), and opposed the proposal for this reason. The Department reiterates that the average AEWR is only intended to be used as a benchmark for

making adjustments to the required bond amounts. Under this proposal, the average AEWR does not change or replace the wage rate required under § 655.120(a).

See

84 FR 36168, 36179 (explaining that the Department proposes to maintain 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, with only minor changes).

Accordingly, the Department adopts the definition of average AEWR with minor modifications. As defined in this final rule, the average AEWR is the simple average of the AEWRs applicable to the SOC 45-2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse) and published by the OFLC Administrator in accordance with § 655.120.

The revised definition clarifies that once set, the average AEWR remains in effect until the OFLC Administrator publishes an adjusted average AEWR and it becomes effective. Adjustments to the average AEWR will occur consistent with the schedule for adjusting the relevant AEWRs under § 655.120.

The AEWR methodology proposed in the NPRM would have resulted in the publication of separate AEWRs specific to the SOC 45-2092 and other occupational classifications for field and livestock workers. Under the modifications made to the Department's AEWR methodology in the 2020 H-2A AEWR Final Rule, the OFLC Administrator would instead publish an AEWR for each State for a combined field and livestock workers category, which would be applicable to the SOC 45-2092. However, as discussed above, the 2020 H-2A AEWR Final Rule was preliminarily enjoined in

United Farm Workers

U.S. Dep't of Labor,

No. 20-cv-01690 (E.D. Cal. Dec. 23, 2020). Regardless of the precise AEWR methodology used, the average AEWR will be based on the AEWRs that apply to the SOC 45-2092, whether they are SOC-specific or for a combined field and livestock workers category.

d. Corresponding Employment

The NPRM did not propose amendments to the definition of corresponding employment or request comments on any aspect of the definition. However, the Department received a few comments suggesting modifications to the definition, none of which necessitated substantive changes to the regulatory text from the NPRM. Therefore, this final rule retains the definition of corresponding employment from the current rule without change.

Several commenters stated that the definition should be modified to include a de minimis exception, allowing non-H-2A workers to perform a limited amount of work similar to the duties described in the job order or performed by the H-2A workers without being considered to be engaged in corresponding employment. Alternatively, several commenters indicated that the definition should be more similar to the definition of corresponding employment under the H-2B program regulations, which defines corresponding employment to include work that is either substantially similar to the work included in the job order or substantially the same work performed by H-2B workers, and excludes certain full-time, incumbent employees.

See

20 CFR 655.5; 29 CFR 503.4.

The Department has carefully considered these comments requesting that the definition of corresponding employment be revised and narrowed but declines to alter the definition of corresponding employment at this time. The Department did not propose any changes to the definition of corresponding employment or request comments on any aspect of the definition. Many parties who would be affected by any change in the definition of corresponding employment therefore had no reason to anticipate any change in the current definition or to provide input as to how the definition could be revised. The Department received only a limited number of comments on this topic, all from employers and their representatives, with no feedback from other affected parties to enable the Department to obtain multiple perspectives on this issue. Further, the regulation provides important protections for workers by requiring that non-H-2A workers performing the same work as H-2A workers receive the same wages and working conditions as H-2A workers. Accordingly, the Department declines to adopt any changes to the definition of corresponding employment.

e. Employer and Joint Employment

The NPRM proposed amendments to the definitions of “employer” and “joint employment” to clarify the use of these terms in the filing of

Applications for Temporary Employment Certification

and the responsibilities of joint employers, consistent with the INA and the Department's longstanding administrative and enforcement practice. The Department received many comments on these proposed definitions, none of which necessitated substantive changes to the regulatory text. Therefore, as discussed below, these definitions remain unchanged from the NPRM with one minor revision.

Section 218 of the INA recognizes that growers, agricultural associations, and H-2ALCs that file applications are employers or joint employers.

In conformity with the statute as well as the Department's current policy and practice, the NPRM proposed to clarify the definitions of employer and joint employment with respect to the H-2A program to include all of those entities the statute deems employers or joint employers. Specifically, the Department proposed to add language to the definition of joint employment to clarify 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. The Department further proposed 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 employer-member employs H-2A workers sponsored under the association's joint employer application. The Department proposed to add language to the definition of joint employment to clarify that growers that 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 all workers in corresponding employment. In light of these proposed changes, the Department also proposed a slight change to the joint employment language in the current regulation to clarify that entities that do not file applications but jointly employ workers under the common law of agency are also joint employers that may be held liable for violations under the statute. In other words, entities that file applications as joint employers are joint employers as a matter of law, regardless of the common law of agency. The Department will assess the joint employer status of all other entities based on the nature of the employment relationship between the putative joint employer and the worker under the common law of agency, as provided in the existing definition of employee at § 655.103 and required by Supreme Court precedent. In addition to the proposed changes to the definition of joint employment, the Department proposed 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 and, similarly, that a person on whose behalf an application is filed is an employer. As the Department noted in the NPRM, these proposed revisions reflected the Department's longstanding administrative and enforcement practice that is already familiar to employers.

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 its [employer-]members”).

Joint Employment for Agricultural Associations Filing as a Joint Employer With Their Employer-Members

The Department received numerous comments related to its proposal to clarify 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. Two associations supported the proposed definition of joint employment. Two other associations submitted lengthy comments opposing the proposal. The two associations opposing the proposal each asserted the INA does not permit the Department to impose joint employer liability on an agricultural association for the violations of an association member, unless the association committed, participated in, or had knowledge of the violation. The associations cited sec. 1188(d)(3)(A) of the INA, which limits the debarment of joint employer agricultural associations based on violations an employer-member commits to instances in which the agricultural association committed, participated in, had knowledge of, or had reason to know of the violation. The associations submitted that Congress's specific choice to permit debarment for an employer-member violation only when an agricultural association meets this standard evinces a general intent to hold agricultural associations otherwise accountable for employer-member violations only when they committed, participated in, or knew of the underlying violation.

