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                                                                                                                               December 18, 2008

                                                                                                                               Part II

                                                                                                                               Department of Labor
                                                                                                                               Employment and Training Administration
                                                                                                                               20 CFR Part 655
                                                                                                                               Wage and Hour Division
                                                                                                                               29 CFR Parts 501, 780, and 788

                                                                                                                               Temporary Agricultural Employment of
                                                                                                                               H–2A Aliens in the United States;
                                                                                                                               Modernizing the Labor Certification
                                                                                                                               Process and Enforcement; Final Rule
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                                          77110            Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations

                                          DEPARTMENT OF LABOR                                        For further information regarding 29                   Section 501.8 Surety bond
                                                                                                   CFR part 501, contact James Kessler,                     Section 501.10 Definitions
                                          Employment and Training                                  Farm Labor Team Leader, Wage and                         Section 501.15 Enforcement
                                          Administration                                                                                                    Section 501.16 Sanctions and remedies
                                                                                                   Hour Division, Employment Standards                      Section 501.19 Civil money penalty
                                                                                                   Administration, U.S. Department of                          assessment
                                          20 CFR Part 655                                          Labor, 200 Constitution Avenue, NW.,                     Section 501.20 Debarment and revocation
                                                                                                   Room S–3510, Washington, DC 20210;                       Section 501.21 Failure to cooperate with
                                          Wage and Hour Division                                   Telephone (202) 693–0070 (this is not a                     investigations
                                                                                                   toll-free number). Individuals with                      Section 501.30 Applicability of
                                          29 CFR Parts 501, 780, and 788                           hearing or speech impairments may                           procedures and rules
                                                                                                                                                            Section 501.31 Written notice of
                                          RIN 1205–AB55                                            access the telephone number above via
                                                                                                                                                               determination required
                                                                                                   TTY by calling the toll-free Federal                     Section 501.32 Contents of notice
                                          Temporary Agricultural Employment of                     Information Relay Service at 1–800–                      Section 501.33 Requests for hearing
                                          H–2A Aliens in the United States;                        877–8339.                                                Section 501.42 Exhaustion of
                                          Modernizing the Labor Certification                      SUPPLEMENTARY INFORMATION:                                  administrative remedies
                                          Process and Enforcement                                                                                           C. Revisions to 29 CFR Parts 780 and 788
                                                                                                   Table of Contents                                        Section 780.115 Forest products
                                          AGENCY:  Employment and Training                         I. Background Leading to the NPRM                        Section 780.201 Meaning of forestry or
                                          Administration, and Wage and Hour                           A. Statutory Standard and Current                        lumbering operations
                                          Division, Employment Standards                                Department of Labor Regulations                     Section 780.205 Nursery activities
                                          Administration, Labor.                                      B. Overview of the Proposed Redesign of                  generally and Christmas tree production
                                                                                                        the System                                          Section 780.208 Forestry activities
                                          ACTION: Final rule.
                                                                                                      C. Severability                                       Section 788.10 Preparing other forestry
                                          SUMMARY: The Department of Labor                         II. Discussion of Comments on Proposed Rule                 products
                                                                                                      A. Revisions to 20 CFR Part 655                    III. Administrative Information
                                          (DOL or Department) is amending its                                                                               A. Executive Order 12866—Regulatory
                                                                                                        Subpart B
                                          regulations regarding the certification                     Section 655.93 Special Procedures                        Planning and Review
                                          for the temporary employment of                             Section 655.100 Overview and                          B. Regulatory Flexibility Analysis
                                          nonimmigrant workers in agricultural                          Definitions                                         C. Unfunded Mandates Reform Act of 1995
                                          occupations on a temporary or seasonal                      Section 655.101 Applications for                      D. Executive Order 13132—Federalism
                                          basis, and the enforcement of the                             Temporary Employment Certification                  E. Executive Order 13175—Indian Tribal
                                          contractual obligations applicable to                       Section 655.102 Required pre-filing                      Governments
                                          employers of such nonimmigrant                                activity                                            F. Assessment of Federal Regulations and
                                                                                                      Section 655.103 Advertising                              Policies on Families
                                          workers.                                                                                                          G. Executive Order 12630—Protected
                                             This final rule re-engineers the                                                                                  Property Rights
                                                                                                      Section 655.104 Contents of job offers
                                          process by which employers obtain a                         Section 655.105 Assurances and                        H. Executive Order 12988—Civil Justice
                                          temporary labor certification from the                        obligations of H–2A employers                          Reform
                                          Department for use in petitioning the                       Section 655.106 Assurances and                        I. Plain Language
                                          Department of Homeland Security                               obligations of H–2A labor contractors               J. Executive Order 13211—Energy Supply
                                          (DHS) to employ a nonimmigrant                              Section 655.107 Processing of                         K. Paperwork Reduction Act
                                          worker in H–2A (agricultural temporary                        applications
                                                                                                      Section 655.108 Offered wage rate                  I. Background Leading to the NPRM
                                          worker) status. The final rule utilizes an
                                          attestation-based application process                       Section 655.109 Labor certification                A. Statutory Standard and Current
                                                                                                        determinations                                   Department of Labor Regulations
                                          based on pre-filing recruitment and                         Section 655.110 Validity and scope of
                                          eliminates duplicative H–2A activities                        temporary labor certifications                      The H–2A visa program provides a
                                          currently performed by State Workforce                      Section 655.111 Required departure                 means for U.S. agricultural employers to
                                          Agencies (SWAs) and the Department.                         Section 655.112 Audits                             employ foreign workers on a temporary
                                          The rule also provides enhanced                             Section 655.113 H–2A Applications                  basis to perform agricultural labor or
                                          enforcement, including more rigorous                          Involving Fraud or Willful                       services when U.S. labor is in short
                                          penalties, to complement the                                  Misrepresentation
                                                                                                      Section 655.114 Setting Meal Charges;
                                                                                                                                                         supply. Section 101(a)(15)(H)(ii)(a) of
                                          modernized certification process and to                                                                        the Immigration and Nationality Act
                                                                                                        Petition for Higher Meal Charges
                                          appropriately protect workers.                              Section 655.115 Administrative Review              (INA or the Act) (8 U.S.C.
                                          DATES: This final rule is effective                           and De Novo Hearing before an                    1101(a)(15)(H)(ii)(a)) defines an H–2A
                                          January 17, 2009.                                             Administrative Law Judge                         worker as a nonimmigrant admitted to
                                          FOR FURTHER INFORMATION CONTACT: For                        Section 655.116 Job Service Complaint              the U.S. on a temporary or seasonal
                                          further information about 20 CFR part                         System; enforcement of work contracts            basis to perform agricultural labor or
                                          655, subpart B, contact William L.                          Section 655.117 Revocation of H–2A                 services. Section 214(c)(1) of the INA (8
                                                                                                        certification approval
                                          Carlson, Administrator, Office of                           Section 655.118 Debarment
                                                                                                                                                         U.S.C. 1184(c)(1)) mandates that the
                                          Foreign Labor Certification,                                Timeline for Anticipated Training and              Secretary of DHS consult with the
                                          Employment and Training                                       Education Outreach Initiative Transition         Secretary of the Department of Labor
                                          Administration, U.S. Department of                          B. Revisions to 29 CFR Part 501                    (the Secretary) with respect to
                                          Labor, 200 Constitution Avenue, NW.,                        Section 501.0 Introduction                         adjudication H–2A petitions, and, by
                                          Room C–4312, Washington, DC 20210.                          Section 501.1 Purpose and scope                    cross-referencing Section 218 of the INA
                                          Telephone: (202) 693–3010 (this is not                      Section 501.2 Coordination of intake               (8 U.S.C. 1188), with determining the
                                          a toll-free number). Individuals with                         between DOL agencies                             availability of U.S. workers and the
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                                                                                                      Section 501.3 Discrimination
                                          hearing or speech impairments may                           Section 501.4 Waiver of rights prohibited
                                                                                                                                                         effect on wages and working conditions.
                                          access the telephone number above via                       Section 501.5 Investigation authority of           Section 218 also sets forth further
                                          TTY by calling the toll-free Federal                          Secretary                                        details of the H–2A application process
                                          Information Relay Service at 1–800–                         Section 501.6 Cooperation with DOL                 and the requirements to be met by the
                                          877–8339.                                                     officials                                        agricultural employer.

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                                                           Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations                                        77111

                                             Although foreign agricultural labor                   1910.142 (standards set by the                        SWAs would also continue to clear and
                                          has contributed to the growth and                        Occupational Safety and Health                        post intrastate job orders, circulate them
                                          success of America’s agricultural sector                 Administration); see also 20 CFR                      through the Employment Service
                                          since the 19th century, the modern-day                   651.10, and part 653, subparts B and F.               interstate clearance system and refer
                                          agricultural worker visa program                            The Department was charged with                    potential U.S. workers to employers.
                                          originated with the creation, in the INA                 reviewing the efficiency and                            Finally, the Department proposed
                                          (Pub. L. 82–144), of the ‘‘H–2                           effectiveness of its H–2A procedures in               additional processes for penalizing
                                          program’’—a reference to the INA                         light of the increasing presence of                   employers or their attorneys or agents
                                          subparagraph that established the                        undocumented workers in agricultural                  who fail to perform obligations required
                                          program. Today, the H–2A                                 occupations and because of growing                    under the H–2A program, including
                                          nonimmigrant visa program authorizes                     concern about the stability of the                    provisions for debarring employers,
                                          the Secretary of DHS to permit                           agricultural industry given its difficulty            agents, and attorneys and revoking
                                          employers to hire foreign workers to                     in gaining access to a legal workforce.1              approved labor certifications.
                                          come temporarily to the U.S. and                         The Department reviewed its
                                                                                                                                                         C. Severability
                                          perform agricultural services or labor of                administration of the program and, in
                                          a seasonal or temporary nature, if the                   light of its extensive experience in both                The Department declares that, to the
                                          need for foreign labor is first certified by             the processing of applications and the                extent that any portion of this Final
                                          the Secretary.                                           enforcement of worker protections,                    Rule is declared to be invalid by a court,
                                             Section 218(a)(1) of the INA (8 U.S.C.                proposed measures to re-engineer the                  it intends for all other parts of the Final
                                          1188(a)(1)) states that a petition to                    H–2A program in a Notice of Proposed                  Rule that are capable of operating in the
                                          import H–2A workers may not be                           Rulemaking on February 13, 2008 (73                   absence of the specific portion that has
                                          approved by the Secretary of Homeland                    FR 8538) (NPRM or Proposed Rule).                     been invalidated to remain in effect.
                                          Security unless the petitioner has                                                                             Thus, even if a court decision
                                                                                                   B. Overview of the Proposed Redesign of               invalidating a portion of this Final Rule
                                          applied to the Secretary for a
                                                                                                   the System                                            resulted in a partial reversion to the
                                          certification that:
                                             (a) There are not sufficient U.S.                        The NPRM described a pre-filing                    current regulations or to the statutory
                                          workers who are able, willing, and                       recruitment and attestation process as                language itself, the Department intends
                                          qualified, and who will be available at                  part of a re-engineered H–2A program.                 that the rest of the Final Rule would
                                          the time and place needed to perform                     The Department proposed a process by                  continue to operate, if at all possible, in
                                          the labor or services involved in the                    which employers, as part of their                     tandem with the reverted provisions.
                                          petition; and                                            application, would attest under threat of
                                                                                                                                                         II. Discussion of Comments on
                                             (b) The employment of the alien in                    penalties, including debarment from the
                                                                                                                                                         Proposed Rule
                                          such labor or services will not adversely                program, that they have complied with
                                          affect the wages and working conditions                  and will continue to comply with all                     The Department received over 11,000
                                          of workers in the United States similarly                applicable program requirements. In                   comments in response to the proposed
                                          employed.                                                addition, employers would not be                      rule, the vast majority of them form
                                             The INA specifies conditions under                    required to file extensive documentation              letters or e-mails repeating the same
                                          which the Secretary must deny                            with their applications but would be                  contentions. Commenters included
                                          certification, and establishes specific                  required to maintain all supporting                   individual farmers and associations of
                                          timeframes within which employers                        documentation for their application for               farmers, agricultural associations, law
                                          must file—and the Department must                        a period of 5 years in order to facilitate            firms, farmworker advocates,
                                          process and either reject or certify—                    the Department’s enforcement of                       community-based organizations, and
                                          applications for H–2A labor                              program requirements. The                             individual members of the public. The
                                          certification. In addition, the statute                  Department’s proposal also contained                  Department has reviewed these
                                          contains certain worker protections,                     new and enhanced penalties and                        comments and taken them into
                                          including the provision of workers’                      procedures for invoking those penalties               consideration in drafting this Final
                                          compensation insurance and housing as                    against employers as well as their                    Rule.
                                          well as minimum recruitment standards                    attorneys or agents who fail to perform                  We do not discuss here those
                                          to which H–2A employers must adhere.                     obligations imposed under the H–2A                    provisions of the NPRM on which we
                                          See 8 U.S.C. 1188(b) and (c). The INA                    program. The program also eliminates                  received no comments. Those
                                          does not limit the number of foreign                     duplicative administration and                        provisions were adopted as proposed.
                                          workers who may be accorded H–2A                         processing by the State Workforce                     We have also made some editorial
                                          status each year or the number of labor                  Agencies (SWAs) and the Department                    changes to the text of the proposed
                                          certification applications the                           by requiring filing of the application                regulations, for clarity and to improve
                                          Department may process.                                  only with the Department’s National                   readability. Those changes are not
                                             The Department has regulations at 20                  Processing Center (NPC) in Chicago,                   intended to alter the meaning or intent
                                          CFR part 655, subpart B—‘‘Labor                          Illinois. This program would also enable              of the regulations.
                                          Certification Process for Temporary                      the SWAs to better perform their                      A. Revisions to 20 CFR Part 655
                                          Agricultural Employment Occupations                      mandated functions in processing H–2A                 Subpart B
                                          in the United States (H–2A Workers),’’                   agricultural clearance orders, by
                                          governing the H–2A labor certification                   enhancing their ability to conduct                    Section 655.93 Special Procedures
                                          process, and at 29 CFR part 501                          housing inspections well in advance of                  The Department proposed to revise
                                          implementing its enforcement                             the employer’s application date. The                  the current regulation on special
                                          responsibilities under the H–2A                                                                                procedures to clarify its authority to
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                                          program. Regulations relating to                           1 Fact Sheet: Improving Border Security and         establish procedures that vary from
                                          employer-provided housing for                            Immigration Within Existing Law, Office of the        those procedures outlined in the
                                                                                                   Press Secretary, The White House (August 10,
                                          agricultural workers appear at 20 CFR                    2007); see also Statement on Improving Border
                                                                                                                                                         regulations. We received numerous
                                          part 654, subpart E (Housing for                         Security and Immigration Within Existing Law, 43      comments about this revised language
                                          Agricultural Workers), and 29 CFR                        Weekly Comp. Pres. Doc. (August 13, 2007).            on special procedures.

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                                          77112            Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations

                                             Several commenters questioned the                     procedures to seek ratification of their              Secretary of Labor to issue regulations
                                          effect the proposed language would                       current practice, nor does the                        addressing the specific requirements of
                                          have on special procedures currently in                  Department intend to require annual or                housing for employees principally
                                          use. Section 655.93(b) of the current                    periodic justifications of an industry’s              engaged in the range production of
                                          regulations provides for special                         need for special procedures. The                      livestock.
                                          procedures, stating that: ‘‘the Director                 Department does reserve the right to                     The Department has decided,
                                          has the authority to establish special                   make appropriate changes to those                     following consideration of these
                                          procedures for processing H–2A                           procedures after consultation with the                concerns, to retain the NPRM language
                                          applications when employers can                          industry involved.                                    in the final regulation, but has added
                                          demonstrate upon written application to                     Section 655.93(b) in the NPRM                      language similar to that in the current
                                          and consultation with the Director that                  enables the Administrator/OFLC ‘‘to                   regulation, to enumerate those special
                                          special procedures are necessary.’’ The                  establish or revise special procedures in             procedures currently in effect as
                                          proposed rule provides that ‘‘the OFLC                   the form of variances for processing                  examples of the use of special
                                          Administrator has the authority to                       certain H–2A applications when                        procedures. It is our belief that this
                                          establish or to revise special procedures                employers can demonstrate upon                        provision, as it now reads, provides
                                          in the form of variances for processing                  written application to and consultation               both the Department and employers
                                          certain H–2A applications when                           with the OFLC Administrator that                      using the H–2A program essential
                                          employers can demonstrate upon                           special procedures are necessary.’’ In                flexibility regarding special procedures,
                                          written application to and consultation                  contrast, the current rule states that the            thus permitting the Department to be far
                                          with the OFLC Administrator that                         subpart permits the Administrator/                    more responsive to employers’ changing
                                          special procedures are necessary.’’                      OFLC to ‘‘continue and * * * revise the               needs, crop mechanization, and similar
                                             Four associations of growers/                         special procedures previously in effect               concerns. In addition, the language on
                                          producers specifically requested                         for the handling of applications for                  special procedures in the Final Rule
                                          clarification of the phrase ‘‘in the form                sheepherders in the Western States (and               reaffirms the Department’s continuing
                                          of variances.’’ These associations asked                 to adapt such procedures to occupations               commitment to use special procedures
                                          the Department to confirm that the                       in the range production of other                      where appropriate. The Department has
                                          proposed language does not pose a                        livestock) and for custom combine                     no present intent to revoke any of the
                                          threat to the continued use of the                       crews.’’                                              special procedures that are already in
                                          special procedures for sheepherders                         The Department received several                    place, nor does the language of the final
                                          currently in place. One association                      comments about the proposed language,                 regulation give the Department any new
                                          expressed concern that this revised                      universally expressing concern that the               power to do so. While it is possible that
                                          language would require hundreds of                       new language provides the Department                  at some time in the future the
                                          employers engaged in the range                           with broader authority for changing or                Department may need to revoke or
                                          production of livestock to annually                      revoking existing special procedures                  revise existing special procedures, that
                                          document their need for special                          without providing due process with                    step would be taken with the same level
                                          procedures.                                              respect to altering the procedures. An                of deliberation and consultation that
                                             The addition of the phrase ‘‘in the                   association of growers/producers stated               was employed in the creation of those
                                          form of variances’’ is intended to clarify               that the proposed rule uses ‘‘more                    procedures. To strengthen our
                                          that special procedures differ from those                ominous terms’’ and gives the                         commitment to continue the current
                                          processes set out in the regulation,                     impression that the Administrator/                    consultative process, we have changed
                                          which otherwise apply to employers                       OFLC has unilateral authority to make                 the word ‘‘may’’ in the last sentence of
                                          seeking to hire H–2A workers. The                        changes without safeguards, review, or                paragraph (b) to ‘‘will.’’ The provision
                                          special procedures for sheepherders, for                 democratic procedures. One association                also provides the Department with the
                                          example, arise from decades of past                      of growers and producers expressed the                authority to develop new procedures to
                                          practices and draw upon the unique                       view that the revocation language gives               meet employer needs and, additionally,
                                          nature of the activity that cannot be                    the Department authority to revoke the                provides employers with the
                                          completely addressed in the generally                    procedures without advance notice and                 opportunity to request that the
                                          applicable regulations. The                              opportunity for comment and is,                       Department consider additional
                                          establishment of special procedures                      therefore, a violation of the                         procedures or revisions to existing
                                          recognizes the peculiarities of an                       Administrative Procedure Act.                         special procedures. Proposed paragraph
                                          industry or activity, and provides a                        A law firm that provides counsel to                (c) has been deleted as unnecessarily
                                          means to comply with the underlying                      agricultural employers stated that the                duplicative of the language in paragraph
                                          program requirements through an                          new language does not adequately                      (b).
                                          altered process that adequately                          solidify the Department’s commitment                     Two associations of growers and
                                          addresses the unique nature of the                       to existing special procedures and                    producers requested that the
                                          industry or activity while meeting the                   recommended that the Department                       Department formulate special
                                          statutory and regulatory requirements of                 amend the regulation to affirm its                    procedures for dairy workers, stating
                                          the program. The special procedures do                   commitment to continuing such long-                   that these requested special procedures
                                          not enable industries and employers to                   standing special procedures by                        should not be different from those
                                          evade their statutory or regulatory                      providing that any proposed changes to                already established for sheepherders.
                                          responsibilities but rather establish a                  the existing special procedures and                   The associations stated the provisions
                                          feasible and tailored means of meeting                   policies can be made only after                       for sheepherders have ‘‘special
                                          them while recognizing the unique                        publication in the Federal Register with              relevance to the current dairy situation’’
                                          circumstances of that industry. The                      at least a 120-day period for public                  and also stated the ‘‘special procedures
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                                          language in § 655.93(b) affirms the                      comment. The firm also commented that                 relieve the sheepherding industry from
                                          Department’s authority to develop and/                   the proposal to empower the                           having to make a showing of temporary
                                          or revise special procedures. The                        Administrator/OFLC to revoke special                  or seasonal employment.’’ The
                                          Department does not intend to require                    procedures would violate Section                      longstanding special procedures that
                                          any industry currently using special                     218(c)(4) of the INA, which requires the              allow sheepherders to participate in the

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                                                           Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations                                        77113

                                          H–2A program have their origins in                       would then be available to work for the               § 655.107, no less than 45 days prior to
                                          prior statutory provisions dating back to                entire contract period. The overview,                 their date of need. The employer will
                                          the 1950s. The Department is unaware                     however, simply describes in broad-                   simultaneously submit Form ETA–790
                                          of any comparable statutory history                      brush fashion the regulatory provisions               Agricultural and Food Processing
                                          pertaining to the dairy industry. The                    that are discussed in detail later in the             Clearance Order (job order), with the
                                          Department would, of course, consider                    NPRM, and in and of itself has no legal               Application for Temporary Employment
                                          a specific request from dairy producers                  effect. The concerns and observations                 Certification (application) directly to the
                                          or their representatives for the                         expressed by commenters will be                       Chicago NPC. Activities that are
                                          development of special procedures that                   addressed in the context of the relevant              required to be conducted prior to filing
                                          would be applicable to eligible H–2A                     regulatory provision to which they                    an application under the Final Rule will
                                          occupations (see further discussion on                   apply rather than in the overview. The                be conducted post-filing during this
                                          this point in the discussion of the                      overview has also been edited for                     transition period, much as they are
                                          definition of ‘‘agricultural labor or                    general clarity and to reflect changes                under the current rule. The employer
                                          services’’ below). The Department does                   made throughout the regulatory text.                  will also be expected to make
                                          not believe, however, that it would be                   (b) Transition                                        attestations in its application applicable
                                          appropriate to speculatively address the                                                                       to its future recruitment activities,
                                          merits of a specific special procedures                     The Department, due to past program                payment of the offered wage rate, etc.
                                          request in this regulation, particularly                 experience, has decided to add a                      Employers will not be required to
                                          before a request making a detailed case                  transition period in order to provide an              complete an initial recruitment report
                                          for the appropriateness of such special                  orderly and seamless transition to the                for submission with the application, but
                                          procedures has been received.                            new system created by these regulatory                will be required to complete a
                                             An individual employer commented                      revisions. This will allow the                        recruitment report for submission to the
                                          that those involved in discussing and                    Department to make necessary changes                  NPC prior to certification, and will also
                                          considering changes to the H–2A                          to program operations, provide training               be required to complete a final
                                          program should preserve the special                      to the NPC, SWAs and stakeholder                      recruitment report covering the entire
                                          procedures for sheepherders and extend                   groups, and allow employers and their                 recruitment period.
                                          them to all occupations engaged in the                   agents/representatives to become
                                                                                                                                                            The employer will not separately
                                          range production of other livestock                      familiar with the new system.
                                                                                                                                                         request a wage determination from the
                                          (cattle and horses). A private citizen                   Employers with a date of need for
                                                                                                   workers on or after July 1, 2009 will be              Chicago NPC. Upon receipt of Forms
                                          provided suggestions for improving the                                                                         ETA–9142 and ETA–790, the Chicago
                                          handling of certification for sheep                      obligated to follow all of the new
                                                                                                   procedures established by these                       NPC will provide the employer with the
                                          shearers.                                                                                                      minimum applicable wage rate to be
                                             The Department has previously                         regulations. Prior to that time, the
                                                                                                   Department has created a hybrid system                offered by the employer, and will
                                          established special procedures for open                                                                        process the application and job order in
                                                                                                   involving elements of the old and the
                                          range production of livestock and sheep                                                                        a manner consistent with § 655.107,
                                                                                                   new regulations as delineated in the
                                          shearers and does not have any plans to                                                                        issuing a modification for any curable
                                                                                                   new § 655.100(b).
                                          change those procedures at this time                        Even though the NPRM put current                   deficiencies within 7 calendar days.
                                          and does not believe that it would be                    and future users of H–2A workers on                   Once the application and job order have
                                          appropriate to address in this regulation                some notice regarding what this Final                 been accepted, the Chicago NPC will
                                          the merits of the commenters’ general                    Rule will require, the rule as a whole                transmit a copy of the job order to the
                                          suggestions for revising these special                   implements several significant changes                SWA(s) serving the area of intended
                                          procedures. The Department would, of                     to the administration of the program.                 employment to initiate intrastate and
                                          course, be willing to consider a specific                Several commenters requested that the                 interstate clearance, request the SWA(s)
                                          request from livestock producers or                      Department allow employers some                       schedule an inspection of the housing,
                                          their representatives for the revision or                period of time to prepare and adjust                  and provide instructions to the
                                          expansion of special procedures                          their requests for temporary agricultural             employer to commence positive
                                          consistent with its authority and this                   workers. These regulations implement                  recruitment in a manner consistent with
                                          regulation.                                              new application forms, new processes,                 § 655.102. The NPC will designate labor
                                          Section 655.100—Overview and                             and new time periods for conducting                   supply States during this transition
                                          definitions                                              recruitment for domestic workers to                   period on a case-by-case basis, applying
                                                                                                   which current and new users of the                    the basic information standard for such
                                          (a) Overview                                                                                                   designations that is set forth in
                                                                                                   program will need to become
                                            The Department included a provision                    accustomed.                                           § 655.102(i).
                                          in the NPRM, similar to a provision in                      The Department is accordingly                         This transition period process will
                                          the current regulation, which provides                   adopting a transition period after the                apply only to applications filed on or
                                          an overview of the H–2A program. This                    effective date of this Final Rule. The                after the effective date of this regulation
                                          overview provides the reader, especially                 transition period establishes procedures              with dates of need no earlier than the
                                          readers unfamiliar with the program, a                   that will apply to any application for                effective date and no later than June 30,
                                          general description of program                           which the first date of need for H–2A                 2009. Employers with a date of need on
                                          obligations, requirements, and                           workers is no earlier than the effective              or after July 1, 2009 will be expected to
                                          processes.                                               date of this rule and no later than June              fully comply with all of the
                                            Only two commenters identified                         30, 2009.                                             requirements of the Final Rule.
                                          concerns with the overview as written.                      During this transition period, the                 Moreover, after the Final Rule’s effective
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                                          Both expressed concern with the                          Department will accept applications in                date, the requirements of the Final Rule
                                          proposed earlier time period for the                     the following manner: An employer will                will fully apply except for those
                                          recruitment of U.S. workers. They                        complete and submit Form ETA–9142,                    modifications that are expressly
                                          questioned whether U.S. workers who                      Application for Temporary Employment                  mentioned as transition period
                                          agreed to work on a date far in advance                  Certification, in accordance with                     procedures in § 655.100(b); all other

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                                          provisions of the Final Rule will apply                  the current standards where agents,                      The same association also questioned
                                          on the effective date of the Final Rule.                 attorneys, and representatives (under                 why the Department is ‘‘singling out
                                            These transition period procedures                     the proposed rule) are not liable if they             attorneys’’ in the definition of
                                          are designed to ensure that employers                    perform the administrative tasks                      ‘‘representative’’ by requiring an
                                          seeking to utilize the program                           necessary to file labor certification                 attorney who acts as an employer’s
                                          immediately after its effective date,                    applications and petitions for visas and              representative and interviews and/or
                                          especially those with needs early in the                 do not make attestations that are                     considers U.S. workers for the job
                                          planting season, will not be prejudiced                  factually based. In addition, the                     offered to the foreign worker(s) to also
                                          by the new pre-filing requirements                       association recommended that the                      be the person who normally considers
                                          regarding wage determinations and                        agents, attorneys, or representatives                 applicants for job opportunities not
                                          recruitment, which might otherwise                       should not be liable for program                      involving labor certifications. The
                                          substantially impact employers’                          violations by the employer.                           association found no apparent rationale
                                          application timing. Because the                             The Department understands the need                justifying why the Department should
                                          Department’s seasonal H–2A workload                      for clarity in determining who qualifies              dictate who and under what
                                          begins to peak in January of each year,                  as a representative before the                        circumstances an attorney or any other
                                          however, the Department deems it                         Department and what responsibilities                  person should interview U.S. job
                                          essential to the smooth and continuous                   and liabilities attach to that role and has           applicants. It further recommended that
                                          operation of the H–2A program                            accordingly simplified the definition of              the rule eliminate the reference to
                                          throughout calendar year 2009 to make                    a representative. Although the                        attorneys or, at a minimum, clarify that
                                          the rule effective as early in the year as               Department does distinguish between                   the rule does not reach attorneys who
                                          possible.                                                the different roles of attorneys and                  merely advise and guide employers
                                                                                                   agents, both groups are held to the same              through the H–2A program. The
                                          (c) Definitions 655.100                                  standards of ethics and honesty under                 Department has accordingly clarified
                                          Definition of ‘‘agent,’’ ‘‘attorney,’’ and               the Department’s rules. Under the rules,              the definition of representative by
                                          ‘‘representative’’                                       attorneys can function as agents, and                 deleting the sentence limiting the role
                                                                                                   either attorneys or agents can function               attorneys can play in interviewing and
                                             The Department did not propose any
                                                                                                   as a representative of the employer. The              considering workers, primarily because,
                                          changes to the definition of ‘‘agent’’
                                                                                                   Department has, in addition, replaced                 unlike other labor certification programs
                                          from existing regulations but added                      the word ‘‘official’’ with ‘‘person or                administered by the Department, the
                                          definitions for ‘‘attorney’’ and                         entity’’ to parallel the definition of                relatively simple job qualifications that
                                          ‘‘representative’’ in the proposed rule. A               agent.                                                apply to most agricultural job
                                          major trade association commented that                      However, the Department disagrees                  opportunities render it unlikely that
                                          the definitions of, and references to, the               with the commenter’s interpretation of                U.S. workers would be discouraged
                                          terms ‘‘agent,’’ ‘‘attorney’’ and                        the extent to which an agent or attorney              from applying for those jobs by the
                                          ‘‘representative’’ are confusing. The                    can be held accountable by the                        prospect of being interviewed by an
                                          association found the definitions of                     Department for their own and their                    attorney.
                                          agent and representative to be                           clients’ conduct in filing an application                A specialty bar association urged that
                                          duplicative and the distinctions                         for an employer. While agents and                     the definition of ‘‘agent’’ be changed in
                                          between these two terms, both of which                   attorneys are of course not strictly liable           order to prevent abuses related to
                                          encompass the authority to act on behalf                 for all misconduct engaged in by their                foreign nationals paying recruiters’ fees.
                                          of an employer, unclear. The association                 clients, they do undertake a significant              The association suggested that the
                                          also commented that the definition of                    duty in attestations to the Department                Department limit representation of
                                          ‘‘attorney’’ is self-evident and appears to              regarding their employer-clients’                     employers to that recognized by DHS:
                                          be a vehicle for permitting attorneys to                 obligations. They are, therefore,                     attorneys duly licensed and in good
                                          act as ‘‘agents’’ or ‘‘representatives.’’                responsible for exercising reasonable                 standing; law students and law
                                          Further, according to the commenter,                     due diligence in ensuring that                        graduates not yet licensed who are
                                          the term ‘‘representative’’ is also                      employers understand their                            working under the direct supervision of
                                          problematic and the Department should                    responsibilities under the program and                an attorney licensed in the United States
                                          consider revising it or eliminating it                   are prepared to execute those                         or a certified representative; a reputable
                                          entirely. The association believes the                   obligations. Agents and attorneys do not              individual of good moral character who
                                          main purpose of the definition is to                     themselves make the factual attestations              is assisting without direct or indirect
                                          deem the person who makes the                            and are not required to have personal                 remuneration and who has a pre-
                                          attestations on behalf of the employer a                 knowledge that the attestations they                  existing relationship with the person or
                                          ‘‘representative,’’ but the association                  submit are accurate. They are, however,               entity being represented; and accredited
                                          believes it is not clear whether the                     required to inform the employers they                 representatives, who are persons
                                          intent of the definition of                              represent of the employers’ obligations               representing a nonprofit organization
                                          ‘‘representative’’ is to also make the                   under the program, including the                      which has been accredited by the Board
                                          representative liable for any                            employers’ liability for making false                 of Immigration Appeals.
                                          misrepresentations made in an                            attestations, and the prohibition on                     The Department acknowledges that its
                                          attestation on behalf of an employer.                    submitting applications containing                    allowance of agents who are not
                                          The association recommended the                          attestations they know or should know                 attorneys and who do not fit into the
                                          proposed rule should clarify the intent                  are false. The debarment provisions at                categories recognized by DHS creates a
                                          of the definition of ‘‘representative’’ and              § 655.118 of the final regulations have               difference of practices between the two
                                          also under what circumstances an agent                   accordingly been clarified to state that              agencies. However, the Department has
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                                          will be liable for activities undertaken                 agents and attorneys can be held liable               for decades permitted agents who do not
                                          on behalf of an employer. The                            for their employer-clients’ misconduct                meet DHS’s criteria to appear before it.
                                          association recommended a clear set of                   when they ‘‘participated in, had                      Agents who are not attorneys have
                                          standards for liability and suggested                    knowledge of, or had reason to know of,               adequately represented claimants before
                                          such standards should not deviate from                   the employer’s substantial violation.’’               the Department in a wide variety of

