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

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Parts 651, 653, 655, and 658

Wage and Hour Division

29 CFR Part 501

[DOL Docket No. ETA-2023-0003]

RIN 1205-AC12

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

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

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

DATES:

This final rule is effective June 28, 2024.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Preamble Table of Contents

I. Acronyms and Abbreviations

II. Background

A. Legal Authority

B. Current Regulatory Framework

C. Need for Rulemaking

III. General Comments on the Proposed Rule

IV. Overview of This Final Rule

A. Summary of Major Provisions of this Final Rule

B. Section-by-Section Analyses

C. Transition Procedures

V. Discussion of Revisions to Employment Service Regulations

A. Introduction

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

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

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

VI. Discussion of Revisions to 20 CFR part 655, subpart B

A. Introductory Sections

B. Prefiling Procedures

C. Application for Temporary Employment Certification Filing Procedures

D. Labor Certification Determinations

E. Post-Certification

F. Integrity Measures

VII. Discussion of Revisions to 29 CFR part 501

A. Section 501.3, Definitions

B. Section 501.4, Discrimination prohibited

C. Section 501.10, Severability

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

E. Section 501.33, Request for hearing

VIII. Administrative Information

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

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

C. Paperwork Reduction Act

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

E. Unfunded Mandates Reform Act of 1995

F. Executive Order 13132 (Federalism)

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

I. Acronyms and Abbreviations

ADA Americans with Disabilities Act

AEWR Adverse effect wage rate

AIE Area(s) of intended employment

ALJ Administrative Law Judge

ALRA California Agricultural Labor Relations Act

ALRB California Agricultural Labor Relations Board

ARB Administrative Review Board

ARIMA Autoregressive integrated moving average

ARS Agricultural Recruitment System

ATV All-terrain vehicle

BALCA Board of Alien Labor Certification Appeals

BLS Bureau of Labor Statistics

CAGR Compound annual growth rate

CBA Collective bargaining agreement

CFR Code of Federal Regulations

CO Certifying Officer

CRA Congressional Review Act

CY Calendar year

DBA Doing business as

DHS Department of Homeland Security

DOJ Department of Justice

DOL Department of Labor

EEOC Equal Employment Opportunity Commission

E.O. Executive Order

ES Employment Service

ES system Employment Service system

ETA Employment and Training Administration

FDA Food and Drug Administration

FEIN Federal Employer Identification Number

FLAG Foreign Labor Application Gateway

FLS Farm Labor Survey

FLSA Fair Labor Standards Act

FMVSS Federal Motor Vehicle Safety Standards

FOIA Freedom of Information Act

FR Federal Register

FRN Federal Register notice

FY Fiscal year

GAO Government Accountability Office

GVWR Gross Vehicle Weight Rating

H-2ALC H-2A labor contractor

HR Human resources

ICR Information Collection Request

IFR Interim final rule

INA Immigration and Nationality Act

MSFW Migrant or seasonal farmworker

MSPA Migrant and Seasonal Agricultural Worker Protection Act

NAICS North American Industry Classification System

NARA National Archives and Records Administration

NHTSA National Highway Traffic Safety Administration

NIOSH National Institute for Occupational Safety and Health

NLRA National Labor Relations Act

NLRB National Labor Relations Board

NOD Notice of Deficiency

NPC National Processing Center

NPRM Notice of proposed rulemaking

NPWC National Prevailing Wage Center

OALJ Office of Administrative Law Judges

OEWS Occupational Employment and Wage Statistics

OFLC Office of Foreign Labor Certification

OHV Off-highway vehicle

OIG Office of Inspector General

OIRA Office of Information and Regulatory Affairs

OMB Office of Management and Budget

OSHA Occupational Safety and Health Administration

OWI Office of Workforce Investment

PII Personally identifiable information

PRA Paperwork Reduction Act

Pub.L. Public Law

RFA Regulatory Flexibility Act

RIN Regulation Identifier Number

ROPS Roll-Over Protective Structure

SBA Small Business Administration

SBREFA Small Business Regulatory Enforcement Fairness Act of 1996

Sec. Section of a Public Law

Secretary Secretary of Labor

SOC Standard Occupational Classification

SORN System of Records Notice

Stat. U.S. Statutes at Large

SUSB Statistics of U.S. Businesses

SWA State workforce agency

TVPA Victims of Trafficking and Violence Protection Act of 2000

UMRA Unfunded Mandates Reform Act of 1995

U.S.C. United States Code

USCIS U.S. Citizenship and Immigration Services

USDA U.S. Department of Agriculture

U.S.DOT U.S. Department of Transportation

VSL Value of a statistical life

WHD Wage and Hour Division

II. Background

A. Legal Authority

1. Immigration and Nationality Act

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

see also

8 U.S.C. 1184(c)(1) and 1188.

1

Permanent, year-round job opportunities cannot be classified as temporary or seasonal. 87 FR 61660, 61684 (Oct. 12,

2022);

2

see also

8 U.S.C. 1101(a)(15)(H)(ii)(a) (the INA permits only “agricultural labor or services . . . of a temporary or seasonal nature” to be performed under the H-2A visa category).

1

For ease of reference, sections of the INA are referred to by their corresponding section in the United States Code.

2

Final Rule,

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

87 FR 61660 (Oct. 12, 2022) (2022 H-2A Final Rule).

The H-2A nonimmigrant worker visa program enables U.S. agricultural employers to employ foreign workers on a temporary basis to perform temporary or seasonal agricultural labor or services only where the Secretary of Labor (Secretary) certifies that: (1) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition; and (2) the employment of the foreign worker in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed. 8 U.S.C. 1188(a)(1).

3

The INA prohibits the Secretary from issuing this certification—known as a “temporary agricultural labor certification”—unless both of the above-referenced conditions are met. The INA further prohibits the Secretary from issuing a temporary agricultural labor certification if any of the conditions in 8 U.S.C. 1188(b) apply concerning strikes or lock-outs, labor certification program debarments, workers' compensation assurances, and positive recruitment.

3

Following certification by DOL, the employer must file an H-2A petition (defined at 20 CFR 655.103(b) as the U.S. Citizenship and Immigration Services (USCIS) Form I-129, Petition for a Nonimmigrant Worker, with H Supplement or successor form and/or supplement, and accompanying documentation required by DHS for employers seeking to employ foreign persons as H-2A nonimmigrant workers) with USCIS, requesting one or more workers not to exceed the total listed on the temporary agricultural labor certification. Generally, USCIS must approve this petition before the worker(s) can be considered eligible for an H-2A visa or for H-2A nonimmigrant status. The limited exceptions from this requirement may be found at 8 CFR 274a.12(b)(20) and (21).

The Secretary has delegated the authority to issue temporary agricultural labor certifications to the Assistant Secretary for Employment and Training, who in turn has delegated that authority to the Employment and Training Administration's (ETA) OFLC.

See

Secretary's Order 06-2010 (Oct. 20, 2010), 75 FR 66268 (Oct. 27, 2010). In addition, the Secretary has delegated to WHD the responsibility under 8 U.S.C. 1188(g)(2) to assure employer compliance with the terms and conditions of employment under the H-2A program.

See

Secretary's Order 01-2014 (Dec. 19, 2014), 79 FR 77527 (Dec. 24, 2014). Pursuant to the INA and implementing regulations promulgated by DOL and the Department of Homeland Security (DHS), DOL evaluates an employer's need for agricultural labor or services to determine whether it is seasonal or temporary during the review of an H-2A Application. 20 CFR 655.161(a); 8 CFR 214.2(h)(5)(i)(A) and (h)(5)(iv).

2. Wagner-Peyser Act

The Wagner-Peyser Act of 1933 established the United States Employment Service (ES), a nationwide system to improve the functioning of the nation's labor markets by bringing together individuals seeking employment with employers seeking workers. 29 U.S.C. 49

et seq.

Section 3(a) of the Act sets forth the basic responsibilities of the Department in the ES, which include assisting in coordinating the State public employment service offices throughout the country and in increasing their usefulness by prescribing standards for efficiency, promoting uniformity in procedures, and maintaining a system of clearing labor between the States. 29 U.S.C. 49b. The Act further authorizes the Department “to make such rules and regulations as may be necessary to carry out [its] provisions.” 29 U.S.C. 49k.

Consistent with the aims of sec. 3(a), the ES system provides labor exchange services to its participants and has undergone numerous changes to align its activities with broader national workforce development policies and statutory requirements. The Workforce Innovation and Opportunity Act (Pub. L. 113-128), passed in 2014, expanded upon the previous workforce reforms in the Workforce Investment Act of 1998 and, among other things, identified the ES system as a core program in the One-Stop local delivery system, also called the American Job Center network.

In 1974, the case

National Ass'n for the Advancement of Colored People (NAACP), Western Region, et al.

v.

Brennan et al.,

No. 2010-72, 1974 WL 229 (D.D.C. Aug. 13, 1974), resulted in a detailed court order mandating various Federal and State actions consistent with applicable law (Richey Order). The Richey Order required the Department to implement and maintain a Federal and State monitoring and advocacy system and set forth requirements to ensure the delivery of ES services, benefits, and protections to migrant or seasonal farmworkers (MSFWs) on a non-discriminatory basis, and to provide such services in a manner that is qualitatively equivalent and quantitatively proportionate to those provided to non-farmworkers. In 1977 and 1980, consistent with its authority under the Wagner-Peyser Act, the Department published regulations at 20 CFR parts 651, 653, and 658 to implement the requirements of the Richey Order. Part 653 sets forth standards and procedures for providing services to MSFWs and provides regulations governing the Agricultural Recruitment System (ARS), a system for interstate and intrastate agricultural job recruitment. Part 658 sets forth standards and procedures for the administrative handling of complaints alleging violations of ES regulations and of employment-related laws, the discontinuation of services provided by the ES system to employers, the review and assessment of State agency compliance with ES regulations, and the process the Department must follow if

State agencies are not complying with the ES regulations.

B. Current Regulatory Framework

Since 1987, the Department has operated the H-2A temporary agricultural labor certification program under regulations promulgated pursuant to the INA. The standards and procedures applicable to the certification and employment of workers under the H-2A program are found in 20 CFR part 655, subpart B, and 29 CFR part 501. The majority of the Department's current regulations governing the H-2A program were published in 2010 and many were strengthened in a final rule the Department published in October 2022.

4

The Department incorporated the provisions for employment of workers in the herding and production of livestock on the range into the H-2A regulations, with modifications, in 2015.

5

The provisions governing the employment of workers in the herding and production of livestock on the range are codified at 20 CFR 655.200 through 655.235.

6

Relatedly, the regulations implementing the Wagner-Peyser Act at 20 CFR parts 651, 653, and 658 establish the ARS, through which employers can recruit U.S. workers for agricultural employment opportunities, and which prospective H-2A employers must use to recruit U.S. workers as a condition of receiving a temporary agricultural labor certification.

4

Final Rule,

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

75 FR 6884 (Feb. 12, 2010) (2010 H-2A Final Rule); Final Rule,

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

87 FR 61660 (Oct. 12, 2022) (2022 H-2A Final Rule).

5

Final Rule,

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

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

6

Consistent with a court-approved settlement agreement in

Hispanic Affairs Project, et al.

v.

Scalia, et al.,

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

See

Final Rule,

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

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

.

C. Need for Rulemaking

This final rule aims to address some concerns expressed by various stakeholders during rulemaking. It also responds to recent court decisions and program experience indicating a need to enhance the Department's ability to enforce regulations related to foreign labor recruitment, to improve accountability for successors in interest and employers who use various methods to attempt to evade the law and regulatory requirements, and to enhance worker protections, as explained further in the sections that follow.

In particular and as noted above, the Department recently published the 2022 H-2A Final Rule, which strengthened worker protections in the H-2A program, clarified the obligations of joint employers and the existing prohibitions on fees related to foreign labor recruitment, authorized debarment of agents and attorneys for their own misconduct, enhanced surety bond obligations and related enforcement authorization, modernized the prevailing wage determination process, enhanced regulation of H-2A labor contractors (H-2ALCs), and provided additional safeguards related to employer-provided housing and wage obligations.

See

87 FR 61660. In response to the notice of proposed rulemaking (NPRM) published prior to the 2022 H-2A Final Rule, the Department received many comments suggesting changes that were beyond the scope of that rulemaking, such as suggestions relating to increased enforcement and transparency regarding the foreign labor recruitment process, increased worker protections, revisions to the definition of employer, stronger integrity provisions to account for complex business organizations and for methods used to circumvent the regulations, strengthening provisions related to piece rate pay, and suggestions to revise the Wagner-Peyser Act regulations to ensure stronger protections for workers in the event of harmful last-minute start date delays.

After careful consideration of comments from the public, the Department is adopting important provisions in this final rule that will further strengthen protections for agricultural workers and enhance the Department's enforcement capabilities, thereby permitting more effective enforcement against fraud and program violations. These revisions will help prevent exploitation and abuse of agricultural workers and ensure that unscrupulous employers do not financially gain from their violations or contribute to economic and workforce instability by circumventing the law, both of which would adversely affect the wages and working conditions of workers in the United States similarly employed, and undermine the Department's ability to determine whether there are, in fact, insufficient U.S. workers for proposed H-2A jobs. It is the Department's policy to maintain robust protections for workers and vigorously enforce all laws within its jurisdiction governing the administration and enforcement of nonimmigrant visa programs. This includes the coordination of the administration and enforcement activities of ETA, WHD, and the Department's Office of the Solicitor in the promotion of the hiring of U.S. workers and the safeguarding of wages and working conditions for workers in the United States. In addition, these agencies make criminal referrals to the Department's Office of Inspector General (OIG) in appropriate circumstances, such as when the agencies encounter visa-related fraud. The Department has determined through program experience, recent litigation, challenges in enforcement, comments on this rulemaking as well as on prior rulemakings, and reports from various stakeholders that it is necessary to adopt stronger protections for agricultural workers to better ensure that employers, agents, attorneys, and labor recruiters comply with the law, and to enhance program integrity by improving the Department's ability to monitor compliance and investigate and pursue remedies from program violators. The recent surge in use of the H-2A program amplifies these needs.

7

7

See, e.g.,

OFLC, Performance Data,

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

(last accessed Feb. 8, 2024) (providing disclosure data for the H-2A labor certification program since Fiscal Year (FY) 2008).

