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

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URL: https://www.frixlaw.com/law-library/documents/fr%3AE9-12436

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** May 29, 2009
- **Citation:** 74 FR 25972

## Text

DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
Wage and Hour Division
29 CFR Parts 501, 780, and 788
RIN 1205-AB55
Temporary Employment of H-2A Aliens in the United States

AGENCY:

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

ACTION:

Final rule; suspension of rule.

SUMMARY:

The Department of Labor (DOL or the Department) is suspending the H-2A Final Rule published on December 18, 2008 and in effect as of January 17, 2009. That Final Rule amended the regulations governing the certification for temporary employment of nonimmigrant workers in agricultural occupations on a temporary or seasonal basis, and the enforcement of contractual obligations applicable to employers of such nonimmigrant workers. To ensure continued functioning of the H-2A program, the Department is republishing and reinstating the regulations in place on January 16, 2009 for a period of 9 months, after which the Department will either have engaged in further rulemaking or lift the suspension.

DATES:

Effective June 29, 2009.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

I. Background and Overview

The H-2A visa program provides a means for U.S. agricultural employers to employ foreign workers on a temporary basis to perform agricultural labor or services when U.S. labor is in short supply. Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (INA or the Act) (8 U.S.C. 1101(a)(15)(H)(ii)(a)) defines an H-2A worker as a nonimmigrant admitted to the U.S. on a temporary or seasonal basis to perform agricultural labor or services. Section 214(c)(1) of the INA (8 U.S.C. 1184(c)(1)) mandates that the Secretary of the Department of Homeland Security (DHS) consult with the Secretary of the Department of Labor (the Secretary) with respect to the adjudication of H-2A petitions, and, by cross-referencing Section 218 of the INA (8 U.S.C. 1188), with respect to determining the availability of U.S. workers and the effect on wages and working conditions. Section 218 also provides further details of the H-2A application process and the requirements to be met by the agricultural employer.

The Department's regulations at 20 CFR part 655, subpart B—“Labor Certification Process for Temporary Agricultural Employment Occupations in the United States (H-2A Workers),” govern the H-2A labor certification process. The Department's regulations at 29 CFR part 501 implement its enforcement responsibilities under the H-2A program. The Department's regulations on Fair Labor Standards Act (FLSA) exemptions applicable to agriculture, processing of agricultural commodities, and related subjects under the FLSA at 29 CFR part 780, and the Department's regulations on FLSA exemptions applicable to forestry and logging operations at 29 CFR part 788, set forth the Department's interpretation of the FLSA provisions relating to agriculture, forestry, and logging.

On December 18, 2008, the Department published a Final Rule revising title 20 of the Code of Federal Regulations (20 CFR) part 655 and title 29 of the Code of Federal Regulations (29 CFR) parts 501, 780, and 788 (the December 2008 Rule or Final Rule). See 73 FR 77110, Dec. 18, 2008. The December 2008 Rule replaced the previous versions of 20 CFR part 655 (2008) and 29 CFR part 501 (2008) that, for the most part, were first published at 52 FR 20507, Jun. 1, 1987. With respect to the provisions under 29 CFR parts 780 and 788 that were amended by the December 2008 Rule, the previous versions of 29 CFR 780.115, 780.201, 780.205, and 780.208 were published at 37 FR 12084, Jun. 17, 1972, and the previous version of 29 CFR 788.10 was published at 34 FR 15784, Oct. 14, 1969.

Following the issuance of the December 2008 Rule, United Farm Workers and others filed a lawsuit in the U.S. District Court for the District of Columbia on January 12, 2009 challenging the December 2008 Rule.
United Farm Workers, et al.
v.
Chao, et al.,
Civil No. 09-00062 RMU (D.D.C.). The plaintiffs asserted that in promulgating the December 2008 Rule, the Department violated section 218 of the Immigration and Nationality Act as well as the Administrative Procedure Act. The plaintiffs requested a temporary restraining order and preliminary injunction, along with a permanent injunction that would prohibit DOL from implementing the December 2008 Rule. On January 15, 2009, Judge Ricardo M. Urbina denied the plaintiffs' request for a temporary restraining order and preliminary injunction on the basis that the plaintiffs failed to show “likely, imminent and irreparable harm;” the court did not address the merits of the case or whether the plaintiffs demonstrated the substantial likelihood of success on the merits. Accordingly, the December 2008 Rule went into effect as scheduled on January 17, 2009.

As the Department began implementing the December 2008 Rule, it immediately encountered a number of operational challenges which continue to prevent the full, effective and efficient implementation of the December 2008 regulation. The Department also has realized that the implementation of the December 2008 Rule without further consideration of the relevant legal and economic concerns that have arisen since its publication was proving to be disruptive and confusing not only to the Department's administration of the H-2A program but also to State Workforce Agencies (SWAs), agricultural employers, and domestic and foreign workers, especially in light of the severe economic conditions facing the country. Furthermore, the development of the December 2008 Rule was based in part on the policy positions of the prior Administration with which the current Administration may differ and wish to reconsider, especially in light of changed economic conditions. This is particularly true with respect to the changes to wages paid to H-2A workers wrought by the shift of the Adverse

Effect Wage Rate (AEWR) from the wage rates based on data compiled by the U.S. Department of Agriculture (USDA) to those calculated on data from the Bureau of Labor Statistics in its Occupational Employment Statistical Survey (OES). This reconsideration may result in new rulemaking to seek additional comment from affected users and other interested parties. In light of the potential for new rulemaking, the Department believes it would not be an efficient use of limited agency resources, appropriated from taxpayer funds, to continue to attempt to operationalize the December 2008 Rule, and that it would be disruptive and confusing for program users and the Department to engage in the steps necessary to make the current rule fully operational.

For these reasons, on March 17, 2009 the Department published a Notice of Proposed Suspension of Rule (the Notice), which proposed to suspend the December 2008 Rule for 9 months and reinstate on an interim basis the prior H-2A regulation in effect on January 16, 2009 (the Prior Rule). 74 F.R. 11408 (March 17, 2009). The suspension of the December 2008 Rule and temporary reinstatement of the Prior Rule will allow the Department to review the December 2008 Rule to ensure that it effectively carries out the statutory objectives and requirements of the program in a manner that minimizes disruption to the Department, SWAs, employers, and workers by temporarily reinstating prior regulations which had been in effect for over 20 years and with which the agricultural community already is familiar.

II. Comments on the Proposal and the Department's Responses and Decision

The Department received over 800 comments in response to the publication of the Notice of Proposed Suspension of Rule (the Notice). The majority of the comments were based on form letters raising similar issues and concerns. Commenters included individual farmers and associations of farmers, farm bureaus, law firms, farmworker advocates, State agencies (including SWAs), Members of Congress, and individual members of the public. The Department has reviewed the comments and taken them into consideration in drafting this Final Suspension Rule (Final Rule, or Final Suspension).

The Department received several comments through means beyond those listed in the Notice or after the comment period closed. In fairness to all parties, these comments were not reviewed in the consideration of the Final Rule. In addition, in the Notice, the Department requested that parties limit their comments to the issue of whether the Department should suspend the December 2008 Rule for further review and consideration of the issues that have arisen since the December 2008 Rule's publication. Though all comments have been reviewed, only those comments responding to issues on which the Department sought comment were considered in this Final Rule.

A. Comments Regarding the Stated Policy Rationale for Suspension

1. The Department's Problems in Implementing the December 2008 Rule Have Resulted in Confusion, Processing Delays and Program Disruption

a. Lack of Resources

The Department received a number of comments, both supporting and opposing a suspension, responding to the suggestion that both the Department and the SWAs lack resources to fully implement and administer the current regulations. Some commenters indicated support for the Department's position that the December 2008 rule should be suspended due to the shortage in resources available for fully implementing and administering that rule past the transition period. Conversely, a substantial number of comments called into question the substance of the rationale, arguing that the Department failed to present concrete evidence of a lack of resources to fully implement the December 2008 rule. The majority of comments that discussed the lack of resources to operationalize the program as written in the December 2008 Rule argued that the Department presented insufficient evidence and only relatively vague statements with no clear supporting evidence. Other commenters asserted that the new program
is
in fact already operational and has been for more than two months and is working just as the DOL said it would in the December 2008 Rule. One commenter pointed to some evidence believed to contradict the Department's claims of insufficient resources, citing the DOL's discretionary budget for the Fiscal Year 2009 being more than $17.5 billion, constituting a nearly 50% increase over Fiscal Year 2008 levels, and indicating that the growing trend is likely to continue with the President's budget for Fiscal Year (FY) 2010 which includes further increases for the Department.

The Department's FY 2009 budget is irrelevant to the Department's ability to implement the December 2008 Rule when it was promulgated. The December 2008 rulemaking was commenced and conducted without regard to resources required by the Employment and Training Administration (ETA) generally or for Office of Foreign Labor Certification (OFLC) specifically to implement the changed processes and the potential increased use of the program. The Department has determined that the agency's mandate is advanced by evaluating the December 2008 Rule, as opposed to bringing a potentially flawed program into full operation. The suspension will allow the Department to focus its resources in a more efficient manner, and will result in a more thorough determination regarding the best direction for the H-2A program.

A few commenters asserted that the Department's claims of resource shortfalls are suspect in light of having engaged in the perceived costly exercise of suspending the December 2008 Rule and reinstating the old regulations that will presumably require more work on the part of the Department and the SWAs. Other commenters asserted that complaints of funding shortfalls have been prevalent in the State and local DOL offices long before the current regulations were implemented. A handful of commenters argued that the attestation process under the current regulations and related SWA relief from certain housing inspection obligations lessened demand on DOL resources, thus undermining the Department's argument of budgetary shortfalls. One commenter indicated that DOL failed to provide evidence about the new role of the SWAs under the current regulations, arguing that SWAs have less to do under the current regulations than before and therefore should require the same or lesser amount of resources.

The Department's statutory obligations, especially many of those it delegates to the SWAs, have not changed regardless of the set of regulations under which they operate. The process of filing an application for H-2A workers under either set of regulations still begins with the placement of an agricultural order into clearance with the SWA having jurisdiction over the work, and continues through the State-assisted referral process and the mandatory housing inspection.
1

SWAs retain many

of the same responsibilities under the December 2008 Rule as they did under the prior rule.