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                                                           Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations                                        77115

                                          activities since long before the                         indeed serve as sole employers, joint                 removed the definition of ‘‘employ’’ as
                                          development of the H–2A program. To                      employers, or as agents. The definition               superfluous and created a separate
                                          change such a long-standing practice in                  of ‘‘H–2A Labor Contractors’’ has also                definition of ‘‘joint employment’’ (using
                                          the context of this rulemaking would                     been revised to clearly differentiate                 that portion of the definition of
                                          represent a major change in policy that                  labor contractors from agricultural                   employer which discussed joint
                                          the Department is not prepared to make                   associations and that an agricultural                 employers) to eliminate any confusion
                                          at this time. The Department has,                        association that meets the definition in              between the two terms. The definition
                                          however, added language to the                           this part is not subject to the                       of ‘‘employer’’ has also been revised.
                                          definition of both ‘‘agent’’ and                         requirements attaching to H–2A Labor                  First, the Final Rule clarifies the
                                          ‘‘attorney’’ to clarify that individuals                 Contractors. Finally, the regulation has              proposal’s statement that an employer
                                          who have been debarred by the                            been clarified by specifying that                     must have a ‘‘location’’ within the U.S.
                                          Department under § 655.118 cannot                        ‘‘processing establishments, canneries,               to more specifically state that it must
                                          function as attorneys or agents during                   gins, packing sheds, nurseries, or other              have a ‘‘place of business (physical
                                          the period of their debarment.                           fixed-site agricultural employers’’ can               location) within the U.S.’’ Second, out
                                                                                                   all be encompassed by agricultural                    of recognition that some H–2A program
                                          Definition of ‘‘adverse effect wage rate’’
                                                                                                   associations.                                         users, such as H–2ALCs, are itinerant by
                                            The Department proposed a revised                                                                            nature, and that SWA referrals may thus
                                          definition of ‘‘adverse effect wage rate,’’              Definition of Application for Temporary
                                                                                                                                                         occasionally need to be made to non-
                                          limiting its application to only H–2A                    Employment Certification
                                                                                                                                                         fixed locations, the Final Rule states
                                          workers. A law firm commented that the                      The Department has added to the                    that an employer must have ‘‘a means
                                          proposed definition of ‘‘adverse effect                  Final Rule a definition of Application                by which it may be contacted for
                                          wage rate’’ appears to apply only to H–                  for Temporary Labor Certification. An                 employment’’ rather than a specific
                                          2A workers and not to U.S. workers who                   Application for Temporary Labor                       location ‘‘to which U.S. workers may be
                                          are employed in ‘‘corresponding                          Certification is an Office of Management              referred.’’ Finally, the Final Rule
                                          employment.’’ The Department has                         and Budget (OMB)-approved form that                   clarifies that an employer must have an
                                          clarified the definition to make clear                   an employer submits to DOL to secure                  employment relationship ‘‘with respect
                                          that those hired into corresponding                      a temporary agricultural labor                        to H–2A employees or related U.S.
                                          employment during the recruitment                        certification. A complete submission is               workers under this subpart’’ rather than
                                          period will also receive the highest of                  required to include an initial                        less specifically referring to ‘‘employees
                                          the AEWR, prevailing wage, or                            recruitment report.                                   under this subpart,’’ and deletes the
                                          minimum wage, as applicable. The firm                                                                          references to specific indicia of an
                                          also requested the same revision to 29                   Definition of ‘‘date of need’’
                                                                                                                                                         employment relationship because the
                                          CFR Part 501 regulations. The                               The Department slightly modified the               applicable criteria are spelled out in
                                          Department believes that this                            definition of ‘‘date of need’’ to clarify             greater detail in the definition of
                                          requirement is adequately explained in                   that the applicable date is the one that              ‘‘employee.’’ The definition of ‘‘joint
                                          the text of the regulations at § 655.104(l)              is specified in the employer’s                        employer’’ is modified slightly from the
                                          and § 655.105(g).                                        Application for Temporary Employment                  concept that appeared in the NPRM to
                                                                                                   Certification.                                        clarify that the two or more employers
                                          Definition of ‘‘agricultural association’’
                                                                                                   Definition of ‘‘employ’’ and ‘‘employer’’             must each have sufficient indicia of
                                            The Department added a definition                                                                            employment to be considered the
                                          for ‘‘agricultural association’’ in the                     In the NPRM, the Department added                  employer of the employee in order to
                                          proposed regulation. A major trade                       a definition for ‘‘employ’’ and made                  meet the test for joint employment.
                                          association commented that the                           revisions to the existing definition of
                                          proposed definition does not                             ‘‘employer.’’ A trade association                     Definition of ‘‘farm labor contracting
                                          acknowledge that associations may be                     suggested that the Department eliminate               activity’’ and ‘‘Farm Labor Contractor
                                          joint employers and suggests that the                    the definition of ‘‘employ’’ but retain               (FLC)’’
                                          definition could cause confusion                         the definition of ‘‘employer,’’ stating                  The Department proposed adding
                                          because other sections of the proposed                   that the definition of ‘‘employ’’ adds                definitions for ‘‘farm labor contracting
                                          regulation acknowledge that                              nothing to clarify status or legal                    activity’’ and ‘‘Farm Labor Contractor
                                          associations may have joint employer                     obligations under the H–2A program.                   (FLC)’’ to this section. In the Final Rule,
                                          status. The association recommended                      The association believes the status of an             the Department has eliminated the
                                          the definition clarify that agricultural                 employer under the H–2A program is                    definition for ‘‘farm labor contracting
                                          associations may serve as agents or joint                defined by the labor certification and                activity’’ and revised the definition for
                                          employers and define the circumstances                   visa petition processes and that the                  ‘‘Farm Labor Contractor.’’ The revised
                                          under which joint employer                               incorporation of the broad FLSA and                   definition is now contained under the
                                          arrangements may be utilized. A                          MSPA definitions of ‘‘employ’’                        heading ‘‘H–2A Labor Contractor.’’
                                          professional association further                         insinuate broad legal concepts that add                  A law firm commented that neither
                                          commented that associations should not                   unnecessary confusion. The association                agents nor attorneys should be required
                                          be exempt from Farm Labor Contractor                     further recommended that the                          to register as H–2A Labor Contractors.
                                          provisions if the associations are                       Department eliminate the fourth                       The commenter did not specifically
                                          performing the same activities as Farm                   criterion related to joint employment                 address why it believed agents and
                                          Labor Contractors.                                       status in its proposed definition of                  attorneys would be required to register
                                            The Department agrees that                             ‘‘employer’’ and, instead, provide a                  under the proposed definitions, so the
                                          agricultural associations play a vital role              separate definition of joint employer                 Department is unable to respond to this
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                                          in the H–2A program and seeks to                         associations and the respective                       point. As a general matter, however, an
                                          minimize potential confusion about                       liabilities of the association and its joint          agent or attorney, if performing labor
                                          their role and responsibilities. The                     employer members.                                     contracting activities as they appear in
                                          regulation has been revised to clarify                      The Department agrees with these                   the revised definition of an H–2A Labor
                                          that agricultural associations may                       comments and has, accordingly,                        Contractor, would be required to register

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                                          77116            Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations

                                          as, and would be held to the standards                   Definition of ‘‘prevailing’’                          Definition of ‘‘successor in interest’’
                                          of, an H–2A Labor Contractor.                                                                                     The Department’s proposal included a
                                                                                                      The Department proposed a revision
                                             A group of farmworker advocacy                                                                              debarment provision allowing for
                                                                                                   to the definition of ‘‘prevailing’’ to
                                          organizations commented that the                                                                               debarment of a successor in interest to
                                                                                                   include, ‘‘with respect to certain
                                          definition proposed for Farm Labor                                                                             ensure that violators are not able to re-
                                                                                                   benefits other than wages provided by
                                          Contractor (H–2A Labor Contractor)                                                                             incorporate to circumvent the effect of
                                                                                                   employers and certain practices engaged
                                          would exclude recruiters of foreign                                                                            the debarment provisions. A national
                                                                                                   in by employers, that practice or benefit
                                          temporary workers from the scope of the                                                                        agricultural association commented that
                                                                                                   which is most commonly provided by
                                          rule, making enforcement impossible.                                                                           this provision as drafted could result in
                                                                                                   employers (including H–2A and non-H–
                                          This organization pointed out that                                                                             an innocent third party buying the farm
                                                                                                   2A employers) for the occupation in the
                                          under the Migrant and Seasonal                                                                                 of a debarred farmer and being subject
                                                                                                   area of intended employment.’’ This
                                          Agricultural Worker Protection Act                                                                             to debarment, even though the successor
                                                                                                   represented a change from the current
                                          (MSPA), H–2A workers are not migrant                                                                           is free of any wrongdoing, and thus the
                                                                                                   rule, which does not refer to
                                          or seasonal agricultural workers and,                                                                          rule would place roadblocks on the sale
                                                                                                   ‘‘commonly provided’’ practices or
                                          therefore, a contractor recruiting                                                                             of assets to innocent parties.
                                                                                                   benefits but instead uses a percentage
                                          workers to become H–2A visa holders                                                                               The Department agrees with this
                                                                                                   test (50 percent or more of employers in
                                          would not fit within the proposed                                                                              commenter. We have addressed this
                                                                                                   an area and for an occupation must
                                          regulatory definition. The organization                                                                        issue by including a definition of
                                                                                                   engage in the practice or offer the
                                          also commented that the reference to                                                                           ‘‘successor in interest’’ to make clear
                                                                                                   benefit for it to be considered
                                          ‘‘fixed-site’’ employers in the ‘‘farm                                                                         that the Department will consider the
                                                                                                   ‘‘prevailing,’’ and the 50 percent or
                                          labor contracting activity’’ definition                                                                        facts of each case to determine whether
                                                                                                   more of employers must also employ in
                                          could present problems in some                                                                                 the successor and its agents were
                                                                                                   aggregate 50 percent or more of U.S.
                                          employment situations, such as                                                                                 personally involved in the violations
                                                                                                   workers in the occupation and area’’).
                                          employment for a custom harvester,                                                                             that led to debarment in determining
                                                                                                   The Department received comments on
                                          where the employer would not have a                                                                            whether the successor constitutes a
                                                                                                   the change, specifically inquiring
                                          fixed site. An association of growers/                                                                         ‘‘successor in interest’’ for purposes of
                                                                                                   whether the SWAs would continue to
                                          producers suggested the MSPA                                                                                   the rule.
                                                                                                   conduct prevailing wage and practice
                                          definitions for ‘‘farm labor contracting
                                                                                                   surveys, and requesting that if the                   Definition of ‘‘United States’’
                                          activity’’ and ‘‘Farm Labor Contractor’’
                                                                                                   Department intends to no longer require
                                          should be used.                                                                                                   The Consolidated Natural Resources
                                                                                                   SWAs to conduct prevailing wage and
                                             In response to the comments, the                      practice surveys, the change should be                Act of 2008, Public Law 110–229, Title
                                          Department has deleted the definition of                 discussed in the preamble.                            VII (CNRA), applies the INA to the
                                          ‘‘agricultural employer’’ and included a                                                                       Commonwealth of the Northern Mariana
                                          separate definition for ‘‘fixed-site                        The Department has determined that,                Islands (CNMI) at the completion of the
                                          employer.’’ The Department also deleted                  to provide greater clarity and for ease of            transition period as provided in the
                                          the definition of ‘‘Farm Labor                           administration, the definition of                     CNRA, which at the earliest, would be
                                          Contractor’’ in the final regulation and                 ‘‘prevailing’’ will revert to the definition          December 31, 2014. Accordingly, the H–
                                          replaced it with a new definition for                    in the current regulation that requires               2A program will not apply to the CNMI
                                          ‘‘H–2A Labor Contractor.’’ This will                     that 50 percent or more of employers in               until such time. However, the CNRA
                                          differentiate the two terms since the                    an area and for an occupation engage in               amends the definition of ‘‘United
                                          definition of an ‘‘H–2A Labor                            the practice or offer the benefit and that            States’’ in the INA to include the CNMI.
                                          Contractor’’ does not match the                          the 50 percent or more of the employers               It should be noted that the amendment
                                          definition of a ‘‘Farm Labor Contractor’’                in an area must also employ in aggregate              to the INA of the definition of ‘‘United
                                          as used in MSPA, and the operational                     50 percent or more of U.S. workers in                 States’’ does not take effect until the
                                          differences between the H–2A program                     the occupation and area.                              beginning of the transition period which
                                          and MSPA do not allow perfect parallels                     The Department notes it does not                   could be as early as June 1, 2009, but
                                          to be drawn between the two statutory                    intend to change the provision on                     may be delayed up to 180 days.
                                          schemes. The definition of ‘‘farm labor                  prevailing wage surveys currently                     Accordingly, the Department has
                                          contracting activity’’ has been deleted as               undertaken by SWAs. The Department                    included CNMI in the definition of
                                          redundant since the activities have been                 has included specific definitions for the             ‘‘United States’’ with the following
                                          made part of the definitions of ‘‘fixed-                 terms ‘‘prevailing piece rate’’ and                   qualification: ‘‘as of the transition
                                          site employer’’ and ‘‘H–2A Labor                         ‘‘prevailing hourly rate,’’ the two kinds             program effective date, as defined in the
                                          Contractor.’’                                            of wage surveys that have traditionally               Consolidated Natural Resources Act of
                                                                                                   been undertaken by SWAs, and has                      2008, Public Law 110–229, Title VII.’’
                                          Definition of ‘‘joint employment’’                       included express references to both                   The Department will publish a notice in
                                             The Department included in its                        types of surveys throughout the rule.                 the Federal Register at such time that its
                                          definition of ‘‘employment’’ a reference                 Definition of ‘‘strike’’                              regulations regarding the foreign labor
                                          to what would constitute ‘‘joint                                                                               programs described in the INA,
                                          employment’’ for purposes of the H–2A                       The Department has been added to                   including the H–2A program, will apply
                                          program. The Department received one                     the Final Rule a definition for the term              to the Commonwealth.
                                          comment suggesting the inclusion of the                  strike. The definition conforms to the
                                          definition of ‘‘joint employment’’ within                changes explained in the discussion of                Definition of ‘‘Within [number and type]
                                          the definition of ‘‘employment’’ was                     § 655.105(c), and clarifies that the                  days’’
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                                          confusing. The Department has                            Department will evaluate whether job                    The Department has added to the
                                          accordingly removed the last phrase                      opportunities are vacant because of a                 Final Rule a definition of the term
                                          from the proposed definition of                          strike, lockout, or work stoppage on an               within [number and type] days. The
                                          ‘‘employer’’ and provided a separate                     individualized, position-by-position                  definition clarifies how the Department
                                          definition for ‘‘joint employment.’’                     basis.                                                will calculate timing for meeting filing

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                                                           Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations                                        77117

                                          deadlines under the rule where that                      that is moving from on-farm production                employment, which is not defined as
                                          term, in some formulation, appears. The                  directly to the end consumer be                       agriculture under Section 3(f) of the Fair
                                          definition specifies that a period of time               included as permissible work for H–2A                 Labor Standards Act, 29 U.S.C. 203(f), is
                                          described by the term ‘‘within [number                   workers, and suggested that the                       subject to the provisions of the FLSA as
                                          and type] days’’ will begin to run on the                definition provide that it is a                       provided therein, including the
                                          first business day after the Department                  permissible activity for H–2A workers to              overtime provisions in Section 7(a)(29
                                          sends a notice to the employer by means                  work on production of a purchased crop                U.S.C. 207(a)).
                                          normally assuring next-day delivery,                     when the crop is purchased by a farm
                                                                                                                                                         Incidental Activities
                                          and will end on the day that the                         because of weather damage to that
                                          employer sends whatever                                  farm’s crops in a particular year.                       The Department also proposed
                                          communication is required by the rules                      The Department appreciates the                     clarifications to reflect that work
                                          back to the Department, as evidenced by                  general support for the proposed                      activity of the type typically performed
                                          a postal mark or other similar receipt.                  changes and has retained them in the                  on a farm and incident to the
                                                                                                   final regulation. Regarding packing and               agricultural labor or services for which
                                          Definition of ‘‘Work contract’’                          processing activities, the proposed                   an H–2A labor certification was
                                             The Department has added to the                       definition includes as agricultural                   approved may be performed by an H–2A
                                          Final Rule a definition of the term work                 activities ‘‘handling, planting, drying,              worker. A number of commenters,
                                          contract. The definition was borrowed                    packing, packaging, processing,                       including a professional association, a
                                          from the definition section of 29 CFR                    freezing, grading, storing or delivering              major trade association, and several
                                          part 501 of the NPRM, with minor                         to storage or to market or to a carrier for           associations of growers/producers
                                          modifications made for purposes of                       transportation to market, in its                      supported this change, stating that it
                                          clarification.                                           unmanufactured state, any agricultural                was positive and would provide more
                                                                                                   or horticultural commodity while in the               flexibility for employers. A major trade
                                          d. Definition of ‘‘agricultural labor or
                                                                                                   employ of the operator of a farm.’’ In                association commented this change
                                                                                                   response to the request to allow                      would allow employers to include
                                             The Department proposed changes to                    employers who have used the H–2B                      duties in H–2A certified job
                                          the definition of ‘‘agricultural labor or                program for packing or processing                     opportunities that reflect the actual
                                          services’’ to clarify, as in the current                 operations to continue using the H–2B                 duties performed by farm workers and
                                          regulation, that an activity that meets                  program, the Department has revised the               further commented that, ‘‘[p]resumably
                                          either the Internal Revenue Code (IRC)                   definition to clarify that while the                  the provision will cover a farm worker
                                          or the Fair Labor Standards Act (FLSA)                   Department cannot permit H–2A                         who engages in incidental employment
                                          definition of agriculture is considered                  workers and H–2B workers to                           in the farm’s roadside retail stand, a
                                          agricultural labor or services for H–2A                  simultaneously perform the same work                  farm worker who assists in managing
                                          program purposes and, more                               at the same establishment, the                        ‘pick your own’ activities, and a farm
                                          significantly, to remove limitations on                  distinctions between establishments at                worker who occasionally drives a tractor
                                          the performance of certain traditional                   which operations of this nature should                pulling a hay wagon for a hay ride, to
                                          agricultural activities which, when                      be performed by H–2A workers and                      cite a few examples of incidental
                                          performed for more than one farmer, are                  those at which the operations should be               activities customarily performed by
                                          not considered agricultural labor or                     performed by H–2B workers are too fine                farm workers that have been disallowed
                                          services under the IRC or the FLSA,                      for the Department to reasonably                      in the past.’’ This commenter’s
                                          including packing and processing.                        distinguish between them with                         understanding of the Department’s
                                             The Department received several                       sufficient precision to establish a bright            interpretation is correct.
                                          comments supporting these changes,                       line test. The Department will therefore                 One association of growers/producers
                                          with some specific suggestions for                       defer to operators as to whether the                  commented that allowing H–2A workers
                                          additional changes. A major trade                        ‘‘handling, planting, drying, packing,                to perform duties typically performed
                                          association complimented the                             packaging, processing, freezing, grading,             on a farm benefits the employee as well
                                          Department on providing ‘‘bright line’’                  storing or delivering’’ operations at their           as the employer. A trade association
                                          definitional guidance regarding the                      particular establishment are more                     commented that being able to use
                                          activities that constitute agricultural                  properly governed by the H–2A or the                  workers in other jobs not listed on the
                                          work to be covered by the H–2A                           H–2B program, but will not accept                     contract is needed, particularly when
                                          program as distinct from the H–2B                        applications for both kinds of workers to             weather prevents field work.
                                          program. A number of these                               simultaneously perform the same work                     The Department has revised the
                                          commenters mentioned that the                            at the same establishment.                            wording in the definition of
                                          Department’s inclusion of packing and                       The Department agrees with the                     ‘‘agricultural labor or services’’ provided
                                          processing activities in work considered                 comment that H–2A workers should be                   in § 655.100(d)(1)(vi) to provide
                                          as agricultural provides an option for                   permitted to work in the production of                additional clarity for employers. The
                                          obtaining legal workers, especially in                   a purchased crop, as well as work in                  definition now reads: ‘‘Other work
                                          light of the numerical limitations on H–                 processing or packing a farm product                  typically performed on a farm that is not
                                          2B visas. One association of growers/                    that is moving from on-farm production                specifically listed on the Application for
                                          producers supported the expansion of                     directly to the end consumer. Moreover,               Temporary Employment Certification
                                          the current definition to include                        the Department believes such activities               and is minor (i.e., less than 20 percent
                                          packing and processing but suggested                     are permitted by the definition in the                of the total time worked on the job
                                          that agricultural employers who have                     proposed rule and therefore the                       duties that are listed on the Application
                                          previously used the H–2B program for                     provision requires no additional                      for Temporary Employment
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                                          packing or processing operations be                      language in the Final Rule.                           Certification) and incidental to the
                                          allowed to continue using the H–2B                          The Department has clarified the                   agricultural labor or services for which
                                          program. Another association of                          Final Rule to reflect existing law, which             the H–2A worker was sought.’’ The
                                          growers/producers suggested that the                     provides that work performed by H–2A                  Department recognizes that, due to the
                                          definition be changed to allow product                   workers, or workers in corresponding                  unpredictable nature of weather

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                                          conditions and agricultural work itself,                 provided comments suggesting dairy                    and the reforestation industry, both of
                                          employers need some flexibility in                       and livestock operations should be                    which, as discussed above, submitted
                                          assigning tasks, and that it would be                    allowed to designate seasonal jobs                    comments evidencing industry-based
                                          difficult if not impossible to list all                  within their operations for which H–2A                support. The Department’s analysis of
                                          potential minor and incidental job                       workers could be employed. This                       the comments from the dairy industry,
                                          responsibilities of H–2A workers on the                  association commented that current                    however, indicates it is not the
                                          Application for Temporary Employment                     worker patterns suggest typical milkers               program’s definition of agriculture,
                                          Certification. The proposed amendment                    stay in their positions for 9 to 10 months            which already includes dairy activities,
                                          of the definition is intended to                         and then voluntarily leave, but return to             that presents a potential barrier to the
                                          recognize the reality of working                         seek a job after 2 to 3 months.                       industry’s use of the H–2A program, but
                                          conditions at agricultural                                  The Department also received                       rather the statutory requirement for the
                                          establishments and ensure that an H–2A                   comments from an association of                       work to be temporary or seasonal in
                                          worker’s performance of minor and                        growers/producers and from two                        nature.
                                          incidental activity does not violate the                 individual employers requesting that                     The H–2A program, by statute,
                                          terms and conditions of the worker’s H–                  reforestation work be considered as                   provides a means for agricultural
                                          2A visa status. The further revision to                  agricultural labor. These commenters                  employers to employ foreign workers on
                                          the definition will assist employers in                  assert that there are reforestation                   a temporary basis. Many dairy-related
                                          determining whether activities or work                   activities including planting, weed                   job needs, however, appear to be year-
                                          not included on the Application for                      control, herbicide application and other              round and permanent in nature.
                                          Temporary Employment Certification                       unskilled tasks related to preparing the                 While the H–2A program is specially
                                          can reasonably be considered as minor                    site and cultivating the soil and that                designed for agricultural employers,
                                          and incidental.                                          workers who perform these tasks                       they are not limited to using only the H–
                                                                                                   deserve consideration for eligibility for             2A program. The employment-based
                                          Inclusion of Other Occupations                           H–2A visas, as do workers who perform                 permanent visa program is also open to
                                             The Department proposed to include                    the same or similar tasks in cultivating              agricultural employers with a
                                          logging employment in its definition of                  other agricultural and horticultural                  permanent need for which they are
                                          ‘‘agricultural labor or services’’ for                   commodities on many of the same                       unable to secure U.S. workers. At the
                                          purposes of the H–2A program. Two                        farms. These commenters also pointed                  same time, year-round operations are
                                          commenters voiced their support for                      out that workers performing                           permitted to seek certification to utilize
                                          this inclusion; we received no                           reforestation tasks for farmers or on                 H–2A workers for seasonal or temporary
                                          comments in opposition. The                              farms are clearly agricultural employees              jobs within their industries when they
                                          Department also sought comments as to                    under the FLSA and, additionally,                     can substantiate the temporary or
                                          whether there are other occupations that                 believed the Internal Revenue Code                    seasonal nature of the jobs. The
                                          should be included within the                            supports their position for considering               Department recognizes that an employer
                                          definition of agriculture used in the H–                 reforestation work performed on a farm                may have both permanent and
                                          2A program. The Department received                      or for a farmer as agricultural labor or              temporary jobs in the same occupation.
                                          several suggestions of other industries                  services.                                             However, employers should be aware
                                          that should be considered, including                        Following review of the comments                   that the Department does not typically
                                          livestock and dairy producers, fisheries,                discussed above, the Department has                   approve subsequent applications
                                          nurseries, greenhouses, landscapers,                     decided the definition of agriculture                 requesting foreign workers for the same
                                          poultry producers, wine businesses,                      should not be further expanded at this                position when, taken together, those
                                          equine businesses, turf grass growers,                   time and no additional activities have                applications would cover a continuous
                                          mushroom producers, maple syrup                          been selected for inclusion as                        period of time in excess of 10 months,
                                          producers, and employers engaging in                     agricultural activities beyond those                  unless exceptional circumstances are
                                          seasonal food processing as well as                      included in the NPRM. In most cases                   present.
                                          growers who operate processing and                       where there was the suggestion for the                   The comments from the reforestation
                                          packing plants.                                          inclusion of a particular industry or                 industry, while thoughtful, represented
                                             Of those requesting expansion of the                  activity in the definition of agriculture             the input of only two individual
                                          definition to include other occupations,                 there was not strong support for the                  employers and a single employer
                                          representatives of the dairy industry                    inclusion by representatives of that                  association who do not necessarily
                                          submitted the most comments. A major                     industry, as indicated by the number                  provide a representative sample of the
                                          trade association and a number of                        and source of the comments received.                  entire reforestation industry. The
                                          associations of growers/producers                        For example, one commenter supported                  Department is reluctant to overturn the
                                          commented that the dairy industry is                     adding maple syrup harvesting and                     regulatory practices of several decades
                                          unable to use the H–2A agricultural                      ancillary activities to the definition of             and impose the significant obligations of
                                          worker visa program and that this                        agricultural labor. The suggestion did                an H–2A employer on an entire industry
                                          exclusion is unfair. They stated dairy                   not come from someone actually                        without significant input from that
                                          farmers need and deserve the same                        involved in the maple syrup industry,                 industry. While the Department is
                                          access to legal foreign workers as other                 however, but rather from a State                      willing to further explore whether to
                                          sectors of the agricultural industry. The                Workforce Agency. While the                           include the reforestation industry in the
                                          association suggested that H–2A visas                    Department appreciates the input of                   definition of agriculture, it does not
                                          for dairy workers should last at least                   such commenters, it would be                          believe a decision to do so is warranted
                                          three years rather than one. Two trade                   inappropriate to impose on those                      at this time.
                                          association commenters stated they                       industries (most of which currently
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                                          understood the importance under the                      qualify for the H–2B program rather                   ‘‘On a seasonal or other temporary
                                          statutory definition of H–2A workers                     than the H–2A program) changes that                   basis’’
                                          needing to be temporary or seasonal, but                 the industry itself did not seek.                        The Department proposed a definition
                                          not why the jobs themselves needed to                       The two exceptions to this pattern in              of the key terms ‘‘on a seasonal or other
                                          be temporary or seasonal. A farm bureau                  the comments were the dairy industry                  temporary basis’’ in the definition of