III. General Comments on the Proposed Rule

On September 15, 2023, the Department published an NPRM requesting public comments on proposals intended to improve protections for workers in temporary agricultural employment in the United States.

See

88 FR 63750 (Sept. 15, 2023).

8

The proposed revisions focused on strengthening protections for temporary agricultural workers and enhancing the Department's capabilities to monitor program compliance and take necessary enforcement actions against program violators. The NPRM invited written comments from the public on all aspects of the proposed amendments to the regulations. A 60-day comment period allowed for the public to inspect the proposed rule and provide comments through November 14, 2023.

8

NPRM,

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

88 FR 63750 (Sept. 15, 2023) (2023 NPRM).

The Department received a total of 12,928 public comments in response to the NPRM before the end of the comment period. Included in these comments were multiple form letter campaigns, which were received as bundled submissions to the

Regulations.gov

website. After accounting for duplicate submissions, the Department received comments from 8,725 unique commenters. Comments can be viewed online at

https://www.regulations.gov/docket/ETA-2023-0003.

The commenters represented a wide range of stakeholders from the public, private, and not-for-profit sectors. The Department received comments from a geographically diverse cross-section of stakeholders within the agricultural sector, including farmworkers, workers' rights advocacy organizations, farm owners, farm labor contractors, trade associations for agricultural products and services, not-for-profit organizations representing agricultural issues, and other organizations with an interest in agricultural activities. Public sector commenters included Federal elected officials, State officials, and agencies representing State governments. Private sector commenters included business owners, recruiting companies, and law firms. Not-for-profit sector commenters included both industry organizations (

e.g.,

professional associations) and worker advocacy organizations.

The Department recognizes and appreciates the value of comments, ideas, and suggestions from all those who commented on the proposal, and this final rule was developed after review and consideration of all public comments timely received in response to the NPRM. Some comments provided general opinions on the proposed rule, or on agricultural labor generally, and the Department thanks the commenters for their time to submit their feedback. Where public comments provided substantive feedback on specific proposals in the NPRM, they have been responded to in the sections that follow. When the Department has made changes from the NPRM as a result of public comment, those changes are identified in the sections below.

IV. Overview of This Final Rule

A. Summary of Major Provisions of This Final Rule

1. Protections for Worker Voice and Empowerment

In this final rule, the Department is adopting several revisions to § 655.135 that will provide stronger protections for workers protected by the H-2A program to advocate on behalf of themselves and their coworkers regarding their working conditions and prevent employers from suppressing this activity. As detailed in Section VI, the Department believes that these protections are important to prevent adverse effect on the working conditions of workers in the United States similarly employed. 8 U.S.C. 1188(a)(1). Specifically, the Department is broadening § 655.135(h), which prohibits unfair treatment by employers, by expanding and explicitly protecting certain activities all workers must be able to engage in without fear of intimidation, threats, and other forms of retaliation. For those workers engaged in agriculture as defined and applied in 29 U.S.C. 203(f) of the Fair Labor Standards Act (FLSA) (“FLSA agriculture”), who are exempt from the protections of the National Labor Relations Act (NLRA), 29 U.S.C. 151

et seq.,

the Department also revises § 655.135(h) to include some new protections to safeguard collective action and concerted activity for mutual aid and protection, and, in a change responsive to comments, to allow those workers to decline to attend or listen to employer speech regarding protected activities without fear of retaliation.

9

9

As discussed further in Section VI.C.2.b below, the NLRA excludes from its protections workers who are engaged in FLSA agriculture. See definition of “employee” at 29 U.S.C. 152(3) (excluding “any individual employed as an agricultural laborer”). Congress has provided that the definition of “agricultural” in sec. 3(f) of the FLSA also applies to the NLRA.

See, e.g., Holly Farms Corp. et al.

v.

NLRB,

517 U.S. 392, 397-98 (1996). The H-2A statute and the Department, however, define “agricultural labor or services” under the H-2A program more broadly to include FLSA agriculture as well as other activities.

See

8 U.S.C. 1101(a)(15)(H)(ii)(a); 20 CFR 655.103(c). Certain provisions of this final rule apply only to workers or persons engaged in FLSA agriculture (who are excluded from the NLRA's protections). Therefore, workers who are not engaged in FLSA agriculture (

e.g.,

those in logging occupations) will not be covered by the provisions of this final rule that are limited to workers or persons engaged in FLSA agriculture. However, the vast majority of such workers are already covered by the NLRA as “employees” under 29 U.S.C. 152(3). Nothing in this final rule alters or circumscribes the rights of workers who are already protected by the NLRA to engage in conduct and exercise rights afforded under that law.

The Department also finalizes one of the provisions initially proposed at § 655.135(m) to require employers to permit workers engaged in FLSA agriculture to designate a representative of their choosing in certain interviews, with minor changes in response to comments, and adopts a new provision at § 655.135(n) to permit workers to invite or accept guests to worker housing (which has been substantially revised in response to comments received). New § 655.135(m) and (n) are intended, like the revisions and additions to § 655.135(h), to strengthen the ability of workers to advocate on behalf of themselves and their coworkers regarding their required terms and conditions of employment, to better protect against adverse effect on similarly employed workers in the United States.

The final rule does not require H-2A employers to recognize labor organizations or to engage in any collective bargaining activities such as those that may be required by the NLRA itself or by a State law such as the California Agricultural Labor Relations Act (ALRA), Cal. Lab. Code § 1140

et seq.,

nor does it create any independent rights or obligations for labor organizations. Instead, this final rule requires employers to provide assurances that they will not intimidate, threaten, or otherwise discriminate against certain workers or others for engaging in “activities related to self-organization,” including “concerted activities for the purpose of mutual aid or protection relating to wages or working conditions,” or refusing to engage in such activities. 20 CFR 655.135(h)(2). Such activities may include seeking to form, join, or assist a labor organization, but also encompasses numerous other ways that workers can engage, individually or collectively, to enforce their rights, as further discussed below.

2. Clarification of Termination for Cause

In this final rule, the Department adopts with modifications the NPRM definition of “termination for cause” at § 655.122(n) by adopting five criteria that must be satisfied to ensure that disciplinary and termination processes are justified and reasonable, which are intended to promote the integrity and regularity of any such processes. These changes will help to ensure employers do not arbitrarily and unjustly terminate workers, thereby stripping them of essential rights to which they would otherwise be entitled under the H-2A program. Moreover, these changes will assist the Department in determining whether an individual worker was terminated without cause where the employer gives pretextual reasons for a termination, and will provide regulatory certainty to employers by providing clear guidelines. In response to comments, the Department adopts minor modifications from the NPRM in this final rule to clarify the definition of termination for cause, the criteria that an employer must meet to terminate a worker for cause, and the types of terminations that are not “for cause.”

3. Immediate Effective Date for Updated AEWR

The Department adopts the proposed revisions to § 655.120(b)(2) to designate the effective date of each updated adverse effect wage rate (AEWR) as its date of publication in the

Federal

Register

, and revises paragraph (b)(3) to state that the employer will be obligated to pay the updated AEWR immediately upon publication of the new AEWR in the

Federal Register

. If the update falls in the middle of a pay period, the employer may pay the updated AEWR at the end of the following pay period, but the employer must provide retroactive pay for all hours worked during the period in which the AEWR was updated, beginning immediately on the date the Department publishes the notice in the

Federal Register

. This change is intended to help ensure workers are paid at least the updated AEWR, as soon as it is published, for all work they perform, and thereby help to ensure that the employment of H-2A workers does not adversely affect the wages and working conditions of workers in the United States similarly employed.

4. Enhanced Transparency for Job Opportunity and Foreign Labor Recruitment

The Department is adopting the proposed changes for new disclosure requirements to enhance transparency in the foreign worker recruitment chain and bolster the Department's capacity to protect vulnerable agricultural workers from exploitation and abuse, as explained more fully below. This final rule includes a new § 655.137,

Disclosure of foreign worker recruitment,

and a new § 655.135(p),

Foreign worker recruitment,

which are similar to the regulations governing disclosure of foreign worker recruitment in the H-2B program. The provisions require an employer and its attorney or agent, as applicable, to provide a copy of all agreements with any agent or recruiter that the employer engages or plans to engage in the recruitment of prospective H-2A workers, regardless of whether the agent or recruiter is located in the United States or abroad. The provisions also require the employer to disclose the identity (

i.e.,

name and, if applicable, identification/registration number) and geographic location of persons and entities hired by or working for the foreign labor recruiter and any of the agents or employees of those persons and entities who will recruit or solicit prospective H-2A workers. As explained more fully below, the Department will gather the additional recruitment chain information when the employer files its H-2A Application and will require the employer to submit a Form ETA-9142A,

Appendix D,

which mirrors the Form ETA-9142B,

Appendix C.

Consistent with current practice in the H-2B program, § 655.137(d) provides for the Department's public disclosure of the names of the agents and foreign labor recruiters used by employers. These additional disclosures of information about the recruitment chain are necessary for the Department to carry out its enforcement obligations, protect vulnerable agricultural workers and program integrity, and ensure equitable administration of the H-2A program for law abiding employers.

The Department also is adopting, with minor changes, the proposal to require the employer to provide the full name, date of birth, address, telephone number, and email address of all owner(s) of the employer(s), any person or entity who is an operator of the place(s) of employment (including the fixed-site agricultural business that contracts with the H-2ALC), and any person who manages or supervises the H-2A workers and workers in corresponding employment under the H-2A Application. The Department has revised the Form ETA-9142A to require, where applicable, additional information about prior trade or doing business as (DBA) names the employer has used in the most recent 3-year period preceding its filing of the H-2A Application. Sections 655.130 and 655.167 clarify that the employer must continue to update the information required by the above paragraphs until the end of the work contract period, including extensions thereto, and retain this information for a period of 3 years from the date of certification and produce it upon request by the Department. These disclosure requirements will help prevent adverse effects on the working conditions of workers in the United States similarly employed by increasing transparency in the international recruitment chain, aiding the Department in assessing the nature of the job opportunity and the employer's need, enhancing the Department's ability to enforce the prohibition against recruitment-related fees and to pursue remedies from program violators, assisting the Department in identifying potential successors in interest to debarred employers, and better protecting agricultural workers from abuse and exploitation in the United States and abroad.

5. Enhanced Transparency and Protections for Agricultural Workers

a. Disclosure of Minimum Productivity Standards, Applicable Wage Rates, and Overtime Opportunities

In this final rule, the Department adopts the proposal to revise § 655.122(l) to require employers to disclose any minimum productivity standards they will impose as a condition of job retention, regardless of whether the employer pays on a piece rate or hourly basis. This is intended to help ensure that agricultural workers are fully apprised of the material terms and conditions of employment, including any productivity standards that may serve as a basis for termination for cause. An existing regulatory provision, § 655.122(b), would require that any such minimum productivity standard be bona fide and normal and accepted among non-H-2A employers in the same or comparable occupations and crops. This revision is intended to ensure that workers are aware of productivity standards that are a condition of job retention before accepting the job, and that an employer cannot raise productivity standards mid-contract with the goal of terminating workers.

The Department also adopts revisions at §§ 655.120(a) and 655.122(l), with minor changes responsive to comments, to require employers to offer and advertise on the job order any applicable prevailing piece rate, the highest applicable hourly wage rate, and any other rate the employer intends to pay, and to pay workers the highest of these wage rates, as calculated at the time work is performed. The Department also adopts proposed new provisions, at § 655.122(l)(4) and § 655.210(g)(3) of this final rule, that explicitly require the employer to specify in the job order any applicable overtime premium wage rate(s) for overtime hours worked and the circumstances under which the wage rate(s) for such overtime hours will be paid. These revisions are intended to help ensure that agricultural workers are fully apprised of the material terms and conditions of employment, and to aid the Department in its administration and enforcement of the H-2A program.

b. Enhanced Protections for Workers Through the ES System

The Department adopts revisions to the Wagner-Peyser Act implementing regulations at 20 CFR 653.501 to clarify an employer's obligations in the event of a delayed start date and to make conforming revisions to the H-2A regulations at 20 CFR 655.145 and a new § 655.175 to clarify pre-certification H-2A Application amendments and employer obligations in the event of post-certification changes to the start date. As noted above, the previous regulations require an employer to provide notice to the ES Office holding the job order of delayed start dates and impose obligations on employers that

fail to provide the requisite notice, but do not require employers to notify workers directly of any such delay.

The Department adopts revisions to part 658, subpart F, and related definitions at § 651.10, regarding the discontinuation of Wagner-Peyser Act ES services to employers. The Department clarifies and expands the scope of entities whose ES services can be discontinued to also include agents, farm labor contractors, joint employers, and successors in interest. The Department also adopts revisions to clarify the bases for discontinuation at § 658.501, and to clarify and streamline the discontinuation procedures at §§ 658.502 through 658.504, including the notice requirements for SWAs, evidentiary requirements for employers, when and how employers may request a hearing, and procedures for requesting reinstatement. These changes are designed to increase the reach and utility of the discontinuation of services regulations, which, as discussed in the NPRM, SWAs have infrequently used relative to the number of complaints and apparent violations that SWAs processed in recent years.