1
The commenters' suggestion that SWAs are no longer required to perform housing inspections under the December 2008 Rule is simply inaccurate; the fact that, in some exigent circumstances, the Department will not withhold a certification for lack of an inspection does not relieve the SWA of its responsibility to perform the statutorily required inspection. The December 2008 Rule is clear that the SWAs are still expected to perform preoccupancy housing inspections.

b. Inability To Implement Sequence of Operational Events

In the Notice of Proposed Suspension, the Department cited as crucial to the proposed suspension its inability to implement the sequence of operational events required to avoid confusion and processing delays, including implementing an automated review system, and training program users and SWA staff. One commenter supporting this rationale for the suspension indicated that the December 2008 regulations compound the application processing problem with guaranteed delays in temporary programs—mainly H-2A and H-2B—by creating an additional burden in increased supervised recruitment, as well as increased demands from the PERM program. Since its effective date, the Department has seen a steady increase in the numbers of delayed applications, where compliance with the statutory processing times has not been met. (See below section II.A.1.c. Processing Delays.) Delayed applications can translate into delayed petitions for nonimmigrant workers, delayed entries by needed workers, and—for lack of workers—delayed activities by farms and farming operations. The Department is concerned with the correlation between this increasing delay in the Department's meeting of its statutory mandate. The suspension is intended to allow the Department to work with a system with which it is familiar while it determines whether to retain the new system or engage in new rulemaking. Using a system with which the Department is familiar and which it has the infrastructure to implement will hopefully reduce processing times and enable the Department to more closely meet its statutory processing obligations.

Some commenters argued that all new rules require staff training, new materials and programs, but that issues arising during the implementation period may not be permanent and should not derail a lawfully promulgated rule. The Department readily recognizes that new regulations undergo necessary implementation phases and that alone is not a reason to suspend a rule, even where (as here) the office is promulgating significant changes for the first time in over 20 years that create considerable need for re-training staff and establishing of new guidelines for adjudication, new policy interpretations, etc. However, here the extremely narrow window between the publication and the effective date of the current regulations, especially since it occurred during the Presidential transition period, simply provided too little time for the Department to adequately train both staff and users in the basics of the program, much less the many nuances in program administration. Thus, absent a suspension, an untenable situation has developed in which the newly promulgated H-2A program has not been effectively implemented, putting users and adjudicators alike at a substantive disadvantage.

A number of comments focused on the Department's statement of need for an automated processing system and asserted that the December 2008 H-2A program is less resource intensive than the old program which had no automated system, and is therefore less in need of such a system. Other commenters pointed out that the prior H-2A program never had an automated processing system due to its complexity. Another commenter said that the Department never promised an automated system nor was the regulated community expecting one, and that in its experience, the processing times have been faster under the new program. Still other commenters pointed out that reverting to the old program, with its duplicative filing and requirements for manual processing, will not result in shorter processing times.

In the December 2008 Rule, the Department noted that an automated system was contemplated at some future time for the public. However, the Department's inability to create an internal automated system for tracking and processing of applications, not an external one, is the most substantial factor with which the Department is currently concerned. In a time in which the Department receives thousands of H-2A applications, an automated system geared to the relevant format and information collection is a necessity for the 21st century. Core program processing requirements—such as the calculation of statutory processing dates from date of receipt—require some electronic ability for collection and calculation. The current system, designed to a now-obsolete information collection of two pages (compared to the current 10 page collection), is simply inadequate to track the increased information required under the December 2008 regulations—information that, under an attestation-based collection, is critical for analysis to determine compliance with program requirements. Use of the current system to administer the December 2008 Rule will adversely impact program integrity. The Department notes, for example, that an inability to systematically track information that would enable it to conduct audits of certified applications and undertake actions resulting from audits means that the Department cannot effectively implement that part of the new system. This lack of functionality creates a significant inability to adequately address the procedures and systems necessary to implement an attestation-based system.
2

Furthermore, the ability to capture particular data elements from employers' applications as a basis for determining how to allocate audit resources was fundamental to the design of the December 2008 Rule. As discussed in the preamble to the December 2008 Rule, the Department envisioned a robust audit system that monitored filings under the re-engineered attestation-based process to ensure that the employment of H-2A workers does not adversely affect the wages and working conditions of similarly employed U.S. workers. Without such a system, the potential for fraud is increased, program integrity is in jeopardy, and U.S. workers are at risk of adverse affect.

2
In addition, the Department has not yet created a fillable form, compelling employers to print the form and type or hand-write the information being collected.

In response to the Department's statements about its inability to provide sufficient training for SWAs and stakeholders on the December 2008 regulations, a number of commenters indicated that trainings were conducted in Denver and Atlanta in advance of the effective date of the regulations. In addition, several commenters asserted that DOL conducted more than one training for both SWA staff and employers prior to the effective date of the regulations and noted that this was the first time DOL presented training on the December 2008 Rule to the user community.
3

Another commenter indicated that extensive training was conducted and materials were provided at no charge to stakeholders and had been available in PDF on DOL's Web site.

3
This is in fact incorrect, even if relevant; even in recent years the Department has engaged in significant outreach to its user communities in foreign labor programs. See, e.g., Announcement of Public briefings on the H-2B Temporary Non-agricultural Worker Labor Certification Program, 72 FR 17940 (Apr. 10, 2007); Announcement of Public Briefings on Using Redesigned Labor Certification Forms and Stakeholder Meeting, 74 FR 2634 (Jan. 15, 2009).

The Department made attempts to educate both stakeholders and SWAs as well as its own staff, holding not only

briefing sessions for the public (in which some SWA staff participated) but also for SWAs, limiting the latter to the transition procedures. However, the December 2008 Rule, published during the middle of a Presidential transition period, became effective only 30 days after the publication, as noted above. This gave both internal and external users little time to understand, implement, and adapt to the changes contained in the December 2008 Rule. Most significantly, the Department had little opportunity, prior to the effective date of the rule, to provide adequate assistance to the affected communities on both sides of the application process.

c. Processing Delays

In its March 17, 2009 Notice of Proposed Suspension, the Department pointed to delays and corresponding disruption to the program in the middle of the growing season as a core reason for temporarily suspending the current regulations pending additional review.

Most comments received in response to this statement disagreed with the Department's assertion that it had experienced processing delays. Many commenters complained that the Department failed to offer specific, detailed and concrete evidence demonstrating the nature and extent of the processing delays. Large growers associations cited contrary experience, indicating either fewer delays under the current regulations than in the past, or timely processing of applications. However, several commenters along with a substantial number of other program users expressed a great deal of frustration with the Department for failing to meet their need for extensive technical assistance, as well as a general lack of comprehension of the December 2008 Rule.

One commenter stated that DOL staff has done a good job implementing the current regulations on the operational level, despite complaints of inadequate staff, improper infrastructure and archaic computer support. Others commenters noted that employers have experienced fewer delays under the new regulations despite the fact that the H-2A program has always been understaffed.

Despite the anecdotal experiences of individual commenters, the ability of the Chicago National Processing Center (CNPC) to issue timely case decisions under the new H-2A regulations has decreased. Timely case decisions (in which an acceptance/modification letter is issued no later than 7 days of receipt of the H-2A application and/or a final determination no later than 30 days before the employer's date of need) have decreased as a percentage of H-2A applications adjudicated in any given week. While the percentage of delayed cases—cases outside the statutory timeframes for adjudication—has varied since the effective date of the current rule, it has not fallen below 27% of all cases in process at that time, and has been as high as 58%. The median days processing time for 2009 has also exceeded the times in 2008; in February 2009, the median number of days to process a case was 27 days (compared to 23 days for the same time period in 2008). In March 2009, the median number of days to process a case was 25, compared to 23 days in March 2008. In summary, the number of days from case receipt to adjudication has increased, as has the Department's percentage of delayed cases. Therefore, despite the December 2008 rule's intended purpose, that rule is at least one factor in the increases in the time in which applications have been handled, which has led to increased delays in application processing.

While the increased processing times may seem modest, they are cause for concern to the Department. In a statutory processing timeframe in which applications are filed only 45 days prior to the date of need and must be adjudicated no later than 30 days prior to date of need, delays of even a few days signal a significant failure by the Department to meet its statutory timeframes. One of the Department's goals in seeking to streamline the processing of H-2A applications was to ensure timely processing of applications—which was already a concern for the Department. Not only has that goal not been achieved, the new processing model has, at least so far, pushed that goal farther away. The processing delays also highlight the Department's ever-increasing inability to adequately perform its functions under the December 2008 Rule. This is particularly worrisome considering that the Department has seen its number of H-2A applications actually decrease compared to the same time span last year, with the Department receiving only 706 H-2A applications in February 2009, compared to 930 applications it received during the same month last year. Due to this demonstrated trend, the Department foresees increased difficulties in meeting its statutory processing times if the H-2A program experiences its anticipated increase in future participation. Delays in the Department's processing times mean that DHS and the Department of State have less time to process visa petitions, grant visas and admit workers before the employer's date of need. While there is no evidence that the current delays have caused harm, if the delays continue to increase, as it appears likely that they will, at some point the harm will become very real.

Though most commenters did not address the effect of additional demands on the Department to process incoming applications, one large growers' association opposed to the suspension noted that the existing DOL-reported delays will be increased by a suspension, resulting in unacceptable delays and gridlock for H-2A and H-2B employers for the majority of applications scheduled to be filed in April through June 2009.

The Department disagrees that a suspension will exacerbate the current delays in processing program applications. The process for filing and handling applications during the suspension will be the filing procedures of the former rule with which CNPC and SWA staff and all previous program users are familiar. The burden of review during a suspension will be shared by SWAs and the CNPC. As a consequence, processing times should decrease with the reinstatement of the former rule.

d. Confusion and Disruption Under the Procedures of the December 2008 Rule

The Department said in its March 17, 2009 Notice of Proposed Suspension that there is increasing evidence that continuing to implement the December 2008 regulations in light of existing experience and before additional examination is disruptive and confusing to the Department's administration of H-2A program, SWAs, agricultural employers and domestic and foreign workers.

The Department received several comments supporting the suspension because of this confusion and ensuing disruption. One commenter noted that the regulations should be suspended because they have caused confusion among employers, State Workforce Agency staff and workers. Another commenter cited anecdotal evidence of policy confusion and contradictions on the local level requiring a certain group of employers to pay overtime wages contrary to the current regulations, although this commenter generally opposed suspension of the 2008 rule on this basis. Another commenter, writing on behalf of a State Workforce Agency, indicated that confusion is already manifest in the processing of job orders during the transition period. Yet another commenter provided examples of confusion prevalent in communications between the SWA and the CNPC on such issues as the timing of receipt of

job orders from the CNPC, the use of master applications, and the timely identification of traditional labor supply States.

Another commenter indicated that SWAs are currently receiving insufficient support from the CNPC for dealing with pre-filing issues, such as rejection of qualified U.S. workers. Confusion also exists about the timing of housing inspections which are being conducted under two sets of differing regulations. The same commenter provided additional evidence of confusion and disruption, including the presence of anomalies in wage rates, which have caused the issuance of wage rate determinations that are occasionally lower than the State minimum wage rate; and also, instances where an SWA was instructed to make referrals to non-provider and non-traditional labor supply states, which in turn reduced the chances of getting U.S. workers to fill the positions.