The associations explained that Congress conferred a “special status” on agricultural associations “in order to level the playing field for small employers” and that imposing joint employer liability on agricultural associations that elect to file a joint employer application would “frustrate that status” because associations cannot afford exposure to such liability. Both assert that exposure to such liability would result in associations' inability to file joint employer applications. The associations also stated that the Department has historically applied the common law of agency to determine whether an entity employs a worker and oppose the “proposed radical change to agency law.”

Two other associations asserted that the Department has never held an association liable for employer-member violations unless the association was involved in or directly participated in the violation. One of these associations also agreed with the two associations described immediately above that the proposal to hold agricultural associations accountable for employer-member violations when the agricultural association elected to file a joint employer application is inconsistent with the statute. That association also commented that the proposal will reduce small farmers' access to the program and potentially threaten the existence and participation of associations in the program. And finally, various other employer commenters lodged general objections to holding associations liable for the violations that their employer-members commit.

Another agricultural association that submitted a comment (generally supported by several other commenters, including trade associations and individual employers) offered no criticism of the NPRM's clarification that agricultural associations that file a joint employer application are liable at all times for violations committed against H-2A workers sponsored under the applications as well as any applicable corresponding workers.

A workers' rights advocacy organization supported the Department's proposal to clarify that an agricultural association that elects to file a joint employer application is at all times a joint employer of the H-2A workers sponsored under the application as well as any corresponding workers. The commenter submitted that the clarification will incentivize associations to monitor employer-member compliance with program requirements.

After carefully considering the comments it received, the Department has decided to retain its proposed clarification of the definition of joint employment to include language specifying 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 any corresponding workers. The plain language of sec. 1188(d) of the INA requires this interpretation. Section 1188(d)(2) only allows an agricultural association to file a single application on behalf of its employer-members to sponsor H-2A workers that it may “transfer” among its membership “[i]f [the agricultural] association is a joint or sole employer of temporary agricultural workers.”

Thus, an association attests to joint employer status when it submits a joint employer application for authorization to transfer H-2A workers among its membership. In addition to permitting the association to transfer H-2A workers, filing a single application rather than individual applications on behalf of each employer-member of an agricultural association results in significant financial savings and substantially reduces the efforts and costs associated with the required recruitment and advertising. The statute requires an agricultural association to assume joint employer (or sole employer) status to qualify for these benefits.

Even if the statutory language did not compel this result, the Department would nevertheless adopt this interpretation as agricultural associations are uniquely positioned to be knowledgeable of program requirements, and this requirement encourages associations that transfer workers among their employer-members to ensure that their employer-members understand program rules and regulations, assist their membership in achieving compliance, and provide accountability for agricultural associations filing as joint employers.

See also

the title of sec. 1188(d)(2) (“Treatment of Associations

Acting as

Employers.”) (emphasis added).

See Admin.

WAFLA,

ALJ No. 2018-TAE-00013 (OALJ Aug. 25, 2021),

appeal pending,

ARB No. 2021-0069 (agricultural association is a joint employer of workers employed under master application as a matter of law);

Little

Solis,

297 FRD. 474, 478 (D. Nev. Jan. 27, 2014) (as a joint employer applicant, agricultural association is a joint employer of H-2A workers for purposes of the H-2A program);

Ruiz

Fernandez,

949 F. Supp. 2d 1055, 1072 (E.D. Wash. June 7, 2013) (an agricultural association that submits a joint employer application is a party to the H-2A workers' work contracts as a matter of law);

Martinez-Bautista

D & S Produce,

447 F. Supp. 2d 954, 962 (E.D. Ark. Aug. 25, 2006) (entities that jointly applied to employ H-2A workers are joint employers of the workers);

cf. WHD

Native Techs., Inc.,

ARB No. 98-034, 1999 WL 377285, *6 (ARB May 28, 1999) (filer of a labor condition application under H-1B provisions of the INA is an “employer” by operation of law, independent of criteria under the common law test of employer);

but see Admin.

Azzano Farms & WAFLA,

ALJ No. 2019-TAE-00002 (OALJ Oct. 2, 2019),

appeal pending,

ARB No. 2020-0013.

Should an agricultural association prefer not to accept the obligations of joint (or sole) employment, it may choose instead to file individual applications on behalf of its employer-members as an agent, thereby limiting its liability, consistent with sec. 1188(d)(1) (but also foregoing the privileges that apply if it files a Master Application). The statutory scheme accordingly permits an agricultural association to choose to assume the

traditional responsibilities of a joint/sole employer, including any liability to the workers it jointly/solely employs—or file an application as an agent and generally avoid employer liability. However, when associations file as agents, H-2A workers cannot be transferred among their employer-members, pursuant to sec. 1188(d)(2).

The Department notes the contention that it has never sought to hold an agricultural association liable for employer-member violations unless the agricultural association was involved in the violations is inaccurate. Holding an association accountable for employer-member violations when the association attested to joint employer status is consistent with WHD's current statutory interpretation and its enforcement policy. WHD is presently asserting before the ARB that an association is liable for its employer-member's violations based solely on its having filed a joint employer application.

WHD has also previously sought to enforce program requirements against other associations based solely on their election of joint employer status.

See Azzano Farms,

ARB No 2020-0013;

WAFLA,

ARB No. 2021-0069.

Additionally, it is inaccurate to state that sec. 1188(d)(3)(A) provides that violations committed by an association member are not the responsibility of an association unless the Secretary determines that the association participated in, had knowledge of, or had reason to know of the violations. Rather, this section provides that an association

is not subject to debarment

when an employer-member commits a violation (unless the Secretary determines that the association or other employer-member participated in, had knowledge of, or had reason to know of the violations). Read together, sec. 1188(d)(2) and (3)(A) assign full legal responsibility to agricultural associations for employer-member violations, with the exception of a release from program debarment for an agricultural association when the Department cannot satisfy sec. 1188(d)(3)(A)'s more exacting standard.