See

88 FR 63761. These changes are described in more detail below.

c. Enhanced Transportation Safety Requirements

The Department adopts the proposal, with minor modifications, to revise § 655.122(h)(4) to require the provision, maintenance, and wearing of seat belts in most employer-provided transportation, which would reduce the hazards associated with agricultural worker transportation. Specifically, as explained in detail below, the Department revises § 655.122(h)(4) to prohibit an employer from operating any employer-provided transportation unless all passengers and the driver are properly restrained by seat belts meeting standards established by the U.S. Department of Transportation (U.S. DOT), as long as the transportation was manufactured with seat belts pursuant to U.S. DOT's Federal Motor Vehicle Safety Standards (FMVSS). Essentially, if the vehicle is manufactured with seat belts, this final rule would require the employer to retain and maintain those seat belts in good working order and ensure that each worker is wearing a seat belt before the vehicle is operated. In response to public comment, the Department clarifies in this final rule that an employer must not allow any other person, in addition to the employer, to operate employer-provided transportation unless seat belts are provided, maintained, and worn.

d. Protection Against Passport and Other Immigration Document Withholding

The Department adopts the proposal to create a new § 655.135(o) that will directly prohibit an employer from holding or confiscating a worker's passport, visa, or other immigration or government identification documents. This prohibition is independent of whether the employer is otherwise in compliance with the Victims of Trafficking and Violence Protection Act of 2000 (TVPA), Public Law 106-386 (2000), 18 U.S.C. 1592(a), as required under the current H-2A regulations. This change is intended to better protect workers from potential labor trafficking.

e. Protections in the Event of a Minor Delay in the Start of Work

The Department adopts the proposal to create a new § 655.175 that addresses post-certification changes currently addressed at § 655.145(b) and creates new obligations and procedures in the event an employer must briefly delay the start of work due to unforeseen circumstances that jeopardize crops or commodities prior to the expiration of an additional recruitment period. Section 655.175 limits minor delays to 14 calendar days or less and requires the employer to notify each worker and the SWA of any minor delay in the start of work. Consistent with § 653.501(c), § 655.175 includes new compensation obligations that require the employer to pay workers the applicable wage rate for each day work is delayed, for a period of up to 14 calendar days, starting with the certified start date, if the employer fails to provide 10 business days' notice of the delay.

6. Enhanced Integrity and Enforcement Capabilities

a. Enhancements to the Department's Ability To Apply Orders of Debarment Against Successors in Interest

The Department adopts a new § 655.104 regarding successors in interest, revised from the NPRM based on comments received, which clarifies the liability of successors in interest for debarment purposes and streamlines the Department's procedures to deny temporary agricultural labor certifications filed by or on behalf of successors in interest to debarred employers, agents, and attorneys. The Department adopts conforming revisions to §§ 655.103(b), 655.181, and 655.182 and 29 CFR 501.20. These revisions are intended to better reflect the liability of successors in interest under the well-established successorship doctrine, and to better ensure that debarred entities do not circumvent the effects of debarment.

b. Defining the Single Employer Test for Assessing Temporary Need, or for Enforcement of Contractual Obligations

The Department adopts the proposal to define the term

single employer

at a new § 655.103(e) and adopts factors to determine if multiple nominally separate employers are acting as one. Defining the term would codify the Department's long-standing practice of using the single employer test (sometimes referred to as an “integrated employer” test), or similar analysis, to determine if separate employers are a single employer for purposes of assessing seasonal or temporary need, or for enforcement of contractual obligations. In relation to seasonal or temporary need, the Department has received applications for temporary agricultural labor certification that purport to be for job opportunities with different employers when, in reality, the workers hired under these certifications are employed by companies so intertwined that they are operating as a de facto single employer in one area of intended employment (AIE) for a period of need that is not truly temporary or seasonal. In its enforcement experience, the Department has increasingly encountered H-2A employers that purport to employ H-2A workers under one corporate entity and non-H-2A workers under another, creating the appearance that the H-2A employer has no workers in corresponding employment when actually, the corporate entities are so intertwined that all of the workers are employed by a single H-2A employer. Some employers have attempted to use these arrangements to avoid the obligation to provide certain H-2A program requirements to workers in corresponding employment, including the required wage rate. Codifying the definition of single employer will prevent employers from using their corporate structures to circumvent statutory and regulatory requirements.

B. Section-by-Section Analyses

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

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

C. Transition Procedures

The Department is providing a short transition period for receiving and processing criteria clearance orders and

Applications for Temporary Employment Certification

in order to promote an orderly and seamless implementation of the changes required by this final rule. This transition period will provide the Department with the necessary time to implement changes to Office of Management and Budget (OMB)-approved application forms within the Foreign Labor Application Gateway (FLAG) System and to its standard operating procedures and policies, and to provide training and technical assistance to the Office of Foreign Labor Certification (OFLC), Wage and Hour Division (WHD), State workforce agencies (SWAs), employers, and other stakeholders in order to familiarize them with changes required by this final rule.

The Department's regulations require that an employer submit a completed job order on Form ETA-790/790A (including all required addenda), an

Application for Temporary Employment Certification

on Form ETA-9142A (including all required addenda), and all required supporting documentation with the National Processing Center (NPC), using the electronic method(s) designated by the OFLC Administrator. Except where the employer has received prior approval from the OFLC Administrator to submit by mail as set forth in § 655.130(c)(2) or has been granted a reasonable accommodation as set forth in § 655.130(c)(3), the NPC will return without review any job order or

Application for Temporary Employment Certification

submitted using a method other than the designated electronic method(s).

In order to promote an orderly and seamless transition to this final rule, the NPC will process all H-2A applications submitted on or after 12:00 a.m. Eastern Daylight Time, August 29, 2024, in accordance with 20 CFR part 655, subpart B. in effect as of June 28, 2024.

The NPC will continue to process all H-2A applications submitted before 7:00 p.m. Eastern Daylight Time on or before August 28, 2024, in accordance with 20 CFR part 655, subpart B in effect as of the calendar day before the effective date as stated in this rule. The Department will use the 5 hours between 7:00 p.m. Eastern Daylight Time on August 28, 2024, and 12:00 a.m. Eastern Daylight Time on August 29, 2024, to initiate procedures to deploy and test changes to the FLAG System in order to effectively implement the new changes. No job orders or applications can be filed during this timeframe. All initiated, but unsubmitted, H-2A applications in FLAG as of 7:00 p.m. Eastern Daylight Time on August 28, 2024, will be deleted as of that time.

The Department believes this short transition period will provide employers, or their authorized agents or attorneys, with adequate time to plan and prepare their job orders and

Applications for Temporary Employment Certification

for submission under this final rule and to collect all necessary information that must be filed or retained in support of an H-2A application.

After the transition period, FLAG will not permit an employer to file prior versions of forms.

V. Discussion of Revisions to Employment Service Regulations

A. Introduction

In this final rule, the Department revises the ES regulations (20 CFR parts 651 through 654 and 658) that implement the Wagner-Peyser Act of 1933. These regulations include the provision of ES services with a particular emphasis on MSFWs, as well as provisions governing the discontinuation of ES services to employers. This final rule updates the language and content of the regulations to, among other things, improve and strengthen the regulations governing discontinuation of ES services to employers, including the applicable bases and procedures. In some areas, this final rule establishes entirely new responsibilities and procedures; in other areas, this final rule clarifies and updates pre-existing requirements. The revisions make important changes to the following components of the ES system: definitions, requirements for processing clearance orders, and the discontinuation of ES services provided to employers.

Within the revisions to the ES regulations, the Department is adopting the following modifications to the proposed regulatory amendments in the NPRM as a result of public comments received: (1) revising the new

successor in interest

definition in § 651.10 to omit unnecessary and potentially contradictory language; (2) revising provisions on the discontinuation of services list in new § 653.501(b)(4) to allow employers to submit requests for determinations to the Administrator of ETA's Office of Workforce Investment (OWI); (3) clarifying the requirements in § 653.501(c)(1)(iv)(E) for disclosure of wages on the clearance order; (4) revising the provisions in § 653.501(c) on delays in the start of work to clarify the applicability of the housing requirement to migrant workers, replace the proposed subsistence requirement with a requirement that the employer provide or pay all benefits and expenses listed on the clearance order, and incorporate requirements on method of delivery and language access for notifications to workers; and (5) providing that the SWA must consider whether there is a basis to discontinue services in cases of alleged misrepresentation or noncompliance in connection with a current or prior temporary labor certification, if the circumstances occurred within the previous 3 years. Additionally, the Department is adopting the following modifications to proposed amendments in the NPRM for clarity and consistency: (1) revising the

employment-related laws

definition in § 651.10 to clarify that it includes “rules” and “standards”; (2) relocating language on liability of successors from the new

successor in interest

definition in § 651.10 to § 658.500; (3) making minor conforming changes to the assurances and delayed start requirements in § 653.501(c)(3)(i) and (iv) and § 653.501(c)(5); and (4) incorporating into § 658.501(b) existing obligations on SWAs under part 655, subpart B, and 29 CFR parts 501 and 503 to notify OFLC and WHD in cases of alleged misrepresentation or noncompliance with temporary labor certification requirements.

Note that on November 24, 2023, the Department issued a final rule regarding Wagner-Peyser Act staffing (Staffing Final Rule). 88 FR 82658 (Nov. 24, 2023). In the NPRM to the Staffing Final Rule (Staffing NPRM), 87 FR 23700 (Apr. 20, 2022), the Department proposed changes to several sections in 20 CFR parts 653 and 658 that govern the provision of ES services to MSFWs. As relevant here, in the Staffing NPRM, the Department proposed changes to 20 CFR 653.501(b)(4) and (c)(3) (ES office and SWA requirements for processing clearance orders); § 658.501(a)(4), (b),

and (c) (bases for discontinuation of ES services); § 658.502(a) and (b) (notification requirements for discontinuation of ES services); and § 658.504(a) and (b) (procedures for reinstatement of ES services). 87 FR at 23717, 23722, 23736, 23740-23741.

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

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

Part 651 (§ 651.10) sets forth definitions for parts 652, 653, 654, and 658. In the NPRM, the Department proposed to add or revise the following definitions primarily to clarify aspects of its discontinuation of Wagner-Peyser Act ES services regulation at 20 CFR part 658, subpart F, including new provisions added in this rulemaking that expand the scope of entities whose services can be discontinued. Where appropriate, as discussed below, the Department has sought to align these new definitions with the same or similar definitions at 20 CFR 655.103. The Department received comments on each of the proposed additions and revisions, and it notes that many commenters did not raise objections to the proposed changes. After carefully considering these comments, the Department adopts most of the additions and revisions as proposed, with exceptions, as discussed in detail below.

1. Agent

The Department proposed to add a definition to § 651.10 for

agent

to establish that an agent is a legal entity or person, such as an association of employers, or an attorney for an association, that is authorized to act on behalf of the employer for purposes of recruitment of workers through the clearance system and is not itself an employer or joint employer, as defined in this section, with respect to a specific job order. The Department has observed that individuals and entities meeting the proposed definition of

agent

often engage the ES clearance system by submitting clearance orders on behalf of

employers,

as defined in part 651, and control many aspects of

employers'

recruitment activities relating to clearance orders. Adding this proposed definition clarifies that

agents

(which include attorneys) are among the entities subject to discontinuation of services as a result of the proposed changes to part 658. Additionally, because an employer's agent for purposes of the ES clearance system is often the same agent that an employer uses for purposes of the H-2A labor certification process, the Department proposed a definition of

agent

at § 651.10 that aligns with the definition of agent in § 655.103.

Farmworker Justice, in comments joined by 40 signatories, including advocacy organizations and legal services providers, supported inclusion of the proposed definition, stating that to the greatest extent feasible, the § 651.10 definition should be consistent with that used in the H-2A regulations at § 655.103(b). Farmworker Justice suggested that the Department clarify that agents who assist in the preparation and submission of criteria clearance orders (clearance orders placed in connection with H-2A applications) on behalf of their principals must obtain certificates of registration as farm labor contractors under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). They stated that criteria clearance orders, currently submitted using Form ETA-790/790A, are used to recruit U.S. workers for the positions for which H-2A workers are requested. In such situations, Farmworker Justice said, the agent is being paid by the employer for recruiting MSFWs, thereby falling squarely within the definition of farm labor contractor under MSPA.

Relatedly, Mid-Atlantic Solutions, LLC d/b/a másLabor and AgWorks H2, LLC (másLabor) and McCorkle Nurseries, Inc. suggested that the Department remove the reference to recruitment from the definition to avoid potential implications under the MSPA. MásLabor stated that the qualifier, for purposes of recruitment of workers through the clearance system, was likely intended to refer to the employer's purposes in placing the job order, rather than the agent's—

i.e.,

the employer is placing a job order for purposes of recruitment and the agent is acting on the employer's behalf in the placement of the job order)—and that such language may inadvertently imply that an agent acting on behalf of an employer for the submission of a job order is itself, as the agent, engaged in the recruitment or solicitation or both of U.S. farmworkers. MásLabor stated that because the Department considers recruitment and solicitation activities to be farm labor contracting activities under MSPA, an interpretation to this effect would mean that agents using the ES, in all cases, would be obligated to obtain a Farm Labor Contractor Certificate of Registration under MSPA.

MásLabor further stated that not all agents are engaged in activities that would traditionally be construed as recruitment or solicitation of workers. Some agents play no representative role throughout the recruitment process, and they instead engage purely in document preparation services by recording the employer's intent on the relevant government forms. Others offer services in both document preparation and written or verbal communication with the applicable government agencies for processing purposes but stop short of any direct assistance with recruitment. Others, like másLabor, offer comprehensive services wherein the agent is also authorized to conduct interviews with potential applicants and document hiring dispositions. MásLabor stated that only the latter (

i.e.,

comprehensive) service can be construed as recruitment or solicitation or both and therefore only agents offering this range of services ought to

be carefully considered within MSPA's jurisdiction. MásLabor suggested that the Department revise the proposed definition to state that an agent is a legal person or entity that is authorized to act on behalf of the employer for any purpose related to the employer's use of the clearance system, and is not itself an employer or joint employer, as defined in this section, with respect to a specific job order. Additionally, másLabor suggested modifying the definition to more clearly delineate between recruitment conducted by an employer and recruitment conducted by the agent or attorney directly, by defining agent to mean a legal person or entity authorized to act on behalf of the employer for purposes of the employer's recruitment of workers. MásLabor emphasized recruitment by “the employer” as distinct from recruitment by the agent, arguing the ES definition of agent should not imply that agents acting as recruiters on behalf of employers in the submission of job orders are acting as recruiters for MSPA purposes, and therefore subject to MSPA requirements, in all cases.

An agent and a law firm, USA Farm Labor, Inc. (USAFL) and the Hall Law Office, PLLC (Hall Global) (together, USAFL and Hall Global), agreed with másLabor and further stated the proposed definition conflates the role of attorney and agent. They stated that an agent in the context of the H-2A Program refers to a company that provides specialized services focused on preparing, managing, and filing H-2A-related paperwork. While attorneys can be said to be agents because they are hired by a principal to act on the principal's behalf, attorney conduct is normally regulated by the highest court in various jurisdictions, and regulatory concerns with respect to agents and attorneys are different. The primary issue for attorneys is protecting the sanctity of the attorney-client relationship as well as the distinction between lawyer and client. Clients are entitled to zealous representation within the bounds of the law, which includes making arguments seeking the modification or reversal of existing law. By conflating attorney with agent, the commenters argued, the Department creates ambiguity as to whether it intends to respect, as required by law, 5 U.S.C. 500, that nothing in this definition nor elsewhere in the regulations supplants an attorney's duties under State law or their ability to zealously represent their client within the bounds of the law.