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                                          agricultural labor or services in the                    ‘‘temporary agricultural labor                        the Federal processing of all
                                          NPRM that continued the interpretation                   certification determination’’ and                     applications for H–2A temporary foreign
                                          of the current regulation. We received                   ‘‘unauthorized alien,’’ have been                     workers in the Chicago National
                                          several comments related to the phrase                   eliminated because they are not used in               Processing Center. This centralization
                                          ‘‘on a seasonal or other temporary                       this regulation. We have also made non-               will enhance the Department’s ability to
                                          basis.’’ A trade association suggested the               substantive changes to provide clarity                handle the expected increases in the
                                          rule borrow the temporary and seasonal                   and to comport with plain English                     usage of the H–2A program and ensure
                                          concepts from the Migrant and Seasonal                   language requirements.                                consistency in application of program
                                          Agricultural Workers Protection Act                                                                            requirements. The Department
                                          (MSPA) definitions that are appropriate                  Section 655.101 Applications for                      recognizes the unique needs and
                                          in an H–2A context without                               Temporary Employment Certification in                 timeframes associated with this program
                                          incorporating the MSPA regulations and                   Agriculture                                           and anticipates that centralization will
                                          related judicial precedent. It was the                   (a) Instituting an Attestation-based                  lead to the development of greater
                                          association’s belief that this approach                  Process                                               expertise to meet those needs and
                                          would allow an H–2A worker to be                            The Department proposed instituting                timeframes. It also believes that
                                          admitted for longer than a 10-month                      an application requiring employers to
                                                                                                                                                         centralized processing of applications
                                          period. An association of growers/                                                                             will facilitate the identification of areas
                                                                                                   attest to their adherence to the
                                          producers suggested the definition of                                                                          where program training should be
                                                                                                   obligations of the H–2A program. The
                                          temporary or seasonal should apply to                                                                          enhanced and that the centralized
                                                                                                   Department received several comments
                                          the worker rather than the job and also                                                                        environment will maximize the
                                                                                                   in favor of the new process, several
                                          that year-round farming operations/                                                                            effectiveness of such training.
                                                                                                   opposed, and others generally in favor                   An association of growers/producers
                                          nurseries should be allowed to access a
                                                                                                   but suggesting changes to the process as              supported the attestation-based process
                                          workforce to provide year-round
                                                                                                   outlined in the Department’s proposal.                but found the process, as described in
                                          services by rotating ‘‘shifts’’ of workers
                                                                                                      Some commenters believed that                      the proposed regulation, confusing and
                                          with different contract/visa periods.
                                                                                                   attestations to future events should not              duplicative. This commenter requested
                                          Another trade association also suggested
                                          the definition and interpretation of                     be required, and that attestations should             that all of the attestation requirements
                                          temporary and seasonal could be                          be made under the ‘‘applicant’s best                  be consolidated into one rule clearly
                                          expanded.                                                knowledge and belief’’ standard and not               stating which facts are to be verified.
                                             The Department does not agree that                    the ‘‘under penalty of perjury’’ standard                The Department appreciates the
                                          the definition of temporary or seasonal                  because applicants cannot know what                   commenter’s suggestion about
                                          should focus on the worker rather than                   will happen in the future.                            consolidation of the attestation
                                          the job. The INA is clear that the                          The Department believes that the                   requirements and, as provided in the
                                          employer must have a need for foreign                    attestations the Final Rule requires                  proposal, has retained the
                                          labor to undertake work of a temporary                   employers to make do not require                      comprehensive listing of the
                                          or seasonal nature for which it cannot                   employers to predict future events, but               requirements in § 655.105, ‘‘Assurances
                                          locate U.S. workers. The Department’s                    rather represent straightforward                      and Obligations of H–2A Employers’’
                                          position has traditionally been that job                 commitments to comply with program                    and § 655.106, ‘‘Assurances and
                                          opportunities that are permanent in                      requirements. Such compliance is fully                Obligations of H–2A Labor Contractors.’’
                                          nature do not qualify for the H–2A                       in the control of the employer. It is,                It was not clear if this commenter was
                                          program. The controlling factor is the                   therefore, not necessary to delete or                 requesting a consolidated listing of the
                                          employer’s temporary need, generally                     modify the manner in which attestations               attestations required by both the
                                          less than 1 year, and not the nature of                  are made.                                             Departments of Labor and Homeland
                                          the job duties. See Matter of Artee Corp.,               (1) Support for an Attestation-based                  Security. The Department of Labor is
                                          18 I&N Dec. 366 (Comm. 1982); see also                   Process                                               including in the comprehensive lists
                                          Global Horizons, Inc. v. DOL, 2007–                                                                            only those attestations that DOL
                                          TLC–1 (November 30, 2006) (upholding                        Those commenters who favored the                   requires. The commenter did not
                                          the Department’s position that a failure                 shift to an attestation-based process                 include specific examples of
                                          to prove a specific temporary need                       generally believed the new process                    duplication or confusing information
                                          precludes acceptance of temporary H–                     would make the H–2A application more                  and the Department, therefore, is unable
                                          2A application); see also 11 U.S. Op.                    efficient and less burdensome for                     to provide any further response.
                                          Off. Legal Counsel 39 (1987). An H–2A                    employers. One State government
                                                                                                   agency commented that the process                     (2) Legality of the Attestation-based
                                          worker could, however, be employed
                                                                                                   would enable the SWAs to focus on job                 Process
                                          continuously by successive H–2A
                                          employers having a temporary need for                    orders, referrals, and housing                           Several of the commenters who
                                          the worker’s services and thus be                        inspections while relieving them of the               opposed the change asserted an
                                          employed and remain in the U.S. for a                    burden to review the applications                     attestation-based process conflicts with
                                          period beyond one year.                                  themselves. Another commenter                         the statutory mandate in Section 218 of
                                             In addition, the Department has made                  supported the shift but encouraged the                the INA (8 U.S.C. 1188). These
                                          several edits to the Definitions section                 Department to ensure the                              commenters interpreted the INA to
                                          of the NPRM to provide consistency                       ‘‘Administrator * * * acquires the                    require the Department to make a
                                          with other changes to the regulatory text                agricultural expertise necessary to                   determination based upon an active
                                          and to clarify the Final Rule. For                       provide training and guidance to those                verification of the H–2A application.
                                          example, the definition of ‘‘Application                 who are reviewing and overseeing the                  One group commented that the
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                                          for Temporary Employment                                 operating of a program that is critical to            attestation process violates the statute’s
                                          Certification’’ has been amended to help                 future U.S. agricultural production.’’                Congressional mandate. Two
                                          ensure the public has a clear                               The Department appreciates support                 organizations expressed the belief that
                                          understanding of what this regulation                    for its proposed process. As of June 1,               the certification process has always
                                          requires. Other definitions, such as                     2008, the Department has centralized                  been understood to require active

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                                          77120            Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations

                                          oversight by the Department of the                       application process, and the Department                  The Department believes these
                                          employer’s recruitment and hiring of                     has also detected violations in other                 commenters’ concerns, while not
                                          U.S. workers as well as the details of the               foreign worker programs it administers.               invalid, are substantially resolved by the
                                          job offer. One commenter, an advocacy                    Under the final rule, the Department                  safeguards that have been built into the
                                          organization, voiced the opinion that                    will have more enforcement tools at its               new process. The new program model
                                          the statutory standard is not whether the                disposal than ever before to deal with                emphasizes compliance through
                                          employer has made adequate assurances                    such violations. The Department                       enforcement mechanisms such as
                                          that it has or will meet the obligations                 believes that the attestation-based                   audits, revocation of approved
                                          of the H–2A program but is whether the                   process fully complies with all statutory             certifications, and debarment from the
                                          employer has actually met them.                          requirements and, when utilized in                    program. In light of these enforcement
                                          Another commenter opined that labor                      concert with a strong audit and review                tools, employers will have a substantial
                                          certifications were not meant to be                      process, represents the best means for                incentive to be truthful in their
                                          attestation-based and that this approach                 the Department to deploy its limited                  representations that they cannot find
                                          will dramatically reduce government                      resources in a manner that ensures that               U.S. workers willing to engage in
                                          oversight of this program. These                         statutory timelines are met and that the              agricultural work at the appropriate
                                          commenters believe that the Secretary                    program’s integrity is maintained.                    wage, because good-faith compliance
                                          will not be able to certify that wages and                                                                     with program obligations is necessary to
                                                                                                   (3) Protections for U.S. Workers in an
                                          working conditions have not been                                                                               maintain continued access to a legal
                                                                                                   Attestation-based Process
                                          adversely affected and that this                                                                               nonimmigrant workforce. Because the
                                          regulation is contrary to the statute.                      Several commenters believed the                    rule requires pre-filing recruitment, the
                                             The attestation-based process                         proposed attestation-based process                    Department will also have an
                                          implemented by the Final Rule is not                     would not provide adequate protections                opportunity to review recruitment
                                          inconsistent with any statutory                          for U.S. and H–2A workers because it                  reports and (through its SWA partners)
                                          requirements, but rather is a reasonable                 would reduce the oversight                            to conduct housing inspections before
                                          means selected by the Department to                      responsibilities of the Department.                   applications are approved. Job orders
                                          fulfill its statutory responsibilities. The              Some of these commenters also said the                must also be reviewed, approved, and
                                          Department does not interpret Section                    current system should be maintained to                circulated by the SWAs before labor
                                          218 of the INA to specify a particular                   ensure that the Department oversees                   certifications can be granted, making it
                                          methodology that the Department must                     worker protection, especially in the                  impossible for even bad actor employers
                                          employ to determine that all of the                      areas of housing and wages. An                        to entirely circumvent the program’s
                                          statutory criteria have been met, and                    organization commented that while this                core recruitment requirements. Finally,
                                          indeed, various aspects of the                           change may ease the application process               it is worth noting that the bulk of the
                                          Department’s methodology have                            for employers it ignores the damage that              program’s requirements, including
                                          changed through the years. The                           could be caused by false attestations and             requirements to pay workers at
                                          attestation-based system, backed by                      a lack of active oversight of the job                 prescribed rates, maintain housing
                                          audits, that is implemented by the Final                 terms, recruitment, and hiring of U.S.                conditions, and provide transportation
                                          Rule is an acceptable means, within the                  workers. A farmworker advocacy                        that complies with applicable safety
                                          reasonable discretion of the Secretary,                  organization questioned the change to                 requirements, have always been, and
                                          for the Department to ensure that the                    an attestation-based process claiming                 must necessarily be, enforced by the
                                          statutory criteria for certification are met             there is a long history of labor abuse in             Department after the labor certification
                                          and that program requirements are                        agriculture and saying they believed                  has been granted.
                                          satisfied. Similar approaches have been                  that when ‘‘self-inspection procedures’’                 Although not a factor in our
                                          used by the Department in other                          are implemented they are generally                    evaluation of the comments here, the
                                          contexts (such as approval of permanent                  based upon a prior record of compliance               Department also notes that many
                                          labor certifications) to fulfill its                     and an accompanying determination                     commenters who opposed the
                                          statutory responsibilities. Indeed, as                   that resources would be better utilized               attestation-based system in this
                                          discussed in greater detail in various                   in another pursuit. Another farmworker                rulemaking, claiming that it will
                                          sections below, under the statutory time                 advocacy organization commented that                  adversely affect U.S. workers, have
                                          limits for filing applications and issuing               the attestation-based process, as                     enthusiastically endorsed proposed
                                          certifications the Department typically                  proposed, would further remove and                    legislation before the U.S. Congress that
                                          makes certification determinations on                    diminish the Department’s role in                     would in fact mandate that the
                                          applications prior to the completion of                  assuring all reasonable efforts to locate             Department adopt an attestation-based
                                          many of the recruitment requirements                     U.S. workers had been exhausted before                application system in the H–2A
                                          and without any direct observation or                    foreign guest workers could be certified.             program. Those organizations in their
                                          inspection by the Department or its                      Another commenter voiced concern that                 comments on this rulemaking made no
                                          SWA agents that rental housing secured                   the proposed process would eliminate                  attempt to explain their contradictory
                                          by employers complies with all of the                    the current process of follow-up                      public positions regarding the merits of
                                          applicable legal standards.                              correspondence that has been                          an attestation-based application system.
                                             No system for review and approval of                  instrumental in ensuring that employers
                                          applications, of course, is foolproof, and               have actually undertaken the required                 (4) Improvements for Employers in an
                                          the statute prescribes appropriate                       recruitment steps. A worker advocacy                  Attestation-based Process
                                          penalties for situations in which the                    organization commented the proposed                     Several commenters questioned
                                          terms of approved labor certifications                   process, with its emphasis on meeting                 whether the proposed process would
                                          are later violated. See 8 U.S.C.                         paper requirements, would be ‘‘ill                    yield a simplified process for employer
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                                          1188(b)(2)(A). There will always be bad                  suited to deal with the inherent                      applicants. These commenters believed
                                          actors who attempt to circumvent                         disparities in bargaining power between               the new process requires the same
                                          program requirements. Employers                          U.S. agricultural employers and                       amount of paperwork and only relieves
                                          sometimes violate program                                impoverished workers from the                         employers of submitting documentation
                                          requirements under the current H–2A                      developing world.’’                                   while at the same time imposes

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                                                           Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations                                       77121

                                          additional requirements including post-                  significant opposition. To attempt to                 did not appear legitimate. A growers
                                          filing audits, increased penalties, and a                undertake a similar process with the                  and producers association believed
                                          five-year records retention requirement.                 significantly more complex H–2A                       retaining responsibility for the
                                          Several commenters were concerned                        program does not appear feasible at this              substantive review by the NPC staff
                                          that the attestation-based process would                 time.                                                 could remain a problem because of their
                                          lead to increased liabilities for                           Some commenters appeared not to                    lack of expertise related to agriculture.
                                          employers.                                               understand the proposed attestation                      A State governor suggested the
                                             The Department does not believe that                  process. The Department received                      process could be improved by
                                          employers, attorneys, and agents                         comments stating that it is not clear                 eliminating the Department from the
                                          wishing to comply with program                           what should be included with the                      process. The governor believes the
                                          obligations will be adversely affected by                attestation. The Department has                       States know their agricultural industry
                                          the institution of an attestation-based                  accordingly clarified in the Final Rule               better, can resolve issues more quickly,
                                          process. The process is designed to give                 that the application must be                          and are in the best position to identify
                                          employers specific notice of the                         accompanied by the prevailing wage                    and enforce sanctions against fraud.
                                          assurances they are making to the                        determinations obtained in anticipation               Conversely, a professional association of
                                          Department and what their obligations                    of the recruitment for the application as             immigration attorneys recommended
                                          are. Once the employer is on notice of                   well as the initial recruitment report.               the SWA be eliminated from the
                                          those assurances, it is better able to                   The employer will be required to keep                 recruitment process and, alternatively,
                                          understand what it must do to comply                     all other supporting documentation in                 the employer handle all recruitment for
                                          with H–2A requirements and to conform                    case of an audit, which means the                     the positions, including accepting
                                          its conduct to those requirements.                       employer should keep all records                      applications received as a result of a job
                                             A trade association of agricultural                   relating to compliance with the H–2A                  order placed by the SWA in the
                                          employers agreed with the shift to an                    program, including advertising, job                   interstate and intrastate system.
                                          attestation-based process but believed                   orders, recruitment logs/reports, and                    The Department remains committed
                                          the process as outlined in the proposed                  housing inspection requests. To                       to modernizing the application process
                                          regulations was not a true attestation-                  eliminate any lingering confusion over                and continues to believe the submission
                                          based process and recommended the                        document retention requirements, the                  of applications directly to the NPC is the
                                          process used in the H–1B program serve                   Department has spelled these out in a                 most effective way of accomplishing
                                          as a model. Other commenters also                        new regulatory section (§ 655.119) in                 this goal. Eliminating the SWAs’
                                          recommended use of a process similar                     this Final Rule.                                      participation in the application review
                                          to the one used in the H–1B program.                                                                           process will provide more efficient
                                          Several commenters also suggested that                   (b) SWA Involvement/Application                       review of applications, as well as greater
                                          the Department combine the                               Submission                                            consistency of review. The Department
                                          Application for Temporary Employment                        The NPRM revised the application                   disagrees that NPC staff have
                                          Certification with the I–129 petition for                submission requirements by proposing                  insufficient knowledge of the
                                          simultaneous submission to the                           to have employers submit applications                 agricultural industry; to the contrary,
                                          Departments of Labor and Homeland                        only to the NPC rather than to both the               NPC reviewers who have handled H–2A
                                          Security.                                                NPC and SWA as currently required.                    applications have, in some cases, more
                                             In response to the proposals to                       Most of the comments received about                   experience with such applications than
                                          convert the proposed attestation-based                   this proposal were in favor of it, but a              many SWA staff.
                                          process into a process modeled after the                 few commenters expressed concerns                        The SWAs will, moreover, continue to
                                          H–1B labor condition application, the                    about the reduced role for SWAs. One                  play an important role in the H–2A
                                          statutory differences between the two                    person commented that eliminating the                 application process. SWAs will be
                                          programs are sufficiently substantial to                 SWA involvement would leave                           responsible for posting job orders, both
                                          make such an idea impractical. In the                    employers who seek assistance and                     intrastate and interstate, under
                                          H–1B program, the Department is                          guidance from the government in                       § 655.102(e) and (f) and 20 CFR Part
                                          statutorily limited to reviewing the                     completing applications more disposed                 653, thus reducing the risk for
                                          attestations made by an employer for                     to making errors and would increase                   employers to make mistakes with
                                          ‘‘completeness and obvious                               their potential liability. A farmworker               respect to job descriptions, minimum
                                          inaccuracies.’’ 8 U.S.C. 1182(n)(1)(G)(ii).              advocacy organization commented that                  requirements, and other application
                                          The Department believes the different                    SWA knowledge has proven useful to                    particulars. SWAs will review the job
                                          H–2A statutory language suggests that a                  workers in the past and that the                      offer, its terms and conditions, any
                                          different application and review process                 advantage of SWA involvement is the                   special requirements, and the
                                          is appropriate for the H–2A program.                     detailed knowledge their experienced                  justifications therefor. As part of their
                                          The Department appreciates the                           staff can bring to bear about local                   duties to post job orders pursuant to 20
                                          suggestion that simultaneous                             agricultural practices and the use of                 CFR Part 653, SWAs will also refer
                                          submissions to the Department and DHS                    agricultural labor in their area. The                 eligible workers to employers as well as
                                          could lead to further application                        commenter also believed that the                      conduct housing inspections and follow
                                          efficiencies for employers. However, the                 proposed process, which requires the                  up on deficiencies in the job order.
                                          Department believes that the complexity                  employer to place a job order with the                Finally, SWAs will continue an active
                                          of the current statutory requirements for                SWA, means that the SWA must take on                  role in conducting prevailing hourly
                                          the H–2A program would make it                           faith that the employer’s job offer is                wage, prevailing piece rate, and
                                          unworkable to combine the                                consistent with the terms of the H–2A                 prevailing practice surveys.
                                          Department’s application with the                        application because the SWA will no                      Two commenters noted potential
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                                          petition submitted to DHS. A proposal                    longer receive a copy of the application.             coordination or communication issues
                                          presented by the Department several                      This organization recommended that                    could result when the SWA did not also
                                          years ago to employ such a process in                    applications should be filed with the                 receive the application. One commenter
                                          the H–2B program for temporary                           SWA as well as the NPC so the SWA                     was concerned there would be no
                                          nonagricultural workers was met with                     could advise the NPC if the application               assurance that the job order posted by

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                                          77122            Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations

                                          the SWA would be the same as that on                     concept, although some also included                  application’’ that can be filed by
                                          the application. The other commenter                     suggestions for on-line training, the                 associations, they are clearly
                                          pointed out the proposed regulations                     establishment of a toll-free help line,               contemplated by 8 U.S.C. 1188(d), and
                                          provided that the SWA receive a copy                     and an outreach and education                         the Department has permitted them to
                                          of the notice of deficiency when one                     component. A trade association                        be filed as a matter of practice. See 52
                                          was issued, but the SWA would not                        recommended that a paper-based option                 FR 20496, 20498 (Jun. 1, 1987) (cited in
                                          have a copy of the submitted                             should also remain available. One                     ETA Handbook No. 398).
                                          application and thus could have                          commenter noted that the Department                      The Department received several
                                          inadequate information to be of                          did not provide an effective date for the             comments objecting to the omission of
                                          assistance to the involved employer. An                  electronic filing process.                            a provision in the NPRM for the filing
                                          association of growers/producers                            The Department appreciates the                     of master applications. An association of
                                          recommended the Department provide                       support for electronic filing and is in the           growers/producers commented that the
                                          training to H–2A employers about the                     process of developing a system that will              Department should encourage
                                          need to send a formal request to the                     include the ability to complete and                   agricultural employers in small
                                          SWA to request a housing inspection                      submit an application form online with                commodity groups or large associations
                                          and also recommended the Department                      sufficient security (PIN numbers,                     of employers to jointly participate in the
                                          notify the SWA when an application                       features to deter fraud and maintain                  H–2A program, as this will make
                                          was received for processing so the SWA                   system integrity, electronic                          processing more efficient for both the
                                          could, in turn, contact the employer.                    notifications, etc.). The Department is               Department and farmers. Another
                                             The Department appreciates the                        aware of the need to provide outreach                 association of growers/producers stated
                                          concerns about the need for                              and training prior to the implementation              that using an association application is
                                          communication between the NPC and                        of electronic filing and will involve user            the only possible solution for the H–2A
                                          the SWA and reiterates that there was                    groups in these efforts. Additionally, the            program to accommodate growers who
                                          never any intent to eliminate the SWA                    Department will ensure an adequate                    need harvest workers for a short period
                                          from all H–2A activity. As discussed                     notice process and timeframe for                      of time (one month or less). A major
                                          above, SWAs remain an integral partner                   transitioning to a new or revised                     trade association also commented that
                                          in key respects: The placing of the                      electronic application system.                        the master application significantly
                                          intrastate/interstate job orders,                                                                              reduces the paperwork and bureaucratic
                                                                                                   (d) H–2A Labor Contractor Applications
                                          conducting prevailing hourly wage,                                                                             burden for the associations and its
                                          prevailing piece rate, and prevailing                       The Final Rule has been clarified                  members, as well as for the Department.
                                          practice surveys, referring eligible                     slightly to more clearly state the                       A major trade association and other
                                          workers, and conducting housing                          obligations of H–2A Labor Contractors                 associations of growers/producers
                                          inspections, all activities for which                    in filing applications. The proposed rule             recommended that the Department
                                          SWAs will continue to receive grants                     stated that H–2ALCs must have a place                 retain and improve the master
                                          from the Department. Moreover, nothing                   of business in the United States ‘‘to                 application process and fully
                                          in the regulations precludes the                         which U.S. workers may be referred.’’                 incorporate it into the H–2A regulatory
                                          Department from contacting SWAs,                         Because H–2ALCs may be mobile,                        structure. The association recommended
                                          where there is reason to believe that it                 however, and because referrals during                 the master application also be
                                          is necessary, to verify that the terms in                the season may need to be made to                     simplified as part of the new H–2A
                                          the employer’s Application for                           whatever location an H–2ALC is                        application process. It recommended
                                          Temporary Employment Certification                       working at rather than to the physical                the regulations include the essential
                                          are consistent with the terms of the job                 location of the H–2ALC’s place of                     components of the master application
                                          offer.2 However, SWAs will no longer                     business, the final rule has been                     process that has been followed in
                                          process H–2A applications.                               modified to state that H–2ALCs must                   practice, including the filing of one
                                          Accordingly, to minimize confusion                       have a place of business in the United                application on behalf of multiple
                                          about roles and responsibilities, the                    States ‘‘and a means by which it may be               employers seeking workers in virtually
                                          Department has removed from                              contacted for employment.’’ This                      the same occupation, permitting the
                                          § 655.107(a)(3) (§ 655.107(b) of the Final               slightly modified requirement will                    association to place the required
                                          Rule) the provision requiring that SWAs                  ensure that referrals can be made to H–               advertisements and conduct the
                                          be sent deficiency notices.                              2ALCs during the course of a season                   required positive recruitment on behalf
                                                                                                   (where such referrals are provided for                of all participants but without the listing
                                          (c) Electronic Filing                                                                                          of every individual employer in the
                                                                                                   by the Final Rule), and that U.S.
                                             The Department invited comments on                    workers will have a means of contacting               advertisement as currently required,
                                          the concept of a future electronic filing                the H–2ALC to secure employment. All                  permitting referral of workers to the
                                          process for the H–2A program and                         other changes made to the paragraph on                association, and allowing the
                                          received comments supporting the                         filing requirements for H–2ALCs were                  association to place workers in the job
                                                                                                   purely stylistic and made for purposes                opportunities. The association further
                                             2 There is also no prohibition preventing a SWA
                                                                                                   of clarity.                                           recommended the master application
                                          from contacting the Department to ensure that the                                                              process also apply to applications filed
                                          employer’s job order and Application for                 (e) Master Applications
                                          Temporary Employment Certification are                                                                         by associations acting as agents.
                                          consistent. As a practical matter, a SWA will rarely        Both the current and proposed                         The statute governing the H–2A
                                          be able to do so before posting a job order, because     regulations require an association of                 program requires that agricultural
                                          Applications for Temporary Employment                    agricultural producers filing an                      associations be permitted to file H–2A
                                          Certification generally are not filed with the
                                                                                                   application to identify whether the                   applications, see 8 U.S.C. 1188(d), and
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                                          Department under the Final Rule until at least 15
                                          days after the job order has been submitted to the       association is the sole employer, a joint             that they be permitted to do so either as
                                          SWA. Communication between SWAs and the                  employer with its employer-members,                   agents or as employers, see 8 U.S.C.
                                          Department has always been essential to identifying
                                          and putting a stop to deceitful employer behavior,
                                                                                                   or the agent of its employer-members.                 1188(c)(3)(B)(iv) and (d)(2).
                                          however, and the Department expects that such            Although the current regulations do not               Consequently, the Department has, as a
                                          communication will continue under the Final Rule.        specifically describe a ‘‘master                      matter of longstanding practice,

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                                                           Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations                                      77123

                                          accepted master applications from                        that Congress intended to require                     to meet the required timeframes.
                                          agricultural associations. In response to                agricultural employers to allow                       Another major trade association
                                          the comments received on this subject,                   prospective workers to selectively                    commented that a provision allowing
                                          the Department has decided to include                    choose which job duties they want to                  filing after the deadline is even more
                                          specific language concerning such                        perform and which job duties they do                  essential because the de facto deadline
                                          applications in the regulation text at                   not, with regard to a particular job                  for meeting requirements under the final
                                          § 655.101(a)(3).                                         opportunity. The Department is                        regulation is further in advance of the
                                             The basic theory behind master                        requiring that combinations of job                    date of need than the current
                                          applications is that agricultural                        duties be supported by a legitimate                   requirement. One association of
                                          associations should be able to file a                    business reason to prevent the                        growers/producers cited the situation
                                          single H–2A application on behalf of all                 deliberate and unnecessary                            following Hurricane Katrina when many
                                          their employer members in essentially                    discouragement of U.S. workers from                   employers needed to secure additional
                                          the same manner that a single employer                   applying for job opportunities, but the               H–2A workers as an example of the
                                          controlling all the work sites and all the               Department does not believe that further              need for an emergency application
                                          job opportunities included in the                        restrictions on job duty combinations                 process.
                                          application would. Two important                         are warranted or necessary to fulfill the                Most of those requesting that the
                                          limitations apply to such applications.                  statutory criteria for certification.                 provision for an emergency application
                                          First, all the workers requested by the                                                                        be reinstated also commented that if an
                                          application must be requested for the                    (f) Timeliness of Filing Application                  emergency application is filed in an area
                                          same date of need. If an agricultural                       As required by statute, the provision              of intended employment and for a job
                                          association needs workers at different                   stating a completed application is not                opportunity for which other employers
                                          times, it must file a separate Application               required to be filed more than 45                     have previously been certified for the
                                          for Temporary Employment                                 calendar days before the date of need                 same time frame, the emergency
                                          Certification for each date of need, just                was retained in the proposed rule. The                application should be certified
                                          as a single employer would. Second, the                  Department has continued that                         immediately. These commenters also
                                          combination of job duties and                            requirement in § 655.101(c). The                      suggested that post-application
                                          opportunities that are listed in the                     Department received some suggestions                  recruitment could be extended for
                                          application must be supported by a                       for changes to the proposed timeframes                emergency applications to ensure that
                                          legitimate business reason, which must                   for submitting applications. Two                      their availability would not create an
                                          be provided as part of the application.                  commenters suggested the Department                   incentive to avoid the pre-filing
                                          The purpose of this limitation is to                     should at least provide the employer                  recruitment efforts.
                                          prevent agricultural associations from                   with the option of applying not more                     The Department agrees that a
                                          creating undesirable combinations of job                 than 45 days before the date of need,                 provision allowing the Certifying Officer
                                          duties and opportunities for the sole                    undertaking the recruitment after the                 (CO) to waive the required timeframe for
                                          purpose of discouraging U.S. workers                     application has been accepted, and                    submission of applications in
                                          from applying for the jobs. So long as a                 continuing to accept referrals under the              emergency situations is necessary and
                                          legitimate business reason exists                        50 percent rule.                                      has included such a provision in the
                                          supporting the combination presented,                       The Department may not require an                  Final Rule at § 655.101(d). The
                                          however, the Department will deem it                     application to be filed more than 45                  provision, which substantially
                                          acceptable. An acceptable business                       calendar days before the date of need                 replicates the current regulatory
                                          reason for a combination of job duties                   under 8 U.S.C. 1188(c). The Department                provision governing emergency
                                          and opportunities could include, for                     does not agree with the suggestion for                situations, requires submission of a
                                          example, the efficiencies that closely                   offering employers the option of                      completed application, except for the
                                          proximate employers expect to gain                       applying not more than 45 days prior to               initial recruitment report that would
                                          from having access to a flexible, readily                the date of need, doing post-acceptance               otherwise be required, and a statement
                                          available pool of workers, even though                   recruitment, and continuing to accept                 of the emergency situation giving rise to
                                          the employers in question do not grow                    referrals under the 50 percent rule.                  the waiver request. The emergency
                                          the same crops, which may be necessary                   Given the need to maintain consistency                situation giving rise to a request for a
                                          for agricultural employers to deal with                  in the program’s requirements, the                    waiver may include a lack of experience
                                          uncertain and weather-dependent                          Department cannot offer varying options               with the H–2A program obligations
                                          planting and harvesting times.                           for recruitment timeframes.                           (including housing and transportation
                                             The Department is aware that this                                                                           requirements) or for other good and
                                                                                                   (g) Emergency Situations
                                          may mean that at times a U.S. worker                                                                           substantial cause. The Department
                                          wishing to perform only one type of job                     The NPRM did not contain the                       anticipates that employers who were
                                          duty, such as picking asparagus, may be                  current regulatory provision (currently               non-users of the program during the
                                          required to perform an additional job                    found at § 655.101(f)(2)) allowing the                previous year may fail to meet the filing
                                          duty, such as harvesting tobacco, in                     Administrator/OFLC to waive the                       deadline due to miscalculation of the
                                          order to secure an agricultural job with                 required timeframe for application                    time needed to complete the
                                          that association. It is not at all                       submission for employers who did not                  application. The Department will
                                          uncommon, however, for jobs in the                       use the H–2A program during the prior                 entertain waiver requests from
                                          United States to include multiple job                    agricultural season or for any employer               employers in this situation but will
                                          duties, some of which workers may                        for good and substantial cause. The                   consider them only after first verifying
                                          view as more desirable than others.                      Department received a number of                       that the employer did not use the
                                          Indeed, many job opportunities offered                   comments objecting to its elimination. A              program during the prior year.
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                                          under the current H–2A regulations                       major trade association stated the                       The Department is not providing an
                                          include multiple job duties, some of                     elimination would preclude many                       explicit definition of good and
                                          which may be more desirable than                         employers from legalizing their                       substantial cause in order to preserve
                                          others. There is nothing in the statute                  workforce simply because their decision               flexibility when faced with
                                          governing the H–2A program indicating                    to join the program was made too late                 unanticipated situations or conditions.