The debarment standard provides a meaningful limitation on the Department's authority to debar an agricultural association for its employer-member's violations. Consistent with the provision, the Department's implementing regulations do not permit the Department to debar an association merely because its employer-member committed a substantial violation that subjects the employer-member to debarment.

See

29 CFR 501.20(f).

When an association is not subject to debarment, civil money penalty assessments against the agricultural association for employer-member violations may be lower than those assessed for association members. As the Department noted in the NPRM, it will continue to apply its longstanding policy with respect to imposing liability among culpable joint employers. This policy includes consideration of the factors at § 501.19(b) when the Department assesses civil money penalties. The Department applies these factors to joint employers on a case-by-case basis. Thus, 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.

Joint Employment for Employers Filing Joint Employer Applications Under § 655.131(b)

The Department received various comments concerning its proposal to add language to the definition of joint employment clarifying that growers that 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 any corresponding workers. Five organizations representing growers' interests expressed appreciation that the Department was proposing to permit “small growers to jointly apply” for H-2A workers and to permit such growers to share H-2A workers. However, these commenters, as well as a sixth organization, all opposed the Department's proposal to treat each grower as a joint employer at all times for purposes of liability. The five organizations representing growers' interests requested that the Department only hold employer(s) that commit a program violation accountable. They asserted that co-applicants that do not commit the violations are “innocent” and should not be held liable “for another employer's violation(s).” The sixth organization similarly submitted that “[o]nly the employer [that] is guilty for violating the terms of the program should be penalized.” Another organization representing growers' interests likewise contended “there is no basis for extending liability to any entity that did not have knowledge of or participate in any violation . . . .”

A workers' rights advocacy organization suggested that the job order that joint employers file in connection with a § 655.131(b) joint employer application should include language specifying that all named employers are agreeing to joint employment liability for the entire period of employment listed on the order. Otherwise, the commenter asserted, joint employers might contend liability extends solely to the dates on which H-2A workers complete work at the property owned or operated by the particular employer. The commenter specifically submitted this addition is necessary to prevent joint employer applicants from “disputing joint employment should something go wrong.”

The Department has reviewed closely the comments it received on this subject. It has decided to retain its proposed clarification of the definition of joint employment to include language specifying that the joint employers that file an application under § 655.131(b) are,

at all times,

joint employers of all H-2A workers sponsored under the application and, if applicable, of corresponding workers. The purpose of the Department's proposal to add § 655.131(b) to its implementing regulations was to permit a small grower that has a need for H-2A workers but cannot, alone, guarantee full-time employment to use the H-2A program by joining with another (or other) small grower(s) in the same area to obtain H-2A workers to perform the same work. Full-time employment under the program is 35 hours per workweek.

See

§ 655.135(f). The proposal accordingly permits co-applicants that cannot, alone, employ a worker for 35 hours per workweek to file an application together to employ H-2A workers and to move sponsored H-2A workers from one employer to another to satisfy the 35 hours per workweek requirement.

The statute specifically contemplates that all filers (other than agents) are employers and only expressly permits an entity (

i.e.,

an agricultural association) to move H-2A workers from one employer to another when the entity agrees to retain program responsibility and liability with respect to the workers it moves.

See

8 U.S.C. 1188(d)(2). Therefore, as the Department stated in the NPRM and reaffirms here, the statute requires entities that jointly apply for H-2A workers whom they intend to move among themselves to retain program responsibility with respect to the H-2A workers and, if applicable, any corresponding workers. Because the statute provides that an entity permitted to move H-2A workers from one employer to another must

retain program responsibility with respect to the workers, and because the retention of such responsibility will aid the Department's enforcement of the program and enable corresponding workers and H-2A workers to obtain the wages they are owed consistent with joint employment principles, the Department is not adopting the commenters' request to release co-applicants from liability for the violations that another co-applicant commits. Thus, if the Department determines any employer named in the

Application for Temporary Employment Certification

under § 655.131(b) 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. 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 approach not only conforms to the statute, it is consistent with judicial authority.

Further, even if the statutory language did not require this interpretation, the Department would adopt it. The Department believes this policy will encourage employer compliance while helping to ensure that any back wages owed by joint employers will be paid. As an enforcement matter, it can be difficult to determine exactly where workers employed by joint employers are employed in a given workweek. The focus on the joint nature of the employment rather than the individual employer will assist in obtaining the wages owed to workers in the event they are underpaid and provide an incentive for all joint employers to maintain and monitor compliance.

Martinez-Bautista

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).

However, the Department retains discretion to impose lower civil money penalties against the joint employers that did not commit the underlying violation. If it determines any such penalties are appropriate, such penalties may be less than those it imposes against the joint employer that committed the violation. As the Department noted above, it 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. Thus, for example, if the Department determines a joint employer had no previous history of violations, but that the other joint employer had a previous history of violations, the civil money penalty, if any, applicable to the joint employer with no previous history of violations would likely be less than that applicable to the joint employer that committed the violation.

Furthermore, as with agricultural associations that filed a joint employer application with their employer-members, the Department will not debar a joint employer that filed a joint employer application under 20 CFR 655.131(b) merely because another joint employer committed a substantial violation that subjects that other joint employer to debarment. Thus, for instance, if employer D in the example above did not participate in employer C's violation, the Department will not seek to debar employer D, even if employer C's underlying violation is substantial and subjects employer C to a debarment remedy. The Department has edited 20 CFR 655.182(h) and 29 CFR 501.20(f) to confirm this approach.