The Department acknowledges commenters' suggestions and concerns regarding potential MSPA implications raised by the proposed

agent

definition. The Department notes that the definitions set forth in § 651.10 govern the Wagner-Peyser ES and do not govern any obligations under the MSPA. Whether an agent meets the definition of a farm labor contractor under the MSPA is a fact-specific inquiry governed by the MSPA and its implementing regulations.

Relatedly, regarding opposition from másLabor, McCorkle Nurseries, Inc., and USAFL and Hall Global regarding use of the word recruitment in the proposed agent definition, the Department declines to remove it. The Department acknowledges commenters' concerns but reiterates that these definitions are specific to 20 CFR part 651 and do not confer any obligations under MSPA. As discussed in the NPRM, the proposed definition of

agent

is meant to encompass those entities that act on behalf of employers that utilize the ES clearance system, including, for example, by controlling aspects of employers' recruitment activities relating to clearance orders. The inquiry of whether an entity is engaged in activities that bring them within the definition of farm labor contractor under the MSPA is fact-specific and must be addressed on a case-by-case basis under that law and its implementing regulations.

Finally, the Department disagrees with USAFL and Hall Global's concern that the proposed definition conflates the roles of attorneys and agents and may impede on an attorney's duty to provide zealous representation to their clients. An attorney who engages the ES system on behalf of an employer must do so in conformance with the requirements of the ES regulations and must advise their employer-client to use the ES system in conformance with the regulations. Zealous representation within the bounds of law is a fundamental component of the attorney-client relationship, which the Department presumes includes advising clients on compliance with all applicable laws and regulations. By including agents here, the Department does not intend to hold agents, including attorneys, accountable for the acts of the employers they represent. Rather, the inclusion of the definition of agent, and the inclusion of attorneys in that definition, recognizes that attorneys can and do serve as agents in interactions with the ES system, and is meant to hold them accountable for compliance and their own misconduct that meets the bases described at § 658.501, independent of any violation by the employers they represent (87 FR 61660, 61662 (Nov. 14, 2022)). The Department reiterates that agents who engage the ES clearance system should be subject to discontinuation, if appropriate, and that inclusion of attorneys is necessary to align the definition of agent here with the definition of agent in § 655.103. For these reasons and the reasons set forth in the NPRM, the Department adopts the definition for

agent,

as proposed.

2. Criteria and Non-Criteria Clearance Orders

The Department proposed to add definitions to § 651.10 for

criteria clearance order

and

non-criteria clearance order

because they are terms that are used in the ES regulations but were previously undefined. The Department proposed that the term

criteria clearance order

means a clearance order that is attached to an application for foreign temporary agricultural workers pursuant to part 655, subpart B, of this chapter; and the term

non-criteria clearance order

means a clearance order that is not attached to an application for foreign temporary agricultural workers pursuant to part 655, subpart B, of this chapter. By defining these terms, it will be clearer which orders must comply with both the requirements at part 653, subpart F, and part 655, subpart B, and which orders do not have to comply with the requirements at part 655, subpart B.

The Department received a comment from Farmworker Justice in support of the proposed definitions. Farmworker Justice agreed that clarification is needed regarding which provisions in part 653, subpart F, and part 655, subpart B, apply to the various agricultural clearance orders filed with the Department and with the SWAs. They suggested that the Department use this rulemaking to further clarify and unequivocally state that the normal and accepted standard articulated in § 655.122(b) applies only to job qualifications in criteria clearance orders, and that all other working conditions be assessed under prevailing practices as articulated in § 653.501(c)(2)(i). Farmworker Justice stated that U.S. workers have seen their working conditions consistently eroded in recent years because SWAs have evaluated the working conditions set out in criteria clearance orders under the normal and accepted standard in § 655.122(b) rather than the more rigorous prevailing practice standard required under § 653.501(c)(2)(i). Additionally, másLabor stated that it had no substantive objections to the proposed definitions.

The Department appreciates these comments. The Department believes the

definition for

criteria clearance order

makes clear that such orders must comply with the requirements at part 655, subpart B (which in § 655.121 include the requirements at part 653, subpart F and at § 655.122). Moreover, the definition for

non-criteria clearance order

makes clear that such orders do not have to comply with the requirements at part 655, subpart B. The Department believes these definitions sufficiently distinguish between criteria and non-criteria clearance orders. For these reasons and the reasons set forth in the NPRM, the Department adopts the definitions, as proposed.

As to the request for clarification regarding application of the normal and accepted standard in § 655.122(b) and the prevailing practices standard in § 653.501(c)(2)(i) to criteria clearance orders, this request is beyond the scope of these changes, which are merely to adopt definitions for terms currently in use in the ES regulations, found at parts 651, 652, 653, 654, and 658. For information on the normal and accepted standard and the prevailing practices standard as they apply to criteria clearance orders, see, for example, §§ 655.103 and 655.122, the discussion of § 655.122(l)(3) below, and

Segura Portugal

v.

Louisiana Workforce Commission,

OALJ No. 2022-WPA-00001 (OALJ Dec. 5, 2023) (holding that work rules in employer's criteria clearance order were not included within the meaning of prevailing working conditions under § 653.501(c)(2)(i)); see also ETA Handbook 398 (53 FR 22076, 22095-22097 (June 13, 1988)).

3. Discontinuation of Services

The Department proposed to add to § 651.10 a definition for

discontinuation of services

because it is referenced throughout the ES regulations and is the subject of part 658, subpart F, but was previously undefined. Under the proposed

discontinuation of services

definition, the scope of services to which discontinuation applies includes any Wagner-Peyser Act ES service provided by the ES to employers pursuant to parts 652 and 653, and the scope of individuals and entities to whom discontinuation applies includes

employers,

as defined in part 651, and

agents, farm labor contractors, joint employers,

and

successors in interest,

as proposed to be defined in part 651.

The Department received supportive and opposing comments to the proposed definition. Farmworker Justice supported the proposed definition, stating that it would provide clarity to both SWAs and employers regarding which services are discontinued, and which entities may be subject to the discontinuation of services described in 658, subpart F. Specifically, Farmworker Justice stated that the definition is broad in scope, which is crucial for SWAs to take meaningful enforcement action against entities that act or have acted on behalf of problem employers, or are simply a reconstitution of a prior bad actor under a new name. Farmworker Justice also stated that the proposed definition would clarify that discontinuation of services impacts all ES services in parts 652 and 653, including ES services in another State, thereby preventing bad actors from continuing to receive services, absent reinstatement, elsewhere or for non-criteria orders. Farmworker Justice recommended that the Department consider adding language to the definition to clarify that SWAs cannot process H-2A applications for employers whose services are discontinued.

MásLabor stated they had no substantive objection to the proposed definition of discontinuation of services. However, USAFL and Hall Global stated that discontinuation of services should only apply to services not necessary for participation in the H-2A program. Wafla, an agricultural employer membership organization, expressed concerns that the proposed definition would include entities other than the employer. The organization contended that attorneys, agents, associations, joint employers, farm labor contractors, and any other entity that is not the principal employer to H-2A workers and that was not involved with a potential rule violation should not be subject to discontinuation of services. Wafla was also concerned that discontinuation of services to an agent would negatively affect the agent's other employer-clients, stating that if a SWA or DOL finds a problem with an agent, all of that agent's H-2 clients may be debarred from the program. Separately, the National Cotton Ginners Association and Texas Cotton Ginners' Association commented that though an employer may use an agent for recruitment services with the contracted stipulations that the agent/recruiter must follow all applicable labor rules, the employer has no ability to verify actions taken by these agents. They stated that the proposed rule allows SWAs to discontinue services to an employer due to potential violations that may be outside of the employer's control.

The Department agrees that broadening the scope of entities subject to discontinuation is crucial to ensuring meaningful application of the discontinuation of services provisions at part 658, subpart F. However, the Department clarifies that the proposed changes are meant to hold agents, farm labor contractors, joint employers, and successors in interest accountable for their own compliance with ES regulations. They are not meant to hold entities such as agents, attorneys, or farm labor contractors accountable for the independent actions of the employers they represent. SWAs should not initiate a discontinuation action against an entity that has not met one or more of the bases for discontinuation under § 658.501(a). For example, if an employer is subject to discontinuation of services because it refused to cooperate in field checks conducted pursuant to § 653.503, as described at § 658.501(a)(7), but the employer's agent was not involved in the refusal, the SWA may not initiate or apply discontinuation of services to the agent. Conversely, if an agent is subject to discontinuation of services because it was found by a final determination by an appropriate enforcement agency to have violated an employment-related law and notification of this final determination has been provided to the Department or the SWA by that enforcement agency, as described at § 658.501(a)(4), but the enforcement agency did not also find that the employer engaged in violations, then the SWA would not have a basis to discontinue services to the employer under § 658.501(a)(4). However, it is possible that there may be cases where it is appropriate and necessary to discontinue services to an employer and its agent. For example, if an agent and employer both knowingly misrepresent the number of workers needed for a clearance order or both knowingly cause workers to work at locations or to complete duties that are not described on the approved clearance order, it would be appropriate to initiate discontinuation against the employer as well as the agent. The proposed definition allows SWAs to take appropriate action against noncompliant entities while allowing those entities who are not responsible for the action or behavior giving rise to the discontinuation action to continue receiving ES services; and the ability of the SWAs to pursue discontinuation against multiple types of entities aligns with the scope of entities subject to the debarment procedures in part 655, subpart B. The Department also notes that there may be cases where it is appropriate and necessary to discontinue services to more than one entity regarding the same or similar violation (for example, to the employer,

agent, farm labor contractor, joint employer, or successor in interest). Finally, the Department notes that a SWA's initiation of the discontinuation procedures against entities such as agents/attorneys would not necessarily impact the processing and clearance of an employer's pending job order, as in most cases the SWA will continue to provide services until the discontinuation action becomes final, including the disposition of any appeals filed by such agents/attorneys.

As to the commenter recommendation that discontinuation of services should only apply to services not necessary for participation in the H-2A program, the Department disagrees. Discontinuation has historically applied to ES services available under part 653, which includes access to the ARS. Prospective H-2A employers must use the ARS to recruit U.S. workers as a condition of receiving a temporary agricultural labor certification, and the H-2A regulations provide that employers and entities who file applications for temporary agricultural labor certification under 20 CFR part 655, subpart B must comply with the ARS requirements at part 653, subpart F.

See, e.g.,

§ 655.121 and §§ 655.131-132. The Department, therefore, declines to adopt the recommendation.

Relatedly, the Department has considered the recommendation to add clarifying language that SWAs cannot process H-2A applications for employers with discontinued services. The Department declines to do so because it believes that the definition already includes effective language explaining that entities with discontinued services cannot participate in or receive any Wagner-Peyser Act ES services provided by the ES to employers pursuant to parts 652 and 653. Therefore, SWAs must reject both criteria and non-criteria job orders submitted by employers with discontinued services for either local recruitment or intrastate clearance, which would therefore preclude such employers from participating in the H-2A program.

The Department believes that the proposed changes will allow SWAs to better protect workers and that the regulations are sufficiently clear that discontinuation of services must only be applied to entities that meet the bases described at part 658, subpart F. Therefore, the Department adopts the definition for

discontinuation of services,

as proposed.

4. Employment-Related Laws

The Department proposed to revise the definition of

employment-related laws

to clarify that the term means those laws and implementing regulations that relate to the employment relationship, such as those enforced by the Department's WHD, Occupational Safety and Health Administration (OSHA), or by other Federal, State, or local agencies. The pre-existing definition of this term did not include implementing regulations. Revising the definition clarifies its meaning and scope for ES staff who observe or process complaints relating to violations of employment-related laws, such as outreach workers, complaint system representatives, and those who conduct field checks.

The Department received supportive comments from the Washington State Employment Security Department and Washington State Department of Labor and Industries (Washington State) and Farmworker Justice. Washington State agreed that the new definition clarifies the meaning and scope of employment-related laws for SWA staff. Farmworker Justice stated that the proposed revision would help ES staff and characterized it as a common-sense clarification, not an actual change, to the scope of violations that require ES staff to proceed with discontinuation. Farmworker Justice further stated that a broad reading of the laws covered and agencies involved is necessary to accomplish meaningful enforcement, and that farmworker protections would be gutted if the associated implementing regulations were not also enforced.

MásLabor stated it had no substantive objection to the proposed definition of employment-related laws. USAFL and Hall Global stated that the Department should clarify that employment-related laws apply only when their jurisdictional requirements and any other substantive limitations prescribed by statute or common law have been met. They also stated that the Department should clarify that the agency with primary jurisdiction over the relevant laws and implementing regulations retains primary jurisdiction. They expressed concern that SWAs might misinterpret laws or implementing regulations and sought clarification that the agency with jurisdiction over the implementing regulations would be the authority on how to apply those regulations, not the SWA.

The Department appreciates the comments and agrees that the proposed definition provides needed clarity for SWAs and meaningfully improves worker protections. The Department notes that while SWAs may assess an entity's compliance with employment-related laws in carrying out its obligations under the ES regulations, for example by reviewing clearance orders to ensure their terms and conditions comply with employment-related laws, or by observing and referring apparent violations of employment-related laws to an appropriate enforcement agency, SWAs are not enforcement agents for employment-related laws (unless otherwise authorized).

See

81 FR 56072, 56282 (Aug. 19, 2016). If the employment-related law at issue is not clear or otherwise does not allow the SWA to determine if there is a violation of the law, the SWA must consult with the relevant enforcement agency to ensure a consistent interpretation. The Department, therefore, agrees that the agency with jurisdiction over the applicable laws and implementing regulations would retain jurisdiction and be the final authority on how to apply those regulations, not the SWA. Regarding commenter concern that SWAs might misinterpret laws or implementing regulations, the Department notes that the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, at 2 CFR 200.303(a) and (b), broadly require SWAs to comply with Federal statutes, regulations, and the terms and conditions of their Federal award, and require that each SWA establish and maintain effective internal controls over its ES program, including controls that provide reasonable assurance that the SWA is managing the ES program in compliance with Federal statutes, regulations, and the terms and conditions of the applicable Federal award. Therefore, SWAs must have internal controls (for example policies and procedures) to ensure that their assessments and determinations regarding an entity's compliance with employment-related laws are correct, and if not the Department can take corrective action. For these reasons, the Department finalizes the definition of

employment-related laws

with the two changes discussed below.