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                                          We have provided some examples in the                    (a) Section 655.102(a) Time of Filing of                 Several commenters opined that it
                                          regulatory text to assist employers in                   Application                                           was not feasible for employers to make
                                          determining what might constitute                           The NPRM proposed requiring that                   accurate assessments of timeframes and
                                          sufficient cause warranting a waiver.                    applications be filed at least 45 days                the number of workers needed so far in
                                          One example provided is a dramatic                       before the employer’s date of need (as                advance and many questioned how
                                          change in the weather conditions                         required by statute) with a pre-filing                effective an early recruitment period
                                          resulting in a substantial change to the                 recruitment period commencing no                      would be in helping employers to locate
                                          anticipated date of need for H–2A                        more than 120 days prior to the date of               U.S. workers who would still be
                                          workers with significant attendant crop                  need and not less than 60 days prior to               available at the time the work actually
                                                                                                   the date of need. The Department                      began. Additionally, many commenters
                                          loss unless the waiver is granted.
                                                                                                   received a number of comments on the                  believed the earlier recruitment would
                                          However, the employer must be able to
                                                                                                   change to a pre-filing recruitment                    not benefit U.S. agricultural workers
                                          demonstrate that the situation or                                                                              seeking employment because it is
                                          condition leading to the request for a                   framework and the related timing for
                                                                                                                                                         inconsistent with the traditional job-
                                          waiver was genuinely outside of the                      that recruitment.
                                                                                                      The Department received multiple                   seeking patterns of these workers.
                                          control of the employer.                                                                                          Some commenters expressed concern
                                                                                                   comments opposing this proposed
                                             The Department is requiring, in the                                                                         that extending the recruitment time
                                                                                                   timeframe; several commenters were
                                          Final Rule, that the employer who                                                                              would either not increase the number of
                                                                                                   generally opposed to the expanded
                                          requests a waiver must conduct some                                                                            U.S. worker applicants for a position, or
                                                                                                   timeframe and others raised more
                                          recruitment as a condition for obtaining                                                                       would increase the number of U.S.
                                                                                                   specific concerns. Several commenters
                                          that waiver. The employer will be                                                                              workers who applied for a position but
                                                                                                   questioned the Department’s legal
                                          required to submit a job order to the                                                                          would not translate into more actual
                                                                                                   authority for a shift to pre-filing                   workers taking the jobs, as many would
                                          relevant SWA(s) and conduct positive                     recruitment. The Department also                      not report to work. A trade association
                                          recruitment from the time of filing the                  received comments arguing that the                    also commented that the employer is
                                          application until the date that is 30 days               proposed pre-filing recruitment                       put at risk because, by the time the jobs
                                          after the employer’s date of need. The                   requirement has the effect of moving the              begin, U.S. applicants may have long
                                          SWA must transmit the job offer for                      deadline for filing an application.                   since changed their minds or accepted
                                          interstate clearance as in a normal                      Several commenters argued that the                    other employment. A State government
                                          application process. We have also added                  proposed requirement that employers                   agency commented that most
                                          a provision that requires the CO to                      begin recruitment earlier than they are               agricultural workers would not make a
                                          specify a date upon which the employer                   required to file applications would be                commitment to a job so far in advance
                                          must submit a recruitment report                         inconsistent with the Congressionally                 of the start date. One individual
                                          consistent with the requirements of this                 set timeframes and thus beyond the                    employer believed the proposed pre-
                                          part.                                                    Department’s statutory authority.                     filing recruitment would actually have
                                                                                                      The Department disagrees strongly                  the opposite effect the Department
                                             The Department recognizes that the                    with the premise that its revised
                                          suggestions that waivers be approved if                                                                        anticipates because U.S. workers would
                                                                                                   recruitment steps are a violation of the              be reluctant to make commitments so far
                                          other applications for similar                           statute. The INA is clear that the
                                          occupations and dates of need in the                                                                           in advance of the start date. An
                                                                                                   Department may not require an                         employer association recommended that
                                          same geographic locations have been                      application for labor certification to be
                                          previously certified are intended to                                                                           the final regulation specifically permit
                                                                                                   filed more than 45 days prior to the date             employers to ask workers identified
                                          expedite the process. However, each                      of need. See 8 U.S.C. 1188(c)(1). The                 during the recruitment process to attest
                                          application is unique and the                            statute is silent on how the Department               to or affirm their intentions to actually
                                          Department must consider each request                    implements the certification process: It              report to work to perform the jobs.
                                          on its own merits, and therefore does                    does not specify when the recruitment                    An association of growers/producers
                                          not believe it should commit to                          of U.S. workers should take place,                    shared its data from the 2006–2007
                                          approving requests solely because there                  whether prior to or subsequent to filing.             season which shows only 9 percent of
                                          have been prior approvals for employers                  The INA clearly contemplates at 8                     U.S. applicants applied during the first
                                          with similar job opportunities and dates                 U.S.C. 1188 that recruiting U.S. workers              15 days of the current 45-day
                                          of need in the same area.                                is a separate activity from filing and                recruitment period and questioned
                                             Finally, the Department made changes                  considering applications, and the statute             whether a longer timeframe would yield
                                          in § 655.101 to conform to other changes                 does not provide any express                          additional applicants. The association
                                          made to the rule. Such changes include,                  timeframes during which recruitment                   also reported 83 percent of the
                                          but are not limited to, changes to clarify               must be conducted. There is thus                      applicants who applied during the
                                          a potential electronic filing of future                  nothing in the statute that prevents the              initial 15-days of the recruitment period
                                                                                                   Department from requiring employers to                failed to report for work on the date of
                                          applications. In addition, the
                                                                                                   recruit before filing an application,                 need, as compared to a 60 percent
                                          Department has made non-substantive
                                                                                                   much as it requires that recruitment be               failure-to-report rate for applicants who
                                          changes to enhance readability.
                                                                                                   conducted prior to the filing of an                   applied during the last 30 days of
                                          Section 655.102         Required Pre-Filing              application in other immigration                      recruitment leading up to the date of
                                          Activity                                                 programs. The Department has                          need.
                                                                                                   determined that program integrity                        Some commenters stated that the
                                            The Department has changed the title                   would be improved by being able to                    current recruitment timeframes are
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                                          of this section from ‘‘Required Pre-filing               review a preliminary recruitment report               adequate for identifying and hiring U.S.
                                          Recruitment’’ to ‘‘Required Pre-filing                   at the time the application is filed, a               workers and others advocated alternate
                                          Activity’’ to include the activities other               requirement that is consistent with both              timeframes. Commenters presented a
                                          than recruitment that are discussed in                   the intent and the language of the                    number of options for the recruitment
                                          this section.                                            statute.                                              timeframe, including the current

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                                                           Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations                                        77125

                                          timeframe, and options ranging between                   harvesting schedules. This revised                    to the 50 percent rule, citing the 1986
                                          90 to 75 days prior to the date of need                  recruitment schedule, which is closer in              IRCA amendments which added the 50
                                          for beginning recruitment and 60 to 45                   time to the employer’s actual date of                 percent rule to the INA as a temporary
                                          days prior to the date of need for filing                need, also addresses the commenters’                  3-year statutory requirement, pending
                                          the application. In the words of one                     concerns about the job search patterns                the findings of a study that the
                                          trade association, which was                             of likely U.S. workers. The Department                Department was required to conduct
                                          representative of the comments received                  declines, at this time, to implement any              regarding its continuation. In 1990,
                                          on this point: ‘‘For the sector for which                requirement that U.S. workers affirm in               pursuant to what is now INA
                                          H–2A is predominantly applicable—                        writing their intent to show up for work              § 218(c)(3)(B)(iii), ETA published an
                                          fruits and vegetables—the ability to                     when needed, as that is a contractual                 Interim Final Rule to continue the 50
                                          predict months in advance when labor                     matter between the worker and the                     percent requirement. See 55 FR 29356,
                                          will be required is simply impossible.’’                 employer. The Department notes that it                July 19, 1990. That rule was never
                                             The Department takes seriously its                    has afforded employers some flexibility               finalized.
                                          twin obligations, consistent with all H–                 in the Final Rule in § 655.110(e),                       As the Department stated in the
                                          2A statutory requirements, to ensure                     ‘‘Requests for determinations based on                NPRM, since the 1990 publication of the
                                          both that an adequate workforce is                       nonavailability of able, willing, and                 Interim Final Rule continuing the 50
                                          available to U.S. agricultural producers                 qualified U.S. workers,’’ to address                  percent rule, it has gained substantial
                                          and that U.S. workers have a meaningful                  situations where U.S. workers have                    experience and additional perspective
                                          opportunity to apply for all open                        failed to appear as promised.                         calling into question whether the
                                          agricultural job opportunities. The                                                                            Department’s 1990 decision was in fact
                                          Department believes it can best fulfill its              (b) Section 655.102(b) General                        supported by the data contained in the
                                          statutory responsibilities by requiring                  Attestation Obligation                                1990 study, and whether the rule is in
                                          employers to recruit in advance of                       (1) General Comments Regarding the                    fact a necessary, efficient and effective
                                          filing, which will enable employers to                   Attestations                                          means of protecting U.S. workers from
                                          submit preliminary recruitment reports                                                                         potential adverse impact resulting from
                                          with their applications, giving the                         A group of farmworker advocacy                     the employment of foreign workers.
                                          Department better information than it                    organizations commented on the                           The Department received several
                                          has ever had before about the                            language in the proposed regulation that              comments in support of retaining the 50
                                          availability of U.S. workers before the                  states ‘‘the employer shall attest that it            percent rule as it is currently
                                          Department is required by the tight                      will continue to cooperate with the                   administered. Commenters asserted that
                                          statutory timeframes to make a                           SWA by accepting referrals of all                     the rule is an important method for
                                          determination on an application. The                     eligible U.S. workers who apply.’’ The                granting U.S. workers job preference
                                          current pattern of forcing positive                      organization stated it is the employer’s              over foreign temporary workers and
                                          recruitment combined with the                            duty to hire all qualified U.S. workers               creates an incentive for pre-season
                                          Department’s near simultaneous                           who apply and believed the proposed                   recruitment of U.S. workers. Some
                                          evaluation of the application into a                     language did not make this clear.                     commenters stated their belief that
                                          substantially narrow window of only 15                      An association of growers requested                many U.S. workers gain jobs under the
                                          days is simply inadequate to address                     that the language describing the time                 50 percent rule and that its elimination
                                          these workforce and program integrity                    period for acceptance of referrals be                 would deprive many U.S. workers of
                                          needs. Based on the comments received,                   modified by adding the word ‘‘first’’                 jobs unfairly, although these
                                          however, the Department has come to                      before ‘‘begin to depart’’ because not all            commenters did not provide any data to
                                          believe that requiring employers to seek                 foreign workers depart on the same date.              support their assertion.
                                          and secure a workforce 120 days in                       A professional association requested the                 Several commenters believed that few
                                          advance of need may not be practicable,                  regulation be changed to permit                       employers have had to lay off H–2A
                                          given the substantial likelihood that                    employers to stop local recruitment                   workers under the 50 percent rule, and
                                          over such an extended period variables                   efforts no more than five days prior to               that the rule has enabled many U.S.
                                          such as weather conditions, competition                  the date of need rather than three days               workers to secure jobs, and that
                                          from other industries for available                      as proposed. This change was requested                elimination of the rule would unfairly
                                          workers, and competition among farms                     to accommodate the actual transit time                deprive them of those jobs. The
                                          and crops could intervene and result in                  required for workers to arrive from                   commenters believed that by
                                          increased labor uncertainty for                          abroad. As discussed in more detail                   eliminating this rule, the Department
                                          employers.                                               below, the points made by these                       may keep U.S. farmworkers from
                                             The Final Rule accordingly shortens                   commenters have been rendered moot                    applying for jobs they would otherwise
                                          the pre-filing recruitment period                        by changes made to this provision.                    be able to take. Other commenters
                                          described in the NPRM. Employers will                                                                          believed that for those U.S. workers who
                                                                                                   (2) The ‘‘50 Percent Rule’’ and the
                                          be required to initiate recruitment no                                                                         learn of an H–2A job, the proposal
                                                                                                   Cessation of Recruitment
                                          more than 75 days prior and no less                                                                            would eliminate the protections that
                                          than 60 days prior to the anticipated                      The Department sought comments on                   safeguard against employers rejecting
                                          date of need. Reducing the pre-filing                    program users’ experience with the ‘‘50               qualified U.S. workers.
                                          recruitment time period in this manner                   percent rule,’’ which requires employers                 One commenter argued that the 50
                                          from the time period that was proposed,                  of H–2A workers to hire any qualified                 percent rule provides an incentive that
                                          while simultaneously adjusting the                       U.S. worker who applies to the                        should be maintained to create an
                                          Department’s proposal by extending the                   employer during the first 50 percent of               attractive working environment, and
                                          referral period beyond the date of need                  the period of the H–2A work contract.                 that it is critical to the integrity of the
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                                          (discussed further below), will ensure                   We received numerous comments and                     H–2A program. The commenter asserted
                                          U.S. workers have access to these job                    several commenters offered alternative                that it prevents growers from engaging
                                          opportunities, and enable employers to                   approaches.                                           in practices that are tolerated by H–2A
                                          recruit effectively for U.S. workers                       Several commenters questioned the                   workers only because of their greater
                                          without adversely affecting planting and                 Department’s authority to make changes                economic vulnerability and in turn

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                                          77126            Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations

                                          ensures that labor standards are not                        A commenter from a state agency                    supply and costs over the life of the
                                          driven down for U.S. workers unable to                   asserted that the elimination of the rule             contract. Commenters from state
                                          compete with H–2A workers who have                       would relieve the SWA from having to                  agencies found that the features of the
                                          no choice but to endure such                             track these H–2A job orders and would                 rule are seldom completely understood
                                          conditions.                                              remove unnecessary burdens on                         by the growers who need the H–2A
                                             While one commenter admitted that                     employers. The commenter believed                     program, adding to their impression that
                                          they could not provide data regarding                    that there is no tangible evidence that               the entire process is complicated and
                                          the cost and benefits of the 50 percent                  the rule produces the desired results of              rife with red tape. Another State
                                          rule, they expressed the belief that                     increasing employment of domestic                     commenter found the rule to be
                                          employers will hire fewer domestic                       workers:                                              antiquated and ineffective.
                                          workers without it, thereby adversely                                                                             Another commenter observed that the
                                                                                                      My experience is that it is rare for [U.S.]
                                          affecting an already vulnerable                          workers to search our Internet postings for           rule has been disruptive and non-
                                          population. A number of commenters                       agricultural positions in the middle of a             productive for both workers and
                                          noted that the elimination of the 50                     growing season. Employers find this                   employers and that its elimination will
                                          percent rule would make it more                          requirement confusing and worrisome.                  provide much-needed stability in the
                                          difficult for traditional farm workers                   Smaller employers have expressed concern              workforce obtained by the employer. A
                                          who move with crops along the                            that they could lose their fully trained and          commenter found that a cost-benefit
                                          traditional migrant streams to secure                    settled foreign worker(s), suddenly                   analysis of the situation indicates that
                                          jobs. The commenter believed that U.S.                   disrupting their operation. Unfortunately,
                                                                                                   their experience is that U.S. workers who
                                                                                                                                                         continuing to recruit U.S. workers
                                          workers will be ‘‘absolutely foreclosed’’                                                                      beyond the date of need results in no
                                                                                                   drop in during a season have a tendency to
                                          from much if not most H–2A related                                                                             corresponding benefit. One farmer
                                                                                                   not stay till the end of the contract period.
                                          employment if they cannot be hired just                  If this practice had historically produced            observed,
                                          before, at, and past the date of need. An                significant results, the government-mandated            It’s just not right that after I have made the
                                          obligation to continue to hire U.S.                      grower investment of time and money might             best attempt to hire domestic workers that
                                          workers after the departure of any                       be justifiable, but it has not.                       once halfway through the season I be forced
                                          foreign workers to the U.S. for                                                                                to replace a trained H–2A worker. I really
                                                                                                      One commenter stated that there is no
                                          employment was viewed by the                                                                                   would prefer to hire local workers and keep
                                                                                                   need for the 50 percent rule where
                                          commenter as critical to maintaining                                                                           that wage money at home, if I could find
                                                                                                   recruiting indicates that there are no or
                                          and developing a U.S. agricultural                                                                             them.
                                          workforce.                                               few local workers. The commenter also
                                                                                                   found no need for the rule in situations                 Commenters from various farm
                                             Finally, another commenter observed
                                                                                                   where the employers typically hire a                  bureaus around the country argued that
                                          that the 50 percent rule has served as an
                                                                                                   large number of local workers. The                    under current conditions, the 50 percent
                                          important tool for ensuring that the H–
                                                                                                   commenter went on to argue that if the                rule is without foundation. They argued
                                          2A program does not adversely affect
                                                                                                   Department wants to retain the rule, it               that anecdotal evidence shows that few,
                                          U.S. workers, and that at a time of
                                                                                                   should do so only as a condition of                   if any, employees referred for
                                          increasing unemployment, the
                                                                                                   approval of an application where there                employment after the employer’s date of
                                          Department should not choose this
                                                                                                   is evidence indicating that there are a               need apply for or maintain their work
                                          particular moment to abandon these
                                                                                                   relatively large number of local workers              status. They believed that agricultural
                                          long-standing labor protections for U.S.
                                          workers.                                                 but the employer has indicated that it                employers, especially those with
                                             Several other commenters argued the                   intends to hire few if any local workers.             perishable crops, must be able to
                                          50 percent rule should be abolished.                        A number of commenters observed                    operate with greater certainty. Once an
                                          These commenters argued that H–2A                        that all available data support the view              operation begins, the success of the
                                          users have long considered the 50                        that relatively few U.S. workers desire               work effort is the product of coordinated
                                          percent rule to be unfair and                            employment in agriculture. They argued                teamwork. Employers are willing to
                                          unreasonable. They observed that no                      that it necessarily follows from this fact            make strong recruitment efforts before
                                          other temporary or permanent worker                      that the 50 percent rule provides almost              the date of need, but they seek certainty
                                          program has an even remotely                             no benefit to U.S. workers, yet its                   and continuity once the work period has
                                          corresponding requirement.                               presence dissuades employers from                     begun.
                                          Commenters also observed that the 50                     participating in the program because of                  A commenter from a farming
                                          percent rule was purportedly designed                    the uncertainty it creates. These                     association found that the actual
                                          to enable domestic workers to accept                     commenters concluded that the rule                    benefits of the 50 percent rule for
                                          agricultural employment opportunities,                   should be abandoned. One commenter                    domestic workers are, to all practical
                                          but that its costs outweigh its benefits.                believed that if the Department wished                intent, illusory. The commenter strongly
                                          Commenters shared experiences that                       to retain the rule, it should reserve the             supported eliminating the rule entirely,
                                          many of the domestic workers who                         right to do so on a case by case basis,               arguing that such an approach would
                                          apply under the 50 percent rule do so                    as a condition of approval for an                     result in a substantial improvement in
                                          to maintain government benefits under                    application where the CO and SWA                      program operations. The commenter
                                          the Unemployment Insurance program                       believed that insufficient local                      argued that while the Department has a
                                          (the UI program requires unemployed                      recruiting has been accomplished. The                 statutory obligation to protect the rights
                                          workers to show that they have actively                  Department believes that this idea may                of U.S. workers when implementing the
                                          sought employment each week in order                     have some merit, but has not devised a                program, it is necessary to strike a
                                          to continue benefits). They also found                   means to implement it at this time.                   balance between the priority given to
                                          that while the rule does not actually                       A number of agricultural employers                 U.S. workers and the rights of
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                                          provide substantial additional                           commented that the rule requiring H–                  employers, who have met all of the legal
                                          employment to domestic workers, it                       2A employers to hire any qualified U.S.               obligations that attach to employing H–
                                          creates needless insecurity and                          worker during the first 50 percent of the             2A workers. It went on to argue:
                                          uncertainty for H–2A workers who are                     H–2A work contract makes it very                        The current 50 percent rule, while
                                          employed under H–2A contracts.                           difficult for a producer to manage labor              seemingly a provision to protect U.S.

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                                                           Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations                                        77127

                                          workers, is more disruptive to farm                      that does not provide a corresponding                   1990. Nevertheless, the language of that
                                          operations and a disincentive to program                 benefit to U.S. workers.3 Others see the                provision suggests that when issuing
                                          participation than it is a true protection for           rule as benefiting U.S. workers by                      regulations dictating whether
                                          workers. There is no reason to mandate that              providing them expanded job                             agricultural employers should be
                                          a grower’s obligations to find and recruit
                                          eligible U.S. workers should extend past the             opportunities. Based on the comments it                 required to hire U.S. workers after H–2A
                                          recruitment period; imposing such an                     has received and its substantial                        workers have already departed for the
                                          obligation serves only to disrupt operations             experience in operating the H–2A                        place of employment, the Department
                                          of the producer and does little to protect U.S.          program, the Department believes that                   should weigh the ‘‘benefits to United
                                          workers * * *. The fact is, and all available            the 50 percent rule clearly does provide                States workers and costs to employers.’’
                                          data support this view, relatively few U.S.              some benefits to U.S. workers, but that                 After considering its own experience
                                          workers desire employment in agriculture                 the rule creates substantial uncertainty                and the experience of its SWA agents,
                                          * * *. The work is arduous, episodic, taxing,            for employers in managing their labor                   the Department agrees, on balance, with
                                          requires relatively little skill and virtually no
                                                                                                   supply and labor costs during the life of               those commenters who argued that the
                                          education. Within the U.S. economy the
                                          pay—while increasing—is relatively low.                  an H–2A contract and serves as a                        costs of the 50 percent rule outweigh
                                          These jobs provide tremendous economic                   substantial disincentive to participate in              any associated benefits the rule may
                                          opportunity for migrant workers but are not              the program.                                            provide to U.S. workers. It is beyond
                                          perceived as offering the same benefit to U.S.             Based on the comments it received,                    dispute that the obligation to hire
                                          workers. In fact, approximately 10 million               the Department has decided to modify                    additional workers mid-way through a
                                          individuals in the U.S. economy today                    the rule. The requirements of 8 U.S.C.                  season is disruptive to agricultural
                                          choose to work in jobs which pay them less               1188(c)(3)(B)(iii) were fully satisfied                 operations and makes it difficult for
                                          than they could earn in agriculture. The 50              when the Department promulgated
                                          percent rule provides virtually no benefit to
                                                                                                                                                           agricultural employers to be certain that
                                                                                                   interim final regulations on July 19,                   they will have a steady, stable, properly
                                          U.S. workers yet its presence has clearly been
                                          a disincentive to program participation. It                                                                      trained, and fully coordinated work
                                                                                                      3 In December 2007, the Department
                                          should be abandoned.                                                                                             force. It is also apparent from the
                                                                                                   commissioned a survey of stakeholder
                                             Other commenters offered alternatives                 representatives to evaluate the effectiveness of the    comments received that the current rule
                                          to the 50 percent rule including a 25                    50 percent rule as a mechanism to minimize              is poorly understood by employers,
                                                                                                   adverse impacts of the H–2A program on U.S. farm        difficult for the SWAs to administer,
                                          percent rule, recognizing that referrals                 workers. The Department had conducted a similar
                                          after the date of need may serve a useful                study of the impact of the 50 percent rule in 1990,
                                                                                                                                                           and a disincentive for employers to use
                                          purpose but extending through 50                         but upon reviewing that study as part of the H–2A       the H–2A program. Finally, the rule
                                          percent of the contract completion
                                                                                                   review which led to this recent NPRM the                requires agricultural employers to incur
                                                                                                   Department concluded that it was of limited utility     additional unpredictable and
                                          might be too long. One farming                           because it covered only two states—Virginia and
                                          association suggested that the obligation                Idaho—and because, given the significant changes
                                                                                                                                                           unnecessary expenses, forcing them to
                                          to accept domestic referrals should                      that have occurred in the field of agricultural         choose between either hiring a greater
                                          terminate not later than three days
                                                                                                   employment over the last two decades, it was            number of workers than they actually
                                                                                                   substantially out of date. The surveyors for the new    need to complete their work part-way
                                          before the date of need.                                 study conducted interviews with a number of
                                             A number of state agencies suggested                  stakeholders to gather information on the impact of     through a season, or discharging some
                                          that SWAs should leave job orders open                   the 50 percent rule and how it is currently working.    or all of their H–2A workers, in which
                                          for 30 days after the date of need and
                                                                                                   The surveyors queried a far more representative         case the employer will lose its entire
                                                                                                   sample of entities affected by the 50 percent rule      investment in those workers and will be
                                          employers should be required to offer                    than the 1990 study had, including employers, state
                                          employment to any qualified and                          workforce agencies, and farm worker advocacy            required to incur the immediate
                                          eligible U.S. workers who are referred                   organizations.                                          additional expense to transport the
                                          during that time, also recognizing that                     While the new study identified a diversity of        workers back to their home countries. It
                                                                                                   opinion about the value and effectiveness of the        is for all of these reasons that no other
                                          the current 50 percent of the contract                   current 50 percent rule, the researchers found that
                                          period is too long and perhaps too                       the rule ‘‘plays an insignificant role in the program   permanent or temporary worker
                                          uncertain to manage.                                     overall, hiring-wise, and has not contributed in a      program administered by the
                                             Another commenter similarly                           meaningful way to protecting employment for             Department contains such a
                                                                                                   domestic agricultural workers.’’ See ‘‘Findings from    burdensome requirement, even though
                                          recommended that employers be                            Survey of Key Stakeholders on the H–2A ‘50
                                          required to begin recruitment no more                    Percent Rule’,’’ HeiTech Services, Inc. Contract        most of these programs are subject to
                                          than 60 days prior to the date of need                   Number: DOLJ069A20380, April 11, 2008. The              similar statutory or regulatory
                                                                                                   researchers estimated that the number of                requirements that the Secretary certify
                                          and continue until between one and 30                    agricultural hires resulting from referrals to
                                          days after the date of need, with                        employers during the 50 percent rule period was
                                                                                                                                                           (1) that there are not sufficient workers
                                          adjustments made according to the                        exceedingly small, with H–2A employers hiring less      in the United States who are able,
                                          expected duration of the job                             than 1 percent of the legal U.S. agricultural           willing, and qualified to perform the
                                                                                                   workforce through the 50 percent rule. All of the       labor or services needed and (2) that the
                                          opportunity. Under this commenter’s                      categories of surveyed stakeholders, including
                                          proposal, the determination of the end                   employers, state workforce agencies, and even farm
                                                                                                                                                           employment of the aliens in such labor
                                          date for recruitment should be no earlier                worker assistance and advocacy organizations,           or services will not adversely affect the
                                          than the date of need, but the 50 percent                reported that U.S. workers hired under the 50           wages and working conditions of
                                                                                                   percent rule typically do not stay on the job for any   workers in the United States similarly
                                          rule should be revisited and adjusted to                 length of time when hired, frequently losing interest
                                          lessen its potential negative impact on                  in the work when they learn about the job               employed.
                                          the agricultural employer’s workforce.                   requirements. Many of the survey respondents,              It is clear to the Department that the
                                                                                                   including representatives from each of the three        current 50-percent rule does provide
                                          Finally, another commenter suggested a                   groups, suggested that the rule should be either
                                          continued obligation of 50 percent of                    eliminated or modified.                                 some benefits to U.S. workers, since at
                                          the work period or 30 days, whichever                                                                            least some U.S. workers secure jobs
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                                                                                                      The Department did not specifically rely on
                                          is longer.                                               either of the two surveys in crafting the Final Rule.   through referrals made pursuant to the
                                             It is clear to the Department from                    It does, however, believe that the information          rule. The number of such hires,
                                                                                                   provided adds some additional depth to the
                                          these comments that many view the                        discussion contained in this preamble. Accordingly,
                                                                                                                                                           however, appears to be quite small.
                                          current 50 percent rule as a                             it has posted the studies on the Department’s Web       Moreover, the comments indicate that
                                          substantially burdensome requirement                     site.                                                   many workers hired pursuant to the 50-

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                                          77128            Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations

                                          percent rule do not complete the entire                  about the costs and benefits of                       SWAs making referrals. The language of
                                          work period, adding costs to employers                   mandatory post-date-of-need hiring                    § 655.102(b) as originally proposed
                                          and further diminishing the total                        under the new rule structure over a                   implied that mandatory post-date-of-
                                          economic benefits derived from the rule                  period of several years, allowing the                 need hiring would no longer be required
                                          by U.S. workers. It is also relevant that                Department to assure itself that its                  by the H–2A regulations. The language
                                          under the Final Rule, the period of time                 initial conclusions regarding the rule are            creating the transitional 30-day
                                          that a job order is posted by a SWA                      sound.                                                mandatory hiring period outlined above
                                          prior to an employer’s dates of need has                    For these reasons, the Department has              may be found at § 655.102(f)(3) of the
                                          been substantially expanded from the                     created a five-year transitional period               Final Rule.
                                          current rule, which will provide U.S.                    under the Final Rule during which                       To the extent that the 30-day rule
                                          workers with more up-front information                   mandatory post-date-of-need hiring of                 applies, the employer would require
                                          about agricultural job opportunities,                    qualified and eligible U.S. worker                    similar safeguards as under the 50-
                                          rendering mandatory post-date-of-need                    applicants will continue to be required               percent rule so long as the employer
                                          hiring less necessary.                                   of employers for a period of 30 days                  continues to have an affirmative
                                             In sum, after considering the best                    after the employer’s date of need. In                 obligation to hire U.S. workers beyond
                                          information currently available, the                     determining precisely what form                       the date of need. Accordingly, the
                                          Department has concluded that the                        mandatory hiring should take during                   Department has included a provision in
                                          benefits of the 50-percent rule to U.S.                  this transitional period, the Department              § 655.102(f)(3)(ii) of the Final Rule on
                                          workers are not, on balance, sufficient to               considered all of the various options                 the prohibition of withholding of U.S.
                                          outweigh its costs. The Department has                   presented by commenters. Several                      workers. The provision is similar to the
                                          also determined that modifying or                        commenters suggested limiting the                     provision in § 655.106(g) of the current
                                          eliminating the 50-percent rule would                    period during which employers are                     regulations, but has been modified to
                                          not compromise the Department’s                          required to engage in mandatory post-                 reflect the centralization of the
                                          ability to ensure that U.S. workers are                  date-of-need hiring to 30 days. The                   application process with the NPC.
                                          not adversely affected by the hiring of                  Department has adopted this suggestion                Under the final rule, the CO, and not the
                                          H–2A workers, just as the absence of a                   as the transitional period rule, both for             SWA, receives and investigates the
                                          50-percent rule from the other                           ease of administration and to minimize                complaint and makes a determination
                                          permanent and temporary worker                           the extent to which the various costs                 whether the application of the 30-day
                                          programs administered by the                             and considerations outlined above will                rule should be suspended with respect
                                          Department has never been thought to                     burden employers during the transition.               to the employer.
                                          compromise the Department’s ability to                   The Department believes that the use of
                                                                                                                                                         (c) Section 655.102(c) Retention of
                                          ensure that U.S. workers are not                         this 30-day post-date-of-need mandatory
                                          adversely affected by the hiring of                      hiring period during the five-year
                                          foreign workers under those programs. If                 transition period will allow a smooth                    The Department proposed in the
                                          it is true, as some commenters                           adjustment of the expectations of U.S.                NPRM a 5-year retention requirement
                                          suggested, that some U.S. agricultural                   workers and will provide the                          for all H–2A applications and their
                                          workers simply drift from employer to                    Department additional time to collect                 supporting documents. The vast
                                          employer without paying attention to                     data on the effect of the rule. At the end            majority of commenters who provided
                                          actual advertising about agricultural job                of the transition period, the mandatory               observations on this provision voiced
                                          opportunities, the Department is                         post-date-of-need hiring requirements                 concern with the proposed 5-year
                                          confident that farm worker advocacy                      under the Final Rule will expire, and                 document retention period and
                                          and assistance organizations will help to                employers will only be required to                    recommended 3 years, stating that they
                                          spread the word about advertised                         accept referrals of U.S. workers until the            did not have adequate staff to comply
                                          agricultural job openings, much as they                  first date the employer requires the                  with the requirement or that it is not an
                                          do today. The available hiring and                       services of H–2A workers. However, the                industry standard and not legally
                                          referral data strongly suggest, however,                 Department intends to conduct a study                 consistent with other regulations and
                                          that such workers only rarely secure                     of the impact of this transitional 30-day             might even discourage use of the H–2A
                                          their jobs through the 50-percent rule                   rule on U.S. workers and on employers                 program. The Department has
                                          today. It is also worth noting that to the               during the five-year transition period,               reconsidered its position and has
                                          extent workers can identify agricultural                 and under the rule retains the ability to             changed the retention requirement to 3
                                          job openings before those jobs have                      indefinitely extend the 30-day rule by                years.
                                          started, they will gain the additional                   notice published in the Federal Register                 One commenter suggested that all
                                          benefit of a longer period of                            should the Department’s study                         record retention requirements and
                                          employment.                                              determine that the rule’s benefits                    periods be combined into one section of
                                             Despite these conclusions, the                        outweigh its costs.                                   the amended regulations to provide
                                          Department is concerned that the                            We believe this framework addresses                program participants with clearer
                                          sudden and immediate elimination of                      the concerns of many of the                           guidance for these obligations. The
                                          the 50-percent rule might prove                          commenters, both for and against                      Department agrees and has added a new
                                          disruptive to the access of some U.S.                    continuation of the 50-percent rule, and              § 655.119 to the regulatory text. The
                                          workers to agricultural employment                       strikes an appropriate balance between                new section lists all the document
                                          opportunities. If some U.S. workers                      the concerns of agricultural employers                retention requirements.
                                          have become accustomed to the ability                    and the need to protect U.S. workers’                    Another commenter requested that
                                          to secure H–2A-related employment                        access to the employment opportunities                the Department add a sentence to the
                                          after the jobs have already started, those               under the H–2A program. Having a set                  rule indicating that the employer is not
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                                          workers may benefit from a transition                    period of time during the transition                  liable for eliminating records after the
                                          period that will allow those workers to                  period, not tied to a percentage of the               retention period expires. The
                                          adjust their employment patterns. A                      contract length, will provide employers               Department has not added an express
                                          transition period would also allow the                   more predictability and be easier to                  provision to this effect, as we believe
                                          Department to collect additional data                    administer for employers, workers and                 the cessation of the employer’s