The Department received other comments which challenged its assertions about the confusion and disruption caused by the current regulations. The most common objection from the commenters challenged the very existence of confusion and disruption under the December 2008 regulations, and noted that DOL did not specify in the Notice of Proposed Suspension the types of confusion and disruption experienced in administering the program or present examples. In addition, a large number of commenters argued that employers and the larger regulated community were not experiencing confusion. At least one commenter added that DOL would create confusion and disruption by suspending the regulations. One large grower association identified DOL as the source of confusion and disruption and accused the Department of limiting access to guidance, training and informational resources, and neglecting to fulfill its obligations in advising the regulated community on the current regulations.

The majority of commenters opposed to the suspension posited that there is no disruption among users resulting from the relevant legal and economic concerns associated with the December 2008 Rule. One commenter indicated that the current H-2A program is different from the prior regulatory regime in form and substance but the changes do not constitute such a fundamental shift in the Department's obligations, given the long lead time before the rule's promulgation to warrant a precipitous change in direction. One association noted that the largest users of the current H-2A program reported that the December 2008 regulations have made for a more logical, predictable, reliable and less disruptive approach to securing legal labor than the old regulations.

While each commenter's experience may be different, the Department disagrees with those commenters that there has been no disruption or confusion resulting from the new regulations. That the Department did not spell out in detail the specifics of the confusion experienced by program users, but only summarized the level of confusion and suggested it was sufficient to propose suspending the rule, does not negate the existence or lessen the impact of such confusion. Indeed, the Department received over 200 e-mail inquiries seeking clarification of the December 2008 regulations during the 3 months that a special mailbox was open to the public.

Moreover, the inquiries that the Department has received show the general lack of understanding and knowledge among employers with the process implemented by the December 2008 Rule. As noted above, the Department did conduct two briefing sessions for the public in December 2008 just before the publication of the December 2008 Rule, which fewer than 200 H-2A employers, agents, attorneys, farmworker advocates, State Workforce Agency employees, and others were able to attend. The attendees were provided an advance (draft) copy of the rule text at the meeting, and were provided a brief overview of the new regulations to be issued by DOL, (by both ETA and ESA). The Department of Homeland Security, which issued its own H-2A regulations at the same time, also participated in both briefings. These two briefings, however, did not even begin to respond to the questions and concerns arising from the new rule. Moreover, because of the resource constraints discussed earlier and the change in administrations and priorities, the Department has not been able to individually address the subsequent comments and questions nor provide adequate general program guidance.

After that briefing, the Department has received, between late December and early March, at least 250 written inquiries from program users on the basic program requirements. Some of these questions, both simple and complex, have come from some of the same commenters who now say they have seen no difficulties with the new rule. While a few questions demonstrated an understanding of the new rule, many others demonstrated complete confusion with the new regulatory requirements, the forms, or the process in general. The following are some of the questions received by the Department as recently as March 2009 which show a fundamental lack of understanding of the new rule:

“Do I advertise before I send in the application and do I send copies of this advertising?”

“To confirm, does form 9142 take the place of both form 750 and 790 in the new H-2A certification processing?”

“Does employer have to place a job order with SWA before filing the application with DOL? Is there any wait time?”

These questions evidence confusion about the basic program requirements and employers' obligations under the December 2008 regulations.

In addition, many more questions were directed to the individual SWAs, which at times over the past few months have provided contradictory or misinformed guidance (as noted by some commenters), in large part due to the SWA staff's own lack of understanding of the December 2008 rule. The Department has become aware, for example, that at least one SWA, a full month into the program, was erroneously giving out incorrect wage rates, which were directly contrary to the requirements of the new regulations. Another SWA asked the Department, as recently as April 2009, whether, on an application filed under the December 2008 Rule, it was required to refer, and the employer required to accept, referrals through 50 percent of the contract period (the “50 percent rule” of the former regulations), not the 30 days post-date of need as required under the December 2008 Rule.

SWAs still have a significant role under the December 2008 regulation, so their fundamental misunderstanding of the essential elements of the new regulation threatens program integrity and contributes to the public's continued confusion about the H-2A application process and corresponding employer obligations.

The most telling evidence of confusion among the farming employer community, however, lies in the number of applications the Department has received that require modifications in order to be made acceptable for processing. In the first three months of the program, January, February and March 2009, the Department found that 50%, 56%, and 46% of the applications processed in those months, respectively, required modifications to the applications. For the same timeframe last year, the percentages of applications requiring modifications were 10%, 16%, and 26%, respectively. This severe disparity of modifications of everything

from minimum requirements to contract issues demonstrates how little knowledge of the new regulations even seasoned users of the program have been able to glean.

Based on the volume and nature of the inquiries that the Department has received in the early days of the December 2008 Rule, as well as the number of applications that require further investigation, the Department disagrees that there is no confusion. The significant lack of understanding of the new rule is evident from the questions the Department continues to receive daily from even seasoned program users, and is of deep concern to the Department. Even if some members of the regulated community understand the current implementation of the new rule sufficiently for compliance purposes, there remains the fact that the December 2008 rule is not yet fully implemented, as the Department is still operating the program within the transition procedures prior to full Final Rule implementation.

2. Avoiding the Disruption of Fully Implementing a Complex Regulatory Scheme When Further Review of Policy and Economic Concerns Are Warranted

In the March 17 Notice, the Department identified as a factor in considering whether to suspend the current regulations the disruptive effect of implementing a complex regulatory scheme without further consideration of the legal and economic concerns that have arisen during the current economic downturn, such as the rising unemployment among U.S. workers and the impact that may have on the Department's H-2A statutory obligation to ensure no adverse effect on the U.S. worker population from the introduction of the foreign workforce. Although the Department received many comments opposing this basis for suspending the regulations, the Department also received several comments strongly supporting the proposed action.

One commenter asserted that the current regulations should be suspended because of the change in economic circumstances which has taken place since the promulgation of the December 2008 Rule, including the increased unemployment that is having an effect on the availability of U.S. workers. Another commenter on the State level noted that unemployment has increased nationally and in its State in a way not anticipated during the rulemaking process for the December 2008 Rule. The commenter urged that the Department must have an opportunity to reconsider policy implications of the H-2A program overall, particularly those program components that are likely to have an adverse impact on the U.S. workforce in the changed economic circumstances.

Another commenter indicated that DOL did not provide supporting evidence showing that the delay in implementation of the December 2008 regulations will cause disruption in the agricultural sales, production and market conditions, even in this unstable economic environment. This commenter went on to assert that DOL's proposed suspension will drive up costs and force users out of the program and negatively impact supporting jobs in the greater economy, thus itself generating a disruptive economic impact. Another commenter noted that DOL's mandate is not to abate the effects of increased unemployment but to protect workers, which it is adequately doing under the current regulations.

The commenter's objection to the proposed suspension based on the purported increase in employers' expenses due to an increase in required wage rates is a critical reason the Department needs to examine and re-evaluate the wage regime instituted under the December 2008 Rule. One of the Department's most important functions in its administration of the H-2A program is to ensure that admission of H-2A workers does not adversely affect the wages of U.S. workers. At all times, but particularly in the midst of a severe economic downturn, the Department is required to ensure that its regulations do not create or compound an adverse effect on U.S. workers. This is particularly the case where, as in the H-2A program, the Department has a statutory obligation to ensure protection of U.S. agricultural workers, one of the most vulnerable sectors of the workforce.
4

The many commenters who cite increased wages as a central reason for not suspending the December 2008 Rule are doing so on the grounds that wage costs for their foreign workforce under the former regulations will be higher than under the December 2008 Rule. One of the primary reasons that the new Administration wants to review the December 2008 Rule is precisely to determine whether the generally reduced wage rates under that rule are having a depressive effect on farmworker wages.

4
There is little dispute among commenters with the Department's position that farm hires are disadvantaged in the labor market relative to most other U.S. wage and salary workers. U.S. Department of Agriculture, “Profile of Hired Farmworkers, A 2008 Update,” Economic Research Report, No. 60, July 2008, page iii.

The Department stated in its Notice of Proposed Suspension that the December 2008 Rule, and the policy positions from which the rule was promulgated, may need to be reconsidered given the efforts being made by the current Administration to stabilize the economy. A majority of commenters criticized the Department for considering a change in the regulations on policy grounds. Some of these commenters asserted that even if the current Administration does not agree with the policies represented by the December 2008 Rule, the December 2008 Rule was carefully considered, planned and prepared over a long period of time and underwent a significant amount of review. Others noted that the December 2008 Rule was legally promulgated and should not be “scrapped” without the Department first undertaking a similarly painstaking new rulemaking process.

The Department also received comments supporting its desire to revisit the policies of the previous Administration reflected in the December 2008 Rule in light of the goals and objectives of the current Administration. One such commenter argued that it would be an inefficient use of limited agency resources, as well as confusing and disruptive to the program users, to engage in the full implementation of the December 2008 Rule if the Department is likely to issue a different rule soon. This commenter felt the suspension would be less disruptive and confusing than continuation of the December 2008 rule.

The Department agrees that it is not appropriate to fully implement a rule that is under reexamination by the current Administration. The Administration has, through the suspension, taken the first step to begin a review of the regulatory policies of the previous Administration reflected in the December 2008 Rule in light of its own policies.

The Department also agrees with those commenters who feel that less disruption will follow from a suspension than from a continuation of the December 2008 Rule. The Administration is not at this time eliminating the rulemaking of the previous Administration; rather, it is temporarily putting that rulemaking on hold in order to review the policies in that rulemaking and, if warranted, reopen the issues contained in the H-2A program for further notice and comment. The suspension is of limited duration in both effect and time; by providing notice and an end date, the Department is limiting the impact of the suspension as much as is feasible while

still enabling the review the Administration believes is necessary. The December 2008 Rule is not now being “scrapped” but is being temporarily suspended in order for the Administration to undertake what it considers to be an essential review.

B. Impetus for the Timing of Suspension

The March 17 Notice of Proposed Suspension stresses the importance of moving swiftly with the suspension in order to avoid confusion and disruption of the H-2A program in the midst of the growing season.

One group of farmworker advocate organizations offered support for the immediate implementation of a suspension, arguing that the regulations must be suspended before the end of the transition period of the current regulations to avoid compounded confusion and disruptions in application processing due to the Department's inability to fully and properly implement the complex new regulatory program. Other comments supported this position, noting that if there is a likelihood that a new program will be designed and the December 2008 Rule changed, the December 2008 Rule should be suspended immediately in order to prevent confusion and disruption.