Finally, to provide increased clarity, the Department is including in the final definition the terms “rules” and “standards” to make clear that employment-related laws include not only “regulations,” but also any other administrative requirement carrying the force of law, that relates to the employment relationship. For example, the Occupational Safety and Health Act of 1970 authorizes OSHA to promulgate occupational safety and health standards pursuant to the requirements of sec. 6 of the Act, 29 U.S.C. 655. These standards, which relate to the

employment relationship and are enforced by OSHA, are properly within the scope of employment-related laws. The Department is including this additional language in the definition to minimize any risk of confusion that could be caused by the use of “regulations” alone and to clarify rather than expand the scope of this definition.

5. Farm Labor Contractor

The Department proposed to add to § 651.10 a definition for

farm labor contractor

as any person or entity, excluding agricultural employers, agricultural associations, or employees of agricultural employers or agricultural associations, who, for any money or other valuable consideration paid or promised to be paid, recruits, solicits, hires, employs, furnishes, or transports any MSFW. The Department proposed to add this definition because the term is used throughout the ES regulations, most notably in part 653, subpart F, which recognizes that farm labor contractors use the ES clearance system, but it has never been defined. Adding this proposed definition also clarifies the entities subject to discontinuation of services as a result of the proposed changes to part 658, subpart F. As with the term

agent,

because many farm labor contractors that use the ES clearance system also seek temporary agricultural labor certifications from OFLC as H-2ALCs under part 655, subpart B, the Department proposed a definition of

farm labor contractor

that both aligns with the definition of

H-2A labor contractor

at 20 CFR 655.103 and with the definitions under MSPA of

farm labor contractor

and

farm labor contracting activity

at 29 U.S.C. 1802 and 29 CFR 500.20 to maintain consistency between Departmental program areas.

MásLabor stated that it had no substantive objections to the proposed definition. Farmworker Justice expressed concern that because the proposed definition is drawn from the definitions of

farm labor contractor

and

farm labor contracting activity

under MSPA, and MSPA does not include H-2A workers in its definition for

MSFWs

at 29 U.S.C. 1802(7), ES staff may mistakenly assume that H-2A workers would be excluded from the NPRM's definition of farm labor contractor due to its reference to MSFWs. Farmworker Justice stated that this is problematic because farm labor contractors who employ or furnish exclusively H-2A workers should also be subject to discontinuation under part 658 in appropriate circumstances. Farmworker Justice suggested that the Department clarify that the

MSFW

definition at § 651.10, which does not specifically exclude H-2A workers, is the applicable reference in the new

farm labor contractor

definition. Farmworker Justice stated that this would be consistent with longstanding Departmental interpretation that has included foreign workers legally authorized to work in the United States in the Wagner-Peyser Act definition of migrant farmworkers.

The Department clarifies that the reference to MSFWs in its proposed definition means

MSFW

as defined in § 651.10, and that definition does not exclude H-2A workers. Under § 651.10, the term

farmworker,

as it appears in the term

MSFW

(migrant or seasonal farmworker), means an individual employed in

farmwork;

and under § 651.10, the term

farmwork

is defined to also include any service or activity covered under the definition of

agricultural labor or services

at § 655.103(c).The Department notes that it added the terms

farmwork

and

farmworker

to § 651.10 in 2016 to align them with OFLC and WHD definitions and to clarify and expand the types of work covered.

See

80 FR 20690, 20800 (Apr. 16, 2015). The term

farmworker at

§ 651.10 replaced the prior term

agricultural worker,

which the Department defined in 1980 to include certain farmworkers, whether citizens or not, who were legally allowed to work in the United States.

See

45 FR 39454, 39457 (June 10, 1980). The Department did not include this work authorization language in its 2016

farmworker

definition—not to make any substantive change—but to align the definition with other programs, and because it determined it unnecessary to mention immigration status for only a subset of programs.

See

81 FR 56072, 56256 (Aug. 19, 2016). Accordingly, given the Department's longstanding interpretation, the term

MSFW

under § 651.10 does not exclude H-2A workers, and the proposed

farm labor contractor

definition here encompasses those contractors who interact with the ES clearance system for purposes of the H-2A program. The Department further notes that even where farm labor contractors only employ or furnish H-2A workers, they must first engage the ARS for recruitment of U.S. workers as a condition of receiving a temporary agricultural labor certification. Because entities who engage the ES system for temporary agricultural labor certification purposes are subject to ARS requirements (

see

§ 655.121), the Department believes they should be subject to discontinuation of ES services (including the ARS), if applicable. For these reasons, the Department adopts the definition for

farm labor contractor,

as proposed.

6. Joint Employer

The Department recognizes that joint employment relationships are common in agriculture, and that joint employers who submit clearance orders to the ARS are required to comply with the requirements in part 653, subpart F, including when filing a joint application for temporary agricultural labor certification under 20 CFR part 655, subpart B.

See

§ 655.131. The Department, therefore, proposed to add a definition for

joint employer

to § 651.10 to clarify how the concept will be applied in the ES system and to clarify the entities subject to discontinuation of services as a result of the proposed changes to part 658, subpart F. The proposed definition is also intended to ensure consistency with recent changes to the Department's H-2A regulation,

see

87 FR at 61793-61794, and as with the definitions of

agent

and

farm labor contractor,

the proposed definition is modeled on the definition of joint employment at § 655.103 because of the connection between the ES system and H-2A labor certification program.

Farmworker Justice supported inclusion of the joint employer definition, stating that the proposed definition makes clear that, when a fixed-site employer or H-2ALC unlawfully permits another, non-petitioning employer not listed on the clearance order to employ an H-2A worker, or otherwise permits an H-2A worker to provide services to such a non-petitioning employer, both the petitioning employer and the non-petitioning employer jointly employ the worker. MásLabor also stated that it had no substantive objections to the proposed definition.

The Department appreciates commenter support and adopts the definition for

joint employer,

as proposed.

7. Successor in Interest

The Department proposed to add to § 651.10 a definition for

successor in interest

that describes the inexhaustive factors that SWAs should use to determine if an entity is a successor in interest to another entity, and described successors in interest as any entity that is controlling and carrying on the business of a previous employer, agent, or farm labor contractor, regardless of whether such successor in interest has succeeded to all the rights and liabilities of the predecessor entity. The proposed definition allows SWAs and

stakeholders to better understand which entities may be subject to discontinuation as a result of the proposed changes to part 658, subpart F. To maintain consistency between the regulations governing the ES system and the regulations governing the H-2A labor certification program, the Department proposed to adapt the definition of successor in interest as proposed in § 655.104.

Washington State supported the proposed definition, stating that it will better position the SWA to identify such entities and determine if an entity so identified is subject to prior debarment orders when evaluating criteria clearance orders (Form ETA-790/790A). Farmworker Justice also agreed with inclusion of the definition and suggested that the Department devote resources to training SWAs on how to analyze the successor in interest factors to ensure that employers who have had services discontinued are not evading sanction with a simple rebrand. The Farm Labor Organizing Committee of the AFL-CIO (FLOC) endorsed the definition, stating that the proposed changes in § 651.10 and § 655.104 clarify the consequences to H-2A employers and labor contractors who try to avoid their responsibilities for violations of the law by transferring their operations to a new person or entity (usually an associate or family member), while all the time retaining control. In instances where farm labor contractors propose to furnish H-2A labor to farms as a replacement for farm labor contractors that have since been sanctioned or debarred or both, FLOC suggested that there be a presumption that the new farm labor contractor is a successor in interest of the discontinued predecessor; and the prospective new farm labor contractor should be required to prove that they are simply using the equipment and machinery of the previous labor contractor.

MásLabor, McCorkle Nurseries, Inc., and an individual asked that the Department reconsider the scope of the definition, particularly the language that allows for construing entities as successors in interest regardless of whether they have succeeded to all the rights and liabilities of the predecessor entity. MásLabor further explained that this language may prove problematic as it relates to asset purchase arrangements. Specifically, because an acquiring entity may be construed as a successor in interest regardless of whether it has succeeded to the rights and liabilities of the predecessor, and because the factors used to determine successorship include factors relating to the physical assets or core operations of the business itself (for example, use of the same facilities, similarity in machinery, equipment, and production methods, and similarity of products and services), másLabor stated that the proposed definition opens the door for asset purchases alone to trigger successor in interest obligations and liability. MásLabor provided an example, where Farm A is debarred from the H-2A program and subsequently sells its farming property and all the fixtures, buildings, and equipment on its premises to Farm B. MásLabor said it is conceivable that Farm B will be considered a successor in interest to Farm A simply by virtue of taking over the farming operation at the acquired property, and that this would be the case even if Farm B is a model employer that had nothing to do with Farm A's violations. MásLabor stated this possibility would discourage potential acquisitions by good, compliant employers.

The Department appreciates commenter support for the

successor in interest

definition. The Department agrees that the new definition will help SWAs identify entities that reincorporate themselves into another entity with the same interests or operations so as to avoid discontinuation of ES services. Additionally, the Department agrees with providing SWAs training on how to analyze the successor in interest factors so as to avoid a scenario where the sale of property, fixtures, and equipment alone triggers joint employment concerns. The Department will issue further guidance on application of the new

successor in interest

definition. The Department declines to adopt any presumption that a new farm labor contractor or entity is a successor in interest of a discontinued predecessor. Successor in interest inquiries are factor driven and case specific, and the Department believes that the factors outlined in the new definition are sufficient to guide the inquiry. The discussion of the parallel provisions on successors in interest at § 655.104 further address commenters' concerns and provides additional explanation of the Department's reasons for adopting these factors, as well as the language on successor liability addressed below.

The Department has decided to relocate some of the proposed language in the definition describing the scope of liability of successors in interest for ES violations of predecessor entities, from § 651.10 to § 658.500. Relocating this language places the focus of the definition squarely on the factors that SWAs will consider in order to determine whether an entity constitutes a successor in interest. The Department believes that the language on the liability of successors is more appropriate to include in part 658, subpart F, which similarly describes the situations in which entities are subject to discontinuation actions by SWAs. The discussion of § 658.500 below addresses the comments received on this language, as well as the Department's decision not to finalize the proposed introductory language of the

successor in interest

definition (“A successor in interest includes any entity that is controlling and carrying on the business of a previous employer, agent, or farm labor contractor . . .”). The Department adopts the remaining language in the

successor in interest

definition, as proposed.

8. Week

The Department proposed to add to § 651.10 a definition for

week

to clarify that a week, as used in parts 652, 653, 654, and 658, means 7 consecutive calendar days. The proposed definition allows for SWAs and employers to calculate time periods used in the ES regulations uniformly, including for wage calculations and other time-related procedures.

MásLabor commented that they had no substantive objections to the proposed definition. The Department did not receive any other comments on this proposed change.

The Department appreciates the comment indicating that the H-2A employer agent organization did not object to the proposed definition. The Department adopts the definition of

week,

as proposed.

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

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

they place approved clearance orders into intra- and interstate clearance.

1. Section 653.501(b), ES Office Responsibilities

The Department proposed to add a fourth paragraph to § 653.501(b), at § 653.501(b)(4), which would require ES staff to consult the OFLC and WHD H-2A and H-2B debarment lists, and an OWI discontinuation of services list, before placing a job order into intrastate or interstate clearance. The Department further proposed a new paragraph (b)(4)(i), which states that SWAs must initiate discontinuation of ES services if the employer seeking placement of a clearance order is on a debarment list, and new paragraph (b)(4)(ii), which states that SWAs must not approve clearance orders from employers whose ES services have been discontinued by any State. Finally, the Department proposed a new paragraph (b)(4)(iii) to make clear that the provisions in paragraph (b)(4) apply to all entities subject to discontinuation under part 658, subpart F, and not just to

employers

as defined in § 651.10. The Department's response to public comments received on § 653.501(b) is set forth below. For the reasons discussed in the NPRM and below, the Department adopts § 653.501(b), with edits.

Several organizations, including United Farm Workers (UFW) (joined by 59 signatories, including advocacy organizations and legal services providers), the UFW Foundation and UFW (hereinafter, the UFW Foundation), the North Carolina Justice Center, United Migrant Opportunity Service (UMOS), Pineros y Campesinos Unidos del Noroeste (PCUN), Central Coast Alliance United for a Sustainable Economy (CAUSE), and Green America expressed uniform support for requiring initiation of discontinuation procedures where an employer is on an H-2A or H-2B debarment list and for prohibiting clearance orders from employers who have been discontinued in another State. In contrast, several trade associations, including the Western Growers Trade Association, wafla, AmericanHort, Michigan Farm Bureau, Florida Strawberry Growers Association (FSGA), National Council of Farmer Cooperatives (NCFC), and the U.S. Apple Association (USApple), along with Willoway Plant Nursery, opposed or expressed concerns regarding the proposed changes, stating that they do not provide sufficient safeguards or an appeal process, particularly where a SWA mistakes one employer for another when consulting the debarment and discontinuation lists. These commenters cautioned that even minor delays in processing a clearance order could result in irreparable harm to an employer, such as diminished crop yield and monetary loss. In circumstances where a SWA does not process a clearance order for an employer because that employer has the same or similar business name as another employer on the debarment or discontinuation lists, commenters stated that the Department must have safeguards in place for employers to demonstrate that they are not, in fact, the employer named on the lists.

Relatedly, Washington State requested that the Department ensure that the debarment and discontinuation lists are accurate, updated, and easily accessible. Washington State suggested that OFLC add an eligibility checker tool to its Foreign Labor Application Gateway system where employer names are searchable, the debarment and discontinuation lists are updated automatically, and the system alerts SWAs if employers are potentially ineligible due to debarment. They further suggested that the Department create a standard letter notifying applicants of the impact of debarment and making clear that SWAs are bound to deny clearance orders on this basis.