Joint Employment Period for Employer-Members Employing H-2A Workers Under an Agricultural Association Filing as a Joint Employer With the Employer-Members

The Department proposed to clarify the definition of joint employment to include an employer-member of an agricultural association that is filing as a joint employer during the time the employer-member employs H-2A workers sponsored under the association's joint employer application. Therefore, an employer that employs H-2A workers sponsored under an agricultural association joint employer application is jointly employing the H-2A workers with the agricultural association and, accordingly, is liable for any violations committed during the period it employs such workers. The proposed rule additionally clarified that an employer that is a member of an agricultural association that filed a joint employer application is

only

in joint employment with the agricultural association when it is employing the pertinent H-2A workers. Thus, if employer-member A commits program violations at a time when it is the only employer-member jointly employing the pertinent H-2A workers with the agricultural association, other employer-members within the association are not liable for such violations (provided the other employer-members did not participate in the violations, which were substantial, and thereby subject themselves to debarment).

See

8 U.S.C. 1188(d)(3)(A); 29 CFR 501.20(f). The Department received no comments that caused it to reconsider this proposal. The Department has accordingly implemented the provision unchanged from the NPRM in this final rule.

The Department notes that the arrangement described above under § 655.103(b) is different from employers filing joint employer applications under § 655.131(b) that are, at all times, liable for any violation that another joint employer commits. As discussed previously, each § 655.131(b) joint employer is permitted to move H-2A workers to its co-applicants, whereas it is the agricultural association, not the employer-member, that may transfer workers when the agricultural association files as a joint or sole employer. The statute expressly permits an association to move H-2A workers from one entity to another

only

when the association agrees to retain program responsibility with respect to the moved H-2A workers by filing as a joint or sole employer. The Department has accordingly concluded that to permit § 655.131(b) joint employers to move workers, it must require the joint employers, like an agricultural association permitted to transfer H-2A workers, to retain program responsibility with respect to the H-2A workers. In short, the legally relevant analog to § 655.131(b) joint employers for purposes of determining whether to require such employers to retain program responsibility at all times is an agricultural association that files a joint or sole employer application (not an employer-member of such an association). As a matter of policy, providing joint employers joint responsibility also serves to better ensure compliance with statutory and regulatory requirements in the same way that shared responsibility between associations and their membership incentivizes compliance.

The Joint Employment Language More Expressly Codifies That the Common Law of Agency Determines Joint Employer Status for Non-Filers

In the NPRM, the Department proposed a slight change to the joint employment language in the current regulation to make clear that an entity that meets the definition of employer under the common law of agency but did not file an H-2A application is a joint employer. As the Department explained in the NPRM, controlling judicial and administrative decisions provide that to the extent a Federal

statute does not define the term employer, the common law of agency governs whether an entity is an employer.

Accordingly, the proposal continued to use the common law of agency, as provided by current § 655.103 in the definition of employee, to define the term joint employment for associations and growers that have not filed applications (as well as to define the term employer when an entity has not filed an application). Thus, for example, under the Department's current and continuing enforcement policy—with which employers are already familiar—a grower is a joint employer with an H-2ALC with which it contracts to provide H-2A workers if the grower is jointly employing the H-2A workers under the common law of agency. The Department received no comments that caused it to reconsider this proposal. It has accordingly implemented the proposal unchanged from the NPRM in this final rule.

See Nationwide Mutual Insurance

Darden,

503 U.S. 318, 322-24 (1992);

Garcia-Celestino

Ruiz Harvesting,

843 F.3d 1276, 1288 (11th Cir. 2016);

Admin.

Seasonal Ag. Services, Inc.,

ARB Case No. 15-023, 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 id.

at 1293 (citing

Darden,

503 U.S. at 323-24).

The Department additionally notes, as it did in the NPRM, that the current H-2A program definitions of employer and joint employment, as well as those the Department is implementing herein, are different from the definitions of “employer,” “employee,” and “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).

The Department Is Adopting Clarifications to the Definition of Employer Proposed in the NPRM

In the NPRM, the Department proposed to add language to the definition of employer to clarify both that a person who files an application other than as an agent is an employer and that a person on whose behalf an application is filed is an employer. An employer association opposed the proposed clarification. Its comment appeared to say that the definition of employer should be no broader than an entity that employs H-2A workers under the common law of agency. Two other associations asserted the proposed clarifications to the definition of employer are inconsistent with the INA. These two associations specifically asserted the statute does not permit the Department to hold agricultural associations accountable as an “employer” when they have filed a joint employer application on behalf of their employer-members. The Department addressed above why the statute not only permits but also requires it to treat an agricultural association that files a Master Application as a joint employer of the pertinent workers. Because a joint employer is simply an employer of workers that another entity also employs, the statute requires the Department to treat an agricultural association that files an application as a joint employer as an “employer.” The Department's clarification of the definition of employer to include those that file an application (other than as an agent) is not only consistent with the INA; the INA compels it. Further, even if the INA did not compel this conclusion, the Department would nonetheless adopt these clarifications as a matter of good policy. The Department believes this policy will encourage employer compliance by providing an incentive for associations to disseminate information, make additional inquiries regarding their employer-members' responsibilities to workers under certified H-2A applications, and help to assure that any back wages owed by joint employers will be paid in full.

The Department also received a comment that the current definition of employer does not adequately contemplate complex business organizations. It is beyond the scope of this rulemaking for the Department to determine all the ways that a business seeking to use the H-2A program might organize itself. The Department hopes the following general guidance will be useful to entities that use complex business structures. The Department will treat the entity that files an application as an employer unless the filer identifies itself as an agent. If the filer identifies itself as an agent, the Department will treat as an employer the entity the agent identifies as its principal. The Department will also treat any other entity that actually employs the pertinent H-2A workers under the common law of agency as an employer. For example, if one entity within a complex business organization files an application as an employer and another entity within the same complex business organization employs the workers under the common law of agency, the Department will treat each entity as an employer (whether or not the filer jointly employs the workers under the common law). Other tests that may pertain to the employment relationship under Federal common law such as the integrated employer or the successor in interest tests may also be applicable depending on the facts of the individual case. This paragraph is intended to provide general guidance, however, and as mentioned above, it is beyond the scope of this rulemaking to determine all the ways that a business seeking to participate in the program might organize itself.