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                                          responsibility to retain the records after               additional States designated by the                   entirely after a period of five years. The
                                          the retention period expires is self-                    Secretary as States of traditional or                 movement of the recruitment period to
                                          evident. The Department suggests,                        expected labor supply.                                a time prior to the filing of the
                                          however, that there may be some                             Many commenters, primarily                         application provides a clear and well-
                                          benefits to employers keeping records                    employers and employer associations,                  defined time for the employer to make
                                          beyond the required 3-year period; if the                expressed concerns with the specific                  available and for the U.S. farmworker to
                                          employer later faces an allegation of                    proposed pre-filing recruitment steps.                access job opportunities, and provides
                                          fraud or some other alleged violation                    Many argued that the proposed longer                  the Department with better information
                                          that has a statute of limitations of longer              recruitment period and increased                      with which to make its certification
                                          than 3 years, retained documents may                     advertising would simply increase the                 determination. The establishment of a
                                          help the employer defend itself. Indeed,                 cost of the recruiting effort without                 30-day post-date-of-need referral period
                                          if a proceeding or investigation relating                increasing the benefits and that the                  for the next five years further ensures
                                          to the retained records has already been                 increased steps were duplicative. These               that the expectations of workers will not
                                          initiated, it should be understood that                  commenters believe that their workforce               be unduly disrupted.
                                          the employer is obligated to retain the                  shortage problem is not due to a lack of                 A trade association recommended
                                          records that are the subject of the                      awareness of available jobs, but rather is            SWAs be removed from the recruitment
                                          proceeding or investigation until it has                 because of a lack of willing and                      process altogether, and only be involved
                                          come to a conclusion.                                    available U.S. workers. They suggested                in the inspection of worker housing and
                                             One commenter requested that the                      that rules be promulgated to use only                 workplace conditions after approval of
                                          Department allow applicants who are                      the current state employment service                  the labor certification and visa and the
                                          denied certification to discard records                  system and not require agricultural                   commencement of work. A State agency
                                          180 days after the denial. The                           employers to perform a substantial                    representative recommended the SWAs
                                          Department has decided to eliminate the                  prolonged search for U.S. workers                     receive copies of the ETA–750
                                          requirement to retain records pertaining                 before being able to apply for an H–2A                (Application for Temporary
                                          to denied certifications in its entirety. If             labor certification. According to these               Employment Certification) and ETA–
                                          an application is denied on grounds of                   commenters, the time required in the                  790 not for review but to ensure the
                                          fraud or malfeasance, the Department                     current rules is sufficient to identify and           SWA would have access to accurate
                                          expects that it will have already                        notify the U.S. work force of the                     information.
                                          obtained copies of any documents                         availability of particular jobs.                         The Department notes that it is
                                          necessary to prove the fraud or                             Requiring pre-filing recruitment is, in            statutorily prohibited at this time from
                                          malfeasance during the process of                        the Department’s view, essential to the               amending the Wagner-Peyser
                                          denying the certification, and thus the                  integrity of an attestation-based process.            regulations to remove SWAs from the
                                          retention of such documents by the                       Only with sufficient time for adequate                H–2A process. See Public Law 110–161,
                                          employer would be needlessly                             recruitment can the Department ensure                 Division G, Title I, Section 110. Nor
                                          duplicative. Under the Final Rule, any                   that the potential U.S. worker pool is                does it believe such a step would be
                                          employer who has been denied                             apprised of the job opportunity in time               beneficial at this time. SWAs provide an
                                          certification can discard the records                    to access that opportunity. The current               effective means of completing many
                                          immediately upon receiving the denial                    recruitment time frame, in which                      required activities, such as inspections
                                          notice, or, if the employer appeals the                  employers file applications 45 days                   of employer-provided housing. SWAs
                                          decision, whenever the decision to deny                  prior to the date of need, recruit for 15             are also integral to the process of
                                          certification becomes final. If the denial               days thereafter, and in which a CO must               receiving and posting agricultural job
                                          is ultimately overturned on appeal and                   adjudicate the application no later than              orders. The Department declines to
                                          certification is granted, the application                30 days prior to need, has proven                     require that SWAs also receive the form
                                          of course becomes subject to the                         unworkable. COs are today certifying                  ETA–750, as they will receive far more
                                          document retention requirements for                      the absence of U.S. workers based on, at              significant information in the form
                                          approved cases.                                          best, a handful of days of recruitment                ETA–790 job clearance order request.
                                             A SWA requested that we define who                    activity, which is insufficient to apprise               A group of farmworker advocacy
                                          is responsible for monitoring the                        U.S. workers of job opportunities                     organizations also claimed that the
                                          documentation and ensuring                               through either the SWA employment                     proposed changes to the recruitment
                                          compliance. This Final Rule places                       service system or other positive                      process were inconsistent with INA
                                          responsibility squarely with the                         recruitment activities.                               requirements, portions of the Wagner-
                                          employer to maintain the                                    The belief of some commenters that                 Peyser Act, and MSPA. The
                                          documentation. The NPC, through the                      the time allotted in the present                      organization believed the proposed
                                          audit function as well as the other                      regulatory scheme for recruiting is                   regulations changed the standards for
                                          enforcement tools at its disposal, will                  sufficient to canvass the potential U.S.              employer recruitment efforts to the
                                          ensure compliance. SWAs would not be                     workforce is, in the Department’s view,               detriment of U.S. workers and did not
                                          responsible for monitoring                               incorrect. The Department has heard                   address recruitment violations that had
                                          documentation or ensuring compliance                     significant concerns voiced by the                    been uncovered in the past. Specifically,
                                          with this provision.                                     farmworker advocate community that                    the organization objected to the
                                                                                                   there is an inability to access job                   elimination of the standard for positive
                                          (d) Section 655.102(d) Positive                          opportunities within the short                        recruitment based on comparable efforts
                                          Recruitment Steps                                        recruitment period provided in the                    of other employers and the H–2A
                                            The Department proposed ‘‘positive                     current system. The Department takes                  applicant employer as found in the
                                          recruitment’’ steps including posting a                  seriously these concerns about the                    current regulation at § 655.105(a). This
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                                          job order with the SWA serving the area                  length of the recruitment, particularly in            organization was also concerned about
                                          of intended employment; placing three                    light of the Department’s modification                the elimination of the current provision
                                          print advertisements; contacting former                  of the 50 percent rule (discussed above               requiring that ‘‘[w]hen it is the
                                          U.S. employees who were employed                         with respect to § 655.102(b)) and the                 prevailing practice in the area of
                                          within the last year; and recruiting in                  possibility that it will be phased out                employment and for the occupation for

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                                          non-H–2A agricultural employers to                       concerns are misplaced in light of the                Final Rule requires, particularly through
                                          secure U.S. workers through farm labor                   recruitment methods that the                          the assistance of farm worker assistance
                                          contractors and to compensate farm                       Department will be requiring employers                and advocacy organizations, which can
                                          labor contractors with an override for                   to undertake under the Final Rule. The                spread the word about available job
                                          their services, the employer shall make                  Department will continue, and in some                 openings.
                                          the same level of effort as non-H–2A                     respects expand, those core positive                     The Department takes seriously its
                                          agricultural employers and shall                         recruitment requirements that have a                  statutory obligation to determine
                                          provide an override which is no less                     proven track-record of providing cost-                whether there are sufficient numbers of
                                          than that being provided by non-H–2A                     effective information to U.S. workers                 U.S. workers who are able, available,
                                          agricultural employers.’’ 20 CFR                         about available job opportunities. For                willing, and qualified to perform the
                                          655.103(f). The organization made                        example, the Final Rule retains the                   labor or services involved in the petition
                                          several recommendations for revisions                    current requirement that employers run                and to ensure that U.S. workers’ wages
                                          regarding recruitment, including                         two newspaper advertisements in the                   and working conditions are not
                                          preserving the burden on the employer                    area of intended employment, but                      adversely affected by the hiring of H–2A
                                          (under Departmental review) to identify                  expands that requirement, as laid out                 workers. The Department believes that
                                          and positively recruit in locations with                 more fully in § 655.102(g), by requiring              the positive recruitment methods it has
                                          potential sources of labor, and the                      that one of the advertisements be placed              selected for inclusion in the Final
                                          obligation to work with the SWA to do                    on a Sunday, which typically is the                   Rule—the use of newspaper
                                          so; retaining current regulatory                         newspaper edition that has the highest                advertisements, the state employment
                                          provisions requiring that employers                      circulation. The Department declines,                 service system, contact with former
                                          engage in the same kind and degree of                    however, to continue obscure and                      workers, and recruitment in traditional
                                          recruitment for U.S. workers as they                     difficult-to-administer provisions                    or expected labor supply States—
                                          utilize for foreign workers; and                         requiring employers and the Department                provide notice of job opportunities to
                                          requiring adequate compensation of                       to abstractly measure the amount of                   the broadest group of potential
                                          farm labor contractors who find U.S.                     ‘‘effort’’ that employers put into their              applicants in an efficient and cost-
                                          workers. Additionally, it recommended                    domestic positive recruitment, or to                  effective manner, while avoiding
                                          preserving the role of SWAs contained                    determine precisely what the prevailing               burdening employers with requirements
                                          in the current regulations and detailed                  practice is in a given area with respect              that have proven costly and at times
                                          in the internal Departmental H–2A                        to the payment of labor contractor                    difficult to administer without yielding
                                          Program Handbook.                                        override fees. Provisions that call for the           clear benefits. The Department notes
                                             Other commenters expressed concern                    measurement of employer effort require                that employers stand to gain a great deal
                                          that the Department’s proposal to                        the Department to make highly                         from recruiting eligible U.S. workers
                                          reduce the scope and type of required                    subjective judgments and are extremely                rather than incurring the considerable
                                          recruitment efforts while increasing the                 difficult to enforce. Moreover, the
                                          length of time to perform recruitment                                                                          time and expense of securing foreign
                                                                                                   Department’s program experience has                   workers from thousands of miles away.
                                          was primarily intended to streamline                     shown that most of the discontinued
                                          the program, but would not actually                                                                            The various provisions of these
                                                                                                   recruitment methods cited by                          regulations, including wage, housing,
                                          benefit U.S. workers. These commenters                   commenters—radio ads and contacting
                                          disagreed with the proposed rule’s                                                                             and transportation requirements, ensure
                                                                                                   fraternal organizations, for example—                 that it is virtually always more
                                          elimination of the current regulatory
                                                                                                   substantially add to the burden of using              expensive for employers to hire H–2A
                                          requirement to contact farm labor
                                                                                                   the program, but add little to the total              workers than it is for them to hire U.S.
                                          contractors, labor organizations,
                                                                                                   amount of information about                           workers outside the H–2A program.
                                          nonprofits and similar organizations to
                                                                                                   agricultural job opportunities that is                Thus, employers have significant
                                          recruit domestic employees. If the
                                                                                                   made available to U.S. workers through                incentives to use the positive
                                          Department seeks to revise the current
                                                                                                   the positive recruitment methods that                 recruitment methods prescribed by
                                          recruitment practices, in the opinion of
                                                                                                   are required by the Final Rule. The                   these regulations to maximum effect,
                                          these commenters, it would be more
                                                                                                   elimination of specific requirements to               and the Department is confident that
                                          effective to maintain or increase current
                                                                                                   contact entities such as fraternal                    these methods will adequately spread
                                          recruitment standards, while giving
                                          agricultural employers additional time                   organizations does not mean that                      the word to U.S. workers about available
                                          within which to meet their obligations;                  interested entities will be entirely                  job opportunities. The Department
                                          otherwise the Department is reducing                     deprived of information about open                    expects that many employers will also
                                          opportunities for U.S. workers.                          agricultural job opportunities. Rather, it            engage in additional recruitment efforts
                                             One commenter suggested that the                      means that interested entities should                 that can, in the absence of rigid and
                                          Department bolster word-of-mouth                         pay attention to newspaper                            overly prescriptive regulatory
                                          recruitment because it is, in the                        advertisements and SWA job orders.                    requirements, be flexibly tailored to the
                                          commenter’s opinion, the only way that                      The Department appreciates the                     particular circumstances of local labor
                                          U.S. workers find out about jobs in the                  suggestion that it should develop                     markets.
                                          agricultural sector and it encourages                    methods for encouraging word-of-mouth                 (e) Section 655.102(e)   Job Order
                                          free-market competition as long as the                   as a recruitment tool, and that word-of-
                                          information is accurate. This commenter                  mouth is frequently a successful way for                Proposed § 655.102(e) required that,
                                          believes too many H–2A employers do                      U.S. workers to learn about job                       prior to filing its application with the
                                          not provide accurate information to U.S.                 opportunities. We do not believe that                 NPC, the employer place a job order,
                                          workers because it is in their best                      word-of-mouth recruitment can                         consistent with 20 CFR part 653, with
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                                          interests to hire H–2A workers who                       effectively be mandated by regulation,                the SWA serving the area of intended
                                          must stay tied to that employer for the                  however. Rather, the Department                       employment. The NPRM also required
                                          entire agricultural season.                              anticipates that word-of-mouth                        the job order to be placed at least 75 but
                                             While the Department appreciates the                  communication will be instigated by the               no more than 120 days prior to the
                                          concerns expressed, it believes these                    positive recruitment efforts that the                 anticipated date of need.

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                                             Several commenters focused on the                     with the job offer and corresponding                  653.501(d)(6) where necessary to meet
                                          requirements for placement of the job                    advertisements.                                       the timeframes required by the
                                          order. Three commenters posited that                       The Department also does not                        governing statute and regulations. This
                                          the rule would create problems for                       anticipate significant problems in                    will maximize the time that job orders
                                          program users by establishing                            uniform decision making among SWAs.                   are posted, providing better information
                                          requirements for acceptable job offers                   SWAs will be, as they have been for                   to workers. The Final Rule further
                                          that are subject to the Department’s                     some time, the primary arbiter of                     directs SWAs that have posted job
                                          discretion, while employers would have                   whether job descriptions and job orders               orders prior to completing a housing
                                          to conduct the recruitment before the                    are acceptable. In response to comments               inspection to complete the required
                                          terms and conditions of the employer’s                   on the subject, however, the Department               inspections as expeditiously as possible
                                          job offer have been reviewed and                         has clarified in the text of the rule that            thereafter. This provision is consistent
                                          approved by the Department. According                    employers may seek review by the NPC                  with the current regulations, which
                                          to these commenters, the rule is silent                  of a SWA rejection, in whole or in part,              already permit job orders to be posted
                                                                                                   of a job description or job order. The                prior to the completion of a housing
                                          on what happens if, after the employer
                                                                                                   regulations have also been revised to                 inspection pursuant to § 654.403. If a
                                          conducts the pre-filing recruitment, the
                                                                                                   permit the NPC to direct the SWA to                   SWA notes violations during a
                                          Department does not approve the
                                                                                                   place the job order where the NPC                     subsequent housing inspection, and the
                                          employer’s job offer. Under the current                  determines that the applicable program                employer does not cure the violations
                                          program, the recruitment would be                        requirements have been met and to                     after being provided a reasonable
                                          considered invalid, and the employer                     provide the employer with an                          opportunity to do so, the corresponding
                                          would be required to revise the job offer                opportunity for review if the NPC                     job order may be revoked. With these
                                          and repeat the recruitment. This                         concludes that the job order is not                   amendments, the Department believes it
                                          situation, according to these                            acceptable. This modification renders                 has adequately addressed the concerns
                                          commenters, introduces an                                concrete what has long been the                       contained in this comment.
                                          unacceptable degree of uncertainty and                   informal practice with respect to H–2A                   In addition, a group of farmworker
                                          risk into the process. A trade association               related job orders, as the NPC has                    organizations objected to the use of the
                                          further commented that, because there                    worked hand-in-hand with the SWAs to                  language ‘‘place where the work is
                                          will be no prior approval of the job offer               ensure that job orders comply with                    contemplated to begin’’ in describing
                                          by the NPC, all SWAs would be                            applicable requirements. It is also                   which SWA should receive a job order
                                          independently interpreting and making                    implicit in the status of the SWAs as                 when there are multiple work locations
                                          decisions about the job offers, and                      agents of the Department, assisting the               within the same area of intended
                                          believed that such a process would lead                  Department in the fulfillment of its                  employment and the area of intended
                                          to inconsistencies among SWAs. The                       statutory responsibilities.                           employment is found in more than one
                                          association was also concerned there                       One trade association noted that the                State. It believed this language would
                                          would be inconsistency between what a                    job order must be filed in compliance                 allow employers to choose where they
                                          local SWA employee would accept and                      with part 653, and that § 653.501                     wanted to recruit U.S. workers simply
                                          what the CO would later find                             requires that the employer give an                    by ‘‘contemplating’’ that the work
                                          acceptable. The association                              assurance of available housing as part of             would begin in an area unlikely to have
                                          recommended retaining the existing                       the job offer. This commenter opined                  U.S. workers. The Department received
                                          process as an option for employers.                      that this would be impossible to do                   other comments that supported this
                                                                                                   since employers cannot guarantee the                  requirement. After considering these
                                             The Department requires that the
                                                                                                   availability of housing that far in                   comments, the Department has revised
                                          employer submit an acceptable job order
                                                                                                   advance for purposes of using the                     the language of the provision to state
                                          (current form ETA–790) to the
                                                                                                   proposed housing voucher. The                         that an employer can submit a job order
                                          appropriate SWA for posting in the
                                                                                                   Department’s disposition of the                       ‘‘to any one of the SWAs having
                                          intrastate and interstate clearance                      proposed housing voucher, discussed                   jurisdiction over the anticipated
                                          system. The ETA–790 describes the job                    below, renders this comment moot.                     worksites.’’ The revised language affords
                                          and terms and conditions of the job                        The same commenter noted that                       employers some flexibility in
                                          offer: the job duties and activities, the                § 653.501(d)(6) requires that the SWA                 determining where to initially send job
                                          minimum qualifications required for the                  staff determine whether the housing to                orders, but it does not allow employers
                                          position (if any), any special                           be provided by the employer meets all                 to use this flexibility to avoid
                                          requirements, the rate of pay (piece rate,               of the required standards before                      recruitment obligations, as § 655.102(f)
                                          hourly or other), any applicable                         accepting a job order, and argued that                provides that the SWA that receives the
                                          productivity standards, and whether the                  this would be an impossible task 120                  job order ‘‘will promptly transmit, on
                                          employee is expected to supply tools                     days before the actual date of need, as               behalf of the employer, a copy of its
                                          and equipment. This form is submitted                    the proposed rule purported to allow.                 active job order to all States listed in the
                                          to the SWA for acceptance prior to the                   As explained above in the discussion of               job order as anticipated worksites.’’
                                          employer’s beginning positive                            § 655.102(a), the Department has                      Thus, no matter where the job order is
                                          recruitment. As long as the employer’s                   amended the timeframe for recruitment                 initially sent, the scope of required
                                          advertisements do not depart from the                    by moving the first date for advertising              recruitment will be the same, covering
                                          descriptions contained in the accepted                   and placement of the job order to no                  all areas in which anticipated worksites
                                          job order, the advertisements will be                    more than 75 days and no fewer than 60                are located.
                                          deemed acceptable by the Department.                     days prior to the date of need. Moreover,                A sentence has also been added to the
                                          Thus, employers should place                             in response to the comments received,                 Final Rule, simply as a procedural
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                                          advertisements after the form ETA–790                    the Department has specified in the                   direction to the SWAs, that ‘‘[w]here a
                                          has been accepted for intrastate/                        Final Rule that SWAs should place job                 future master application will be filed
                                          interstate clearance, eliminating any                    orders into intrastate and interstate                 by an association of agricultural
                                          chance that recruitment will later be                    clearance prior to the completion of the              employers, the SWA will prepare a
                                          rejected by the NPC due to problems                      housing inspections required by 20 CFR                single job order in the name of the

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                                          77132            Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations

                                          association on behalf of all employers                   which such jobs could be posted. The                  area, there are other areas (which the
                                          that will be duly named on the                           Department’s former internet-based                    Secretary has also elected to examine at
                                          Application for Temporary Employment                     labor exchange system, America’s Job                  the State-by-State level) in which ‘‘there
                                          Certification.’’                                         Bank, was disbanded in 2007 because                   are a significant number of qualified
                                                                                                   the private sector provides much more                 United States workers who, if recruited,
                                          (f) Section 655.102(f) Intrastate/
                                                                                                   cost-effective and efficient job search               would be willing to make themselves
                                          Interstate Recruitment
                                                                                                   databases than the federal government                 available for work at the time and place
                                             The proposed regulation instructs the                 can provide. The Department, however,                 needed.’’ In other words, the
                                          SWA receiving an employer’s job order                    does not wish to impose mandatory                     Department reads the statute as
                                          to transmit a copy to all States listed as               participation in such job databases on                contemplating that with respect to
                                          anticipated worksites and, if the                        SWAs or employers at this time.                       agricultural job opportunities in certain
                                          worksite is in one State, to no fewer                    Because the Department already has an                 States at certain times, as a factual
                                          than three States. Each SWA receiving                    existing system in place for handling                 matter there simply will not be other
                                          the order must then place the order in                   interstate job orders, and given the                  States in which there are ‘‘a significant
                                          its intrastate clearance system and begin                current legal and operational constraints             number of qualified United States
                                          referral of eligible U.S. workers.                       of changing that system, the Department               workers who, if recruited, would be
                                             The Department received some                          has determined that the only feasible                 willing to make themselves available for
                                          general comments regarding the referral                  and prudent approach at this time is to               work at the time and place needed.’’
                                          process for U.S. workers. One group of                   continue to require SWAs to process the               Under this reading of the statute, the
                                          farmworker advocacy organizations                        interstate job orders in accordance with              word ‘‘where’’ in 8 U.S.C. 1188(b)(4)
                                          expressed concern about the lack of                      20 CFR Part 653.                                      essentially means ‘‘if’’: If the Secretary
                                          referrals by SWAs to H–2A employers in                      An association of growers/producers                determines that the statutory criteria
                                          the past and believed the proposed                       opposed the requirement for                           have been met, then she is required by
                                          regulation would not cure this                           transmitting job orders to additional                 the statute to designate the area of
                                          deficiency. One association of                           States and recommended the job orders                 traditional or expected labor supply, but
                                          agricultural employers expressed                         be circulated only in the State where the             if the Secretary determines that the
                                          concern regarding the ability of the                     job is located. This association also                 statutory criteria have not been met,
                                          SWAs to adequately handle the referral                   suggested that any out of State                       then the requirement is simply
                                          process.                                                 notifications should list only the                    inapplicable. This sensible reading of
                                             The Department believes these                         location of the job offer and never list              the statute comports with the realities of
                                          concerns are misplaced, especially                       the employer’s name.                                  the agricultural sector: The pattern of
                                          under a modernized system in which                          The Department’s circulation of the                seasonal migrant work has clearly
                                          SWA responsibilities with respect to                     job order to any States that are                      changed over time, and in some cases
                                          each H–2A application is reduced. A                      designated by the Secretary as labor                  older patterns have become well-
                                          core function of the SWA system is the                   supply States is required by statute.                 established while others have fallen
                                          clearance and placement of job orders                    Section 218(b)(4) of the INA prohibits                away. The changeable nature of the
                                          and the referral of eligible workers to                  the Secretary from issuing a labor                    agricultural labor flow, which is highly
                                          the employers who placed those job                       certification after determining that the              dependent upon weather patterns, crop
                                          orders. Past program experience                          employer has not ‘‘made positive                      distribution, the availability of
                                          demonstrates the occurrence of a                         recruitment efforts within a multi-state              transportation, and even the price of
                                          sufficient number of referrals to sustain                region of traditional or expected labor               gasoline, are all recognized under this
                                          this requirement.                                        supply where the Secretary finds that                 system of flexible, fact-specific
                                             One SWA commented that although                       there are a significant number of                     designations by the Secretary.
                                          the NPRM states the purpose of                           qualified United States workers who, if                  A group of farmworker advocacy
                                          removing the SWA is to remove                            recruited, would be willing to make                   organizations pointed out that the
                                          duplication of effort, one important                     themselves available for work at the                  proposed regulations do not provide a
                                          duplicative effort is retained—the                       time and place needed.’’ The interstate               timeframe for how long the local SWA
                                          requirement for sending job orders to                    recruitment must be conducted ‘‘in                    can wait before placing the H–2A job
                                          other labor supply States and                            addition to, and shall be conducted                   order into interstate clearance, and only
                                          neighboring States. This agency                          within the same time period as, the                   require the SWA to ‘‘promptly transmit’’
                                          suggested that if the job orders are                     circulation through the interstate                    the job offer. The Department does not
                                          uploaded to the national labor exchange                  employment service system of the                      believe that its requirement of ‘‘prompt’’
                                          program, then the transmittal of job                     employer’s job offer.’’ The Department                transmission requires further
                                          orders to other States is unnecessarily                  does not have the ability to eliminate or             clarification, however. Posting job
                                          duplicative. Other commenters                            alter the requirement absent                          orders is one of the core functions of the
                                          recommended all agricultural job orders                  Congressional amendment.                              SWAs, and the Department is confident
                                          be posted in an automated common                            At the same time, the Department                   the SWAs will continue to act
                                          national job bank.                                       does not read the statutory language to               responsibly in promptly transmitting
                                             The Department acknowledges the                       require the Secretary to designate                    and posting job orders as they have in
                                          potential benefits of a national online                  traditional or expected labor supply                  the past.
                                          system for posting job offers. However,                  States with respect to all States in which               The organization was also concerned
                                          automating interstate job clearance                      H–2A applications may be filed. Rather,               about the clarity of the instructions to be
                                          would require regulatory reforms that                    the Department believes that the                      followed by SWAs for circulating job
                                          the Department is currently constrained                  statutory language is most reasonably                 orders among other States. The
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                                          from undertaking by Congress. See                        read to require the Secretary to make a               proposed regulations require the SWA
                                          Public Law 110–161, Division G, Title I,                 determination for each area (which the                to transmit a copy of the open job order
                                          Section 110. There is currently no                       Secretary has elected to do on a State-               to all States listed in the employer’s
                                          online national exchange organized                       by-State basis) whether, with respect to              application as anticipated worksites or,
                                          under the auspices of the Department to                  agricultural job opportunities in that                if the employer’s anticipated worksite is

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                                          within a single State, to no fewer than                  labor supply State. In response to these              information for farm workers. The
                                          three States, including those designated                 concerns, however, the Department                     association and other commenters
                                          as traditional or expected labor supply                  notes it will announce, at least 120 days             referenced the National Agricultural
                                          States. However, the organization                        in advance of the Secretary’s annual                  Worker Survey (NAWS) which reported
                                          believed the proposed regulation would                   designation, an opportunity for the                   that percent of seasonal crop workers
                                          be read to not require any additional job                public to offer information regarding                 (both legal and illegal) learn about jobs
                                          order circulation by the SWA if the                      States to be designated.                              from a friend or relative or already know
                                          employer has anticipated worksites in                      Finally, a group of farmworker                      about the existence of the job (although
                                          two States, and thus would provide less                  advocacy organizations expressed                      how such knowledge is attained was not
                                          circulation of job orders and no contact                 concern regarding the content of job                  reported). The association further
                                          of labor supply States in such situations.               orders placed by agricultural                         commented that the proportion of
                                          The Department agrees and has clarified                  associations. It objected to the                      workers who learn about their jobs from
                                          the language of § 655.102(f)(1) by                       placement of job orders with a range of               a ‘‘help wanted’’ ad was apparently too
                                          removing the phrase, ‘‘If the employer’s                 applicable wage offers with a statement               small even to warrant inclusion in the
                                          anticipated worksite location(s) is                      that ‘‘the rate applicable to each member             report. Several of these commenters
                                          contained within the jurisdiction of a                   can be obtained from the SWA.’’                       suggested it would be more efficient to
                                          single State’’ to make clear that job                      In promulgating this rule, the                      simply allow for posting to the SWA’s
                                          orders with locations in more than one                   Department made no changes to current                 job bank which is more practical, less
                                          State must be circulated to any                          practice. An association is permitted to              expensive, and reaches applicants more
                                          traditional or expected labor supply                     pay a different wage for each of its                  readily.
                                          States designated by the Secretary for                   members, should it choose to do so, as                   A few employers objected to the very
                                          either of the work locations.                            long as that wage meets the criteria                  concept of newspaper advertising. One
                                             An attorney for an association of                     established in the regulations (now                   employer objected to having to advertise
                                          growers/producers suggested the H–2A                     found at § 655.108). U.S. workers                     in a newspaper, commenting that
                                          process could be further improved by                     seeking a job opportunity from or within              newspaper advertisement is ‘‘not only
                                          allowing State officials to affirm that                  an association can acquire from the                   expensive, but doesn’t find any hiding
                                          employers need agricultural workers in                   SWA a list of member locations and the                sheep shearers.’’ Another employer
                                          their State. The Department believes it                  wages associated with each so that the                objected to the increase in required
                                          cannot implement such an affirmation                     worker can make a fully informed                      newspaper advertising for U.S. workers
                                          process, as similar processes for                        decision as to which job, if any, the                 ‘‘when it is clear that local workers are
                                          determining the unavailability of U.S.                   worker wishes to apply.                               simply not available for seasonal jobs.’’
                                          workers have been found to be                              We made several minor edits that are                Many commenters were particularly
                                          insufficient for the factual                             consistent with the above discussion to               concerned that increasing the number of
                                          determination required by the Secretary.                 the language of § 655.102(f) for purposes             ads from two to three in addition to
                                          See First Girl, Inc. v. Reg. Manpower                    of clarity. Some language was also                    requiring that one be placed in a Sunday
                                          Admin. DOL, 361 F. Supp. 1339 (N.D.                      moved to other sections or deleted,                   edition would greatly increase employer
                                          Ill. 1973) (availability of U.S. workers                 again for purposes of clarity and                     costs. One trade association commented
                                          could not be determined by generic                       without substantive effect. Section                   that it is likely that in the typical
                                          listing of available workers listed with                 655.102(f)(3), which describes the                    situation an employer’s advertising
                                          state agency).                                           recruitment period during which                       costs would increase by three to four
                                             A public legal service firm                           employers are required to accept                      times under the proposed regulations,
                                          recommended that the Department                          referrals of U.S. workers, was added to               adding hundreds to thousands of dollars
                                          require employers to circulate all job                   the rule for reasons described at length              to the employers’ application costs. That
                                          orders in Texas, which they said is a                    in the discussion of the 50 percent rule              commenter did not provide data
                                          traditional agriculture labor surplus                    under § 655.102(b).                                   supporting this conclusion, however.
                                          state. If the commenter’s factual                                                                                 Several commenters were in favor of
                                          assertions about labor availability in                   (g) Section 655.102(g) Newspaper                      the proposal to increase advertising and
                                          Texas are correct, the Department would                  Advertisements                                        expressed support for the additional ad
                                          expect that Texas will frequently be                        The Department proposed that in                    in the expectation it would provide
                                          designated as a labor supply State. The                  addition to the placement of a job order              additional notice to the target
                                          Department is cognizant of the                           with the SWA, employers be required to                population. An association of growers/
                                          changeable nature of worker flows,                       place three advertisements (rather than               producers supported the increase in
                                          however, and therefore does not wish to                  the current two) with a newspaper or                  advertisements from two to three,
                                          require the mandatory inclusion of one                   other appropriate print medium. Most                  believing it would enhance the ability of
                                          or more specific States in the                           who commented on this suggestion                      an eligible U.S. worker to identify and
                                          designation process. It is subject to                    believed the additional advertising                   apply for agricultural job openings
                                          question, for example, whether                           would result in additional costs without              before the job begins. A farmworker/
                                          significant numbers of agricultural                      any additional benefits. An association               community advocacy organization
                                          workers in Texas would be willing to                     of growers/producers stated:                          agreed that requiring three instead of
                                          accept seasonal employment in Alaska                     ‘‘Additional newspaper advertising is a               two advertisements would be a step
                                          or Hawaii. Rather, the Department will                   very expensive alternative of recruiting              toward improving the recruitment of
                                          rely on annually updated information in                  workers in today’s world and should not               U.S. workers.
                                          designating labor supply States to                       be the only method allowed.’’                            The Department appreciates that a
                                          ensure the accuracy of the assertions                       A trade association also questioned                newspaper ad frequently may not, of
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                                          that farm workers are indeed available                   the expansion of the advertising                      itself, result in significant numbers of
                                          in the purported labor supply State and                  requirements in the proposed                          U.S. workers applying for employment.
                                          that recruitment there for out of State                  regulations and commented that                        However, such advertising has been
                                          jobs would not take needed workers                       newspapers are not a usual or even                    required for decades and remains the
                                          away from open agricultural jobs in the                  occasional source of labor market                     central mechanism by which jobs are