Finally, wafla opposed proposed new paragraph (b)(4)(iii), which clarifies that proposed § 653.501(b) applies to all entities subject to discontinuation, including agents, farm labor contractors, joint employers, and successors in interest as adopted in § 651.10 and § 658.500(b), and not just employers. Wafla stated that only principals should be subject to discontinuation, that moving beyond the employer-employee relationship penalizes third parties that may have had no fault in causing discontinuation, and that unrelated clients of third parties may unjustifiably experience the effects of discontinuation as a result.

The Department appreciates the views and recommendations of commenters that supported, opposed, and raised concerns with the proposed changes to § 653.501(b). Regarding commenter requests for adequate safeguards to ensure against SWAs mistaking one employer for another when consulting the debarment and discontinuation lists, the Department will issue guidance on SWA consultation of the lists, including guidance on identifying employers/entities and

successors in interest

to employers/entities who are on the lists. Regarding the due process concerns raised by commenters, as discussed below, the Department believes that the clearance order review processes at § 653.501 and § 655.121, the discontinuation of services procedures at part 658, subpart F, and the procedures for filing a complaint at part 658, subpart E, provide adequate process and safeguard against unwarranted or harmful delays in processing clearance orders.

First, under proposed paragraph (b)(4)(i), a SWA must initiate discontinuation of ES services pursuant to § 658.501(a)(4) if an employer seeking placement of a clearance order in the ARS is on the H-2A or H-2B debarment list. The employer may contest the SWA's notification of intent to discontinue services in accordance with proposed § 658.502(a)(4). In the specific circumstance raised by some commenters (

e.g.,

Michigan Farm Bureau, FSGA, AmericanHort), where an employer with the same or similar name incorrectly appears on a debarment list, the employer may contest the proposed discontinuation by submitting evidence that they are not, in fact, the employer listed on the applicable debarment list. During this time, the SWA must continue to process the employer's clearance orders, without delay, as no final determination on discontinuation has yet been issued and taken effect. Where the SWA ultimately issues a final determination to discontinue services under proposed § 658.503(a), if an employer appeals by timely requesting a hearing, the request stays the discontinuation pending the outcome of the hearing. The SWA must continue to process the employer's clearance orders, without delay, while the matter is on appeal.

Second, under paragraph (b)(4)(ii), SWAs must not approve clearance orders from employers whose ES services have been discontinued by any State. In the specific circumstance raised by commenters, where an employer believes they have been incorrectly identified as having been placed on the discontinuation of services list, the employer and the SWA may resolve any such discrepancy in the clearance order review processes described in § 655.121 (for criteria clearance orders) and § 653.501 (for non-criteria clearance orders). For criteria clearance orders, that process includes initial review, a deficiency notice, where applicable, an opportunity for an employer to respond, a final determination from the SWA, and allowance for employers to file an emergency Application for Temporary Employment Certification where they disagree with the SWA's final determination (

see

§§ 655.160, 655.164, and 655.171). For non-criteria clearance orders, under § 653.501, SWAs must review and approve clearance orders

within 10 business days of receipt of the order. Within that timeframe, SWAs should attempt to resolve any discrepancy regarding an employer's placement on the discontinuation of services list. For example, where Employer A Corp. files a non-criteria clearance order and a similarly named employer (

e.g.,

Employer A. Inc.) is on the discontinuation of services list, the SWA should review and consider relevant information, such as Federal Employer Identification Numbers (FEINs), Employer A, Inc.'s final determination on discontinuation, or any information provided by Employer A. Corp. indicating that they are not the named employer on the list, prior to approving or denying the clearance order. Where the SWA denies a non-criteria clearance order under § 653.501 because the employer is named on the discontinuation of services list, the employer may timely appeal the discontinuation or seek reinstatement of services under § 658.504. As discussed above, the Department will issue guidance on use of the discontinuation of services list when processing clearance orders.

The OWI discontinuation of services list will be publicly available online and regularly updated with information from States so employers can check the list before they submit their clearance order. In addition, the Department will further revise § 653.501(b)(4)(ii) to specify that employers may submit requests to the OWI Administrator to determine whether they are on the OWI discontinuation of services list. If the OWI Administrator indicates that the employer is not on the discontinuation of services list, then the SWA must approve the clearance order if all other requirements have been met.

Finally, as to consultation of either the debarment lists under proposed paragraph (b)(4)(i) or the discontinuation list under proposed paragraph (b)(4)(ii), the Department notes that where an employer believes a SWA has violated proposed paragraph (b)(4) when consulting the lists, the employer may file a complaint against the SWA under part 658, subpart E. Complaints against SWAs regarding ES regulations are processed pursuant to § 658.411(d). In sum, in all instances of consultation of the debarment and discontinuation lists, the Department believes that its clearance order review processes at § 653.501 and § 655.121, and its procedures at part 658, subparts E and F, provide sufficient safeguards against unwarranted and harmful delays in processing clearance orders, even where an employer believes they have been incorrectly placed, or incorrectly identified as having been placed, on the lists.

Regarding Washington State's request that the Department ensure that debarment and discontinuation lists are accurate, updated, and easily accessible, the Department appreciates the request and suggested methods for doing so. The Department notes that it has proposed a 10-working-day requirement in § 658.503 and § 658.504 for SWAs to notify OWI of any final, effective determination to discontinue ES services, and any determination to reinstate services. As discussed in the NPRM, the Department believes that these requirements will help facilitate prompt implementation and maintenance of the discontinuation of services list, and prompt access to ES services for employers who have been reinstated. The Department will issue guidance on maintenance and use of the discontinuation list. The Department updates the debarment list promptly upon finalizing debarment of an employer from the H-2A program. An up-to-date debarment list is publicly available on the OFLC website.

The Department appreciates Washington State's suggestion that the Department create a standard letter notifying applicants of the impact of debarment and making clear that SWAs are bound to deny clearance orders on this basis. Depending on the violation at issue, debarment is undertaken by either OFLC or WHD, and the relevant debarring agency is responsible for communicating the consequences of such action to the entity it seeks to debar and will review its communication as it implements this final rule. The Department reiterates that under proposed § 501(b)(4)(ii), SWAs are not bound to deny clearance orders to employers who are debarred. Rather, SWAs are required to initiate discontinuation of services to employers who are on the Department's debarment lists. Only where the discontinuation of services has been finalized must the SWA deny an employer's clearance order.

Finally, regarding wafla's opposition to proposed new paragraph (b)(4)(iii), the Department disagrees that discontinuation should apply only to principals. As explained more fully below in Section V.D, to better protect workers, the Department believes that all entities who engage in the ES clearance system, including agents, farm labor contractors, joint employers, and successors in interest, should be subject to possible discontinuation. Moreover, in clarifying and expanding the entities subject to discontinuation, the Department is aligning the ES regulations with existing H-2A regulations at part 655, subpart B, which already permit debarment of agents, farm labor contractors, joint employers, and successors in interest. Regarding wafla's concern about the possible effects of discontinuation on third parties and their clients, the Department believes any such effects are the same or similar as the effects of debarment on the same third parties in the existing H-2A context, and the Department did not receive comments and is not otherwise aware that there have been any unjustifiable effects to these entities under the debarment process.

2. Section 653.501(c), SWA Responsibilities

Section 653.501(c)(3) lists the assurances that each clearance order must include before the SWA can place it into clearance. The Department proposed to revise § 653.501(c) to require that, in the event the employer's date of need changes from the date the employer indicated on the clearance order, the employer must notify the SWA and all workers placed on the clearance order of the change at least 10 business days before the original start date. The Department further proposed that employers that fail to comply with these notice requirements must provide housing and subsistence to all workers placed on the clearance order who are already traveling to the place of employment, without cost to the workers, until work commences, and must pay all workers placed on the clearance order the applicable wages for each day work is delayed for a period of up to 2 weeks, starting with the originally anticipated date of need. The proposed revisions are meant to improve notification requirements and wage protections for workers, as well as align with current § 655.145(b) and proposed § 655.175 protections in the H-2A program regulations. To accomplish these changes, the Department proposed several specific revisions, which are discussed in detail below.

First, the Department proposed to revise § 653.501(c)(3)(i) to remove the requirement that the SWA must make a record of the notification and attempt to inform referred workers of the change in the date of need. The current language improperly incorporates a SWA requirement into the employer assurances and, as discussed below, the Department proposed to shift these responsibilities to the employer. The Department also proposed to move language in paragraph (c)(3)(i) regarding the employer's notice to the order-holding office to § 653.501(c)(3)(iv),

which contains other instructions the employer must follow when giving notice of changed terms and conditions of employment. The Department did not receive comments on these specific changes and adopts them, as proposed, with additional changes (the substitution of “placed” for “referred” and “14 calendar days” for “week”) to conform to the other provisions of § 653.501(c) discussed below.

Second, the Department proposed to remove a redundancy in the first sentence of paragraph (c)(3)(iv), which currently states that the employer must expeditiously notify the order-holding office or SWA immediately. Because immediate notice is expeditious, the use of the word expeditiously is not necessary. The Department did not receive comments on this change and adopts it, as proposed.

Third, in paragraph (c)(3)(iv), the Department proposed that the assurance on the clearance order require that when there is a change to the start date of need, the employer, rather than the order-holding office or SWA, notify the office or SWA and each worker placed on the order. The Department further proposed that notification be in writing (email and other forms of electronic written notification are acceptable) at least 10 business days prior to the original date of need, and that the employer must maintain records of the notification and the date notification was provided to the order-holding office or SWA and workers for 3 years. In paragraph (c)(5), the Department similarly proposed to specify that the employer must notify the office or SWA and each worker placed on the order, to align this paragraph with paragraph (c)(3)(iv).

Wafla, Farmworker Justice, and Washington State supported shifting the notification requirement from the SWA to the employer. Wafla stated that given the variability of crops, crop maturation, weather, work schedules, or over-recruitment in agriculture, the employer knows the conditions on the ground and is capable and should be empowered to make this decision and provide the proposed notification. Farmworker Justice described it as a common-sense change where the employer, who has been in prior contact with the workers, either directly or through agents, is much more likely than the SWA to have the most current and effective contact information; and the employer, rather than the SWA, can more quickly reach workers, when time is critical, by going directly to the workers rather than roundabout through the SWA. Both Farmworker Justice and Washington State stated that the proposed change reduces the burden on SWAs, whose resources, as Farmworker Justice stated, are reportedly already stretched thin. On the other hand, an individual who operates a family farm opposed the employer notification requirement, stating that it would be very difficult and expensive to contact workers individually within 10 days of the start date.

Several commenters raised concerns about employers providing effective notification to workers. MásLabor, whose comments USAFL and Hall Global endorsed, stated that it would be unduly burdensome to require employers to notify workers in writing of a delay at least 10 business days before the original date of need because many U.S. applicants do not provide an email address and employers would need to notify workers by mail, which may not be feasible within 10 business days. MásLabor said the notification requirement creates perverse incentives in that workers who are aware of its limitations may intentionally avoid giving an employer a means for written notice in order to guarantee payment if there is a delay. USAFL and Hall Global additionally cautioned the Department against imposing unnecessary formal notice requirements. They raised concerns with information overload and stated that workers often receive notice and ignore it. They stated that formal notice is not needed where the employer is working with the workers to get them to its workplace, and that any information conveyed in that scenario is a natural part of working together. They requested that the Department look at each formal notice that it demands to make sure it is really justified and necessary.

Farmworker Justice requested that the Department improve the notice requirements, stating that relying on employers to give notices raises concern as to whether meaningful and effective notice will actually be received. Farmworker Justice suggested that the Department require that notice be received, and that employers provide notices in languages spoken by workers. Farmworker Justice also requested employers be required to use the most reliable or speediest form of communication. For example, they suggested, if the employer has a worker's mailing address and phone number, then the employer should be required to send a text message or use a different available phone-based application that the worker may use. Farmworker Justice also noted that the Department did not propose to require employers to contact farm labor contractors or local recruiters if they are not able to contact workers directly to ensure workers get the message.

In response to the másLabor comments, the Department notes that employers may provide written notice to each worker who has been placed on the clearance order using postal mail, email, or other forms of electronic written notification, including by text message. Because employers have a variety of options available to provide the notice, and must use electronic means when the worker provides an email address or their phone number, the Department thinks that it will be a minimally burdensome requirement on employers in the event they are required to provide notice. In response to Farmworker Justice's comments, the Department considered requiring proof that workers have actually received the employer's written notification; however, the Department believes that it will not be possible or practicable for employers to be able to document proof of receipt in all cases. The Department notes that under the proposed changes, employers will be required to maintain records showing that the notification was provided. The Department believes that it is reasonable to expect that most workers will receive written notice sent through either postal mail or electronic written mail or other electronic means before they need to depart for the original date of need. Therefore, the Department is revising paragraphs (c)(3)(iv) and (c)(5) to indicate that employers must send written notification at least 10 business days before the original date of need.

The Department agrees with Farmworker Justice that it is important for employers to provide notifications in languages spoken by workers and is further revising paragraph (c)(3)(iv) to align employer notices with 29 CFR 38.9 language access requirements. The Department made similar changes more broadly to align part 653 with these obligations as part of the Wagner-Peyser Act Staffing Final Rule, 88 FR 82658 (Nov. 24, 2023), which recognized that language access is crucial for individuals with limited English proficiency. The Department reiterates the importance of these non-discrimination obligations and believes that providing notification to workers in accordance with 29 CFR 38.9 is necessary to ensure that workers receive effective notice that apprises them of delays in the start of work. Employers and SWAs may work together as necessary and appropriate to fulfill these obligations. Additionally, the Department is further revising paragraph (c)(3)(iv) to state that if a worker provides electronic contact

information, such as an email address or telephone number, the employer will send notice using one of the electronic contact methods provided. If the employer provides non-written telephonic notice, such as a phone call, voice message, or an equivalent, the employer will also send written notice using the email or postal address provided by the worker at least 10 business days prior to the original date of need.

However, the Department declines to require employers to contact farm labor contractors or local recruiters if they are not able to contact workers directly because it would be difficult to measure when an employer met its responsibilities in notifying workers. Moreover, the purpose of these changes is to streamline communication with workers by requiring direct communication between the employer and worker, and the suggestion to permit third parties to engage in the communication undermines the changes being made in this rule. The Department believes that the adopted changes will increase the likelihood that workers will receive required notices, while making the requirements achievable for employers. The Department also identified that it would help clarify that the notice requirements to which paragraph (c)(5) refers are notices assured in paragraph (c)(3)(iv) of this section.