A commenter also brought to the Department's attention a minor grammatical error in the regulatory text's definition of employer at paragraph (iii). The Department agrees with the commenter and has made a minor technical change to the language to address the grammatical error.

Employer-Member Responsibility for Violations Committed Under a Joint Employer Application Filed by an Agricultural Association

Consistent with existing practice, the Department observed in the NPRM that 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 the employer-member employs the workers. The Department further noted that 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 fiscally responsible for program violations. The Department received no comments opposing this approach and is accordingly implementing it unchanged from the NPRM.

Department's Approach To Imposing Liability Among Culpable Joint Employers

In the NPRM, the Department proposed to continue to apply its longstanding policy with respect to imposing liability among culpable joint employers. This policy, as noted previously, 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.

The Department received multiple comments supporting this approach. For example, a grower association specifically voiced its support for the

case-by-case approach. The Department also received a comment from another grower association opposing this approach, however, arguing that only the culpable party or parties should be assessed a civil money penalty. As noted above, the Department will apply the relevant factors on a case-by-case basis to joint employers and thus appropriately consider culpability. The Department accordingly intends to continue to assess civil money penalties against joint employers in this manner.

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 proposed to move these requirements to §§ 655.121(a)(1) and 655.130(a). The proposal required 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.

The Department is implementing its proposal to move these requirements unchanged from the NPRM in this final rule.

f. First Date of Need and Period of Employment

The NPRM proposed to add definitions of the terms “first date of need” and “period of employment.” The Department received many comments on the definition of “first date of need” and has revised the proposed definition after consideration of these comments, as discussed below. The Department received no comments on the proposed definition of “period of employment” and has adopted the definition without change from the NPRM.

The Department explained in the NPRM that an employer indicates the period of employment on its job order and

Application for Temporary Employment Certification

by identifying the first and last dates on which it requires the temporary agricultural labor or services for which it seeks a temporary agricultural labor certification. The first date the employer identifies on the job order and

Application for Temporary Employment Certification

is used as the date on which work will start for purposes of recruitment and for calculating program requirements (

e.g.,

the positive recruitment period under § 655.158). However, as actual start dates may vary due to such factors as travel delays or crop conditions at the time the employer expected work to begin, the Department proposed to define the term “first date of need” as the first date on which the employer “anticipates” requiring the temporary agricultural labor or services sought. The Department explained that the inclusion of the word “anticipates” in the definition would provide a limited degree of flexibility—up to 14 calendar days after the first date of need listed on the temporary agricultural labor certification—for the actual start date of work for some or all of the temporary workers hired to occur.

Commenters who supported the proposed definition and the inclusion of the word “anticipates,” included employers, agents, trade associations, two State government commenters, and a State elected official. These commenters asserted that some flexibility to adjust actual start dates would simplify the program and facilitate both compliance and administration, while ensuring workers still receive the benefits promised.

Commenters who opposed the definition, including a workers' rights advocacy organization and farmworkers, focused their opposition on the potential for actual start date variability underlying the word “anticipates.” These commenters asserted that delayed start dates are harmful to workers, who value predictability and certainty in employment start dates, particularly where they turn down other work or have to travel far to make themselves available to work at the time and place needed. In addition, these commenters stated that farmworkers have expenses beyond housing and meals and cannot afford to lose expected pay for up to 2 weeks, should the actual start date be later than the first date of need offered. Similarly, one State government commenter recommended the Department further clarify employer obligations to provide subsistence and/or meals to workers when work does not start on the anticipated start date to ensure that employers understand and satisfy those obligations.

The workers' rights advocacy organization urged the Department to strengthen protections in the employment service regulations at § 653.501(c)(5) if the Department retains the proposal, by requiring the employer to pay workers the hourly rate for the hours listed on the job order on each day work is delayed (not only the workdays in the first workweek), unless the employer notifies both the SWA and worker (not only the SWA) at least 10 days before the anticipated start date, and setting the three-fourths guarantee calculation to the anticipated start date, rather than the actual start date. Amending the regulations at § 653.501(c)(5) as suggested would be a major change to that regulation that commenters and stakeholders could not have anticipated as an outcome of the proposed definitions, thus warranting additional public notice and opportunity for comment. As such, the Department declines to adopt the suggestion at this time.

A number of commenters expressed concern about the proposal. One employer thought workers might misuse the definition to arrive “late” and, as a result, employers would not have workers in place when needed. However, the Department did not intend for this definition to provide a flexible window for workers' arrival at the place of employment without the employer's consent. During recruitment, workers agree to make themselves available at the time and place needed. Should a worker not report for work for 5 consecutive working days without the employer's consent, the employer may exercise the abandonment provision at § 655.122(n). In addition, a workers' rights advocacy organization expressed concern about the definition's application in master applications (

i.e.,

applications agricultural associations may file in joint employment with their employer-members). The commenter thought that the actual start date flexibility, when combined with the Department's proposal to allow employer-members' actual start dates to vary by up to 14 days, could result in workers employed under a master application having actual start dates that vary by up to 28 days. This commenter asserted that this combination would increase the complexity of master applications and uncertainty for workers, which could discourage U.S. workers from applying. However, the proposed definition was intended to anchor the 14-day actual start date flexibility applicable to all employer-members on the master application to the earliest anticipated start date of any employer-member included in the application. As a result, all employer-members included in the master application would have been limited to the same 14-day “anticipated” start date flexibility window as any other H-2A application, calculated from the earliest employer-member start date included in the application.