Most commenters, however, criticized the Department's timing of the suspension, indicating that it would be disruptive during the critical time for crop production. The commenters argued that the suspension overlapping with the growing season will hurt the employers who have already planned and calculated their costs on the basis of the current regulations.

As discussed further below, however, the Department has clearly indicated its intent to apply the current regulations to all applications filed prior to the effective date of this Final Rule. Since most applications for this growing season have been filed or will have been filed before this Final Rule becomes effective, the Department does not believe that the concerns about disruption for this season are a major concern. For additional discussion, see Section III. infra.

C. The Department's Authority To Suspend the December 2008 Rule

A number of commenters objected to the proposed suspension of the December 2008 Rule because the Department's rulemaking process for the proposed suspension was not in compliance with the Administrative Procedure Act (APA). There appeared to be differing views among the commenters on the conformity of the Notice of Proposed Suspension with the rulemaking requirements under the APA. Accordingly, the Department reiterates the key facts relating to the rulemaking process undertaken thus far. On March 17, 2009, the Department published its Notice of Proposed Suspension in the
Federal Register
. The Notice proposed to suspend the December 2008 Rule for nine months and to reinstate the Prior Rule. The Notice requested comments relating solely to the proposed suspension itself (
i.e.
, not the substance or merits of either rule) from the public through March 27, 2009. The publication of the Notice of Proposed Suspension did not in any way result in the immediate suspension of the December 2008 Rule. Rather, the Department accepted comments from the public during the ten-day period between March 17, 2009 and March 27, 2009. Once the comment period closed, the Department reviewed and considered the comments that it received from the public and, through this Final Rule, is suspending the December 2008 Rule and reinstating the Prior Rule for 9 months. The suspension of the December 2008 Rule and reinstatement of the Prior Rule will not take effect until 30 days after the date of this Final Rule's publication.

These facts are significant with respect to various comments that the Department's actions during this rulemaking process are a violation of the APA. Because different actions are cited by the commenters as bases of the asserted APA violation, we address each action separately.

1. 10-Day Comment Period

A number of commenters argued that the 10-day comment period provided in the Notice of Proposed Suspension was unreasonable and violated the APA. Commenters claimed that many farmers were in the midst of their growing season, and 10 days was too short of a period to provide a sufficient response to the notice. Rather, these commenters stated that an adequate comment period required at least 30 days. Additionally, some commenters cited the apparent discrepancy between the 10-day comment period for the proposed suspension and the 60-day comment period for the Department's rulemaking process for the December 2008 Rule. Accordingly, there were many requests to extend the comment period up to 60-90 days.

Section 553 of the APA plainly states:

(b) General notice of proposed rule making shall be published in the
Federal Register
, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include:

a statement of time, place, and nature of public rule making proceedings;

reference to the legal authority under which the rule is proposed; and

either the terms or substance of the proposed rule or a description of the subjects and issues involved.

(c) After notice required by this section, * * * the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis or purpose.

An agency is only required to provide a “meaningful opportunity” for comments on a proposed rule, which means that an agency's mind must be open to considering them. See
Grand Canyon Air Tour Coalition
v.
FAA
, 154 F.3d 455 (D.C. Cir. 1998). Nowhere does the APA set forth a minimum time period for accepting rulemaking comments. In fact, courts have upheld comment periods as short as seven days. See
Northwest Airlines, Inc.
v.
Goldschmidt
, 645 F.2d 1309 (8th Cir. 1981). Additionally, comment periods shorter than 30 days have been upheld where there was no evidence of any harm to the petitioners by the short comment period, as demonstrated by the volume and substance of comments received by the agency and the measurable effect such comments had on the final rule. See
Florida Power & Light Company
v.
U.S.
, 846 F.2d 765, 772 (D.C. Cir. 1988) (upholding 15-day comment period where 61 comments were received, “some of them lengthy”) and
Omnipoint Corporation
v.
FCC
, 78 F.3d 620, 630 (D.C. Cir. 1996) (upholding 15-day comment period where 45 comments and 42 letters were received).

Here, the Department received over 800 comments, many of which contained detailed analyses of the impact suspension would have on the participants in the H-2A program and which the Final Rule has addressed and taken into account. Given the absence of a required minimum comment period under the APA, the sheer volume and substance of the comments and the Department's detailed discussion and consideration of the comments in this Final Rule, the Department believes that the 10-day comment period for this rulemaking is reasonable. Furthermore, while the Department did provide a longer comment period during the 2008 H-2A rulemaking process, a shorter timeframe is warranted here given the

need for expediency as discussed earlier in this preamble and the much more limited scope of this suspension rulemaking.

2. Limitation of Scope of Comments to Suspension

An agricultural association objected to the Department's limitation of the scope of comments to the suspension itself, as opposed to comments on the merits or substance of either the current H-2A rule or its predecessor rule. The association stated that it has numerous comments it would like to offer on both the current regulations, as well as the prior regulations, and on this basis the association objected to the Department's reinstatement of the old regulations during the suspension period.

As the Notice of Proposed Suspension makes clear, the current Administration intends to review and evaluate the social and economic implications of the December 2008 Rule. The Department stated that if it were to decide to suspend the December 2008 Rule, the Department will either “engage in further rulemaking or the suspension will be lifted after 9 months.” Thus, comments on the merits of the existing and previous program would be appropriate when the merits of the program are actually at issue in that rulemaking. The suspension of the December 2008 Rule and reinstatement of the Prior Rule is strictly a temporary measure arising from the Department's need to review in an expeditious manner the December 2008 Rule to ensure that the Department effectively carries out the statutory objectives and requirements of the H-2A program. The December 2008 Rule has not been repealed; it will only be held in abeyance for nine months. Unless the Department engages in further rulemaking, about which comments on the substance and merits of the proposed regulation will be solicited, the December 2008 Rule will continue to remain in effect once the suspension expires after nine months.

3. Effective Date of Suspension

As mentioned earlier, there was some confusion among the commenters as to when the suspension would take effect. Some commenters believed that the suspension took effect upon publication of the Notice of Proposed Suspension or would take effect immediately at the close of the comment period. Another commenter believed that the suspension would take effect before April 1, 2009. Accordingly, a few commenters stated that the Department was required to show good cause in order for the suspension of the current H-2A rule to take effect immediately. However, the Department never stated in the Notice of Proposed Suspension, nor does it intend in this Final Rule, that the suspension would take effect immediately.

As explained earlier, neither the publication of the Notice of Proposed Suspension, nor the close of the comment period resulted in the immediate suspension of the December 2008 Rule. The Department never intended to issue, and in fact is not issuing, a Final Rule suspending the December 2008 Rule without having undertaken a substantive review and consideration of the comments that were submitted during the comment period. Part of this misunderstanding may be attributed to the Department's reference in its Notice of Proposed Suspension that “if the suspension continues on April 1, 2009, the previous regulations that were in effect on April 1, 2008 would appear in the next published version of the CFR as 20 CFR 655.1 and 20 CFR part 655.” The Department merely intended to track the publication schedule of the CFR, in which title 20 is updated annually as of April 1st. However, the Department acknowledges that the statement may have been thought to erroneously imply that the suspension would have been in effect before April 1, 2009, which was not the Department's intention. The Department would like to clarify that because the suspension did not take effect before April 1, 2009, this year's published version of the CFR as 20 CFR 655.1 and 20 CFR part 655 will contain the December 2008 Rule in effect as of April 1, 2009.

A farmworker advocacy organization expressed support for the suspension to take effect immediately upon publication of the Final Rule of suspension. However, while the circumstances described in this preamble warrant suspending the December 2008 Rule, the Department recognizes the need to have some period of adjustment to the Prior Rule, in light of the challenges associated with changing regulatory programs, as noted by many commenters. Accordingly, the Department has determined not to waive the 30-day delayed effective date requirement in Section 553(d) of the APA.

D. Impact of Suspension

The Department received many comments expressing concern about the impact of the suspension. The Department first would like to explain and clarify how the suspension of the current rule and reinstatement of the Prior Rule will take effect before addressing the particular concerns raised by commenters. The suspension will become effective 30 days after the date of publication of this Final Rule. The Department stated in its Notice of Proposed Suspension that “[i]f a final decision is reached to suspend the H-2A Final Rule, any H-2A application for which pre-filing positive recruitment was initiated in accordance with the H-2A Final Rule prior to the date of suspension will continue to be governed by the H-2A Final Rule.” This statement must be understood in the context of the Department's subsequent extension of the transition procedures.

On April 16, 2009, after the issuance of the Notice of Proposed Suspension, the Department published an Interim Final Rule (IFR) which extended the transition period under 20 CFR 655.102(b)(2) to cover all applications with a date of need on or before January 1, 2010. See 74 FR 17597. During the transition period employers do not engage in pre-filing recruitment in traditional or expected labor supply States in which there are a significant number of qualified domestic workers. Under the transition procedures, employers are provided information on expected labor supply States as part of their post-filing recruitment instructions. Given that all applications filed before the effective date of the suspension will still be subject to the transition provision at 20 CFR 655.102(b)(2), which provides for post-filing recruitment, no employers will be required to engage in pre-filing positive recruitment before the effective date of the suspension. Nevertheless, in keeping with the intent expressed in the Notice of Proposed Suspension, any H-2A application which is filed while the December 2008 Rule is still in effect will continue to be governed by the December 2008 Rule, while applications filed on or after the effective date of the suspension and the reinstatement of the Prior Rule will be governed by the Prior Rule.

Despite a recommendation from a farmworker advocacy organization to apply the Prior Rule to all pending and approved job orders, the Department does not believe there is a legal basis to do so, and therefore will not apply the Prior Rule to applications filed under the December 2008 Rule. Following the farmworker advocacy organization's suggestion would undermine employers' expectations and reliance on the current rule prior to its suspension. Moreover, implementing this suggestion may violate the prohibition on retroactive rulemaking. See
Nat'l Mining Ass'n
v.
Dep't of Labor,
292 F.3d 849, 860 (D.C. Cir. 2002).

The reinstatement of the Prior Rule will be accompanied by the reinstatement of Form ETA-750 in the H-2A program. Form ETA-9142 for H-2A applications
5

may be filed up to the day before the effective date of the suspension. However, as of the effective date of this Final Rule, employers will be expected to use Form ETA-750, and any H-2A applications filed using the Form ETA-9142 will not be accepted.

5
Note that the discontinuation of Form ETA-9142 in the H-2A program in no way affects the requirement to use the Form ETA-9142 in the H-2B program.