The Department adopts the notice requirements in paragraphs (c)(3)(iv) and (c)(5) proposed in the NPRM, with further revision to clarify that the employer's written notice must be sent at least 10 business days prior to the original date of need, must be given in languages workers understand, and that the employer must provide electronic notification, if available. The Department has revised paragraph (c)(5) to refer to the assurance in paragraph (c)(3)(iv).

Fourth, in paragraphs (c)(3)(iv) and (c)(5), the Department proposed to require that notification be provided to workers placed on the order rather than eligible workers referred from the order. Relatedly, in paragraph (c)(5), the Department proposed to remove language stating that employers must pay only workers who are eligible pursuant to paragraph (d)(4).

Farmworker Justice supported the proposed change, stating that it reduces the burden on employers by clarifying that only workers who are placed on the order, rather than all workers referred, are covered by the notice requirements. Washington State similarly stated that the proposed change slightly reduces the burden on SWAs by clarifying that neither SWAs nor employers need to notify SWA referrals of delays in start dates.

The Department appreciates commenter support and adopts this change, as proposed.

Fifth, in paragraphs (c)(3)(iv) and (c)(5), the Department proposed that where an employer fails to provide adequate notice of a change to the anticipated start date of need, the employer must provide housing and subsistence to all workers placed on the clearance order who are already traveling to the place of employment, without cost to the workers, until work commences.

The Department received several supportive comments regarding the proposal to require employers to provide housing and subsistence to workers. Wafla, an employer agent organization, agreed that the employer should provide housing and subsistence to all workers already traveling to the place of employment under these conditions. Catholic Charities USA (CCUSA) and the United States Conference of Catholic Bishops (USCCB) (together, CCUSA and USCCB) also agreed, noting that the proposal was designed to ensure workers are not deprived of basic needs because of delays. CCUSA and USCCB further stated that the provision would respect the reliance interests of workers and protect against financial hardships beyond their control. The Alliance to End Human Trafficking commented that the proposed regulation would help people who are otherwise vulnerable to trafficking to obtain the necessary support when disruptions to their employment occur through no fault of their own. CCUSA and USCCB and the Alliance to End Human Trafficking each indicated that the Department should finalize the change, as proposed.

On the other hand, McCorkle Nurseries, Inc. and másLabor expressed concern regarding the housing requirement, stating that it would extend housing obligations to U.S. workers who were otherwise ineligible for employer-provided housing. Additionally, másLabor opposed the subsistence requirement. MásLabor stated that there was a contradiction in requiring subsistence to avoid financial hardship because, under the proposed rule, employers would also be required to pay workers up to 2 weeks of wages. Therefore, workers would be paid as if there were no delay to the start date and financial hardship would not exist. MásLabor stated that because paying wages in this circumstance moots the need for meal subsistence, as workers will have the income to be able to purchase food, the Department should either keep the wage guarantee or keep the subsistence requirement, but not both.

Regarding housing, the Department notes that employers would only be required to provide housing to workers who are eligible for housing under § 653.501(c)(3)(vi), which requires the availability of housing for only those workers, and when applicable, family members, who are not reasonably able to return to their residence in the same day. Because such housing is already required to be available and to meet applicable housing standards prior to the start date of work, the Department does not think that providing housing in the event of a delay in the start date will create a burden or hardship for the employer. To clarify the scope of this requirement, the Department is further revising paragraphs (c)(3)(iv) and (c)(5) to specify that employers must provide the housing

described in the clearance order

to all

migrant

workers placed on the clearance order who are already traveling to the place of employment, without cost to the workers, until work commences.

The Department has considered each comment regarding the proposed subsistence carefully. The Department recognizes the concern raised by másLabor about the burden to employers when the benefit would not be otherwise available if there had been no delay in the start date. In light of this concern, the Department has decided not to finalize the subsistence provision. However, the Department remains concerned about workers being left in a worse position than they would have been had there been no delay. Accordingly, the Department is adding to paragraphs (c)(3)(iv) and (c)(5) that employers that fail to provide the required notice must pay all placed workers for the hours listed on the clearance order

and provide or pay all other benefits and expenses described on the clearance order.

This revision will ensure that workers receive the full monetary and non-monetary benefits they would have received if work had started on time. Therefore, if, for example, the clearance order includes as a benefit some form of payment for or access to food or meals, such as employer-provided lunches, an employer-organized food truck at the property, or simply employer-provided access to a grocer, then the worker would be entitled to those benefits to ensure they are kept whole.

Sixth, in paragraphs (c)(3)(iv) and (c)(5), the Department proposed that where an employer fails to provide adequate notice of a change to the

anticipated date of need, the employer must also pay workers for each day work is delayed up to 2 weeks starting with the originally anticipated date of need or provide alternative work. In paragraph (c)(5), the Department proposed that the employer pay the specified hourly rate of pay on the clearance order, or if the pay listed on the clearance order is a piece-rate, the higher of the Federal or State minimum wage, or if applicable, any prevailing wage. For criteria clearance orders, the employer would be required to pay the rate of pay specified at 20 CFR 655.175(b)(2)(ii). These proposed edits would align the wage requirement in this paragraph with proposed wage requirements in part 655, subpart B, as applicable. The Department also proposed language clarifying that alternative work must be stated on the approved clearance order.

Several organizations submitted supportive comments regarding the proposal to require employers pay up to 2 weeks of wages, when employers do not properly notify workers. The UFW Foundation, UFW, North Carolina Justice Center, UMOS, PCUN, CAUSE, and Green America noted that employers would have to pay such wages if the job started on time and said that the rule proposed a safety net during a particularly vulnerable time, when farmworkers have little or no savings and are awaiting their first paycheck. The UFW Foundation shared stories of multiple farmworkers who experienced delayed start dates, one up to 15 days, which caused the farmworkers to go into debt because their cost of living continued, despite their income being delayed. One farmworker described repeatedly traveling back and forth to the job site each day during a delay, where they were told work was not available that day. The farmworker spent time, energy, and money for gas during the delay. The farmworker further stated that workers return each day only to find they have been replaced, leaving them with no money to pay their mortgages or to purchase groceries. The Agricultural Workers Advocacy Coalition (AWAC) also supported the wage requirement, stating that numerous workers on the Eastern Shore have experienced significant delays in receiving wages at the start of their contracts and have had to go for lengthy periods without enough money to even buy food. Farmworker Justice said the increase to 2 weeks wages was warranted given incoming travel costs and potential economic harm to workers impacted by delay. The Alliance to End Human Trafficking stated that the proposal would help people who are otherwise vulnerable to trafficking to obtain the necessary support when disruptions to their employment occur through no fault of their own. Marylanders for Food and Farmworker Protection stated the proposal promotes accountability, and CCUSA and USCCB stated that the proposed changes are designed to ensure workers are not deprived of basic needs because of delays.

USA Farmers, a national trade association that exclusively represents agricultural employers of H-2A foreign workers, opposed the 2-week wage requirement, calling it unreasonable. USA Farmers proposed that instead of requiring wage payment for up to 2 weeks, the Department instead should align the period of payment to correspond to the number of days the employer was late in providing the notice after the employer knew that start date would change. MásLabor, whose comments USAFL and Hall Global endorsed, and McCorkle Industries, Inc. contended that there are already procedural protections to prevent financial hardship, including the preexisting guarantee of the first week wages as well as existing H-2A employer obligations under the three-fourths guarantee. They described the proposal to extend wages up to 2 weeks as unduly punitive and redundant. MásLabor also stated that the requirement for wage payments to all workers placed on the clearance order extends the wage rate guarantee to H-2A workers, which it described as a drastic expansion of existing requirements. USAFL and Hall Global further stated that the Department did not disclose the reason why any change to the existing regulation was warranted and requested that the Department provide a factual basis for why one week of pay is not sufficient. MásLabor noted that an employer requesting a delay to the start date is itself experiencing hardship and said that the Department must strike an appropriate balance of the equities. MásLabor said that tipping the scales too heavily in favor of the workers by dramatically increasing the costs to employers is not equitable.

Wafla disagreed that an employer should be required to pay workers' wages when they do not meet the 10-business-day notice provision. Wafla said that some delays are due to surprise events, like an unexpected, unforeseeable weather storm or an act of God, and that such events should be considered as valid reasons to delay notification of workers after the 10 business days. The Agricultural Justice Project stated that the wage requirement was fair but noted that this level of detail will make the application process even more daunting for smaller farms while larger business have designated staff or contracted specialists to handle these matters. They stated that honest employers will be penalized here because of the work of other unscrupulous employers who will find new loopholes or workarounds to evade these provisions, particularly where the chance of enforcement is low.

Regarding alternative work, Farmworker Justice said the proposed rule makes clear that alternative work must be in the approved job order, and that this is an important clarification to deter unsafe and uncompensated work. USA Farmers commented that it is not logical to limit alternative work to work described on the clearance order. USA Farmers contended that if the employer is offering work included in the job order, then there would be no need for the employer to delay the start date of work because the alternative work would already be a part of the job order. MásLabor also commented that limiting alternative work to work described on the clearance order makes sense for H-2A workers who cannot perform duties outside the scope of the job order, but not for U.S. workers who are not subject to similar limitations. MásLabor stated that it is unclear why the employer should be restricted to work activities within the scope of the job order for U.S. workers, and why an employer may not count other alternative work if the job duties anticipated are not available. MásLabor contended that if an employer finds such alternative work, the work would also be compensable, and expressed concern that workers might receive double payment.

Regarding the methods for calculating wages, wafla expressed concern that the required wages would need to be hourly, piece rate, or any prevailing wage listed in the job order. Wafla asked how an employer can pay a piece rate to a worker when work has not yet started, and no piece rate has been established. Wafla suggested that the provision require only payment of the hourly rate listed in the job order and nothing more.

The Department agrees that expanding the wage payment requirement in the event of a delay, about which the employer failed to provide required notice, to 2 weeks is necessary for worker protection. As stated in the NPRM, the Department has made a policy decision that one week of wages is insufficient to protect workers from the financial hardships associated with a delayed starting date when such

delays were not communicated, particularly if a worker traveled for the job. Instead of adjusting the number of days wages must be paid to be equal to the number of days the employer's notice was late, as USA Farmers suggested, the Department is finalizing its proposed requirement that the number of days wages must be paid must be equal to the number of days work is delayed, up to 2 weeks. This helps ensure workers receive compensation commensurate with the amount of financial impact they experience due to the delay.

While it may add an additional cost, these requirements are not intended to be punitive to employers. Instead, the wage payment is designed to be protective for workers by ensuring that they are not disadvantaged due to circumstances beyond their control. The Department notes that in lieu of paying the 2 weeks' worth of wages, if the employer fails to comply with the notice requirements, employers can provide workers alternative work if such alternative work is listed on the approved clearance order. The Department has determined that this alternative effectively addresses the hardship concern by providing the worker a source of income, which would otherwise have been available but for the delay, while continuing to allow the employer flexibility to adjust their anticipated start date. Alternative work may be provided to help employers recover from unexpected weather events or acts of God. Finally, the requirement to pay up to 14 days of wages does not mean that workers will receive more money than they otherwise would have under the offered and agreed-upon terms of the clearance order, had the work begun on time. For example, if a delay lasts 10 days and the workers begin work on the 11th day, the employer, if having not provided adequate notice and not providing alternative work, is required to pay the worker only what they originally promised to pay.

As described in the discussion for parallel proposals in § 655.175, the Department disagrees that preexisting protections are sufficient to prevent financial hardship, including the preexisting requirements to pay one week of wages as well as existing H-2A employer obligations under the three-fourths guarantee. The requirements in § 653.501(c) ensure workers receive the first 2 weeks of wages at the beginning of the contract term and with the first scheduled paycheck. This helps avoid financial hardship workers might experience at the beginning of work, which is distinct from the three-fourths guarantee described for criteria clearance orders in part 655. The Department also notes that the requirements in § 653.501(c) apply to both criteria and non-criteria clearance orders, so this provision provides a necessary protection to workers not otherwise covered by the requirements in the Department's H-2A regulations.

The Department notes that the option for an employer to provide alternative work is preexisting and the Department did not propose to change that part of the regulation, except to clarify that the alternative work must be in the

approved

clearance order. The addition of

approved

is intended to clarify the existing regulation but not to change its meaning. Regardless, the Department believes it is important to retain the option to provide alternative work and that any alternative work must be described in the clearance order. Maintaining this option provides employers with flexibility to employ workers through other duties that are useful to the employer, though not their primary or anticipated need. For example, if an employer files a clearance order for apple pickers, the employer might include a description of alternative work that explains workers may be required to perform related work to prepare or maintain growing areas or to prepare containers and other specific support activities. In the event of a delay related to weather conditions, where the employer failed to properly notify workers, the employer could offer alternative work that would help the business be ready for work to start or to recover from the weather condition that caused the delay. Such work would be considered alternative because the primary job duties for the workers would be apple picking but, if apple picking is not possible, workers could be offered work that supports the primary work activity or business. The Department maintains that it is necessary for the alternative work to be described in the clearance order so that potential applicants have adequate notice of the duties they may be asked to perform, which are material terms and conditions. Applicants may decide to apply or not to apply based on the alternative work described in clearance orders. For these reasons, the Department declines to revise the option to provide alternative work and the specification that any alternative work must be described on the clearance order.

Additionally, though the Department did not receive comments requesting the Department to align the language of § 653.501(c)(3)(iv) and (c)(3)(5) with the parallel requirements in part 655, the Department has determined that it would be clearer to revise § 653.501(c)(3)(iv) and (c)(3)(5) so that the wage requirement is stated in days, instead of weeks, to be consistent with § 655.175. This revision does not change the proposed requirement.

The Department is finalizing the proposal to expand the period during which employers must pay the applicable wage to 2 weeks, from the current 1-week period, with one edit to describe the required 2-week period as 14 calendar days.

Finally, in paragraph (c)(5), the Department proposed new language instructing SWAs to process noncompliance with the employer's obligations in paragraph (c)(5) as an apparent violation pursuant to § 658.419. The Department did not receive comments on this change and adopts it, as proposed.