One commenter supported the definition and the 14-day flexibility discussed but stated 30 days of flexibility would be preferable. The commenter's suggestion would amplify

concerns other commenters have expressed about workers waiting for work to begin, which is a concern shared by the Department. In addition, the suggestion is inconsistent with the Department's observation of existing practice, as discussed above, in which a start date may vary slightly due to factors beyond an employer's control. Because the Department intended in the NPRM to clarify, not change, existing requirements and practice regarding anticipated and actual start dates, the Department declines to adopt the suggestion by the commenter.

After consideration of the comments and suggestions, the Department reiterates that the proposed definition, including the word “anticipates,” was only intended to make plain the Department's existing understanding that a projected start date of need is difficult to set with certainty, given the required time periods for filing, and the actual start date of agricultural work must be afforded some flexibility to accommodate environmental and other agricultural conditions at the time work was projected to begin. For example, the Wagner-Peyser agriculture clearance system uses the term “anticipated” in relation to start dates and provides a process close to the start date the employer identified in the job order for the employer, the SWA, and referred farmworkers to communicate regarding the actual start date of work.

See

§ 653.501(c)(1)(iv)(D), (c)(3)(i) and (iv), (c)(5), and (d)(4). These regulations require an employer to notify the SWA of start date changes at least 10 business days before the originally anticipated start date and require the SWA to notify farmworkers that they should contact the SWA between 9 and 5 business days before the anticipated start date to verify the actual start date of work. § 653.501(c)(5) and (d)(4).

The Department also appreciates the opportunity to clarify employer obligations and worker protections regarding possible changes from the first date of need disclosed in the H-2A job order to the actual start date of work. As discussed above, the Wagner-Peyser agriculture clearance system regulations facilitate communication between employers and farmworkers before workers who must travel to the place of employment depart for the place of employment. If an employer fails to timely notify the SWA of a start date change (

i.e.,

at least 10 business days before the anticipated first date identified in the job order), beginning on the first date of need, it must offer work hours and pay hourly wages to each farmworker who followed the procedure to contact the SWA for updated start date information.

See

§ 653.501(c)(3)(i) and (c)(5). In addition, under the Department's H-2A regulations at § 655.145(b), if an employer requests a start date delay after workers have departed for the place of employment, the employer must assure the CO that it will provide housing and subsistence to all workers who are already traveling to the place of employment, without cost to the workers, until work commences. If an employer fails to comply with its obligations, the SWA may notify the Department's WHD for possible enforcement, as provided in § 653.501(c)(5), or the Department may pursue revocation of the temporary agricultural labor certification, following the procedures at § 655.181, or debarment of the employer, following the procedures at 20 CFR 655.182 or 29 CFR 501.20.

Although the January 2021 draft final rule would have adopted the proposed definition of “first date of need,” after further consideration of the comments, the Department has determined that adopting the definition as proposed—including the term “anticipates,” which the Department explained as a 14-day start date flexibility in the actual start date of work—in this final rule could increase, rather than decrease, complexity and confusion with regard to an employer's obligations in the event a start date delay is necessary. Including the word “anticipates” in the definition added ambiguity to the requirement, which could increase the potential for miscommunication or misunderstandings about when workers should be expected to begin work, or from when they should expect to be compensated. For example, as discussed above, commenters interpreted the proposal to mean that workers could choose to arrive within a flexible window of time, or that this would allow a variability of up to 28 days in master applications. In addition to the potential confusion this change might cause, the Department agrees that adding this language without also considering additional worker protections could be detrimental to workers, and this was not the Department's intention. As such, the Department has revised the definition of “first date of need” in this final rule to remove the term “anticipates” and the related 14-day flexibility for the actual start date of work.

While the Department appreciates the suggestions commenters made with regard to enhancing existing worker protections related to start date delays, those suggestions are beyond the scope of this rulemaking as noted above. The proposal within the scope of this rulemaking was inclusion of start date flexibility of up to 14 days in the definition of “first date of need” and conforming language. For clarity, the Department reiterates that revising the proposed definition has no impact on the employer's obligations in the event of a start date delay, for example, under the Wagner-Peyser agriculture clearance system regulations.

g. Job Order

The NPRM proposed minor amendments to the definition of “job order” to conform to the proposed change under § 655.121, requiring electronic filing of the job order by the employer and transmittal of the approved job order by the CO to the SWA, and updating the job order form name and number. The Department received one comment on the proposed changes to this definition, which did not necessitate substantive changes to the regulatory text. Therefore, as discussed below, this definition remains unchanged from the NPRM.

A workers' rights advocacy organization expressed support for the proposal, explaining that electronic filing would streamline processing times and reduce burden, but commented that the SWA, in addition to the NPC, should receive immediate notice of the filing of the job order and proposed that the words “and SWA” be added to the end of the proposed definition. The Department appreciates the comment but respectfully declines. As explained in addressing comments on § 655.121, the changes to the job order filing process, under this final rule, avoid duplication of processes and will create significant savings and efficiencies for employers, SWAs, and the Department. Furthermore, transmission of the job order to the SWA will be virtually instantaneous upon submission in OFLC's Foreign Labor Application Gateway (FLAG) system.

h. Prevailing Wage

Proposed Definition in 20 CFR 655.103(b)

The NPRM defined prevailing wage as the 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). The Department received no comments on this change. This final rule therefore adopts the language of the NPRM with a minor revision to account for a prevailing wage for a distinct work task or tasks performed within a crop or

agricultural activity, as applicable. This modification conforms the definition of prevailing wage with current practice and language in ETA Handbook 385, as well as changes made to other portions of § 655.120(c) in this final rule, discussed below.

Proposal in 20 CFR 653.501(c)(2)(i)

The current H-2A regulation defines “prevailing wage” as the “[w]age established pursuant to § 653.501(d)(4),” the Wagner-Peyser Act regulation that covers clearance of both H-2A and non-H-2A interstate and intrastate agricultural job orders. Due to regulatory revisions to part 653, § 653.501(d)(4) no longer addresses prevailing wages but rather discusses the referral of workers.