1. Uncertainty of Applicable Regulations; Impact on Planning and Operations

A number of commenters expressed concerns about the confusion and disruption that would result from the suspension of the December 2008 Rule. In particular, a State agricultural agency questioned: (1) Whether farmers would be allowed to abandon applications when they learn that they are going to be subject to the Prior Rule; (2) whether it would be possible for farmers to end up with some workers being subject to the December 2008 Rule and some to the Prior Rule; (3) whether farmers will find that their applications filed under the December 2008 Rule are rejected once the Prior Rule is in place. Such concerns were echoed by a number of farmers and agricultural associations, particularly as to how the suspension would affect applications filed but not yet approved.

Employers always have had the ability to abandon or withdraw pending applications without penalty, regardless of which regulations apply. However, as explained above, the Department has clearly identified the time frame for determining whether an application falls under the December 2008 Rule or the Prior Rule. Applications filed before the effective date of this Final Rule will be governed by the December 2008 Rule. Applications filed on or after the effective date of this Final Rule will be governed by the Prior Rule. Thus, applications filed before the effective date of this Final Rule will not be governed by the Prior Rule and therefore, could not be rejected, nor will the employer be penalized, because the application is not in compliance with the Prior Rule.

The Department understands that one of the results of this suspension is that a farmer may have workers subject to two different sets of rules, depending on the date on which the applications covering the H-2A workers were filed. However, as discussed in greater detail in Section II(C)(3) of this preamble, such situations already occur and have not detrimentally affected the H-2A enforcement process.

A number of growers also raised concerns about having invested much time and effort in learning the December 2008 Rule, and that their reliance on the December 2008 Rule in planning for their 2009 growing season will cause them to incur additional administrative, operations, and financial burdens if the December 2008 Rule is suspended. In particular, one agricultural association stated that their members planned for their 2009 crop activities using the December 2008 Rule to budget for operating costs, secure financing, plan personnel needs, finalize contracts, and schedule product deliveries. They claimed that such changes mid-season would not only disrupt their operations, but could potentially put them out of business based on differences in compliance costs, particularly with respect to wages and transportation. One State department of agriculture claimed that the suspension would cause disruptions in the harvest due to an insufficient labor supply and create shortages of products in the marketplace which would raise food prices. Other commenters were concerned that the suspension would create a disincentive for employers to participate in the H-2A program and result in greater use of illegal labor and the outsourcing of food production.

The Department acknowledges that the suspension of the December 2008 Rule is a change that will inevitably result in some disruption from the status quo created by the December 2008 Rule. However, the Department does not believe that the disruption will rise to the damaging levels claimed by the commenters. First of all, the Prior Rule that will be reinstated through this Final Rule and which was replaced by the December 2008 Rule only 3 months ago had been in effect for over 20 years. Clearly, the agricultural industry did not grind to a halt during that period, and most of the current users under the H-2A program have a sufficient degree of familiarity and experience with the Prior Rule. Even though one agricultural association claimed that there was a wide consensus regarding the problems with the Prior Rule and that reverting back to it would be more disruptive than staying with the December 2008 Rule which has only a few perceived minor problems, the rulemaking record of the December 2008 Rule contradicts these points. The Department received over 11,000 comments in response to the NPRM for the December 2008 Rule, which addressed a diversity of issues in the H-2A program and evidenced a lack of consensus regarding the purported advantages of the December 2008 Rule. Additionally, as discussed earlier, applications which have been filed under the December 2008 Rule, and which represent most of the applications that will be filed for this growing season, will continue to be governed by the December 2008 Rule.

This Final Rule also suspends the December 2008 revisions to 29 CFR part 501, implementing the Department's enforcement of the H-2A program, as that regulation is so integrally intertwined into 20 CFR part 655, Subpart B that a suspension of the December 2008 rule must apply equally to both revised regulations.

2. Elimination of Certain Categories of Activities From the H-2A Program

A number of commenters expressed concern about the impact that the proposed suspension would have on certain categories of activities which were classified as “agricultural” under the December 2008 Rule, but which were not part of the H-2A program under the Prior Rule. While the Department acknowledges and understands that the suspension may affect growers conducting such activities more so than others, the Department has determined that for purposes of administrative efficiency and advancing consistency in application, the suspension will apply to the December 2008 Rule in its entirety. The particular concerns of the commenters are addressed in greater detail below.

a. Logging

The Department received a number of comments from logging contractors, employers related to the logging industry (
e.g.
, sawmills, land companies), and associations representing the logging industry. All of these commenters opposed the proposed suspension arguing that the suspension removes the only alternative source of labor for this industry for this year. The temporary suspension of the December 2008 Rule will remove logging from the definition of agricultural labor or services, and thus, employers seeking to hire temporary foreign labor will have to file applications under the non-agricultural H-2B program. The H-2B program is limited to 66,000 visas per year, with 33,000 being made available during each 6 month period of a fiscal year. The United States Citizenship and Immigration Service (USCIS) announced that the cap for the second half of Fiscal Year 2009 was reached on January 7,

2009.
6

Therefore, petitions for new H-2B workers seeking employment start dates prior to October 1, 2009 would be rejected by USCIS. The commenters stated that the suspension would devastate the logging industry and harm the related forest products industries. Several of these commenters identified June 1, 2009 as the approximate beginning date of the upcoming summer harvest season.

6
6 USCIS Press Release, USCIS Reaches H-2B Cap for Second Half of Fiscal Year 2009. Available at:
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b2b547dfb32be110VgnVCM1000004718190aRCRD&vgnextchannel=3381c0ed71f85110VgnVCM1000004718190aRCRD.

The Department recognizes that the suspension will remove the ability of the logging industry to obtain workers via the H-2A program for the 9-month period the suspension is in effect. However, as stated earlier, any H-2A application which was filed under the December 2008 Rule prior to the effective date of the suspension will continue to be governed by the December 2008 Rule. The Department's experience in administering the labor certification processes for the temporary worker programs is that the most of the applications for job opportunities in the logging industry are received and processed during late winter or early spring. Therefore, the Department believes that the majority of applications for temporary employment in the logging industry will be processed prior to the effective date of this Final Rule and will be subject to the December 2008 Rule, as they will have been filed before its suspension takes effect. Even taking the industry's date of June 1, 2009 as the start of the logging season and thus as the beginning date of need, all applications for loggers (of which there are only annual applications for approximately 600 workers) are expected to be filed and processed prior to the effective date of this Final Rule.

b. Incidental Activity and Packing

Two U.S. Senators expressed concern that reinstating the Prior Rule would eliminate the expanded definition of agriculture under the December 2008 Rule which included: (1) Work typically performed on a farm and incidental to the agricultural labor or services for which the H-2A worker is sought, but not specifically listed on the Application for Temporary Employment Certification; and (2) packing shed operations that were not part of a farming operation, where fresh fruits and vegetables are packaged for sale after harvest.

Even though the definition of “agricultural or labor services” under the Prior Rule differs from that provided in the December 2008 Rule, the definition of “agricultural or labor services” under the Prior Rule still encompasses incidental work and packing shed operations. The Prior Rule, like the December 2008 Rule, incorporates the definitions of “agricultural labor” from Section 3121(g) of the Internal Revenue Code and “agriculture” from Section 3(f) of the Fair Labor Standards Act (FLSA) in the definition of “agricultural or labor services.”

The definition of “agriculture” from Section 3(f) of the FLSA includes incidental work:

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

(emphasis added).

The definition of agriculture in the December 2008 Rule, however, also included in the definition of “agricultural labor or services of a temporary or seasonal nature” the following provision that specifically addressed incidental work beyond the definition of agriculture provided under Section 3(f) of the FLSA:

Other work typically performed on a farm that is not specifically listed on the Application for Temporary Labor Certification and is minor (i.e., less than 20 percent of the total time worked on the job duties and activities that are listed on the Application for Temporary Employment Certification) and incidental to the agricultural labor or services for which the H-2A worker was sought.

20 CFR 655.100(d)(1)(vi).

Although reinstatement of the Prior Rule would eliminate this provision, the definition of agriculture under Section 3(f) of the FLSA is broad enough to encompass the work described in 20 CFR 655.100(d)(1)(vi). The definition of “agricultural labor” from section 3121(g) of the Internal Revenue Code includes packing shed operations by including all service performed:

(4)(A) In the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity; but only if such operator produced more than one-half of the commodity with respect to which such service is performed.

The definition of agriculture under the December 2008 Rule, however, also included in the definition of “agricultural labor or services of a temporary or seasonal nature” a provision that specifically addressed packing that goes beyond the definition of agricultural labor in Section 3121(g) of the Internal Revenue Code:

Handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage, to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity while in the employ of the operator of a farm where no H-2B workers are employed to perform the same work at the same establishment.

20 CFR 655.100(d)(1)(v).

Although packing shed operations which were not part of the farming operation would no longer be included in the definition of agriculture once the Prior Rule is reinstated, the Department does not believe that the removal of such activities would unduly harm growers; in fact, the Department received no comments from any growers objecting to the suspension on that ground. Accordingly, while the Department recognizes the concerns raised by the commenters about the changes in definition of agricultural labor or services of a temporary or seasonal nature, the Department does not believe that such changes are so critical that they outweigh the benefits of suspending the December 2008 Rule.

3. Enforcement; Wage Discrimination

Many commenters expressed concern that suspending the December 2008 Rule and replacing it with the Prior Rule would subject workers performing the same work to different certifications, different regulatory requirements and different wages.

Such disparities already exist. Under the December 2008 Rule, for example, U.S. workers hired during the period of time set forth in the labor certification are entitled to H-2A wages as they are engaged in corresponding employment, while U.S. workers who were already in the employer's employ are not. Similarly, a grower may pay its own U.S. workers one wage and hire a labor contractor employing H-2A workers paid at a different wage, though both

sets of workers will be employed in the same fields performing the same work. Suspending the December 2008 Rule will allow for the reconsideration of the questions arising from these disparities.

4. Flaws in the Text of the Prior Regulation

An agricultural association noted that the reinstatement of the Prior Rule verbatim would include the reinstatement of certain errors in the regulation, such as a pre-McConnell Amendment reference to the granting of certifications no later than 20 days before the date of need. The Department acknowledges that the Prior Rule contains that error, but this error, along with other outdated references in the regulatory text, did not and will not prevent the Department from complying with its statutory requirements under the Immigration and Nationality Act and other laws.

E. Suspension of 29 CFR Part 501

As discussed above, 29 CFR part 501 implements the Department's enforcement responsibilities under the H-2A program. These regulations complement the ETA regulations at 20 CFR Part 655 Subpart B and are so integrated with the ETA regulations that the suspension of 20 CFR part 655 necessitates the suspension of 29 CFR part 501. This is evident in that in the comments received, commenters did not differentiate between the ETA and the WHD regulations.