3. Section 653.501(d), Processing Clearance Orders

The Department proposed to remove paragraphs (d)(4), (7), and (8) in their entirety because, with the proposed change in paragraph (c) to have employers notify workers of any change in the start date, the requirement that the applicant holding office notify workers of any changes is no longer relevant or necessary.

Farmworker Justice supported the removal of paragraph (d)(4), stating that it eliminates an additional obstacle for U.S. workers in that previously they had to contact the ES Office to verify the original date of need to be eligible for the first week's pay. The Department did not receive any other comments.

The Department appreciates commenter support and adopts the removal of paragraphs (d)(4), (7), and (8), as proposed.

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

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

The Department believes that revising the regulations, as described below, provides SWAs the needed additional clarity to better implement the discontinuation provisions and would allow ETA, including its regional offices, to better monitor and support SWAs to ensure they initiate discontinuation of services as required by the regulations. This will improve worker protection by preventing noncompliant employers from using the ES service to obtain workers (including H-2A workers, as employers seeking to use the H-2A visa program must first file a clearance order through the ES) which, in turn, aids the Department in ensuring a fair labor exchange system for compliant employers, and meeting its statutory obligations to maintain and increase the usefulness of the ES system. Additionally, the proposed clarifications and improvements to the discontinuation procedures provide greater certainty to employers seeking to provide information to SWAs in response to a notice of intent to discontinue, or seeking to reinstate services, and protect employers' interests by ensuring that they receive informative and timely determinations from SWAs. Specific changes are discussed below.

1. General Comments

The Department received several supporting and opposing comments on the general revisions to discontinuation of services provisions in part 658. The National Women's Law Center said that improving protections for both H-2A and corresponding workers is key to ensuring that abusive employers do not take advantage of the H-2A program to discriminate against their non-H-2A workforce and exploit the vulnerability of H-2A workers. It described the changes proposed to the discontinuation of services provisions as key improvements. Farmworker Justice said that discontinuation provides vital protections for workers who want to receive what they are owed and work under improved conditions without losing their jobs altogether. According to Farmworker Justice, unlike debarment, which is a discretionary sanction, discontinuation of services is mandatory whenever an H-2A employer is determined to have violated an employment-related law. Farmworker Justice further said that the detailed provisions for reinstatement of services can ensure farmworkers impacted by the employer's violations receive restitution, which may not routinely occur in debarment cases, and also highlighted the importance of corrective action plans described in part 658. Farmworker Justice also noted underapplication of the pre-existing discontinuation of services regulations by SWAs and said that, if properly applied, discontinuation of services would be a major deterrent to employers who might otherwise violate the law.

The U.S. Chamber of Commerce stated that it was concerned that the proposed revisions to the Wagner-Peyser ES regulations would have a significantly negative impact upon employers' ability to obtain and retain H-2A workers. The U.S. Chamber of Commerce said that the proposed revisions would incur additional processing costs, increase the likelihood of delays in obtaining workers, and create significant risks for business disruptions should employers run afoul of the new requirements in the middle of the seasons. The U.S. Chamber of Commerce stated that additional operating costs would affect American consumers in the form of higher food prices.

USA Farmers described the proposed regulations as an attempt to weaponize the Wagner-Peyser system against farmers and U.S. workers seeking agricultural employment and that the changes could block employers from utilizing the ARS for minor or unproven alleged violations of regulations and deny employers due process. USA Farmers contended that there is no rational need for the changes. USA Farmers stated that the Department already has a robust debarment program with due process rights. They argued that, as a result of this proposal, employers with violations that are not serious enough to warrant debarment by the Department will nonetheless effectively be debarred. USA Farmers also stated that the process to request a hearing and for SWAs to make decisions is flawed.

USAFL and Hall Global stated that the Department should defer adoption of the proposal and engage in detailed discussions with stakeholders. USAFL and Hall Global noted that discontinuation of services applies to the H-2A program and to non-H-2A related services and that, because the H-2A regulations mandate that a prospective H-2A employer access the interstate clearance system, discontinuation of services can amount to a permanent debarment of an employer.

The Northwest Horticultural Council (NHC) said that it is aware that many SWAs have limited resources and are often short staffed, which may contribute to the low use of discontinuation of services. NHC noted that many SWAs work closely with growers where clarification or questions may arise rather than simply discontinuing access to the services, which the commenter said it believes should be encouraged. NHC stated a concern that the proposed expansion of those subject to discontinuation of services, as well as the proposal to remove SWA discretion prior to discontinuation, will lead to delays in processing clearance orders for all employers, not just those subject to additional scrutiny. Additionally, NHC had concerns about limited employer recourse to the Department if there is ongoing conflict with the respective SWA.

The Department agrees with the comments from National Women's Law Center and Farmworker Justice, and believes that the changes are necessary to ensure worker protections, while offering adequate due process to employers. The Department notes that employers that comply with applicable laws and regulations should not experience delays or expenses related to these procedures because they will not have met the bases described at § 658.501 that mandate SWAs to initiate procedures for discontinuation of services. As described in greater detail in the following comment responses, the bases at § 658.501 in many cases describe that, to meet the basis for discontinuation, the employer must have

refused

to comply with the stated requirements. The bases that describe employer refusal to comply assume that the SWA has already attempted to resolve issues, which provided the employer with an opportunity to avoid initiation of discontinuation of services. For example, the SWA may be required to initiate discontinuation of services after the SWA attempted to informally resolve apparent violations under § 658.419 or complaints under § 658.411. The Department believes that the provisions of part 658, subpart F clearly explain that discontinuation of services is not the SWA's first response when it identifies apparent violations, or in response to complaints, except in cases where immediate discontinuation is warranted. The Department further notes that where immediate discontinuation is warranted, under § 658.502(b), the employer must also have met one of the stated bases at § 658.501(a), therefore, employers are not at risk of experiencing discontinuation of services for unsubstantiated claims, as some commenters suggested. The Department affirms that employers must comply with all applicable employment-related laws, as well as the full terms and

conditions of clearance orders, to employ workers through the ES system. The Department maintains that all ES regulations and employment-related laws are important and notes that the preexisting bases at § 658.501 similarly required SWAs to initiate discontinuation of services to employers who failed to comply with such requirements.

The Department will discuss comments specific to each of the proposed changes below but wishes to provide a response to these general comments to indicate that the interest of worker protection is compelling and supports the Department's determination to implement most of the changes, as proposed. The Department maintains that there are adequate procedural protections to protect the due process rights of employers, including several mechanisms to allow employers to respond to and resolve identified noncompliance, prior to discontinuation of services. The Department also maintains that the purpose and application of discontinuation of services is distinct from debarment actions, which more narrowly apply to certain programs. The proposed changes foster a culture of compliance between employers, workers, and SWAs, which is necessary to uphold the laws of the United States and their implementing regulations.

2. Section 658.500, Scope and Purpose of Subpart F

The Department proposed to revise § 658.500, which describes the scope and purpose of subpart F, to add language consistent with proposed revisions to § 658.503 that discontinued services include services otherwise available under parts 652 and 653. This revision clarifies the scope of services discontinued to include the labor exchange services—such as recruitment, career, and labor market information services—available to employers under part 652.

Farmworker Justice supported the proposed change, stating that it provides needed clarification that all job services in parts 652 and 653 are impacted by discontinuation. Additionally, the UFW Foundation, UFW, North Carolina Justice Center, UMOS, PCUN, CAUSE, and Green America expressed general support for inclusion of labor exchange services at part 652. On the other hand, USAFL and Hall Global stated that discontinuation of services should only apply to services

not

necessary for participation in the H-2A program, meaning discontinuation should only apply to the services available at part 652, and not part 653.

The Department appreciates commenter support for this clarification. Regarding the recommendation that discontinuation of services should only apply to services

not

necessary for participation in the H-2A program, the Department disagrees. Discontinuation has historically applied to ES services available under part 653, including access to the ARS. As explained above, prospective H-2A employers must use the ARS to recruit U.S. workers as a condition of receiving a temporary agricultural labor certification, and employers and entities who file applications for temporary agricultural labor certification under 20 CFR part 655, subpart B must comply with the ARS requirements at part 653, subpart F.

See, e.g.,

§§ 655.121 and 655.131655.133. The Department, therefore, declines to adopt the recommendation. and adopts this paragraph, as proposed.

The Department also proposed to add paragraph (b) to § 658.500, which would explain that for purposes of this subpart, employer refers to

employers,

as defined at § 651.10, and

agents, farm labor contractors, joint employers,

and

successors in interest,

as proposed to be defined at § 651.10. Proposed paragraph (b) therefore describes which entities may experience discontinuation of services. Each of these entities may engage in the ES clearance system by creating or submitting clearance orders, or by managing or utilizing workers placed on ES clearance orders.

Agents

and

farm labor contractors

often engage the ES clearance system by submitting clearance orders and controlling many aspects of recruitment activities relating to clearance orders.

Joint employers

may utilize workers placed on clearance orders in the same or similar manner as the

employer,

defined at § 651.10, with whom they jointly employ those workers, and each joint employer is responsible for the violations of the other joint employers. A

successor in interest

may have reincorporated itself from an

employer

whose ES services have been discontinued into another business entity that maintains the same operations or interests, allowing that entity to undermine the effect of the discontinuation of the original entity in contravention of the purpose of the discontinuation regulation. The revisions were proposed to clarify and expand the entities who engage the ES clearance system and are, thus, subject to discontinuation. Specifically, the proposed change would make it clear that agents, farm labor contractors, joint employers, and any successor in interest to an agent, farm labor contractor, or joint employer, are subject to discontinuation of services.

Finally, as the proposed

agents, farm labor contractors, joint employers,

and

successors in interest

also seek temporary agricultural labor certifications from OFLC under part 655, subpart B, adding these entities here brings the discontinuation regulation in line with the existing H-2A regulations, which permit the debarment of agents, farm labor contractors, joint employers, and successors in interest, as well as fixed-site H-2A employers, and agricultural associations. For the reasons set forth in the NPRM and below, the Department adopts the proposed paragraph (b), with one addition.

The UFW Foundation, UFW, North Carolina Justice Center, UMOS, PCUN, CAUSE, and Green America all expressed support for greater accountability to third parties, stating one of the strongest protections in the proposed rule would be a series of changes that would strengthen enforcement actions against employers' agents, contractors, joint employers, and successors in interest. Similarly, the National Women's Law Center stated that the proposed rule would improve administration of the H-2A program, including discontinuation of services, to help prevent employers and their agents from abusing the H-2A program.

Several commenters expressed concern that the proposed changes would make third parties liable for the actions of employers, and employers liable for the actions of third parties. The Arizona Farm Bureau Federation, North Carolina Farm Bureau Federation, Inc., Golden Plain Farms, Inc., Western Range Association, and Roossinck Orchards, Inc. opposed the proposed changes, stating that they hold farmers responsible for violations committed by farm labor contractors, recruiters, attorneys, etc. Similarly, wafla stated that the inclusion of entities who are not the principal employer, have no clear control of day-to-day workplace conditions, and have nothing to do with potential rule violations giving rise to discontinuation is overbroad. The American Immigration Lawyers Association (AILA) opposed inclusion of successors in interest, stating that successors in interest are not responsible for issues created by former owners and should not have to answer for those issues merely by purchasing a business. The National Cotton Ginners Association and Texas Cotton Ginners' Association opposed the inclusion of agents, stating that the rule makes small agricultural business that rely on agents for recruitment services subject to

discontinuation because of potential violations by the agent that may be outside of the employer's control. The Mountain Plains Agricultural Service stated that the proposal extends enforcement of employment-related laws to agents that are not employers and not subject to said laws and regulations. Relatedly, the International Fresh Produce Association (IFPA), the Georgia Fruit and Vegetable Growers Association (GFVGA), U.S. Custom Harvesters, Inc., Texas International Produce Association (TIPA), NHC, the U.S. Chamber of Commerce, Titan Farms, LLC, Demaray Harvesting and Trucking, LLC, an individual, and an anonymous commenter all opposed the changes stating that they do not make clear who—whether the filing entity, the underlying employer, or both—will be subject to discontinuation of services when a SWA determines that a basis for discontinuation exists.

Additionally, commenters opposed the inclusion of agents and attorneys because of the legal and ethical duties they owe to their clients. USApple stated that agents and attorneys are legally and ethically bound to carry out their clients' intentions, and the proposed rule would allow for discontinuation of services to agents and attorneys where their client refuses to, for example, modify a job order. Similarly, másLabor stated that agents and attorneys are not free to unilaterally take action that is contrary to the intent of the client, and if an employer disagrees in good faith with the SWA and instructs the agent or attorney not to modify an application in accordance with the SWA's instructions, the agent is therefore duty-bound to follow that instruction and push back against the SWA.

Several commenters asked that the Department consider the economic implications of the proposed changes and their potential effect on the industry. IFPA, GFVGA, U.S. Custom Harvesters, Inc., TIPA, NHC, the U.S. Chamber of Commerce, Titan Farms, LLC, Demaray Harvesting and Trucking, LLC, an individual, and an anonymous commenter all stated that agents and attorneys play an invaluable role in processing criteria clearance orders, certifications, and petitions for employers—particularly for small farm employers without staff or expertise to undertake the process. Discontinuation of services to third parties would impact farm employers across the country who, in good faith, rely on that third party and could not anticipate the SWA action. Because the timing for filing a clearance order and date of need is incredibly tight, under the proposed rule, farmers will suffer significant financial losses caused by circumstances over which they have no control, leaving them with crops in the field and no harvesters to collect them. Additionally, farmers will have increased costs associated with hiring a new third party to file their clearance orders or redirect staff resources to undertake the task while the company is preparing for harvest.

Relatedly, wafla stated that discontinuation to an attorney or filing agent would negatively impact the other clients that attorney or agent serves, such that all of that attorney's or agent's clients would be debarred from the program. MásLabor stated that discontinuation to an attorney or agent would preclude that agent or attorney from filing job orders in that State for its other clients. The Western Range Association stated that discontinuation to agents would be disconcerting to the entire industry because there are only two agents that the majority of ranchers in its service area use. USApple stated that discontinuation to an attorney or agent would reach much further than a

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