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                                          advertised, especially to workers who                    requirements, the Department is also                  that the SWA should, therefore,
                                          may have only limited access to the                      slightly modifying the language of                    continue to have a role in determining
                                          Internet. The ads may not necessarily be                 § 655.102(g)(1) to provide some limited               where advertising is conducted.
                                          seen by all farmworkers, but may be,                     flexibility in selecting the newspaper in             Nothing, of course, prevents an
                                          and indeed are, seen by those who                        which the job advertisement should be                 employer from consulting with the SWA
                                          participate in the greater farm work                     run. The Final Rule clarifies that the                regarding the most appropriate
                                          community and who can pass along a                       newspaper must have a ‘‘reasonable                    publication in which to place
                                          description of the jobs ads through                      distribution.’’ Thus, advertisements                  advertising and thus ensure compliance
                                          ‘‘word-of-mouth.’’ Newspaper                             need not be placed in the New York                    with the regulations, particularly in
                                          advertising remains, along with the state                Times, even if the New York Times is                  instances in which a professional, trade
                                          employment service system network, an                    the newspaper of highest circulation in               or ethnic publication is more
                                          objective mechanism by which notice of                   a given area, but also cannot be placed               appropriate than a newspaper of general
                                          upcoming farm work can be assessed by                    in a local newspaper with such a small                circulation. In fact, a representative of a
                                          the Department and communicated to                       distribution that it is unlikely to reach             State government agency suggested the
                                          those who are interested.                                local agricultural workers. The Final                 advertising requirements should be
                                             The study referenced by many                          Rule also clarifies that the newspaper                limited to local area media and trade
                                          commenters suggesting that most                          must be ‘‘appropriate to the occupation               publications where available, and that
                                          referrals in the agricultural sector take                and the workers likely to apply for the               the specific publications should be
                                          place through word-of-mouth rather                       job opportunity,’’ but deletes the                    agreed to by the employer and the SWA
                                          than through newspaper advertisements                    modifier requiring that the newspaper                 based on the potential for attracting
                                          was actually conducted by the                            must be the ‘‘most’’ appropriate. This                candidates and historical experience.
                                          Department, and, as noted above, the                     change was made out of a recognition                  While we are not incorporating this
                                          Department acknowledges that word-of-                    that in many areas there are multiple                 suggestion for coordination into the
                                          mouth frequently results in U.S.                         newspapers with a reasonable                          regulation as a requirement, we note
                                          workers learning about job                               distribution and that are likely to reach             that the regulation at § 655.102(g)(1)
                                          opportunities. However, the Department                   U.S. workers interested in applying for               already requires the ads to be placed in
                                          believes it would be nearly impossible                   agricultural job opportunities, and that              the ‘‘newspaper of general circulation
                                          to effectively implement and enforce a                   as long as these criteria are met, an                 serving the area of intended
                                          word-of-mouth regulatory standard. The                   employer’s positive recruitment should                employment that has a reasonable
                                          Department believes the combination of                   not be invalidated. If an employer is                 distribution and is appropriate to the
                                          job orders and required newspaper                        uncertain whether a particular                        occupation and the workers likely to
                                          advertisements are cost-effective, easily                newspaper satisfies these criteria, it can            apply for the job opportunity.’’
                                          administrable, and readily enforceable,                  seek guidance from the local SWA or
                                          and will make job information available                                                                        (h) Section 655.102(h) Contact With
                                                                                                   the NPC.
                                          in ways that will result in word-of-                        The Final Rule also instructs                      Former U.S. Workers
                                          mouth referrals.                                         employers not to place the required                      The Department proposed that
                                             Although it may be true that few                      newspaper advertisements until after                  employers be required to contact by
                                          agricultural workers themselves read                     the job order has been accepted by the                mail former U.S. workers as part of the
                                          such advertisements, others do read                      SWA for intrastate/interstate clearance;              recruitment process. A group of
                                          them, including farm labor advocacy                      this replaces the time frame contained                farmworker organizations objected to
                                          organizations, community                                 in the NPRM and shifts the initiation of              the requirement and commented: ‘‘if
                                          organizations, faith-based organizations,                recruitment back to the submission to                 DOL had intended to come up with the
                                          and others who seek out such                             and clearance by the SWA of the job                   least effective way of contacting former
                                          opportunities on behalf of their                         order. This ensures that advertisements               employees, it could not have selected a
                                          constituents. The newspaper becomes a                    reflect the job requirements and                      better method than by mail.’’ This
                                          very visible source of information for                   conditions accepted by the SWA and                    organization was concerned because
                                          such organizations that are in turn able                 minimizes the risk that employers’                    they claimed a majority of farm workers
                                          to spread the word to workers. Through                   advertisements will later be determined               are not literate in English or their
                                          publication to this wide audience, the                   to be invalid by the NPC.                             primary language and, therefore, might
                                          information ultimately reaches those for                    One commenter suggested that a                     not understand the written
                                          whom it is intended.                                     better alternative to employer-placed                 communication and the regulation does
                                             The Department appreciates the                        advertisements would be for the                       not require the written communication
                                          substantial concern raised by a number                   Department to maintain an up-to-date                  to be in any language other than
                                          of commenters regarding the placement                    database listing advertisements for                   English. The organization also
                                          of multiple ads and has thus revised its                 farming and ranching jobs and directing               recommended contact by telephone or
                                          proposal on the number of ads that must                  interested workers to contact the SWA                 through crew leaders or foremen as
                                          be placed in the area of intended                        in the States where the jobs were                     alternative methods of contact. In
                                          employment. The Department has                           located. The commenter believed this                  response, we have modified this
                                          decided to revert from the proposed                      approach would expand the ability of                  provision in the Final Rule to permit
                                          three to the existing rule’s requirement                 U.S. workers to select more varied jobs               employers to also contact former U.S.
                                          for two ads. The Department is retaining                 in a larger geographic area. The                      workers through alternative effective
                                          its proposal, however, to require that                   Department does not disagree; however,                means, and document those means in
                                          one of the newspaper advertisements be                   as noted above, amending the current                  some manner (telephone bills or logs,
                                          run on a Sunday, as that is typically the                job order clearance process is not an                 for example).
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                                          newspaper edition with the broadest                      option at this time.                                     Additionally, the organization
                                          circulation and that is most likely to be                   A private citizen commented that the               believes many workers would be missed
                                          read by job-seekers.                                     SWA, not the employer, is in the best                 by the proposed mailing effort because
                                             In response to the various comments                   position to know which newspaper is                   the proposed regulation limits the
                                          about the proposed advertising                           most likely to reach U.S. workers, and                requirement to contacting former

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                                          workers ‘‘employed by the employer in                    the worker for a period of 3 years, and               responsiveness of former employees.
                                          the occupation at the place of                           must make the documentation available                 The Department inserted language into
                                          employment, during the previous year’’                   to the Department upon request. The                   the Final Rule clarifying the
                                          and does not require that H–2ALCs                        Department will review the propriety of               Department’s expectations regarding the
                                          contact a growers’ former workers who                    the employer’s non-contact in such                    type of documentation that should be
                                          did not work for the H–2ALC during the                   situations on a case-by-case basis. The               maintained.
                                          previous season. The Department                          Department believes that the insertion
                                          declines to adopt a requirement that                     of this provision is responsive to the                (i) Section 655.102(i) Additional
                                          employers contact workers who did not                    comment in that it relieves employers                 Positive Recruitment
                                          work for them during the previous                        from the burden of being required to                  (1) Designation of Traditional or
                                          season, as such a requirement would be                   rehire truly poorly performing workers,               Expected Labor Supply States
                                          quite impractical, and the other positive                while ensuring that workers who will                     In the NPRM, the Department
                                          recruitment requirement methods                          not be recontacted are aware of the                   continued to impose on employers the
                                          included in the Final Rule are intended                  employer’s intentions and reasons well                requirement that the employer make
                                          to reach such workers. It is not at all                  in advance of the next employment                     ‘‘positive recruitment efforts within a
                                          clear how H–2ALCs would even gain                        season and have the opportunity to                    multi-state region of traditional or
                                          access to the necessary contact                          bring reasons they regard as pretextual               expected labor supply where the
                                          information for former employees of                      to the Department’s attention.                        Secretary finds that there are a
                                          other employers, and in the judgment of                     With respect to the comment about
                                                                                                                                                         significant number of qualified U.S.
                                          the Department such a requirement                        no-match letters, we note that
                                                                                                                                                         workers who, if recruited, would be
                                          would be excessively burdensome.                         employers are not required to hire a
                                                                                                                                                         willing to make themselves available for
                                             One association of growers/producers                  worker who cannot demonstrate legal
                                                                                                                                                         work at the time and place needed,’’ as
                                          suggested the proposed rule be modified                  eligibility to work. Receipt of a no-
                                                                                                                                                         mandated by 8 U.S.C. 1188(b)(4). The
                                          to allow employers the ability to deny                   match letter may give rise to a duty on
                                          work to employees hired in previous                      the employer’s part to inquire about                  Department proposed that each year the
                                          years who demonstrated an                                work eligibility, but the letter in and of            Secretary would make a determination
                                          unsatisfactory work history/ethic even if                itself is not sufficient legal justification          with respect to each State in which
                                          the worker was not terminated for                        to refuse to hire a U.S. worker.                      employers sought to hire H–2A workers
                                          cause. A trade association and other                        One trade association expressed                    whether there are other States in which
                                          commenters expressed concern about                       concern about the related requirement                 there a significant number of eligible,
                                          former employees who were the subject                    for documenting contact with former                   able and qualified workers who, if
                                          of no-match letters from the Social                      employees and stated, ‘‘This                          recruited, would be willing to make
                                          Security Administration and requested a                  requirement could reasonably be                       themselves available for work in that
                                          safe harbor or common sense exception                    interpreted to mean that the employer                 State. The Department also proposed to
                                          in such situations.                                      must maintain a copy of its                           continue the current regulatory
                                             The Department appreciates that                       correspondence with each former                       provision stating that the Secretary will
                                          employers that do not participate in the                 employee demonstrating that it had                    not designate a State as a State of
                                          H–2A program generally are not                           been mailed. The only practical way to                traditional or expected labor supply if
                                          required to rehire employees who have                    do this would be to send each letter by               that State had a significant number of
                                          a poor work history. The Department                      certified mail or some other means                    local employers recruiting for U.S.
                                          also appreciates that employers                          providing evidence of attempt to                      workers for the same types of
                                          frequently may allow short-term                          deliver. Such a requirement would be                  occupations. The Department proposed
                                          workers who prove to be poor                             unnecessarily burdensome and costly.’’                to publish an annual determination of
                                          performers to finish their job terms if it               The association recommended this be                   labor supply States to enable applicable
                                          is easier and, in light of potential                     simplified by requiring the employer to               employers to conduct recruitment in
                                          litigation risks, less costly than firing                keep a copy of the form of the letter sent            those labor supply States prior to filing
                                          them. There is a countervailing concern,                 and a statement attesting to the date on              their application. The Department
                                          however, that if the Department allowed                  which it was sent and to whom.                        received several comments on this
                                          employers to reject former workers who                   Additionally, the association questioned              provision.
                                          completed their previous job term on                     what kind of documentation would                         A group of farmworker advocacy
                                          the alleged ground that the workers                      demonstrate that the employee ‘‘was                   organizations opined that the
                                          were actually poor performers, it would                  non-responsive to the employer’s                      Department’s proposal contravenes the
                                          open the door for bad actor employers                    request.’’ The association suggested the              H–2A statutory requirements regarding
                                          to reject former workers on the basis of                 employer’s recruitment report should be               positive recruitment. The organization
                                          essentially pretextual excuses. The                      sufficient to document which                          believes the Department’s proposal will
                                          Department has therefore decided to                      employees were responsive and                         result in employers not competing with
                                          address employers’ concerns about                        requiring documentation of non-                       one another for migrant workers and
                                          poorly performing workers by creating                    responsiveness is unreasonable.                       workers not receiving job information
                                          an exception allowing employers not to                      The Department does not intend this                even though a particular job in another
                                          contact certain poor performers, but                     requirement to be overly burdensome to                State may offer a longer season, a higher
                                          only in the narrow circumstance where                    employers and agrees that copies of                   wage, or better work environment.
                                          the employer provided the departing                      form letters together with the                        Another farmworker advocacy
                                          employee at the end of the employee’s                    employer’s attestation that the letters               organization commented that it makes
                                          last job with a written explanation of the               were mailed to a list of former                       no sense in a market economy which
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                                          lawful, job-related reasons for which the                employees would be sufficient to meet                 recognizes competition as good to stop
                                          employer intends not to contact the                      the requirements of this provision. The               requiring employers to recruit for
                                          worker during the next employment                        Department also agrees that the                       farmworkers in areas where other
                                          season. The employer must retain a                       recruitment report can be used to                     employers are seeking farmworkers. A
                                          copy of the documentation provided to                    sufficiently document the non-                        labor organization commented that this

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                                          77136            Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations

                                          provision demonstrates a lack of                         determinations about labor supply                     labor supply States should be borne by
                                          understanding of farmworker                              States. A group of farmworker/                        the Department rather than the
                                          recruitment and what it believes is an                   community advocacy organizations                      employer. An association of growers/
                                          inappropriate desire to ease the                         voiced its concern that ‘‘The annual                  producers recommended that the
                                          recruitment obligations for growers at                   survey is flawed in many respects and                 regulation only require SWAs to send
                                          the expense of U.S. farmworkers. This                    not designed to identify sources of labor             the job orders to those States designated
                                          organization recommended the current                     at the time of need.’’ The organization               as labor supply States as they do now.
                                          positive recruitment rules should be                     was also concerned about the timing                   A United States Senator recommended
                                          retained and enforced. A U.S. Senator                    and specificity of the survey to be used.             that after the employer has satisfied the
                                          was concerned that the NPRM would                        A representative of a State Workforce                 intrastate recruitment requirements and
                                          cost American workers jobs because                       Agency requested additional                           has attested that insufficient domestic
                                          they would not have access to                            information about the designation of                  workers are available, the burden of
                                          information about jobs in other areas.                   labor supply States for the logging                   proof that U.S. workers are unavailable
                                             Employers seeking farmworkers are                     industry in her State. A trade                        should shift to the Department.
                                          statutorily required to recruit out-of-                  association commented that ‘‘the same                   The Department does not consider a
                                          State if the Secretary has determined                    types of occupations’’ should mean                    requirement to place a single out-of-
                                          that other States contain a significant                  something more than merely                            state advertisement in each designated
                                          number of workers who, if recruited,                     agricultural work. An individual                      labor supply state to be unjustifiably
                                          would be willing to pick up and move                     commenter believed that just because an               onerous on employers and is of the
                                          in order to perform the work advertised                  employer in a State may request H–2A                  opinion at this time that the potential
                                          in accordance with all of its                            workers for a certain crop activity for a             benefit to be gained in locating eligible
                                          specifications. The commenters                           certain time period should not mean                   and available U.S. workers outweighs
                                          referenced above appear to believe that                  that State should not be considered a                 the costs of the advertising. This is
                                          the Department’s proposal is a new                       labor supply State for other crop                     required in the current program and the
                                          regulatory provision. That is incorrect.                 activities and time periods.                          Department has received little negative
                                          The current regulations at 20 CFR                           The Department has addressed many                  feedback on the burden of such
                                          655.105(a), which have been in place for                 of these concerns by modifying the                    advertising. The Department does not
                                          20 years, specify that Administrator,                    provision to allow for notice to be                   agree that this is an expense the
                                          OFLC should ‘‘attempt to avoid                           published in the Federal Register at                  Department should bear, beyond the
                                          requiring employers to futilely recruit in               least 120 days before the announcement                expense of the interstate agricultural
                                          areas where there are a significant                      of the annual determination, allowing                 clearance system that the Department
                                          number of local employers recruiting for                 anyone to provide the Department with                 already finances. The INA at sec.
                                          U.S. workers for the same types of                       information they believe will assist the              218(b)(4) is clear that it is an employer
                                          occupations.’’ This longstanding                         Secretary in making her determination                 who must engage in such out-of-state
                                          provision reflects two judgments on the                  about labor supply states. The                        positive recruitment, not the
                                          part of the Department. First, it reflects               Department will consider all timely                   Department.
                                          the Department’s reading that 8 U.S.C.                   submissions made in response to this                    Several associations of growers/
                                          1188(b)(4) was intended to require out-                  notice. In addition to the information                producers commented that placing
                                          of-State advertising only in areas with a                presented by the public, the Department               newspaper advertisements should be
                                          surplus labor supply, and was not                        expects that it will continue to consult              limited to no more than three States, to
                                          intended to deleteriously impact                         SWAs, farmworker organizations,                       avoid the possibility that the
                                          farmers in certain areas by instituting                  agricultural employers and employer                   Department could require recruitment
                                          federal program requirements that                        associations, and other appropriate                   in 50 States and the additional
                                          would draw away their local workers.                     interested entities. As discussed above,              territories because the language in the
                                          Second, it reflects the Department’s                     the ‘‘same types of occupations’’                     companion recruitment provision for
                                          judgment that where a ‘‘significant’’                    language in the Final Rule has been                   SWAs at § 655.102(f) reads ‘‘no fewer
                                          number of local employers are already                    carried over from the current                         than 3 States.’’ A United States Senator
                                          recruiting U.S. workers in a given area                  regulations, and the Department intends               also endorsed a limit on the number of
                                          for the same types of occupations, there                 to apply the term in the same manner                  States in which an employer is required
                                          is already significant competition for                   that it has in the past. The Department               to recruit and suggested the Department
                                          workers in that area and the addition of                 agrees that the phrase is not intended to             should provide a means of indemnifying
                                          further out-of-State advertising would                   lump all agricultural work together as                employers from liability associated with
                                          likely be futile. The Department’s                       the ‘‘same type of occupation.’’                      mandatory out-of-State advertising.
                                          program experience in applying this                                                                              The Department anticipates the
                                          limitation over a long period of time                    (2) Required Out-of-State Advertising                 number of States to be so designated
                                          leads it to believe that it has worked                     The Department proposed that each                   will be no more than three for any one
                                          well in practice to aid program                          employer would be required to engage                  State, but that the number of States
                                          administration and avoid the imposition                  in positive recruitment efforts in any                designated will vary by State. In some
                                          of unnecessary program expense. The                      State designated as a labor supply State              cases, no State or only one or two States
                                          Department notes that this limitation                    for the State in which the employer’s                 may meet the relevant criteria. In
                                          does not mean that out-of-state                          work would be performed. This                         response to these comments, the
                                          recruitment will cease in States where                   recruitment obligation would consist of               Department has added to the Final Rule
                                          workers are being locally recruited,                     one newspaper advertisement in each                   language specifying that ‘‘[a]n employer
                                          since SWAs will continue to have                         designated State.                                     will not be required to conduct positive
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                                          discretion to post job orders in those                     Several commenters felt the                         recruitment in more than three States
                                          States where appropriate.                                newspaper advertisement requirements                  designated in accordance with
                                             Several commenters sought more                        were too burdensome on employers and                  paragraph (i)(1) for each area of
                                          information on the methodology that                      that the additional time and expense of               intended employment listed on the
                                          would be used in making the                              recruiting in traditional or expected                 employer’s application.’’ This is

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                                                           Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations                                       77137

                                          generally consistent with past practice                  comments, the Final Rule has also been                Another argued that the requirement
                                          concerning required out-of-State                         modified to specify that ads should refer             runs afoul of the Department’s FY08
                                          recruitment, as employers have only                      interested employees to the SWA                       Appropriations Act, Public Law 110–
                                          very rarely been required to conduct                     nearest the area in which the                         161, Division G, Title I, Section 110, in
                                          advertising in more than three States of                 advertisement was placed. The SWA                     which Congress prohibited ETA from
                                          traditional or expected labor supply.                    will then refer eligible individuals to the           finalizing or implementing any rule
                                          Providing this modest cap will provide                   SWA of the employer’s State. The                      under the Wagner-Peyser or Trade
                                          employers with needed certainty                          Department believes these procedures                  Assistance Acts until each is
                                          regarding expected advertising costs.                    will provide a workable advertisement-                reauthorized.
                                             A farmworker advocacy organization                    and-referral system to provide                           The Department has always required
                                          believed the requirement should be for                   farmworkers information about                         that SWAs fulfill the requirements of
                                          three advertisements, not one, in each                   available jobs and to supply needed                   the INA to refer only eligible workers by
                                          designated State and also recommended                    labor to prospective users of the H–2A                verifying their employment
                                          that the Department require that the                     program.                                              authorization. Recent instructions by
                                          language predominant among                                                                                     the Department (including TEGL 11–07,
                                          agricultural workers in the region be                    (j) Section 655.102(j) Referrals of                   Change 1) have clarified the way that
                                          used. A representative of a State                        Verified Eligible U.S. Workers                        employment verification is required to
                                          government agency commented that the                        The Department proposed to require                 be accomplished. To the extent that
                                          proposed regulations were not clear as                   SWAs to ‘‘refer for employment only                   these requirements were thought by
                                          to how an employer’s ad in another                       those individuals whom they have                      some to represent a shift in
                                          State would be handled. The individual                   verified through the completion of a                  Departmental policy, they are now being
                                          commented that the advertising                           Form I–9 are eligible U.S. workers.’’                 clearly stated in the Department’s
                                          instructions indicate interested                         These provisions are consistent with the              regulations. The Department has not
                                          applicants should contact the SWA, but                   Department’s statutory mandate.                       reviewed the H–2A regulations
                                          asserted that this procedure would not                   Although the INA prohibits the referral               comprehensively since the current
                                          work well for an ad placed out of State                  of workers where it is known that they                program’s inception in 1986. After a
                                          and recommended the ads placed out of                    are unauthorized to work in the United                top-to-bottom review of the program
                                          State should advise applicants to                        States, this rule clarifies and spells out            requested by the President in August
                                          contact the employer directly. Another                   the Department’s expectations. Based                  2007, the Department is revising and
                                          commenter recommended the                                upon comments received and the                        modifying a number of established
                                          newspaper ads in other States should                     Department’s experience with this                     practices based on program experience,
                                          direct all applicants to the SWA and the                 requirement, which has been in effect                 years of feedback from stakeholders, and
                                          SWA should then refer them to the                        administratively since the issuance of                changing economic conditions.
                                          employer’s SWA. An association of                        TEGL 11–07, Change 1 on November 14,                     As discussed in the NPRM our
                                          growers/producers recommended the                        2007, and with respect to which ETA                   clarification of SWAs’ obligation to
                                          required newspaper advertisements                        has provided recent training webinars                 affirmatively verify employment
                                          should contain only the job                              for SWAs, the Department believes that                eligibility is in direct response to
                                          specifications and the SWA contact                       SWAs should be required to verify the                 longstanding concerns about the
                                          information.                                             identity and employment authorization                 reliability of SWA referrals. The referral
                                             The Department agrees that more                       of referred workers by completing                     of workers not authorized to work
                                          clarity on the mechanics of out-of-state                 USCIS Form I–9 in accordance with                     undermines the integrity of the H–2A
                                          recruitment is appropriate. The                          DHS regulations at 8 CFR 274a.2 and                   program, can harm U.S. workers, and
                                          Department has added language to the                     274a.6. The NPRM, ETA’s written                       can disrupt business operations.
                                          regulation to clarify that one                           guidance, and an opinion by the                          Many commenters argued that the
                                          advertisement is to be placed in each                    Solicitor of Labor, all of which have                 requirement is inconsistent with INA
                                          State identified for the area of intended                been shared with SWAs over the past                   provisions at 8 U.S.C. 1324a, and DHS
                                          employment as a traditional or expected                  year, explain both the rationale for the              regulations at 8 CFR 274a.6, which
                                          labor supply State. The Department                       SWA verification requirement.                         permit but do not require SWAs to
                                          declines to require more than one ad in                     Comments on this subject were                      verify employment eligibility for
                                          each State, which would be a significant                 received from a national association                  individuals they refer. The USCIS
                                          departure from the advertising                           representing state agencies, 12                       regulations expressly permit SWAs to
                                          requirements under the current                           individual SWAs, several civil rights                 verify the identity and employment
                                          regulations and would add additional                     and labor advocacy organizations,                     authorization of workers before making
                                          program expense. In response to                          members of Congress, and numerous                     referrals, and certainly do not prohibit
                                          comments, and out of recognition that                    employer groups and individual                        such verification. See 8 CFR 274a.6. The
                                          employers often will not be well-versed                  employers. Commenters supporting the                  Acting General Counsel of DHS has
                                          in the characteristics of out-of-State                   proposal generally cited the                          issued an interpretive letter stating that
                                          newspapers, the Department has                           longstanding need for a reliable                      while the USCIS regulations do not
                                          included language in the Final Rule                      employment service system that is                     require SWAs to verify the eligibility of
                                          specifying that its annual Federal                       based on affirmative verification and                 workers before referring them, those
                                          Register notice will not only announce                   refers only workers who are authorized                regulations do not prevent other
                                          the designation of labor supply States,                  to work in the U.S. Commenters                        agencies with independent authority
                                          but will also specify the acceptable                     opposing the proposal raised a variety of             from imposing such a requirement. See
                                          newspapers in the designated States that                 legal, programmatic, resource-related,                November 6, 2007 letter from Gus P.
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                                          employers may utilize for their required                 and policy-based concerns.                            Coldebella, DHS Acting General
                                          out-of-State advertisements. In no case                     Many commenters considered the                     Counsel, to Gregory F. Jacob, Senior
                                          will an employer be required to place an                 employment verification requirement to                Advisor to the Secretary of Labor. The
                                          ad in more than one newspaper in a                       be a change in policy after decades of                Department is now exercising its
                                          labor supply State. In response to                       contrary Departmental interpretation.                 independent statutory authority under

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                                          the INA to require through regulation                    meeting the requirements of sec.                      defend. More specifically, these
                                          that SWAs verify employment eligibility                  274A(a)(5) of the INA and 8 CFR 274a.6                commenters felt that to the extent the
                                          of referrals. Further, to ensure that the                to each employer at the time the SWA                  verification process is not applied to
                                          regulated community has appropriate                      refers the verified worker to the                     non-agricultural workers, it would have
                                          notice of the specific requirement, and                  employer. Employers must retain a copy                a disparate impact on agricultural
                                          to ensure a standard process for                         of the SWA certificate of verification                workers, many of whom are Hispanic,
                                          verification remains in place consistent                 just as it would retain a copy of Form                and that could be perceived as unlawful
                                          with the procedures already approved                     I–9. Employers must still verify                      discrimination on the basis of race or
                                          by Congress, we have clarified in the                    employment eligibility for workers who                ethnicity. Some commenters were
                                          regulatory text that states must at a                    do not have a state certification that                concerned that states would be forced to
                                          minimum use the I–9 process for                          complies with all of the applicable                   expend significant resources to defend
                                          purposes of verification. The                            statutory and regulatory requirements.                lawsuits or, alternatively, that in order
                                          Department also strongly suggests (but                      Some commenters were concerned                     to protect against lawsuits, would be
                                          does not require), as it did in the NPRM,                that employers who hire SWA-referred                  forced to apply the verification
                                          that States utilize the DHS-administered                 workers may seek to hold SWAs                         procedures to all job referrals.
                                          E-Verify system. State agencies with                     responsible for referring unauthorized                  The requirement to verify
                                          procedures that do not comply with the                   workers. The Department expects that                  employment eligibility does not violate
                                          minimum requirements of the Form I–                      any referrals a SWA makes to individual               constitutional prohibitions against
                                          9, however, such as verification through                 employers will comply with the                        disparate impact. The eligibility
                                          scanned documents transmitted over the                   requirements of Federal law, including                requirement is established by statute
                                          Internet, must revise their processes to                 those established in this Final Rule. For             and is similar to verification
                                          ensure that agricultural referrals are                   example, the preamble to the proposed                 requirements to gain access to other
                                          made only as a result of in-person                       rule directs SWAs to provide all referred             similar public benefits. See, e.g., Section
                                          verification.                                            employees with adequate                               432, Personal Responsibility and Work
                                             The INA requires that employers                       documentation that verification of their              Opportunity Reconciliation Act of 1996,
                                          execute a Form I–9 for all new                           employment has taken place, and                       Public Law 104–193, 110 Stat. 2105
                                          employees. Some commenters                               clarifies that employers may invoke                   (employment eligibility verification
                                          interpreted the NPRM to shift this                       ‘‘safe harbor’’ protection only where the             requirement for most federal public
                                          employer responsibility to SWAs. A                       documentation complies with all                       benefits for needy families). As this
                                          subset of these commenters raised                        statutory and regulatory requirements.                regulation governs the H–2A foreign
                                          concern that removing responsibility for                 We have clarified in the Final Rule the               labor certification program, the
                                          verification from agricultural employers                 SWA’s obligation to complete Form I–9                 clarification made here is limited to that
                                          alone would be unfair to other, non-                     and provide evidence of such                          program and to agricultural job referrals,
                                          agricultural employers who would still                   completion by providing the employer                  but the Department proposed an
                                          be required to complete the Form I–9                     with a certification that complies with               analogous provision in the H–2B NPRM
                                          form.                                                    the DHS requirements for such                         published on May 22, 2008, seeking to
                                             This Final Rule does not govern                       certificate at 8 CFR 274a.6. However,                 extend the same procedural
                                          employment eligibility verification, nor                 employers have no obligation to hire a                employment verification requirements
                                          does it seek to change, for purposes of                  job applicant, whether or not referred by             to that program. More generally, the
                                          H–2A labor certification, the basic                      the SWA, who does not present the                     clarification of the requirement in this
                                          responsibility of employers under the                    employer with appropriate                             regulation does not mean the
                                          INA. As we strongly cautioned in the                     documentation evidencing the                          Department’s policy is limited only to
                                          NPRM, a SWA’s responsibility to                          applicant’s work eligibility. As stated in            agricultural referrals, as the
                                          perform threshold, pre-referral                          the NPRM, an employer will not be                     Department’s expectation is that SWAs
                                          verification exists separate from an                     penalized by the Department for turning               will do what they can, including
                                          employer’s independent obligation                        away applicants who are not authorized                exercising their authority under 8 U.S.C.
                                          under the Immigration Reform and                         to work. Additionally, as long as a SWA               1324a, to avoid expending public
                                          Control Act of 1986 to verify the                        complies with the process established                 resources to refer unauthorized workers
                                          identity and employment authorization                    by DHS for State Workforce Agencies                   to any job opportunities, regardless of
                                          of every worker to whom it has                           and undertakes good faith efforts to                  program area. The employment
                                          extended a job offer. However, the                       establish the employment eligibility of               verification provisions included in this
                                          governing statute does permit employers                  referred workers, it will not incur any               regulation are part of a much broader,
                                          to rely on an employment verification                    potential liability. Although the                     concerted effort—one that includes
                                          conducted by the SWA to fulfill their                    Department certainly intends to hold                  regulation, written guidance, and
                                          statutory responsibilities. The INA—at                   SWAs responsible for complying with                   outreach and education—to address
                                          sec. 274A(a)(5)—exempts employers                        all program requirements, just as it has              longstanding weaknesses in the system
                                          from the verification requirement and                    in the past, the Department is not aware              and to strengthen the integrity of foreign
                                          provides a ‘‘safe harbor’’ from legal                    of any basis under which SWAs could                   labor certification activities.
                                          liability to employers, regardless of                    be held liable to third parties for failing             Some commenters opined that the
                                          industry, who unwittingly hire an                        to properly perform their employment                  employment eligibility verification
                                          unauthorized worker where the hire is                    verification responsibilities in the                  requirement presents an obstacle to
                                          based on a SWA referral made in                          absence of willful or malicious conduct.              employment for, and will reduce the
                                          compliance with 8 CFR 274a.6,                               Many commenters raised a concern                   pool of, the U.S. workers it is designed
                                          requiring appropriate documentation                      that these new procedures would have                  to protect. For example, these
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                                          from the SWA certifying that                             an unlawful, disparate impact on a                    commenters stated that States are
                                          verification has taken place. As                         protected class, or at least make states              increasingly moving toward web-based
                                          discussed more fully below, the                          vulnerable to legal claims of disparate               employment services. The commenters
                                          Department requires in this Final Rule                   impact that would require the                         believe an in-person verification
                                          that SWAs provide documentation                          expenditure of significant resources to               requirement will require potentially