F. Suspension of Pertinent Sections of 29 CFR Parts 780 and 788

As part of the H-2A rulemaking, the Fair Labor Standards Act (FLSA) regulations, 29 CFR 780.115, 780.201, 780.205, and 780.208, were amended to include the production of Christmas trees within the scope of “agriculture” under the FLSA and to remove specific reference to Christmas trees as part of forestry activities in 29 CFR 788.10. This classification of Christmas tree production impacts workers' entitlement to minimum wages and overtime pay, as well as the application of child labor protections under the FLSA.

As explained in the preamble to the December 2008 Rule, this provision was based on the decision in
U.S. Department of Labor
v.
North Carolina Growers Association
, 377 F.3d 345 (4th Cir. 2004), which held that production of Christmas trees was within the scope of the FLSA definition of agriculture at 29 U.S.C. 203(f), thus allowing application of exemptions pertaining to agriculture. 29 U.S.C. 213(a)(6)(A) and 29 U.S.C. 213(b)(12). That decision was contrary to regulations dating from the 1950s which included Christmas trees among “other forestry products” that were not included within the scope of FLSA agriculture.
See
16 FR 481-482, Jan 28, 1950; 21 FR 2933, May 3, 1956.

Comments from growers and representatives of this industry opposed suspension of these FLSA revisions, pointing out that the treatment of Christmas tree production under the FLSA is unrelated to the changes made to the H-2A program, and that the Christmas tree regulation is not impacted by the programmatic concerns affecting the H-2A regulations.

The Department acknowledges that this change in FLSA regulations is unrelated to the H-2A program and was not necessary to accomplish the revisions to the H-2A program. Nevertheless, the Department believes that suspending these FLSA regulatory changes will provide an opportunity for additional review with an explicit focus on the ramifications of the rule on the implementation of the FLSA. For example, neither the NPRM nor the preamble to the December 2008 Rule mentioned the impact of the regulatory change on child labor protections in this industry. Accordingly, no comments were received, and no information was obtained, concerning the impact of this change on child labor protections. DOL is especially sensitive to potential adverse impacts that the December 2008 Rule's FLSA regulatory changes might have on our Nation's most vulnerable workers, including low-wage workers and youth.

Given the longstanding nature of the Department's prior position on this issue, and the removal of FLSA wage and child labor protections that the December 2008 Rule triggered, it is the Department's view that a suspension of the December 2008 Rule in its entirety is appropriate to provide an opportunity for a more complete review of this important regulatory issue.

III. Administrative Information

A. Executive Order 12866—Regulatory Planning and Review

Under Executive Order (E.O.) 12866, the Department must determine whether a regulatory action is “significant” and therefore subject to the requirements of the E.O. and subject to review by the Office of Management and Budget (OMB). Section 3(f) of the E.O. defines a “significant regulatory action” as an action that is likely to result in a rule (1) having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O.

The Department has determined that this Final Rule is not an “economically significant regulatory action” under Section 3(f)(1) of E.O.12866. The procedures for filing an
Application for Temporary Employment Certification
under the H-2A visa category on behalf of nonimmigrant temporary agricultural workers, under this regulation, will not have an economic impact of $100 million or more. The regulation will not adversely affect the economy or any sector thereof, productivity, competition, jobs, the environment, or public health or safety in a material way. In fact, this Final Rule is intended to provide to growers clear and consistent guidance on the requirements for participation in the H-2A temporary worker program, and to eliminate the potential for disruption, confusion, and processing delays resulting from the Department's and SWAs' lack of resources for efficient implementation of the December 2008 Rule. The Department, however, has determined that this Final Rule is a “significant regulatory action” under Section 3(f)(4) of the E.O. and accordingly OMB has reviewed this Final Rule.

Summary of Impacts

The changes in this Final Rule are expected to have little net direct cost impact on employers, above and beyond the baseline of the current costs required by the program as it is currently implemented. While the effect of the December 2008 Rule was to require employers to engage in recruitment of U.S. workers in advance of filing their applications for foreign labor certification, the Department included a transition period to enable it to implement the new rule and to enable employers to become accustomed to the filing procedures and new recruitment regime under the new regulations. During the transition period, employers initiate recruitment after filing the temporary labor certification application. The transition period contained in the December 2008 Rule applied to employers with a date of

need before July 1, 2009. On April 16, 2009, the Department published an Interim Final Rule extending the transition period to include all employers with a date of need on or before January 1, 2010. See 74 FR 17597. Therefore, employers will experience no change from the current application filing and recruitment procedures.

During the 9-month suspension period, employer costs for newspaper advertising will decrease slightly, as this Final Rule suspends the requirement that one of the two required advertisements be run on a Sunday. This Final Rule temporarily reinstates the requirement on employers to engage in post-filing recruitment efforts as determined by the OFLC Administrator. It is the Department's view that the protections and opportunities for employment for U.S. workers provided by this requirement more than outweigh the marginal uncertainty in recruitment costs for employers.

During the 9-month suspension period, civil money penalties are returned to the level established in 1987 (maximum of $1,000 per violation). The Department recognizes the deterrent effect of civil money penalties on fostering greater program compliance under the Final Rule, and will use, as appropriate, all of the tools available to ensure compliance with H-2A program requirements.

In the December 2008 Rule, the Department estimated the biggest cost to employers of that rule to be the increased cost of foreign recruitment, since employers can no longer allow foreign recruiters with whom they were in privity of contract to charge foreign workers fees for recruitment. Despite the temporary suspension, the Department does not anticipate any increase in employer costs because regulations issued by the Department of Homeland Security, USCIS on December 18, 2008 prohibit the payment of certain job-placement related fees by prospective H-2A workers. See 73 FR 76891 (codified at 8 CFR 214.2(h)(5)(xi)). Employers are encouraged to review their obligations under the USCIS rule with respect to payments made by foreign workers to foreign recruiters.

The Department also estimated that employers' recordkeeping costs under the December 2008 Rule would increase minimally; with the return to the previous H-2A Final Rule, the costs associated with recordkeeping requirements will minimally decrease.

The Department identified no other specific cost changes as a result of the December 2008 Rule and therefore, can identify no other specific cost changes that would result from the temporary suspension of that rule.

Based on historical program use, the Department estimates that approximately 83% of applications will have been processed by the effective date of this Final Rule, therefore few applications will be subject to the previous H-2A program rules during the 9-month suspension. The Department recognizes that for the employers submitting applications under the reinstated regulations, particularly employers who have already received certifications based on the December 2008 Rule, there will be some confusion and perhaps a change in labor costs for applications filed after the effective date of the suspension due to the different adverse effect wage rate (AEWR) methodology. However, in analyzing those potential costs it is unclear that such costs will be significant based on the number of users who will have already initiated the application process prior to the suspension.

B. Regulatory Flexibility Analysis

When an agency issues a rulemaking proposal, the Regulatory Flexibility Act (RFA) requires that a regulatory flexibility analysis be prepared and made available for public comment. The RFA must describe the impact of the rule on small entities. See 5 U.S.C. 603(a). Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have significant economic impact on a substantial number of small entities. The Secretary has notified the Chief Counsel for Advocacy, Small Business Administration (SBA), and certifies under the RFA at 5 U.S.C. 605(b), that this rule will not have a significant economic impact on a substantial number of small entities. The rule does not substantively change existing obligations for employers who choose to participate in the H-2A temporary agricultural worker program.

As a factual basis for such a certification, although this rule can and does affect small entities, there are not a substantial number of small entities that will be affected, nor is there a significant economic impact upon those small entities that are affected. Of the total 2,089,790 farms in the United States, 98 percent have sales of less than $750,000 per year and fall within SBA's definition of small entities. In FY 2007, however, only 7,725 employers filed requests for only 80,294 workers. That represents fewer than 1 percent of all farms in the United States. Even if all of the 7,725 employers who filed applications under H-2A in FY2007 were small entities, that is still a relatively small number of employers affected. However, the universe of filers expected to file applications under this Final Rule is far fewer than the 7,725 employers who filed in FY2007. The Department estimates approximately 1,313 employers to file during the 9-month period this Final Rule is in place, not all of which would be small entities.

Even more important than the number of small entities affected, the Department believes, for the reasons stated above, that the costs incurred by employers under this Final Rule will not be substantially different from those incurred under the current application filing process. Employers seeking to hire foreign workers on a temporary basis under the H-2A program must continue to establish to the Secretary of Labor's satisfaction that their recruitment attempts have not yielded enough qualified and available U.S. workers and that their hiring of foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. Similar to the current process, employers under this process will file a standardized application for temporary labor certification and will retain recruitment documentation, a recruitment report, and any supporting evidence or documentation justifying the temporary need for the services or labor to be performed. Therefore, the Department believes that this Final Rule is expected to have little net direct cost impact on employers, above and beyond the baseline of the current costs required by the program as it is currently implemented.

C. Unfunded Mandates Reform Act of 1995

Section 202 of the Unfunded Mandates Reform Act (UMRA) of 1995 (2 U.S.C. 1501
et seq.
) directs agencies to assess the effects of a Federal regulatory action on State, local, and tribal governments, and the private sector to determine whether the regulatory action imposes a Federal mandate which may result in expenditures by such governments or the private sector of $100,000,000 or more. A Federal mandate is defined in the Act at 2 U.S.C. 658(5)-(7) to include any provision in a regulation that imposes an enforceable duty upon State, local, or tribal governments, or imposes a duty upon the private sector which is not voluntary. Further, each agency is required to provide a process where State, local, and tribal governments may comment on the regulation as it develops, which further promotes

coordination between the Federal and the State, local, and tribal governments.

This Final Rule imposes a minimal duty upon State, local or tribal governments. However, as discussed above, this Final Rule will not result in expenditures of $100,000,000 by governments or private entities.

D. Executive Order 13132—Federalism

Executive Order 13132 addresses the Federalism impact of an agency's regulations on the States' authority. Under E.O. 13132, Federal agencies are required to consult with States prior to and during the implementation of national policies that have a direct effect on the States, the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. Further, an agency is permitted to limit a State's discretion when it has statutory authority and the regulation is a national activity that addresses a problem of national significance. This Final Rule has no direct effect on the States, the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government.

E. Executive Order 13175—Indian Tribal Governments

Executive Order 13175 requires Federal agencies to develop policies in consultation with tribal officials when those policies have tribal implications. This final rule regulates the H-2A visa program and does not have tribal implications. Therefore, the Department has determined that this E.O. does not apply to this rulemaking.

F. Assessment of Federal Regulations and Policies on Families

Section 654 of the Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact of Federal regulations and policies on families. The assessment must address whether the regulation strengthens or erodes the stability, integrity, autonomy, or safety of the family.