The current version of § 653.501(c)(2)(i), in turn, requires SWAs to ensure the employer has offered no less than the higher of prevailing wages or the applicable Federal or State minimum wage for H-2A and non-H-2A agricultural job orders, but it does not address how prevailing wages are established.

The Department revised 20 CFR part 653 in 2016 in response to the enactment of the Workforce Innovation and Opportunity Act in 2014, which amended the Wagner-Peyser Act.

See

Final Rule,

Workforce Innovation and Opportunity Act,

81 FR 56072 (Aug. 19, 2016). The contents in § 653.501(d)(4) are now located, with changes not relevant here, in § 653.501(c)(2)(i).

In the NPRM, the Department proposed to use the same methodology to establish the prevailing wage for both H-2A and non-H-2A agricultural job orders. As a result, it proposed to amend § 653.501(c)(2)(i) to define “prevailing wage” for the agricultural recruitment system in the same manner as the Department proposed to define “prevailing wage” for the H-2A program in § 655.103(b). Section 655.103(b), as proposed, defined “prevailing wage” as “[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 [S]tate that meets the requirements in § 655.120(c).” As discussed below, this final rule adopts the proposed amendment to § 653.501(c)(2)(i) with minor clarifying changes.

A workers' rights advocacy organization opposed the Department's proposed change to § 653.501(c)(2)(i) on the basis that it only referred to prevailing wage surveys, thus establishing such surveys as the “sole mechanism” to determine whether the prevailing wage rate is the highest rate of pay. This commenter expressed concern that the proposal would reduce the SWA's role in determining prevailing wages. The commenter explained the current regulation at § 653.501(c)(2)(i) allows an “active role” by SWAs to “independently determine” that prevailing wages in some areas of a State are higher than the AEWR, the minimum wage, or the prevailing wage in other areas. By codifying a survey methodology, the commenter believed, the Department would restrict the SWAs' ability to use other methods to determine whether the job order is offering an “adequate” wage. According to the commenter, the current regulation protects U.S. workers, especially piece rate workers, who receive a higher wage rate than their peers in other parts of the State, as a result of collective bargaining or market conditions.

After careful consideration of the commenter's concerns, the Department has decided to retain the NPRM proposal with minor clarifying changes. Specifically, this final rule adopts the NPRM's proposal to amend § 653.501(c)(2)(i) so that it incorporates the Department's revised prevailing wage survey methodology in § 655.120(c) and revised definition of “prevailing wage” in § 655.103(b). In addition, this final rule revises § 653.501(c)(2)(i) to more clearly distinguish the minimum requirements for wages and working conditions. The existing regulation addresses the minimum requirements for working conditions within the minimum requirements for wages, which may cause confusion as to the standards that apply to each requirement. Accordingly, this final rule separates these requirements into two different sentences to clarify that agricultural positions subject to 20 CFR part 653, subpart F, must, at a minimum, offer (1) the applicable prevailing wage or the applicable Federal or State minimum wage, whichever is higher, and (2) working conditions that are not less than the prevailing working conditions among similarly employed workers in the AIE. The standards governing the prevailing wage methodology are set forth in revised §§ 655.103(b) and 655.120(c), and addressed in the preamble to § 655.120(c). The standards governing the wage rate an H-2A employer must offer, advertise in its recruitment, and pay are set forth in revised §§ 655.120(a) and 655.122(l).

The Department disagrees with the commenter that the above-referenced revisions to § 653.501(c)(2)(i) will diminish the SWA's role in determining prevailing wages under the H-2A program. Under this final rule, SWAs will continue to follow the Department's criteria for prevailing wage surveys, either to conduct a survey itself or to select a survey conducted by another State agency to submit to the Department. Prior to this rule, the SWAs used ETA Handbook 385, which was last updated in 1981, and other sub-regulatory guidance to conduct such surveys and submit prevailing wage findings, when available, to the Department for review. In this sense, the Department has directed SWAs to use prevailing wage surveys to determine prevailing wage rates for agricultural job orders since at least 1981. The NPRM simply proposed to amend §§ 655.103(b) and 653.501(c)(2)(i) to reflect the new proposed survey methodology at § 655.120(c).

Under the revised methodology, SWAs continue to play an active role in determining prevailing wages. They retain the discretion to develop, administer, and report the results of prevailing wage surveys to the Department, including the discretion to determine where to conduct surveys for particular crop or agricultural activities and, if applicable, distinct work task(s) within those activities, subject to the methodological requirements of this final rule. For example, SWAs may conduct prevailing wage surveys of State, sub-State, and regional geographic areas based on the factors listed in § 655.120(c)(1)(vi). In instances where a non-SWA State entity conducts the prevailing wage survey, the SWA will review the survey and submit, if appropriate and as before, the applicable information to the Department.

Moreover, prevailing wage surveys are but one method used to determine whether the wage offer in a job order for temporary agricultural work is “adequate.” Employers applying for H-2A temporary labor certification must generally offer in their job order and pay the highest of five wage sources (

i.e.,

the AEWR, the prevailing wage, the agreed-upon collective bargaining wage, the Federal minimum wage, or the State minimum wage).

See

§ 655.120(a) (excluding certain employment). All other (non-H-2A) employers seeking to place interstate or intrastate job orders for temporary agricultural work must still pay the highest of the applicable prevailing wage or the applicable Federal or State minimum wage, as specified under this section.