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                                          onerous visits by job seekers who they                   their obligations in this context and will            eligibility verification requirements
                                          believe currently could be referred to                   continue to do so.                                    established by current Departmental
                                          work without ever visiting a workforce                      In addition, notwithstanding funding               policies, minimizing the chance that a
                                          center. The commenters stated that,                      limitations, there is a strong,                       State will need to be de-funded due to
                                          especially in the larger States, this will               longstanding need for a consistent and                non-compliance or that non-compliant
                                          present a greater and perhaps                            uniform verification requirement at the               referrals will be made by out-of-State
                                          insurmountable hurdle for a larger                       state government level. Verification is a             SWAs. Nevertheless, we do not discount
                                          number of U.S. workers, who will be                      statutory responsibility of the                       the importance of the questions posed
                                          discouraged from travelling great                        Department and the SWAs under the                     by the commenter, but see them as
                                          distances to obtain a job referral.                      INA and the Wagner-Peyser Act, and the                issues of implementation that should be
                                             In practice, an in-person verification                Department has further determined                     addressed, as they arise, through
                                          requirement will not significantly                       employment verification is a logical and              appropriate guidance.
                                          change the operation of referrals in most                necessary condition for the issuance of                  In addition, we note that the SWA
                                          States. In the Department’s program                      foreign labor certification grants to                 may not refuse to make a referral and
                                          experience, States often require that                    states. Precisely to ensure that available            the employer may not refuse to accept
                                          agricultural job applicants visit the                    federal funding supports verification                 a referral because of an E-Verify
                                          workforce center to receive information                  activities, the Department has added the              tentative nonconfirmation (TNC), unless
                                          on the terms and conditions of the job,                  verification requirement as an allowable              the job seeker decides not to contest the
                                          which must be provided prior to                          cost under the foreign labor certification            TNC. SWAs and employers may not
                                          referral. See 20 CFR 653.501(f)                          grant agreement. While cognizant of the               take any adverse action, such as
                                          (placement of the form within local                      challenges posed by funding limitations,              delaying a referral or start date, against
                                          offices). While we do not disagree that                  we expect states to comply as they do                 a job seeker or referred worker based on
                                          an in-person verification requirement                    with other regulatory requirements and                the fact that E-Verify may not yet have
                                          may impact the decisions of a limited                    other terms and conditions of their                   generated a final confirmation of
                                          number of otherwise eligible workers, at                 grant.                                                employment eligibility.
                                                                                                      Commenters raised a number of
                                          this juncture the impact is speculative                                                                        (k) Section 655.102(k) Recruitment
                                                                                                   concerns with the use of E-Verify,
                                          and does not outweigh the significant                                                                          Report
                                                                                                   including potential system problems,
                                          value of verification. Moreover, it is a                                                                          The Department proposed requiring
                                                                                                   delays and inaccuracies. The
                                          problem that SWAs may be able to                                                                               employers to submit an initial
                                                                                                   Department strongly encourages state
                                          adjust to by designating or creating                                                                           recruitment report with their
                                                                                                   agencies to use the system, which
                                          additional in-person locations where                                                                           applications and to supplement that
                                                                                                   provides an additional layer of accuracy
                                          eligibility can be verified. This is not a                                                                     report with a final recruitment report
                                                                                                   and security over and above the basic I–
                                          problem unique to SWAs given that                                                                              documenting all recruitment activities
                                                                                                   9 process, but it has not mandated use
                                          workers often must travel great                          of E-Verify. SWAs can comply with this                related to the job opportunity that took
                                          distances to reach a prospective                         Final Rule without the use of E-Verify.               place subsequent to the filing of the
                                          employer, who then (absent a SWA                            One commenter pointed out that the                 application. The Department proposed
                                          certification) would be required to                      regulation does not describe the                      that the initial recruitment report to be
                                          verify work eligibility. Although                        penalties to SWAs for non-compliance                  filed with the application be prepared
                                          employment eligibility verification does                 or delayed compliance with this                       not more than 60 days before the date
                                          require some amount of time and effort,                  requirement, or the implications for H–               of need, and that the supplemental, final
                                          Congress has determined that simple                      2A employers who may seek services                    report be completed within 48 hours of
                                          convenience must cede to the                             from SWAs that are not in compliance                  the date H–2A workers depart for the
                                          overarching goal of achieving a legal                    with the requirement. For instance, the               worksite or 3 days prior to the date of
                                          workforce and the Department has                         commenter inquired whether, if the                    need, whichever is later. Many
                                          drafted its regulations accordingly.                     Department were to suspend Foreign                    individuals and members of agricultural
                                             Commenters opposing the eligibility                   Labor Certification grant funding,                    associations expressed concern that
                                          provision uniformly complained that                      employers would be required to accept                 recruitment reports will not simplify the
                                          the verification requirement would add                   referrals funded exclusively by Wagner-               application process and will instead
                                          potentially significant workload and                     Peyser funding. The commenter also                    inflict an undue burden on employees
                                          strain the already inadequate resources                  inquired whether the SWA in an                        of small farms. Some agricultural
                                          of many State Workforce Agencies.                        employer’s state would be required to                 associations argued that having two
                                          Many saw it as an unfunded federal                       verify the work eligibility of a worker               recruitment reports will double the
                                          mandate in violation of the Unfunded                     that was referred to it by a non-                     work for employers and stated that the
                                          Mandates Reform Act. More than one                       compliant out-of-State SWA. As the                    supplemental report is not justified
                                          referred to the Department’s recent                      verification requirement is                           because of its limited utility in resolving
                                          inclusion of the requirement as a                        implemented, the Department’s                         compliance issues.
                                          condition for receiving further labor                    guidance will evolve in response to the                  The Department disagrees that a
                                          certification grant funding.                             experience of the regulated community                 supplemental recruitment report will
                                             As stated in the preamble to the                      and our own. We do note that these                    have limited benefit, given the
                                          NPRM, the Department is not                              problems already exist under the                      Department’s intended use of
                                          insensitive to the resource constraints                  Department’s current regulations and                  supplemental reports in the event of an
                                          facing state agencies in their                           policies, and the Department is working               audit. The supplemental recruitment
                                          administration of the H–2A program.                      through them as they arise. The                       report will provide assurance to the
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                                          However, as we stated in the NPRM, we                    problems are substantially alleviated by              Department that an employer has
                                          do not believe that the requirement will                 the fact that virtually every State and               complied with all of its obligations with
                                          result in a significant increase in                      territory administering the H–2A                      respect to the domestic workforce.
                                          workload or administrative burden. We                    program has already agreed to come into               Compliance throughout the program,
                                          have provided training to SWAs to meet                   compliance with the employment                        including after filing of an application,

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                                          is necessary for the appropriate                         employers who wish to file an                         the SWA. The association suggested that
                                          enforcement of the H–2A program and                      Application for Temporary Employment                  the names of the growers could all be
                                          its requirements. By requiring a                         Certification prior to 50 days before the             provided in the ad, but applicants
                                          supplemental report, the Department is                   date of need, they are welcome to do so               would be directed to the SWA to get
                                          not requiring a duplicative effort but is                to initiate processing of the application,            additional information about the jobs
                                          in fact effectively requiring employers to               but the application will not be                       and referrals to the employers.
                                          split the current comprehensive total                    considered to be complete, and thus                      The Department has considered but
                                          report (of all referrals that are required               eligible for a final determination, until             declines to adopt these suggestions at
                                          to be reported) into two smaller, more                   the initial recruitment report is                     this time. The Final Rule significantly
                                          manageable reports. The Department                       submitted.                                            clarifies the H–2A advertising
                                          does not believe that this splitting of the                 Finally, the Department has made                   requirements. The Department believes
                                          comprehensive total report will require                  additional clarifying edits to the                    that it has struck a careful and
                                          significantly more effort on the part of                 regulatory text. These edits are to ensure            appropriate balance, based on its
                                          employers.                                               this provision comports with other                    program experience, between the
                                             Several commenters specifically                       sections of this Final Rule, to improve               expense of advertising to employers and
                                          mentioned the timing of the recruitment                  readability, and to clarify its                       workers’ need for basic job information
                                          report as the biggest problem with the                   requirements. These include the                       when considering whether to pursue
                                          requirement. One farm association                        deletion of the redundant phrase ‘‘who                advertised employment opportunities.
                                          noted that since the initial application                 applied or was referred to the job                       The Final Rule contains several
                                          cannot be submitted without the                          opportunity’’ which appeared twice in                 clarifying and conforming changes to
                                          recruitment report, and the recruitment                  the NPRM paragraph (k)(2) (which is                   the proposed text for § 655.103, none of
                                          report must be prepared not more than                    now (k)(1)(iii)); simplifying the                     which are substantive. The Final Rule
                                          60 days prior to the date of need, the                   reference to the contents of the                      also paraphrases in § 655.103 the equal
                                          application itself cannot be filed until                 supplemental recruitment report                       treatment requirement already stated in
                                          60 days ahead of time. In order to rectify               through the use of cross-references; and              § 655.104(a). Section 655.103 requires
                                          this issue, the commenter believed the                   placing the paragraph regarding the                   that an employer’s recruitment ‘‘must
                                          application itself should be required to                 updating of recruitment reports before                contain terms and conditions of
                                          be filed not more than 60 days prior to                  the paragraph regarding document                      employment which are not less
                                          the date of need. Another farm                           retention requirements. In addition, the              favorable than those that will be offered
                                          association suggested that the timeline                  Department has added a requirement                    to the H–2A workers.’’
                                          for the recruitment report be moved up                   that the recruitment report must contain
                                          to no later than 45 days before the date                 the original number of openings                       Section 655.104   Contents of Job Offers
                                          of need, rather than 60 days before the                  advertised. This last addition will                   (a) Section 655.104(a)   Preferential
                                          date of need. The Department also                        enable the Department to grant an                     Treatment of Aliens
                                          received comments in support of the                      employer a partial certification in the
                                          supplemental recruitment reports.                        event it can meet part but not all of its                The Department’s proposed regulation
                                             The Department has learned through                    need through the recruitment of U.S.                  stated: ‘‘The employer’s job offer shall
                                          experience that if recruitment is begun                  workers.                                              offer no less than the same benefits,
                                          no more than 45 days before the date of                                                                        wages, and working conditions that the
                                          need, it is virtually impossible for the                 Section 655.103 Advertising                           employer is offering, intends to offer, or
                                          Department to receive an adequate                        Requirements                                          will provide to H–2A workers.’’ A group
                                          recruitment report by the time it is                        The Department proposed detailed                   of farmworker advocacy organizations
                                          statutorily required to make a                           instructions for the content of the                   opposed the removal of the words ‘‘U.S.
                                          certification determination 30 days                      newspaper advertisements to be placed                 worker’’ from this section of the rule.
                                          before the date of need. As discussed                    by employers as part of the required pre-             This commenter believes that the
                                          above, we have in response to                            filing recruitment in § 655.103. A few                proposed wording allows employers to
                                          comments amended the timeframe for                       comments were received on the specific                treat U.S. workers less favorably than
                                          pre-filing recruitment to reflect a                      contents of the ads. Other comments                   H–2A workers.
                                          recruitment period closer to the date the                regarding the rule’s advertising                         While the Department does not agree
                                          workers are needed. In addition, in                      requirements are discussed in the                     that the new wording would have
                                          accordance with the revisions to the                     section of the preamble pertaining to                 allowed employers to treat U.S. workers
                                          time frame specified in § 655.102(e) for                 § 655.102(g).                                         any less favorably than H–2A workers,
                                          submitting job orders, the original                         An association of growers/producers                the words ‘‘U.S. worker’’ have been
                                          proposal regarding the timing of the                     commented that the advertising                        reinserted.
                                          filing of recruitment reports has been                   requirements are inefficient and
                                                                                                   wasteful, particularly when ‘‘numerous                (b) Section 655.104(b)   No Less Than
                                          revised in the Final Rule and now
                                                                                                   virtually identical ads are appearing at              Minimum Offered
                                          provides that the initial recruitment
                                          report may not be prepared more than                     the same time.’’ Another association                    The NPRM proposed that the ‘‘job
                                          50 days prior to the employer’s date of                  suggested that employers be allowed to                duties and requirements specified in the
                                          need. The Final Rule also revises the                    advertise jobs by simply referencing the              job offer shall be consistent with the
                                          proposed timing for the completion of                    job order placed with the SWA, and                    normal and accepted duties and
                                          the supplemental recruitment report,                     suggested that employers should not be                requirements of non-H2A employers in
                                          and now requires the employer to                         required to include all of the detailed               the same or comparable occupations
                                          update the recruitment report within 2                   information contained in the proposed                 and crops in the area of intended
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                                          business days following the last date                    regulation. Another association                       employment and shall not require a
                                          that the employer is required to accept                  suggested that if more than one grower                combination of duties not normal to the
                                          referrals; that is, the end of the                       is simultaneously recruiting in an area               occupation.’’ Several commenters
                                          recruitment period as specified in                       covered by only one newspaper, their                  expressed concern that the proposed
                                          § 655.102(f)(3). With respect to                         ads should be combined and placed by                  requirements would prove unworkable,

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                                          unadministrable, and exceedingly                         H–2A workers in the same or                           the employer’s attestation required
                                          difficult for employers to comply with,                  comparable occupations and crops.’’                   under § 655.105(g) is an enforceable
                                          as what is ‘‘normal’’ and ‘‘accepted’’ are                  The Department is sensitive, however,              program requirement. The failure of an
                                          substantially subjective determinations.                 that in certain circumstances a listed job            employer to comply with any program
                                          All of the commenters who provided                       duty may act as a de facto job                        requirement subjects the employer to
                                          input on this provision suggested that                   qualification, because the listed duty                the Department’s enforcement regime.
                                          the Department should not second guess                   requires skills or experience that                       A commenter pointed out the illogical
                                          an employer’s business decision                          agricultural workers may not typically                consequences of rigid rules governing
                                          regarding an occupation’s job duties                     possess. When such circumstances                      wages for agricultural workers. It is the
                                          when they are unique to that employer.                   arise, the Department reserves the right              commenter’s contention that the
                                          These commenters believe that the                        to treat the listed job duty as a job                 Department should add a phrase at the
                                          Department’s proposal would give the                     qualification, and to apply the ‘‘normal’’            end of § 655.104(c) that would not force
                                          Department more discretion to deny an                    and ‘‘accepted’’ standard that is set forth           employers to pay the NPC prescribed
                                          application than is contemplated by the                  in the statute and restated in the                    wage until the date of need and instead
                                          statute.                                                 regulations in determining whether the                would allow employers to pay U.S.
                                            The Department agrees with the basic                   qualification is appropriate.                         workers a mutually agreed upon wage
                                          thrust of these comments. Section                           One commenter suggested that this                  between the time they recruit the
                                          218(c)(3)(A) of the INA requires the                     provision should be made consistent                   workers and the date the H–2A workers
                                          Department, when determining whether                     with those in the PERM regulations at                 are needed in order to train the U.S.
                                          an employer’s asserted job qualifications                20 CFR 656.17. The Department                         worker and retain them until and
                                          are appropriate, to apply ‘‘the normal                   declines to apply the PERM standard to                throughout the period of the H–2A
                                          and accepted qualifications required by                  the H–2A program, as that standard is                 contract. The commenter reports that if
                                          non-H–2A employers in the same or                        based on a substantially different                    they do not offer those U.S. workers
                                          comparable occupations and crops.’’                      statutory structure. The Department is                employment immediately, they will
                                          There is a substantial difference,                       confident that the revised standard for               most likely not be available when the
                                          however, between job duties and job                      § 655.104(b) that is set forth in the Final
                                                                                                                                                         H–2A work begins. The commenter
                                          qualifications; job qualifications                       Rule, which hews closely to the
                                                                                                                                                         believes that any employment prior to
                                          typically describe the minimum skills                    language of sec. 218(c)(3)(A) of the INA,
                                                                                                                                                         the date of need and prior to the date
                                          and experience that an employee must                     is appropriately tailored to the H–2A
                                                                                                                                                         that foreign H–2A workers arrive should
                                          have to secure a job, while job duties                   program and will prove workable in
                                                                                                                                                         not be governed by the H–2A contract
                                          describe the tasks that qualified workers                practice.
                                                                                                                                                         or its wage provisions.
                                          are expected to perform. The                             (c) Section 655.104(c) Minimum                           The Department agrees that the H–2A
                                          Department agrees that, as a general                     Benefits                                              required wage takes effect on the
                                          matter, employers are in a far better
                                                                                                      A group of farmworker advocacy                     effective start date of the H–2A contract
                                          position than the Department to assess
                                          what job duties workers at a particular                  organizations pointed out that proposed               period. However, the Department does
                                          establishment in a particular area can                   § 655.104 does not correlate exactly to               not believe that any changes to the
                                          reasonably be required to perform in an                  current § 655.102(b). Specifically, in this           regulatory text need to be made under
                                          H–2A eligible position.                                  commenter’s opinion the proposed                      this section because § 655.105(g)
                                            The Department is therefore altering                   section does not require the employer to              provides that the requirement to pay the
                                          this provision to conform more closely                   pay the worker at least the adverse effect            offered wage applies only during the
                                          to the language of the statute, and is                   wage rate in effect at the time the work              valid period of the approved labor
                                          limiting the restriction in § 655.104(b) to              is performed, the prevailing hourly                   certification. U.S. workers who are hired
                                          job qualifications. The Department is                    wage rate, or the legal federal or State              in response to H–2A recruitment and
                                          aware that this may mean that at times                   minimum wage rate, whichever is                       who perform work for an employer
                                          a U.S. worker wishing to perform one                     highest, for every hour or portion                    before the date of need specified in the
                                          type of job duty, such as picking                        thereof worked during a pay period as                 H–2A labor certification are not
                                          asparagus, may be required by an                         required in the current regulation.                   required by these regulations (but may
                                          employer to perform an additional job                    According to this commenter, under the                be required by contract) to be paid the
                                          duty, such as harvesting tobacco, in                     proposed rule, H–2A workers would                     H–2A wage until the period of the H–
                                          order to secure an agricultural job. It is               have only contract law as their primary               2A contract begins, without regard to
                                          not at all uncommon, however, for jobs                   enforcement tool. With proposed                       the type of work performed.
                                          in the United States to include multiple                 § 655.104(c) stating that every job offer                A group of farmworker advocacy
                                          job duties, some of which workers may                    must include the wage provisions listed               organizations argued that under the
                                          view as more desirable than others.                      in paragraphs (d) through (i) of this                 proposed rule, employers would no
                                          There is nothing in the statute governing                section but no longer requiring precisely             longer be required to disclose in job
                                          the H–2A program indicating that                         what the current § 655.102(b)(9)(i)                   offers their obligation to provide
                                          Congress intended to require                             requires, this commenter argued that                  housing to workers. That is incorrect.
                                          agricultural employers to allow                          workers will be left at a disadvantage if             Section 655.104(c) provides that
                                          prospective workers to selectively                       the employer fails to specify the                     ‘‘[e]very job offer accompanying an H–
                                          choose which job duties they want to                     required wage provisions in the work                  2A application must include each of the
                                          perform and which job duties they do                     contract.                                             minimum benefit, wage, and working
                                          not, with regard to a particular job                        The Department appreciates this                    condition provisions listed in
                                          opportunity. In the Final Rule, this                     commenter’s analysis. However, we do                  paragraphs (d) through (q) of this
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                                          provision states that ‘‘[e]ach job                       not agree that the employer will no                   section.’’ Paragraph (d) of that section
                                          qualification listed in the job offer must               longer be bound to pay the employee                   provides, in turn, that ‘‘[t]he employer
                                          not substantially deviate from the                       the wage promised, nor that the only                  must provide housing at no cost to the
                                          normal and accepted qualifications                       enforcement tool available is through                 worker, except for those U.S. workers
                                          required by employers that do not use                    contract law. Under the new program                   who are reasonably able to return to

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                                          77142            Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations

                                          their permanent residence at the end of                  determination on the application (30                  substantially adding to the cost of
                                          the work day.’’                                          days before the date of need). The                    providing housing. Other growers stated
                                                                                                   changes were also intended to avoid                   that current inspection procedures
                                          (d) Section 655.104(d) Housing
                                                                                                   penalizing employers for the failure of               prohibit the inspection of occupied
                                             Section 218(c)(4) of the INA requires                 SWAs to comply with their legal duty                  housing and therefore this proposal
                                          employers to furnish housing in                          to meet the timeframes established by                 would require that regulations be
                                          accordance with specific regulations.                    the statute.                                          adjusted to permit inspection of
                                          The employer may fulfill this obligation                   The Department heard from a number                  occupied housing. Some said that the
                                          by providing housing which meets the                     of SWAs on the issue of timely housing                earlier time frame for requesting
                                          applicable Federal standards for                         inspections, many of which declared                   housing inspections may be before
                                          temporary labor camps or providing                       their ability to conduct housing                      many farmers plant their crops, let alone
                                          housing which meets the local                            inspections within the 15-day window.                 know the dates of the harvest.
                                          standards for rental and/or public                       One SWA acknowledged that at times                      Commenters representing employer
                                          accommodations or other substantially                    delays may occur in conducting housing                interests also included questions
                                          similar class of housing. In the absence                 inspections, but attributed those delays              concerning implementation of the
                                          of local standards, the rental and/or                    to incomplete or inaccurate information               proposal. Many argued that employers
                                          public accommodations or other                           being provided to inspectors. This SWA                should be provided a specific and
                                          substantially similar class of housing                   suggested that providing a copy of the                reasonable period of time for abatement
                                          must meet State standards, and in the                    job order with the housing inspection                 of violations found in post-
                                          absence of State standards, such                         request would alleviate the problem of                determination inspections conducted by
                                          housing must meet Federal temporary                      inspectors investigating the wrong                    SWAs, and that employers who correct
                                          labor camp standards. By statute, the                    housing. Finally, an anonymous                        violations within the specified period
                                          determination of whether employer-                       commenter tied the delays in housing                  should not be penalized for the
                                          provided housing meets the applicable                    inspections to a lack of funding at the               violations. One employer association
                                          standards must be made no later than 30                  state level.                                          argued that ‘‘the fact that employers
                                          days before the date of need. The                          The Department recognizes that many                 continue to face consequences for
                                          Department proposed three changes to                     SWAs conduct housing inspections in                   having deficient housing will prevent
                                          the current housing requirements.                        advance of the statutory deadline of 30               any adverse effects for workers.’’
                                             First, the Department proposed                        days before the date of need, but cannot              Employers also questioned the proposed
                                          allowing employers to request housing                    ignore the fact that SWA delays in                    requirement that housing inspection
                                          inspections no more than 75 and no                       conducting housing inspection have in                 requests be made in writing, and some
                                          fewer than 60 days before the date of                    many instances resulted in labor                      employers recommended that the
                                          need. The Department further proposed                    certification determinations being made               Department provide training to SWA
                                          that the NPC would, as required by                       by the Department outside of the                      staff on conducting housing inspections
                                          statute, make determinations on H–2A                     statutorily required timeframes. This                 of occupied housing. Finally, one
                                          applications 30 days before the                          result is not acceptable to the                       employer commented that in the state in
                                          employer’s date of need, even if the                     Department or to employers seeking H–                 which he operates, the state’s
                                          housing referenced in the application                    2A certification. As one employer                     Department of Health conducts
                                          had not yet been physically inspected                    commenter stated:                                     inspections of temporary labor camps
                                          by the SWA, so long as (1) the employer                                                                        and that to require SWAs to conduct
                                          requested a housing inspection within                    [u]ntimely housing inspections are one of the
                                                                                                   most common reasons for delays in making              these inspections would result in
                                          the time frame specified by the                          labor certification determinations. Therefore,        confusion.
                                          regulations and (2) the SWA failed to                    the provision in the proposed regulations for           Employee advocacy organizations and
                                          conduct the inspection for reasons                       making a pre-application housing inspection,          state agencies expressed concern that
                                          beyond the employer’s control. Under                     and the provision that certification will not         the granting of pre-inspection labor
                                          the Department’s proposal, SWAs                          be delayed if a timely housing inspection is          certification determinations could
                                          would have the authority and the                         not made, and that occupancy of the housing           potentially result in cases where
                                          responsibility under such circumstances                  is permitted, are important improvements in           housing is not inspected prior to
                                          to conduct post-certification housing                    the program.
                                                                                                                                                         occupancy, which in turn could result
                                          inspections prior to or during                             While employers and employer                        in workers being housed in substandard
                                          occupancy. If such a post-certification                  associations favored the proposed                     conditions. Several commenters
                                          housing inspection identified                            conditional labor certifications, several             objected to this proposed revision
                                          deficiencies that the employer failed to                 commenters representing employer                      stating that pre-occupancy housing
                                          act promptly to correct, the proposal                    interests had concerns with the                       inspections are an effective incentive for
                                          provided that the SWA would inform                       proposed requirement that housing                     employers to take corrective action, thus
                                          the NPC of the deficiencies in writing so                inspections be requested no fewer than                ensuring that workers are housed in safe
                                          that the NPC could take appropriate                      60 days before the date of need.                      and sanitary housing. Other commenters
                                          corrective action, potentially including                 Employers stated that in some parts of                urged the Department to continue the
                                          revocation of the labor certification. The               the U.S., housing may still be                        requirement that housing be inspected
                                          Department proposed these changes in                     winterized 60 days before the date of                 before workers arrive.
                                          part to alleviate the problems SWAs                      need and therefore may be unavailable                   A few comments from both
                                          currently face in trying to conduct large                for inspection, or unable to pass                     organizations representing employer
                                          numbers of required housing                              inspection. In certain areas, inspection              interests and from organizations
                                          inspections during the short 15-day                      agencies require that the employer rent               representing employee interests
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                                          window provided by the statute                           the housing before an inspection is                   questioned the Department’s legal
                                          between the time that applications are                   conducted and the earlier time frame for              authority to establish a requirement that
                                          required to be filed (45 days before the                 requesting an inspection requires                     housing inspections be requested more
                                          date of need) and the time that the                      employers to pay an additional month                  than 45 days before the date of need,
                                          Department is required to make a                         or two of rent for the housing,                       which is the earliest date that the

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                                          Department may under the statute                         218(c)(3)(A) of the INA, which is 30                  employer’s date of need, an obligation
                                          require applications to be filed. One                    days before the employer’s date of                    that the Department expects SWAs will
                                          commenter asserted that the proposed                     need.’’                                               not take lightly. The Department
                                          changes contradict the Department’s                         Some commenters read the language                  therefore believes that under the Final
                                          Wagner-Peyser regulations requiring                      of sec. 218(c)(4) of the INA as                       Rule, post-certification housing
                                          that the housing be inspected to                         prohibiting the Secretary from making a               inspections will be the very rare
                                          determine compliance with applicable                     determination on an employer’s                        exception rather than the rule.
                                          housing safety and health standards                      application for temporary labor                          The Department has never read sec.
                                          before a job order can be posted (and,                   certification until the employer’s                    218(c)(3)(A)(i), however, as requiring
                                          thus, before the housing can be                          housing has been physically inspected.                that the government directly observe for
                                          occupied).                                               The Department strongly disagrees with                itself that the employer has satisfied all
                                             The Department has carefully                          that interpretation. The language of sec.             of the statutory criteria for certification.
                                          considered the comments and has                          218(c)(4) is not phrased as a limitation              For example, under the current
                                          determined that the framework of the                     on the Secretary’s duty under sec.                    regulations a substantial portion of
                                          Department’s original proposal strikes                   218(c)(3)(A) to make determinations on                required recruitment takes place after a
                                          an appropriate balance between the                       applications no later than 30 days before             certification has been made, and SWAs
                                          need to ensure that housing for H–2A                     the employer’s date of need. In fact, the             typically do not conduct pre-
                                          workers meets all applicable safety and                  language of sec. 218(c)(4) does not                   certification inspections of rental
                                          health standards, that agricultural                      require that housing inspections be                   housing or public accommodations
                                          employers are able to secure H–2A                        completed prior to the Secretary’s                    secured by employers pursuant to sec.
                                          workers in a timely manner, and that                     certification determination, although                 218(c)(4). It is important to note that
                                          the Department complies with the                         Congress certainly could have phrased                 under the Final Rule employers are
                                          statutory requirement to render a                        the requirement that way had it wanted                required to provide or secure housing
                                          determination no fewer than 30 days                      to do so. Instead, the language of sec.               that meets all applicable standards, and
                                          before the date of need. To ensure that                  218(c)(4) is most naturally read as                   that a certification cannot be granted,
                                          SWAs have adequate time to complete                      imposing a statutory duty on the                      with or without an inspection, unless
                                          housing inspections before the statutory                 Department to complete required                       the employer has attested that its
                                          deadline of 30 days before the date of                   housing inspections ‘‘prior to the date               housing fully complies with those
                                          need, the Final Rule requires employers                  specified in paragraph (3)(A)’’—which,                standards. Sanctions and penalties may
                                          to request housing inspections no fewer                  as noted previously, is 30 days before                be imposed for violations of the
                                          than 60 days before the date of need,                    the employer’s date of need. The                      attestation requirements and the
                                          except when the emergency provisions                     provision does not specify what                       housing standards, including revocation
                                          contained in § 655.101(d) are used. The                  consequence should follow in the event                of a labor certification, regardless of
                                          Department is eliminating in the Final                   that the Department fails to comply with              whether a pre-certification housing
                                          Rule the proposed restriction on                         this mandate. Presumably, however, if                 inspection was conducted.
                                          housing inspections being requested                      Congress had intended that the primary                   As to commenters who argued that it
                                          more than 75 days before date of need.                   consequence of the government’s failure               is unacceptable that housing might in
                                          Eliminating this restriction will provide                to meet its statutory responsibility to               some rare circumstances be occupied by
                                          SWAs additional flexibility to manage                    complete housing inspections in a                     H–2A workers before it is inspected, the
                                          the workload of completing required                      timely manner would be to penalize                    Department notes that under MSPA,
                                          inspections with respect to those cases                  employers by releasing the Department                 U.S. workers often occupy agricultural
                                          where an employer’s housing is ready                     from its independent statutory                        housing before it is inspected, and the
                                          for inspection well in advance of the                    responsibility to make determinations                 Department has not seen any data
                                          date of need.                                            on applications no later than 30 days                 indicating that this arrangement has
                                             The INA at 8 U.S.C. 1188(c)(3)(A)                     before the employer’s date of need—a                  caused harm to U.S. workers. The
                                          expressly requires the Secretary of Labor                deadline that was indisputably                        Department does not believe that H–2A
                                          to make a determination on an                            established to ensure that employers can              workers will be harmed by this rule
                                          employer’s application for temporary                     secure needed H–2A workers in a timely                when being afforded the same level of
                                          labor certification no fewer than 30 days                fashion without undue delays caused by                protection that Congress has afforded to
                                          before the employer’s date of need. The                  the government—it would have said so                  U.S. workers. Moreover, the Department
                                          INA also requires that the Secretary                     explicitly.                                           believes that any chance that H–2A
                                          make a determination as to whether                          Of course, the Department greatly                  workers would be placed in substandard
                                          employer-provided housing meets the                      prefers that housing inspections be                   housing under the Final Rule—a
                                          applicable housing standards by the                      conducted prior to certification, as this             possibility that can never fully be
                                          same deadline—no fewer than 30 days                      gives the Department the strongest                    guarded against as a practical matter,
                                          before the employer’s date of need.                      possible assurance that ‘‘the employer                and occurs on occasion even under the
                                          Although the Department has delegated                    has complied with the criteria for                    current rule—is minimized by the fact
                                          its statutory housing inspection                         certification’’ as required by sec.                   that a certification cannot be granted
                                          responsibilities to the SWAs, the                        218(c)(3)(A)(i) of the INA. To this end,              unless the employer has attested that its
                                          statutory deadline applicable to that                    the Final Rule requires that employers                housing fully complies with all
                                          responsibility continues to apply. This                  make requests for housing inspections                 applicable standards. If this attestation
                                          is made explicit by § 655.104(d)(6)(iii) of              no fewer than 60 days before the                      is later shown to be false, the employer
                                          the Final Rule, which states that ‘‘[t]he                employer’s date of need, ensuring that                risks substantial penalties, including the
                                          SWA must make its determination that                     SWAs have adequate time to meet the                   possibility of a revoked labor
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                                          the housing meets the statutory criteria                 statutory deadline for conducting                     certification and/or debarment.
                                          applicable to the type of housing                        housing inspections. Moreover, SWAs                      The Department is not persuaded by
                                          provided prior to the date on which the                  remain under an express statutory and                 employers’ arguments for specific
                                          Secretary is required to make a                          regulatory mandate to complete housing                language allowing employers in all
                                          certification determination under sec.                   inspections by 30 days before the                     cases to abate housing violations