The final rule does not have an impact on the autonomy or integrity of the family as an institution, as it is described under this provision. The Department has determined that although there may be some costs associated with the final rule, they are not of a magnitude to adversely affect family well-being.

G. Executive Order 12630—Protected Property Rights

Executive Order 12630, Governmental Actions and the Interference with Constitutionally Protected Property Rights, prevents the Federal government from taking private property for public use without compensation. It further institutes an affirmative obligation that agencies evaluate all policies and regulations to ensure there is no impact on constitutionally protected property rights. Such policies include rules and regulations that propose or implement licensing, permitting, or other condition requirements or limitations on private property use, or that require dedications or exactions from owners of private property. The Department has determined that this Final Rule has no effect on constitutionally protected property rights.

H. Executive Order 12988—Civil Justice Reform

Section 3 of E.O. 12988, Civil Justice Reform, requires Federal agencies to draft regulations in a manner that will reduce needless litigation and will not unduly burden the Federal court system. Therefore, agencies are required to review regulations for drafting errors and ambiguity; to minimize litigation; ensure that it provides a clear legal standard for affected conduct rather than a general standard; and promote simplification and burden reduction.

The rule has been drafted in language that states as clearly as possible the bases for the decision to suspend the December 2008 Rule and reinstate the Prior Rule. Therefore, the Department has determined that the regulation meets the applicable standards set forth in Section 3 of E.O. 12988. The Department received no comments about this section.

I. Plain Language

Every Federal agency is required to draft regulations that are written in plain language to better inform the public about policies. The Department has assessed this Final Rule under the plain language requirements and determined that it follows the Government's standards requiring documents to be accessible and understandable to the public. The purpose of this Final Rule is to provide to growers clear and consistent guidance on the requirements for participation in the H-2A temporary worker program, and to eliminate the potential for disruption, confusion, and processing delays resulting from the Department's and SWAs' lack of resources for efficient implementation of the temporarily suspended rule.

J. Executive Order 13211—Energy Supply

This final rule is not subject to E.O. 13211, which assesses whether a regulation is likely to have a significant adverse effect on the supply, distribution, or use of energy. Accordingly, the Department has determined that this rule does not represent a significant energy action and does not warrant a Statement of Energy Effects.

K. Paperwork Reduction Act

The paperwork requirements of this rule have been previously complied with in accordance with the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
et seq.
). Specifically, under the Prior Regulation, the information collection instrument used by the employer to file an application was the Form ETA-750. This is a currently approved collection under OMB control number 1205-0015, which expires 10/31/2011. Because the request for OMB to approve the extension of this collection was filed in 2008, prior to the effective date of the rule being now suspended, the burden information reported to OMB in that extension request took into account the H-2A program's time and monetary burden on the public. Therefore, no adjustments are necessary at this time.

List of Subjects

20 CFR Part 655
Administrative practice and procedure, Foreign workers, Employment, Employment and training, Enforcement, Forest and forest products, Fraud, Health professions, Immigration, Labor, Passports and visas, Penalties, Reporting and recordkeeping requirements, Unemployment, Wages, Working conditions.

29 CFR Part 501
Administrative practice and procedure, Agriculture, Aliens, Employment, Housing, Housing standards, Immigration, Labor, Migrant labor, Penalties, Transportation, Wages.

29 CFR Part 780
Agricultural commodities, Agriculture, Employment, Forests and forest products, Labor, Minimum wages, Nursery stock, Overtime pay, Wages.

29 CFR Part 788
Employment, Forests and forest products, Labor, Overtime pay, Wages.

Accordingly, the Department of Labor amends 20 CFR part 655 and 29 CFR parts 501, 780, and 788 as follows:

Title 20—Employees' Benefits

PART 655—TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES

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

Authority:

Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i) and (ii), 1182(m), (n), and (t), 1184, 1188, and 1288(c) and (d); 29 U.S.C. 49
et seq.
; sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note); sec. 323, Pub. L. 103-206, 107 Stat. 2149; Title IV, Pub. L. 105-277, 112 Stat. 2681; Pub. L. 106-95, 113 Stat. 1312 (8 U.S.C. 1182 note); and 8 CFR 213.2(h)(4)(i).

Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184, and 1188; 29 U.S.C. 49
et seq.
; and 8 CFR 214.2(h)(4)(i).

Subparts A and C issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b) and 1184; 29 U.S.C. 49
et seq.
; and 8 CFR 214.2(h)(4)(i).

Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and 1188; and 29 U.S.C. 49
et seq.

Subparts D and E issued under 8 U.S.C. 1101(a)(15)(H)(i)(a), 1182(m), and 1184; 29 U.S.C. 49
et seq.
; and sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note).

Subparts F and G issued under 8 U.S.C. 1184 and 1288(c); and 29 U.S.C. 49
et seq.

Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and (b1), 1182(n), 1182(t), and 1184; 29 U.S.C. 49
et seq.
; sec 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1182 note); and Title IV, Pub. L. 105-277, 112 Stat. 2681.

Subparts J and K issued under 29 U.S.C. 49
et seq.
; and sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note).

Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c), 1182(m), and 1184; and 29 U.S.C. 49
et seq.

2. Revise the heading to part 655 to read as set forth above.

§ 655.5
[Redesignated as § 655.81 and Suspended]

3a. Redesignate § 655.5 as § 655.81 and suspend it.

§ 655.1
[Redesignated as § 655.5 and Suspended]

3b. Redesignate § 655.1 as § 655.5 and suspend it.

4. Add § 655.1 to read as follows:

§ 655.1
Scope and purpose of subpart A.
This subpart sets forth the procedures governing the labor certification process for the temporary employment of nonimmigrant aliens in the United States in occupations other than agriculture, logging, or registered nursing.

Subpart B [Redesignated as Subpart N and Suspended]

5. Redesignate subpart B, consisting of §§ 655.90, 655.92, 655.93, and 655.100 through 655.119, as subpart N, consisting of §§ 655.1290, 655.1292, 655.1293, and 655.1300 through 655.1319, and suspend newly designated subpart N.

6. Add subpart B to read as follows:

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

Sec.
655.90
Scope and purpose of subpart B.
655.92
Authority of the Office of Foreign Labor Certification (OFLC) Administrator.
655.93
Special circumstances.
655.100
Overview of this subpart and definition of terms.
655.101
Temporary alien agricultural labor certification applications.
655.102
Contents of job offers.
655.103
Assurances.
655.104
Determinations based on acceptability of H-2A applications.
655.105
Recruitment period.
655.106
Referral of U.S. workers; determinations based on U.S. worker availability and adverse effect; activities after receipt of the temporary alien agricultural labor certification.
655.107
Adverse effect wage rates (AEWRs).
655.108
H-2A applications involving fraud or willful misrepresentation.
655.110
Employer penalties for noncompliance with terms and conditions of temporary alien agricultural labor certifications.
655.111
Petition for higher meal charges.
655.112
Administrative review and de novo hearing before an administrative law judge.
655.113
Job Service Complaint System; enforcement of work contracts.

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

§ 655.90
Scope and purpose of subpart B.

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

(b)
The statutory standard
. (1) A petitioner for H-2A workers must apply to the Secretary of Labor for a certification that, as stated in the INA:

(A) There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition, and

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

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

(1) There is a strike or lockout in the course of a labor dispute which, under the regulations, precludes such certification.

(2)(A) The employer during the previous two-year period employed H-2A workers and the Secretary has determined, after notice and opportunity for a hearing, that the employer at any time during that period substantially violated a material term or condition of the labor certification with respect to the employment of domestic or non-immigrant workers.

(B) No employer may be denied certification under subparagraph (A) for more than three years for any violation described in such subparagraph.

(3) The employer has not provided the Secretary with satisfactory assurances that if the employment for which the certification is sought is not covered by State workers' compensation law, the employer will provide, at no cost to the worker, insurance covering injury and disease arising out of and in the course of the worker's employment which will provide benefits at least equal to those provided under the State workers' compensation law for comparable employment.

(4) The Secretary determines that the employer has not made positive recruitment efforts within a multistate region of traditional or expected labor supply where the Secretary finds that there are a significant number of qualified United States workers who, if recruited, would be willing to make themselves available for work at the time and place needed. Positive recruitment under this paragraph is in addition to, and shall be conducted within the same time period as, the circulation through the interstate

employment service system of the employer's job offer. The obligation to engage in positive recruitment * * * shall terminate on the date the H-2A workers depart for the employer's place of employment.

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

(i) The employer has complied with the criteria for certification (including criteria for the recruitment of eligible individuals as prescribed by the Secretary), and

(ii) The employer does not actually have, or has not been provided with referrals of, qualified individuals who have indicated their availability to perform such labor or services on the terms and conditions of a job offer which meets the requirements of the Secretary.

(c)
The Secretary's determinations.
Before any factual determination can be made concerning the availability of U.S. workers to perform particular job opportunities, two steps must be taken. First, the minimum level of wages, terms, benefits, and conditions for the particular job opportunities below which similarly employed U.S. workers would be adversely affected must be established. (The regulations in this subpart establish such minimum levels for wages, terms, benefits, and conditions of employment.) Second, the wages, terms, benefits, and conditions offered and afforded to the aliens must be compared to the established minimum levels. If it is concluded that adverse effect would result, the ultimate determination of availability within the meaning of the INA cannot be made since U.S. workers cannot be expected to accept employment under conditions below the established minimum levels.
Florida Sugar Cane League, Inc.
v.
Usery
, 531 F. 2d 299 (5th Cir. 1976). Once a determination of no adverse effect has been made, the availability of U.S. workers can be tested only if U.S. workers are actively recruited through the offer of wages, terms, benefits, and conditions at least at the minimum level or the level offered to the aliens, whichever is higher. The regulations in this subpart set forth requirements for recruiting U.S. workers in accordance with this principle.

(d)
Construction
. This subpart shall be construed to effectuate the purpose of the INA that U.S. workers rather than aliens be employed wherever possible.
Elton Orchards, Inc.
v.
Brennan
, 508 F. 2d 493, 500 (1st Cir. 1974);
Flecha
v.
Quiros
, 567 F. 2d 1154, 1156 (1st Cir. 1977). Where temporary alien workers are admitted, the terms and conditions of their employment must not result in a lowering of the wages, terms, and conditions of domestic workers similarly employed.
Williams
v.
Usery
, 531 F. 2d 305, 306 (5th Cir. 1976), cert. denied, 429 U.S. 1000, and the job benefits extended to any U.S. workers shall be at least those extended to the alien workers.

§ 655.92
Authority of the Office of Foreign Labor Certification (OFLC) Administrator.
Under this subpart, the accepting for consideration and the making of temporary alien agricultural labor certification determinations are ordinarily performed by the Office of Foreign Labor Certification (OFLC) Administrator (OFLC Administrator), who, in turn, may delegate this responsibility to a designated staff member. The OFLC Administrator will informally advise the employer or agent of the name of the official who will make determinations with respect to the application.