The commenter's assertion that the current regulation protects U.S. workers who enjoy a higher wage rate as a result of collective bargaining conflates the prevailing wage and the required wage for purposes of the H-2A program. As explained above, prevailing wage surveys are but one of the distinct wage sources the Department compares to

determine which wage source is the highest and therefore the wage that an H-2A employer must offer and pay. If an employer files an H-2A application for job opportunities subject to the agreed-upon collective bargaining wage, the collective bargaining wage would be evaluated as one of the applicable wage sources under § 655.120(a). If the collective bargaining wage is the highest of available wage sources applicable to the H-2A application, the employer must offer and pay that wage to its H-2A workers and non-H-2A workers in corresponding employment. Similar principles hold for a non-H-2A interstate or intrastate agricultural job order, in which the prevailing wage may differ from the required wage a particular employer may be legally obligated to offer and pay. Section 653.501(c)(2)(i) provides a floor, rather than a ceiling, for the wage that must be offered in an interstate or intrastate job order for a temporary agricultural position. Employers may always offer wages that exceed the minimum required under this section, and in some instances, such as where an applicable collective bargaining agreement (CBA) requires a higher wage offer, they may be obligated to do so. However, the Department reminds H-2A employers that any job offer to U.S. workers must offer 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. § 655.122(a).

i. Successor in Interest

The Department proposed conforming changes to the definition of “successor in interest” consistent with proposed changes to 20 CFR 655.182 and 29 CFR 501.20, which clarify that the Department may take action against an employer, agent, attorney, or combination thereof, for debarrable violations described under those sections. As discussed below, this provision remains unchanged from the NPRM. A workers' rights advocacy organization supported the conforming changes to the definition without further comment. An agent further proposed that the Department should modify the definition of successor in interest to formally adopt guidance issued under the 2010 H-2A Final Rule where the Department determined that the regulation could be reasonably interpreted to allow a temporary agricultural labor certification to be assumed by a successor employer. The commenter also thought the definition should be more generalized, rather than framed from an enforcement perspective. Although the Department appreciates this comment, further modification to the definition is unnecessary. The Department added agents and attorneys to the definition to clarify that successor in interest to agents and attorneys may be subject to enforcement actions, consistent with 20 CFR 655.182 and 29 CFR 501.20. In doing so, the Department made no change to the definition with regard to employers. The Department maintains its position, established in the supporting guidance, that a successor in interest entity may use a temporary agricultural labor certification issued, provided that it assumes all obligations, liabilities, and undertakings arising under the temporary agricultural labor certification. Therefore, this final rule adopts the proposed definition from the NPRM without change.

j. Additional Definitions Adopted in This Final Rule

The NPRM proposed minor amendments to the definition of Temporary Agricultural Labor Certification and proposed adding definitions of the following terms to provide greater clarity throughout the regulations: Act, Administrator, applicant,

Application for Temporary Employment Certification,

BALCA, Chief Administrative Law Judge (ALJ), DHS, ETA, H-2A Petition, MSA, OFLC Administrator, piece rate, place of employment, Secretary of Labor, Secretary of Homeland Security, U.S. Citizenship and Immigration Services (USCIS), WHD, and WHD Administrator. The Department received no comments on the proposed definitions of these terms. Therefore, this final rule adopts the definitions of these terms from the NPRM, with two minor changes. In this final rule, the Department simplifies the definition of “USCIS” to mean U.S. Citizenship and Immigration Services, an operational component of DHS, while defining “DHS” as the Department of Homeland Security as established by sec. 111 of title 6, U.S. Code. The respective authorities and functions of DHS and USCIS, as an operational component of DHS, are set forth in their authorizing statutes, implementing regulations, and delegation of authorities.

k. 20 CFR 655.103(c) and 29 CFR 501.3(b), Definition of Agricultural Labor or Services

The NPRM proposed amendments to expand the regulatory definition of agricultural labor or services pursuant to 8 U.S.C. 1101(a)(15)(H)(ii)(a) to include reforestation and pine straw activities. The Department received many comments on this section and, for the reasons explained below, has decided to rescind the proposal to incorporate reforestation and pine straw activities into the definition of agricultural labor or services at § 655.103(c). However, in proposing the occupational definitions for itinerant employment in animal shearing, commercial beekeeping, and custom combining at § 655.301, subject to the proposed procedural variances contained in §§ 655.300 through 655.304, the Department has made a technical, conforming revision to this section to clarify that the job duties under § 655.301 qualify for certification under the H-2A program.

The Department proposed to define 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. The proposed definition of reforestation activities would have included some forest fire prevention or suppression duties, when incidental to other reforestation activities, and would have excluded vegetation management activities in and around utility, highway, railroad, and other rights-of-way because these activities involve the destruction of vegetation, not cultivation. The NPRM proposed to define pine straw activities as 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.

In the NPRM, the Department reasoned that reforestation and pine straw activities share fundamental similarities with traditional agricultural industries, both in terms of activities performed and working conditions. These similarities had previously prompted the Department to consider similar proposals to include reforestation and pine straw activities within the H-2A program in the 2008 and 2009-2010 rulemakings, but ultimately the Department rejected these proposals due to lack of stakeholder support. 2010 H-2A Final Rule, 75 FR 6884; 2008 H-2A NPRM, 73 FR 8538, 8555 (Feb. 13, 2008). The NPRM posited that many of the comments that led the Department to opt against expanding the definition of agriculture in the 2009-2010 rulemaking were no longer applicable due to recent regulatory changes in the H-2B program—specifically the publication of the 2015 H-2B Interim Final Rule (IFR) (80 FR

24042, Apr. 29, 2015), which implemented cost-related requirements in the H-2B program similar to those currently found in H-2A.

Comments Related to the Inclusion of Reforestation and Pine Straw Gathering Activities in the H-2A Program

Comments attributable to the reforestation industry or its representatives either opposed the change or did so absent significant changes to the proposal. Some industry commenters simply stated that the H-2A program, particularly with the changes proposed in the NPRM, was a less attractive, more costly, and more burdensome alternative to the H-2B program. Other commenters rejected the assertion that reforestation shared similar characteristics to traditional agricultural industries and stated that these differences resulted in the H-2A program, or certain key H-2A provisions, being essentially unworkable for the reforesta

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