§ 655.93
Special circumstances.

(a)
Systematic process
. The regulations under this subpart are designed to provide a systematic process for handling applications from the kinds of employers who have historically utilized nonimmigrant alien workers in agriculture, usually in relation to the production or harvesting of a particular agricultural crop for market, and which normally share such characteristics as:

(1) A fixed-site farm, ranch, or similar establishment;

(2) A need for workers to come to their establishment from other areas to perform services or labor in and around their establishment;

(3) Labor needs which will normally be controlled by environmental conditions, particularly weather and sunshine; and

(4) A reasonably regular workday or workweek.

(b)
Establishment of special procedures
. In order to provide for a limited degree of flexibility in carrying out the Secretary's responsibilities under the INA, while not deviating from the statutory requirements to determine U.S. worker availability and make a determination as to adverse effect, the OFLC Administrator has the authority to establish special procedures for processing H-2A applications when employers can demonstrate upon written application to and consultation with the OFLC Administrator that special procedures are necessary. In a like manner, for work in occupations characterized by other than a reasonably regular workday or workweek, such as the range production of sheep or other livestock, the OFLC Administrator has the authority to establish monthly, weekly, or bi-weekly adverse effect wage rates for those occupations, for a Statewide or other geographical area, other than the rates established pursuant to § 655.107 of this part, provided that the OFLC Administrator uses a methodology to establish such adverse effect wage rates which is consistent with the methodology in § 655.107(a). Prior to making determinations under this paragraph (b), the OFLC Administrator may consult with employer representatives and worker representatives.

(c)
Construction.
This subpart shall be construed to permit the OFLC Administrator to continue and, where the OFLC Administrator deems appropriate, to revise the special procedures previously in effect for the handling of applications for sheepherders in the Western States (and to adapt such procedures to occupations in the range production of other livestock) and for custom combine crews.

§ 655.100
Overview of this subpart and definition of terms.

(a)
Overview
—(1)
Filing applications.
This subpart provides guidance to an employer who desires to apply for temporary alien agricultural labor certification for the employment of H-2A workers to perform agricultural employment of a temporary or seasonal nature. The regulations in this subpart provide that such employer shall file an H-2A application, including a job offer, on forms prescribed by the Employment and Training Administration (ETA), which describes the material terms and conditions of employment to be offered and afforded to U.S. workers and H-2A workers, with the OFLC Administrator. The entire application shall be filed with the OFLC Administrator no less than 45 calendar days before the first date of need for workers, and a copy of the job offer shall be submitted at the same time to the local office of the State employment service agency which serves the area of intended employment. Under the regulations, the OFLC Administrator will promptly review the application and notify the applicant in writing if there are deficiencies which render the application not acceptable for consideration, and afford the applicant a five-calendar-day period for resubmittal of an amended application or an appeal of the OFLC Administrator's refusal to approve the application as acceptable for consideration. Employers are encouraged to file their applications in advance of the 45-calendar-day period mentioned above in this paragraph

(a)(1). Sufficient time should be allowed for delays that might arise due to the need for amendments in order to make the application acceptable for consideration.

(2)
Amendment of applications
. This subpart provides for the amendment of applications, at any time prior to the OFLC Administrator's certification determination, to increase the number of workers requested in the initial application; without requiring, under certain circumstances, an additional recruitment period for U.S. workers.

(3)
Untimely applications.
If an H-2A application does not satisfy the specified time requirements, this subpart provides for the OFLC Administrator's advice to the employer in writing that the certification cannot be granted because there is not sufficient time to test the availability of U.S. workers; and provides for the employer's right to an administrative review or a de novo hearing before an administrative law judge. Emergency situations are provided for, wherein the OFLC Administrator may waive the specified time periods.

(4)
Recruitment of U.S. workers; determinations
—(i)
Recruitment
. This subpart provides that, where the application is accepted for consideration and meets the regulatory standards, the State agency and the employer begin to recruit U.S. workers. If the employer has complied with the criteria for certification, including recruitment of U.S. workers, by 20 calendar days before the date of need specified in the application (except as provided in certain cases), the OFLC Administrator makes a determination to grant or deny, in whole or in part, the application for certification.

(ii)
Granted applications
. This subpart provides that the application for temporary alien agricultural labor certification is granted if the OFLC Administrator finds that the employer has not offered foreign workers higher wages or better working conditions (or has imposed less restrictions on foreign workers) than those offered and afforded to U.S. workers; that sufficient U.S. workers who are able, willing, and qualified will not be available at the time and place needed to perform the work for which H-2A workers are being requested; and that the employment of such aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers.

(iii)
Fees
—(A)
Amount
. This subpart provides that each employer (except joint employer associations) of H-2A workers shall pay to the OFLC Administrator fees for each temporary alien agricultural labor certification received. The fee for each employer receiving a temporary alien agricultural labor certification is $100 plus $10 for each job opportunity for H-2A workers certified, provided that the fee to an employer for each temporary alien agricultural labor certification received shall be no greater than $1,000. In the case of a joint employer association receiving a temporary alien agricultural labor certification, each employer-member receiving a temporary alien agricultural labor certification shall pay a fee of $100 plus $10 for each job opportunity for H-2A workers certified, provided that the fee to an employer for each temporary alien agricultural labor certification received shall be no greater than $1,000. The joint employer association will not be charged a separate fee.

(B)
Timeliness of payment
. The fee must be received by the OFLC Administrator no later than 30 calendar days after the granting of each temporary alien agricultural labor certification. Fees received any later are untimely. Failure to pay fees in a timely manner is a substantial violation which may result in the denial of future temporary alien agricultural labor certifications.

(iv)
Denied applications
. This subpart provides that if the application for temporary alien agricultural labor certification is denied, in whole or in part, the employer may seek review of the denial, or a de novo hearing, by an administrative law judge as provided in this subpart.

(b)
Definitions of terms used in this subpart
. For the purposes of this subpart:

Accept for consideration
means, with respect to an application for temporary alien agricultural labor certification, the action by the OFLC Administrator to notify the employer that a filed temporary alien agricultural labor certification application meets the adverse effect criteria necessary for processing. An application accepted for consideration ultimately will be approved or denied in a temporary alien agricultural labor certification determination.

Administrative law judge
means a person within the Department of Labor Office of Administrative Law Judges appointed pursuant to 5 U.S.C. 3105; or a panel of such persons designated by the Chief Administrative Law Judge from the Board of Alien Labor Certification Appeals established by part 656 of this chapter, but which shall hear and decide appeals as set forth in § 655.112 of this part. “
Chief Administrative Law Judge
” means the chief official of the Department of Labor Office of Administrative Law Judges or the Chief Administrative Law Judge's designee.

Administrator, Office of Foreign Labor Certification (OFLC)
means the primary official of the Office of Foreign Labor Certification (OFLC Administrator), or the OFLC Administrator's designee.

Adverse effect wage rate (AEWR)
means the wage rate which the OFLC Administrator has determined must be offered and paid, as a minimum, to every H-2A worker and every U.S. worker for a particular occupation and/or area in which an employer employs or seeks to employ an H-2A worker so that the wages of similarly employed U.S. workers will not be adversely affected.

Agent
means a legal entity or person, such as an association of agricultural employers, or an attorney for an association, which (1) is authorized to act on behalf of the employer for temporary alien agricultural labor certification purposes, and (2) is not itself an employer, or a joint employer, as defined in this paragraph (b).

Department of Homeland Security (DHS)
through the
United States Citizenship and Immigration Services (USCIS)
makes the determination under the INA on whether or not to grant visa petitions to employers seeking H-2A workers to perform temporary agricultural work in the United States.

DOL
means the United States Department of Labor.

Eligible worker
means a U.S. worker, as defined in this section.

Employer
means a person, firm, corporation or other association or organization which suffers or permits a person to work and (1) which has a location within the United States to which U.S. workers may be referred for employment, and which proposes to employ workers at a place within the United States and (2) which has an employer relationship with respect to employees under this subpart as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee. An association of employers shall be considered the sole employer if it has the indicia of an employer set forth in this definition. Such an association, however, shall be considered as a joint employer with an employer member if it shares with the employer member one or more of the definitional indicia.

Employment Service (ES)
, in this subpart, refers to the system of Federal and State entities responsible for administration of the labor certification process for temporary and seasonal agricultural employment of nonimmigrant foreign workers. This

includes the State Workforce Agencies (SWAs), the National Processing Centers (NPCs) and the Office of Foreign Labor Certification (OFLC).

Employment Standards Administration
means the agency within the Department of Labor (DOL), which includes the Wage and Hour Division, and which is charged with the carrying out of certain functions of the Secretary under the INA.

Employment and Training Administration (ETA)
means the agency within the Department of Labor (DOL) which includes the Office of Foreign Labor (OFLC).

Federal holiday
means a legal public holiday as defined at 5 U.S.C. 6103.

H-2A worker
means any nonimmigrant alien admitted to the United States for agricultural labor or services of a temporary or seasonal nature under section 101(a)(15)(H)(ii)(a) of the INA (8 U.S.C. 1101(a)(15)(H) (ii)(a)).

INA
means the Immigration and Nationality Act, as amended (8 U.S.C. 1101
et seq.
).

Job offer
means the offer made by an employer or potential employer of H-2A workers to both U.S. and H-2A workers describing all the material terms and conditions of employment, including those relating to wages, working conditions, and other benefits.

Job opportunity
means a job opening for temporary, full-time employment at a place in the United States to which U.S. workers can be referred.

Office of Foreign Labor Certification (OFLC)
means the organizational component within the ETA that provides national leadership and policy guidance and develops regulations and procedures to carry out the responsibilities of the Secretary of Labor under the INA concerning alien workers seeking admission to the United States in order to work under the Immigration and Nationality Act, as amended.

Positive recruitment
means the active participation of an employer or its authorized hiring agent in locating and interviewing applicants in other potential labor supply areas and in the area where the employer's establishment is located in an effort to fill specific job openings with U.S. workers.

Prevailing
means, with respect to certain benefits other than wages provided by employers and certain practices engaged in by employers, that:

(i) Fifty percent or more of employers in an area and for an occupation engage in the practice or offer the benefit; and

(ii) This 50 percent or more of employers also employs 50 percent or more of U.S. workers in the occupation and area (including H-2A and non-H-2A employers for purposes of determinations concerning the provision of family housing, frequency of wage payments, and workers supplying their own bedding, but non-H-2A employers only for determinations concerning the provision of advance transportation and the utilization of farm labor contractors).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AE9-12436. Public record. Not legal advice.