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                                          77144            Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations

                                          without penalties where the housing has                  that the inspection may take place. For               Department notes that in its experience,
                                          already been occupied. Penalties for                     the reasons set forth in the discussion of            the SWAs take those responsibilities
                                          failing to meet the applicable standards                 § 102(a) concerning the Final Rule’s pre-             very seriously.
                                          help ensure compliance. As with all                      filing recruitment requirements, the                     The Department is retaining the
                                          Department investigations to determine                   Department does not agree that the                    proposed requirement that the
                                          compliance with Federal safety and                       statute prohibits the Department from                 employer’s request for housing
                                          health standards for housing, however,                   requiring that housing inspection                     inspections must be in writing. This
                                          the employer is as a matter of practice                  requests be submitted to SWAs prior to                requirement provides the employer with
                                          provided a reasonable opportunity to                     the date that applications must be                    the documentation necessary to
                                          correct or abate any violations that are                 submitted to the NPC.                                 demonstrate that their request for a
                                          found. This also is true when the SWA                       The Department also disagrees that                 housing inspection was made within the
                                          or other state agency conducts the                       the possibility that some housing                     required time frame.
                                          inspection. Time frames for abatement                                                                             While the Department refers to the
                                                                                                   inspections will take place after
                                          are directly related to the severity of the                                                                    SWAs as the entities responsible for
                                                                                                   certification under the Final Rule
                                          violation and its potential impact on the                                                                      making housing inspections related to
                                                                                                   violates the Wagner-Peyser regulations.
                                          safety and health of the workers.                                                                              labor certification determinations, the
                                                                                                   The current regulations at 20 CFR
                                          Therefore, language in this regulation                                                                         Department does not intend to limit the
                                                                                                   654.403 already permit job orders to be
                                          specifying an abatement period for the                                                                         flexibility afforded SWAs in fulfilling
                                                                                                   posted prior to the completion of a
                                          correction of housing violations is                                                                            this requirement. For example, some
                                                                                                   housing inspection. If an SWA identifies
                                          unnecessary. Current regulations at 29                                                                         SWAs have agreements with other State
                                                                                                   violations during a subsequent housing
                                          CFR 501.19(b) and the Final Rule at                                                                            agencies for conducting housing
                                                                                                   inspection, and the employer does not                 inspections and it is not the
                                          §§ 655.117 and 655.118 address the                       cure the violations after being provided
                                          factors considered by the Department in                                                                        Department’s intention to change such
                                                                                                   a reasonable opportunity to do so, the                arrangements.
                                          determining the appropriateness of                       corresponding job order may be                           Finally, in response to concerns that
                                          penalties and sanctions. The                             revoked. Although some commenters                     SWA staff is not sufficiently trained to
                                          Department will continue to ensure that                  expressed the view that the regulatory                conduct inspections of occupied
                                          the penalties assessed and sanctions                     process under § 654.403 is more                       housing, the Department anticipates that
                                          imposed for violations of housing safety                 protective of workers because                         there will be additional training of SWA
                                          and health standards are appropriate to                  § 654.403(e) requires that the SWA                    staff on the conduct of housing
                                          the violation.                                           ‘‘shall assure that the housing is                    inspections.
                                             The Department is cognizant that                      inspected no later than the date by                      The Department’s second housing-
                                          requiring employers to request housing                   which the employer has promised to                    related proposal was the creation of a
                                          inspections no fewer than 60 days                        have its housing in compliance with the               housing voucher as an additional option
                                          before the date of need may present a                    requirements of this subpart,’’ that                  employers could use to meet the H–2A
                                          challenge to some employers. However,                    provision is actually less protective of              housing requirements. The Department
                                          we believe that overall this requirement                 workers than the Final Rule. The Final                did not explain in detail in the NPRM
                                          will be beneficial to employers, workers                 Rule unequivocally recapitulates the                  how such a voucher program would
                                          and the SWAs by allowing more time                       statutory requirement that housing                    work, but instead requested suggestions
                                          for the SWAs to schedule and conduct                     inspections be completed no later than                and comment from the public about
                                          pre-occupancy housing inspections, and                   30 days before the employer’s date of                 how the program should be constructed
                                          more time for employers to correct any                   need, a date that is actually earlier than            and operated. The Department’s NPRM
                                          deficiencies prior to the arrival of the                 that required by the conditional access               did, however, propose to include
                                          workers. The Department expects that                     provisions set forth in § 654.403. Thus,              several safeguards in the voucher
                                          SWAs will continue to work with                          both the Final Rule and § 654.403                     program to ensure that workers would
                                          employers on the scheduling of housing                   contain clear mandates for pre-                       be provided housing meeting the
                                          inspections and that SWAs will                           occupancy inspections. Significantly,                 applicable safety and health standards,
                                          endeavor to minimize the expense to the                  however, § 654.403 does not specify any               including requirements that the voucher
                                          SWA and maximize the benefit to the                      particular consequence if an SWA fails                could not be used in an area where the
                                          employer and workers by avoiding                         in its duty to conduct the required pre-              Governor of the State has certified that
                                          scheduling inspections of facilities at                  occupancy inspection; under that                      there is inadequate housing available in
                                          times that they are not winterized or                    provision, it is only if the SWA fulfills             the area of intended employment. Other
                                          otherwise unlikely to pass inspection. In                its duty to conduct the required                      safeguards included the provision that
                                          response to comments about obstacles                     inspection and finds violations that the              the voucher could only be redeemed for
                                          that currently exist in some jurisdictions               employer’s job order is removed from                  cash paid by the employer to a third
                                          to securing timely housing inspections,                  clearance. Thus, in specifying that the               party, that the housing obtained with
                                          the Department has also included an                      Department will adhere to its statutory               the voucher had to be within a
                                          instruction to SWAs in the Final Rule                    obligation to make certification                      reasonable commuting distance of the
                                          not to adopt rules or restrictions that                  determinations on applications no later               place of employment and that workers
                                          would inhibit their ability to conduct                   than 30 days before the employer’s date               could ‘‘pool’’ their vouchers to secure
                                          inspections by 30 days before the date                   of need even where an SWA has failed                  housing (e.g., to secure a house instead
                                          of need, such as requirements that rental                in its statutory duty to conduct the                  of a motel room) but that such pooling
                                          housing already be formally leased by                    required housing inspection in a timely               may not result in a violation of the
                                          the employer before the SWA will                         fashion, the Department is not depriving              applicable safety and health standards.
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                                          conduct an inspection, or rules that                     workers of any protections that they                  The Department also included as a
                                          occupied housing will not be inspected.                  have under § 654.403. Both provisions                 safeguard the requirement that if
                                          It is solely the employer’s responsibility,              fundamentally depend on SWAs to                       acceptable housing could not be
                                          however, to ensure that the SWA has                      protect workers by fulfilling their                   obtained with the voucher, the
                                          access to the housing to be inspected so                 responsibilities under the law—and the                employer would be required to provide

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                                                           Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations                                            77145

                                          housing meeting the applicable safety                    housing search, such as access to the                 best to provide much needed flexibility
                                          and health standards to the worker. The                  Internet, knowledge of the area, and                  to employers in fulfilling their
                                          Department requested comments on                         language difficulties. Several found it               obligation to furnish housing while
                                          whether such a program would                             unreasonable to expect that a worker                  ensuring that workers are not housed in
                                          adequately balance the needs of                          will travel from another country, or                  substandard conditions. After reviewing
                                          employers and workers and how such a                     even across the State, for employment                 the comments received on this proposal,
                                          program should operate. The                              and be able to quickly find a motel or                the Department is persuaded that it
                                          Department received a number of                          landlord that will accept vouchers for a              should drop the proposal at this time
                                          comments from employers, employer                        short-term stay.                                      because it would be extremely difficult
                                          associations, employee advocacy                             The comments received from SWAs                    to implement. The extent to which the
                                          organizations and State agencies on the                  on the housing voucher option were                    Department’s proposal was
                                          housing voucher option.                                  generally opposed to the proposal and                 misunderstood by commenters on all
                                             A number of comments from                             also reflected a misunderstanding of the              sides also caused the Department
                                          stakeholders representing both                           Department’s proposal. One SWA cited                  concern that, if implemented, the
                                          employer and employee interests led us                   concerns that a voucher would                         proposal would result in numerous
                                          to conclude that the proposal was not                    eliminate established standards that                  program violations and become a
                                          well understood. Several commenters                      ensure safety and healthful conditions                substantial enforcement problem. If, in
                                          stated that ‘‘the voucher program would                  of housing. Another SWA argued that                   the future, the Department is able to
                                          effectively eliminate the requirement                    ‘‘[t]he use of vouchers and the failure to            design an effective, enforceable and
                                          that all housing for H–2A workers must                   cover the full cost of housing reflects an            viable alternative, it will develop a
                                          meet health and safety standards.’’                      unrealistic understanding of the housing              proposal and request public comment.
                                          Some employer associations stated that                   market for seasonal workers.’’ Another                   We are sympathetic to the concerns of
                                          they supported the concept of ‘‘using                    SWA suggested that it would be                        many growers and employer
                                          vouchers to provide housing in lieu of                   impossible for the Governor to                        associations who supported the
                                          actually providing housing’’ while                       determine whether there was                           proposal and noted that the cost of
                                          another commenter asserted that the                      inadequate housing available in the area              providing housing is a major deterrent
                                          housing voucher option would                             since the SWAs would not be the                       for many to participate in the H–2A
                                          ‘‘undermine Congressional intent by                      recipient of the labor condition                      program and that in many parts of the
                                          eliminating the requirement that                         applications, and therefore, would not                country, restrictive building and zoning
                                          employers provide non-local workers                      know the number of workers in need of                 codes can prevent growers from
                                          with free housing that meets the basic                   housing.                                              building housing to accommodate
                                          safety and health standards.’’                              Some commenters criticized the                     workers. The Department notes that
                                             While noting a few concerns with the                  Department’s proposal on the grounds                  many of these problems can be
                                          proposal (e.g., the employer’s                           that many basic questions about how                   overcome by employers under the
                                          responsibility for violations of safety                  the voucher would function were not                   statute and the Final Rule by securing
                                          and health standards at housing                          adequately addressed in the NPRM,                     ‘‘housing which meets the local
                                          obtained by the voucher), employers                      including the lack of: A mechanism for                standards for rental and/or public
                                          and employer associations generally                      determining the amount or value of the                accommodations or other substantially
                                          praised the Department for the much                      voucher; a definition of ‘‘reasonable                 similar class of habitation.’’ These
                                          needed flexibility a voucher program                     commuting distance;’’ criteria to be used             options do not require employers to
                                          would create. Some commenters opined                     in determining whether the employer                   build and furnish their own housing. As
                                          that the use of housing vouchers would                   made a good faith effort to assist the                is noted in ETA Handbook No. 398,
                                          ‘‘greatly stimulate H–2A participation’’                 worker in identifying, locating and                   there is nothing to preclude an
                                          and ‘‘would encourage others to use                      securing housing in the area of intended              employer who does not actually own
                                          legal workers.’’ Other commenters                        employment; and standards to be used                  housing on his/her property from
                                          stated that the H–2A current                             in the Governor’s certification of                    renting non-commercial housing from
                                          requirement to provide housing to                        insufficient housing for migrant workers              other individuals or entities. If there are
                                          workers is a serious impediment to                       and H–2A workers in the area of                       areas where rental and public
                                          program participation and that the                       intended employment. Other                            accommodation options, including non-
                                          implementation of a housing voucher                      commenters took issue with the                        commercial housing, are not readily
                                          option would make the H–2A program                       Department’s proposal to allow workers                available, it is difficult to imagine how
                                          more usable and effective.                               to ‘‘pool’’ the vouchers, claiming that               workers could have secured housing in
                                             Comments from individuals and                         such pooling would result in workers                  those areas through the use of a
                                          organizations representing employee                      overpaying for overcrowded and/or                     voucher, such that the voucher program
                                          interests criticized the voucher option,                 substandard housing. Several                          would not have been viable in those
                                          stating that the proposed safeguards                     commenters questioned the Department                  areas anyway.
                                          were illusory and provided no                            on the rationale for not allowing the                    Third, the Department proposed in
                                          substantive protections to workers.                      voucher to be redeemed for cash by the                the NPRM to clarify and codify
                                          Virtually all criticism of the proposal,                 employee to a third party.                            additional limited flexibility under
                                          including from SWAs, misunderstood                          The requirement that employers                     certain circumstances to make post-
                                          the Department’s position and assumed                    furnish housing that meets applicable                 certification changes to housing. The
                                          health and safety standards would not                    safety and health standards is a                      Department’s current policy 4 allows the
                                          apply to housing obtained with a                         statutory requirement in the INA. The                 employer to substitute rental or public
                                          voucher. Many commenters argued that                     Department does not have authority to                 accommodations for certified housing in
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                                          the voucher idea ‘‘ignores the reality of                waive this statutory requirement, nor                 the event that certified housing becomes
                                          the situation for both U.S. and H–2A                     did the Department intend to do so in                 unexpectedly unavailable for reasons
                                          workers’’ in that many farmworkers,                      proposing a voucher option. In
                                          particularly H–2A workers, do not have                   proposing a voucher option, the                         4 Training and Employment Guidance Letter 11–

                                          the resources to conduct a long-distance                 Department sought comment on how                      07, Change 1 (November 14, 2007).

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                                          outside of the employer’s control. The                   applicable standards to which rental or               number of commenters noted that the
                                          employer is required to notify the SWA                   public accommodation housing,                         text of proposed § 655.104(d)(1)(i)
                                          in writing of the housing change and the                 including substitute housing, is subject.             referred to employer-owned housing,
                                          qualifying reason(s) for the change, and                    The Department has made several                    whereas the current regulation at
                                          provide evidence that the substituted                    modifications to this provision in the                § 655.102(b)(1)(i) and the preamble to
                                          housing meets the applicable safety and                  Final Rule for purposes of clarity and to             the proposed rule referenced employer-
                                          health standards. The SWA may inspect                    conform the standard to the structure of              provided housing. The Department did
                                          the substitute housing to determine                      the rest of the Final Rule. First, the                not intend to change the current
                                          compliance with applicable safety and                    proposal states that the unavailability               requirements for employer-provided
                                          health standards. The NPRM sought to                     provision would apply in ‘‘situations in              housing and has corrected this
                                          clarify and codify this policy and                       which housing certified by the SWA                    inadvertent reference to ‘‘employer-
                                          included a provision for the SWA to                      later becomes unavailable.’’ To ensure                owned’’ housing in the regulatory text.
                                          notify the CO of any housing changes                     that the full range of applicable                        A group of farmworker advocacy
                                          and the results of housing inspections                   situations is covered, the Final Rule                 organizations commented that, in its
                                          conducted on substitute housing.                         provides that the unavailability                      view, all rental and/or public
                                          Employer commenters and commenters                       provision applies where housing                       accommodations should be required by
                                          representing employer interests                          becomes unavailable ‘‘after a request to              the Department, at a minimum, to meet
                                          universally favored the clarification in                 certify housing (but before certification),           the Federal standards for temporary
                                          the proposal:                                            or after certification of housing.’’ There            labor camps. The commenter asserted
                                                                                                   is no reason to exclude housing that has              that State and local standards for rental
                                            The inclusion of language that permits
                                                                                                   not yet been inspected from the scope                 and/or public accommodation housing
                                          employers to use substitute housing in the
                                          event that their approved housing becomes                of the provision, since the initially                 may in many instances be grossly
                                          unavailable for reasons beyond their control             designated housing has become                         inadequate, and that the application of
                                          will be beneficial for the obvious reason that           unavailable anyway. Second, the phrase                Federal minimum standards is therefore
                                          in the rare circumstances where this occurs,             ‘‘applicable housing standards’’ has                  essential. The Department does not
                                          an employer has a housing option without                 been replaced in the Final Rule with                  believe, however, that it has the
                                          being in violation.                                      ‘‘the local, State, or Federal housing                authority under the INA to impose such
                                            Commenters on behalf of employees                      standards applicable under paragraph                  a minimum requirement. Section
                                          questioned the Department’s authority                    (d)(1)(ii) of this section,’’ which is more           218(c)(4) of the INA expressly provides
                                          to propose such a change and thought                     specific. Third, the phrase ‘‘in                      that to satisfy their housing obligation
                                          the proposed change would result in                      accordance with the requirements of                   employers may, at their option, either
                                          workers being housed in substandard                      paragraph (d)(1)(ii) of this section’’ has            ‘‘provide housing meeting applicable
                                          housing saying:                                          been added to the end of the second                   Federal standards for temporary labor
                                                                                                   sentence of the provision, and the                    camps’’ or ‘‘secure housing which meets
                                            [T]his change is not permitted by the
                                                                                                   phrase ‘‘from the appropriate local or                the local standards for rental and/or
                                          statute [INA 218(c)(4)] and would encourage
                                          potentially fraudulent ‘‘bait and switch’’               State agency responsible for                          public accommodations or other
                                          tactics perpetrated by H–2A employers with               determining compliance’’ has                          substantially similar class of
                                          respect to employer-provided housing.                    accordingly been deleted as                           habitation.’’ An employer that secures
                                                                                                   unnecessary; as noted in the discussion               rental and/or public accommodations
                                          Commenters also questioned which
                                                                                                   of paragraph (d)(1)(ii), that paragraph               that meet all of the applicable local
                                          standards are the applicable standards                   has been separately modified to reflect               standards has satisfied its housing
                                          to the substitute housing.                               the evidentiary standard that is                      obligation under the statute. The statute
                                            The Department maintains that this                     currently in place in ETA Handbook No.                provides that rental and/or public
                                          additional limited flexibility with                      398. For the same reason, the proposal’s              accommodation housing does not need
                                          respect to substitute housing is the best                admonition that SWAs ‘‘should make                    to meet Federal temporary labor camp
                                          approach in those rare circumstances                     every effort to inspect the                           standards unless there are no
                                          where the certified housing becomes                      accommodations prior to occupation,                   ‘‘applicable local or State standards.’’
                                          unavailable for reasons beyond the                       but may also conduct inspections                      The Department is not at liberty to issue
                                          employer’s control. The Department                       during occupation, to ensure that they                regulations that are inconsistent with
                                          believes that the requirements that the                  meet applicable housing standards’’ has               the structure of employer housing
                                          substitute housing be rental or other                    been removed in the Final Rule. As                    obligations under the INA.
                                          public accommodations and that the                       current ETA Handbook No. 398 explains                    A few commenters urged the
                                          employer provide evidence that the new                   at page II–15, ‘‘[i]f DOL standards are               Department to relieve employers in
                                          housing meets the applicable safety and                  not applicable, no pre-occupancy                      certain border communities (e.g., Yuma,
                                          health standards offer workers the                       inspections need be conducted, and the                AZ) of the requirement to provide
                                          necessary protections. Indeed, the                       employer need only document to the                    housing to H–2A workers from Mexico
                                          proposal in no way lessens the                           RA’s satisfaction that the housing                    who are able to commute back to their
                                          applicable housing standards, as                         complies with the local or State                      homes across the border on a daily
                                          substitute housing must meet the                         standards which apply to the situation.’’             basis. According to one association
                                          standards that typically apply to H–2A                   To the extent that some SWAs may                      commenter, Yuma, Arizona employers
                                          housing of the same type. Failure to                     typically inspect rental or public                    have traditionally attracted tens of
                                          create a substitute housing provision                    accommodation housing despite the fact                thousands of seasonal workers daily,
                                          could leave H–2A employers in the                        that they are not required by these rules             approximately half of whom reside in
                                          untenable position of having workers                     to do so, they should make every effort               the U.S. while the other half choose to
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                                          arrive at the worksite and having no                     to inspect substitute housing prior to                maintain their residences in Mexico.
                                          permissible place to house them.                         occupation.                                           This association believes that requiring
                                          Therefore, the Department has included                      The Department received comments                   employers in such instances to provide
                                          this provision in the Final Rule. This                   on other housing-related issues for                   housing and transportation not only
                                          Final Rule specifically references the                   which no changes were proposed. A                     hinders participation but ignores reality.

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                                          The INA at sec. 218(c)(4) requires                       may not necessarily end within the                    left without insurance in those States
                                          employers to provide housing to all H–                   same day but would still be considered                that exclude agricultural work from
                                          2A workers. The Department does not                      part of the same work day after which                 coverage. In fact, Section 218(b)(3)
                                          believe it has a legal basis upon which                  an H–2A worker could not be                           provides that if ‘‘employment for which
                                          to permit employers to employ H–2A                       reasonably expected to return to the                  the certification is sought is not covered
                                          workers without providing those                          home residence). For the same reason,                 by State workers’ compensation law, the
                                          workers with housing. Of course, there                   the term ‘‘without charge’’ has been                  employer will provide, at no cost to the
                                          is no statutory requirement that workers                 amended to read ‘‘at no cost to the                   worker, insurance covering injury and
                                          actually reside in the employer-                         worker,’’ in order to ensure clarity and              disease arising out of and in the course
                                          provided housing. So, an H–2A worker                     understanding. The Department has also                of the workers’ employment which will
                                          who resides within commuting distance                    included language in § 655.104(d)(1)(ii)              provide benefits at least equal to those
                                          of a home across the border could                        to clarify the kind of documentation that             provided under the State workers’
                                          presumably return home each night if                     employers are expected to retain if they              compensation law for comparable
                                          the worker wanted to, provided the                       secure rental and/or public                           employment’’ (emphasis added). Where
                                          employer didn’t require its workers to                   accommodations for their workers to                   the employment in question is covered
                                          reside in specific housing as a condition                show that the accommodations comply                   by State workers’ compensation law, but
                                          of the work agreement. Nevertheless, the                 with the applicable legal standards. The              subject to certain rules applied by the
                                          employer would be required by statute                    language is taken directly from ETA                   State, the statutory provision is
                                          to make appropriate housing available                    Handbook No. 398, which provides at                   inapplicable. Therefore, the Department
                                          to the worker.                                           page I–26 that such documentation                     has modified language in § 655.104(e) to
                                             Some commenters suggested that U.S.                   ‘‘may be in the form of a certificate from            clarify that the employer should follow
                                          Department of Agriculture sec. 514                       the local or State Department of Health               State law, but if the State excludes the
                                          Farm Labor Housing Loans should be                       office or a statement from the manager                type of employment for which the
                                          made available for the construction of                   or owner of the housing.’’ In addition,               certification is being sought, then the
                                          housing used for H–2A workers. The                       non-substantive changes have been                     employer must purchase the insurance
                                          Department has no authority to allocate                  made to comport with plain English                    at no cost to the worker.
                                          Farm Labor Housing Loans, but has                        standards (for example, the use of active                Other commenters complained that
                                          passed along the comment to the USDA.                    voice, such as the change in                          the Department no longer requires
                                             Several commenters raised specific                    § 655.104(d)(6)(iii) to read ‘‘The SWA is             submission of proof of Worker’s
                                          concerns about the attestation process as                required by Section 218(c)(4) of the INA              Compensation Insurance. These
                                          related to housing for agricultural                      to make its determination’’). Finally, a              commenters believe that employers
                                          workers. These commenters believe that                   provision that is in the current                      circumvent this requirement by having
                                          the attestation process will lead to                     regulation regarding charges for public               inadequate coverage or by allowing the
                                          abuses in housing because there is no                    housing, which was inadvertently                      coverage to lapse after receiving
                                          process in place for establishing                        omitted from the NPRM and whose                       certification, or by not buying it at all
                                          compliance with the housing inspection                   absence was noted by several                          because State law does not require it.
                                          request. Pursuant to the Final Rule,                     commenters, has been restored.                        The Department is confident that the
                                          housing inspections are still required to                                                                      attestation-based application system
                                          be completed by SWAs. The Department                     (e) Section 655.104(e) Workers’                       will allow the Department to enforce
                                          believes that the extended timeframes                    compensation                                          these provisions because these
                                          for required pre-certification housing                      The NPRM proposed to continue the                  attestations are made under penalty of
                                          inspections will give the housing                        current requirement that the job offer                perjury. If it is revealed during an audit
                                          inspectors more time to complete                         must contain a statement promising that               that an employer fraudulently claimed
                                          inspections and should actually lead to                  workers’ compensation insurance will                  to have met all program requirements,
                                          more thorough inspections that in turn                   be provided. This is a statutory                      the employer would be subject to
                                          will help ensure violations are                          requirement. The INA at Section                       penalties, including debarment from the
                                          corrected.                                               218(b)(3) requires the employer to                    program.
                                             So as not to inadvertently alter the                  provide the Secretary with satisfactory                  Other changes made to the language
                                          availability of the conditional access                   assurances that ‘‘if the employment for               of this provision were non-substantive,
                                          provisions of § 654.403, which were                      which certification is sought is not                  and made for purposes of clarification,
                                          cited favorably by some commenters,                      covered by State workers’ compensation                or (as in the case of the recordkeeping
                                          the Department has added language to                     law, the employer will provide, at no                 language) to conform to changes made
                                          § 655.104(d)(6)(i) clarifying that the                   cost to the worker, insurance covering                elsewhere in the rule.
                                          required attestation ‘‘may include an                    injury and disease arising out of and in
                                          attestation that the employer is                         the course of the worker’s employment                 (f) Section 655.104(f) Employer-
                                          complying with the procedures set forth                  which will provide benefits at least                  Provided Items
                                          in § 654.403.’’                                          equal to those provided under the State                  The NPRM proposed to continue the
                                             Finally, the Department notes it has                  workers’ compensation law for                         current requirement that employers
                                          made several non-substantive changes                     comparable employment.’’ One                          provide workers with ‘‘all tools,
                                          to the text of § 655.104(d) to provide                   commenter noted the State of                          supplies, and equipment required’’ to
                                          clarity. For example, the NPRM noted                     Washington has an unusual Worker’s                    perform the duties of the job. The NPRM
                                          the obligation to provide housing to                     Compensation statute that requires                    allowed employers to require workers to
                                          those workers who are not reasonably                     workers to contribute 50 percent of the               provide tools or equipment where the
                                          able to return to their permanent                        premium unless the employer is self-                  employer can demonstrate such a
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                                          residence ‘‘within the same day.’’ The                   insured, whereas the NPRM required                    practice was ‘‘common’’ in the area of
                                          Department has amended this phrase to                    the employer to provide such insurance                employment.
                                          ‘‘at the end of the work day’’ to clarify                at no cost to the worker. The intent of                  The Department received one
                                          that a work day may go beyond the same                   the workers’ compensation provision in                comment relating to its proposal,
                                          24-hour period (for example, a late shift                the INA is to ensure that no worker is                asserting that the Department should

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                                          not have deleted the current language                    was listed in § 655.104(g), has for                   that employers should continue to pay
                                          mandating approval from the                              purposes of clarity been listed instead in            for workers’ outbound transportation.
                                          Department if employers seek to require                  § 655.114.                                            Employer and worker advocate
                                          employees to purchase any tools and                                                                            commenters agreed that payment of
                                                                                                   (h) Section 655.104(h) Transportation
                                          equipment because it is common                                                                                 outbound travel is a critical means to
                                          practice to do so. The ‘‘common                             Existing regulations at § 655.102(b)(5)            help ensure that workers depart the U.S.
                                          practice’’ standard is not new, but has                  require employers to provide or pay for               at the end of their H–2A contract.
                                          been carried over from the current                       workers’ daily subsistence and
                                                                                                   transportation from the place from                       Many comments addressed the timing
                                          regulation. Whether a common practice
                                                                                                   which the worker has come to the place                of reimbursement to workers for
                                          exists will still be a determination of
                                          fact to be decided by the Department                     of employment. The employer is to                     inbound subsistence and transportation
                                          and not by the employer. The only                        advance these costs to the worker when                costs. Most commenters referenced the
                                          change in this determination is that the                 it is the prevailing practice of non-H–2A             appellate court’s decision in Arriaga v.
                                          employer will now bear the burden of                     employers in the occupation and area to               Florida Pacific Farms, L.L.C., 305 F.3d
                                          proof in the event of an audit or                        do so. If the employer has not advanced               1228 (11th Cir. 2002), which held that
                                          investigation to show that the practice                  transportation and subsistence costs or               growers violated the minimum wage
                                          claimed is common. In determining                        otherwise provided or paid for these                  provisions of the FLSA by failing to
                                          whether a practice is ‘‘common’’ in a                    costs and the worker completes 50                     reimburse farmworkers during their first
                                          particular area, the Department will                     percent of the work contract period, the              workweek for travel expenses (and visa
                                          apply a simple mathematical formula. If                  employer is required to reimburse the                 and immigration fees) paid by the
                                          an employer can demonstrate that 25                      worker for these costs at that time. The              workers employed by the growers under
                                          percent of non-H–2A workers in the                       Department proposed no change to this                 the H–2A program. Under the FLSA,
                                          crop activity and occupation in the                      requirement, but sought comments and                  pre-employment expenses incurred by
                                          particular area are required to provide                  information on the costs and benefits to              workers that are properly business
                                          tools or equipment, the Department will                  employers and workers of continuing to                expenses of the employer and primarily
                                          consider the practice to be ‘‘common.’’                  require employers to pay for the                      for the benefit of the employer are
                                          This simple standard will be relatively                  workers’ inbound and outbound (return)                considered ‘‘kick-backs’’ of wages to the
                                          easy to administer, and will ensure that                 subsistence and transportation costs.                 employer and are treated as deductions
                                          employers have fair notice of their legal                   The Department received several                    from the employees’ wages during the
                                          obligations.                                             comments on this requirement. Some                    first workweek. 29 CFR 531.35. Such
                                            Clarifying language was also inserted                  comments from employers and                           deductions must be reimbursed by the
                                          referencing the requirements of sec.                     employer associations advocated that                  employer during the first workweek to
                                          3(m) of the Fair Labor Standards Act, 29                 employers and employees should share                  the extent that they effectively result in
                                          U.S.C. 203(m) (FLSA), which does not                     the costs of workers’ inbound                         workers’ weekly wages being below the
                                          permit deductions for tools or                           subsistence and transportation. These                 minimum wage. 29 CFR 531.36.
                                          equipment primarily for the benefit of                   commenters argued that both employees                 Although the employer in the Arriaga
                                          the employer that reduce an employee’s                   and employers benefit from the H–2A                   case did not itself make direct
                                          wage below the wage required under the                   employment relationship and therefore                 deductions from the workers’ wages, the
                                          minimum wage, or, where applicable,                      should share the costs. Others suggested              Court held that the costs incurred by the
                                          the overtime provisions of the FLSA.                     that the employees should bear the full               workers amounted to ‘‘de facto
                                          (g) Section 655.104(g) Meals                             cost of their inbound subsistence and                 deductions’’ that the workers absorbed,
                                                                                                   transportation, arguing that the inbound              thereby driving the workers’ wages
                                             Section 655.104 (g) concerns the                      travel employment once they are in the
                                          provision of meals to workers and the                                                                          below the statutory minimum. The
                                                                                                   country. Some commenters also noted                   Eleventh Circuit reasoned that the
                                          amount employers may charge workers                      that no other nonimmigrant work-
                                          for meals each day. Although the                                                                               transportation and visa costs incurred
                                                                                                   related program requires employers to                 by the workers were primarily for the
                                          Department proposed no changes to this                   pay for the workers’ inbound
                                          section, a few comments were received                                                                          benefit of the employer and necessary
                                                                                                   subsistence and transportation.                       and incidental to the employment of the
                                          stating that the amount allowed to be                       Comments from employee advocates
                                          charged/reimbursed does not reflect the                                                                        workers and stated that
                                                                                                   urged the Department to continue the                  ‘‘[t]ransportation charges are an
                                          true cost of the employer’s providing or                 requirement that employers provide or
                                          the worker’s purchase of meals. Section                                                                        inevitable and inescapable consequence
                                                                                                   pay for workers inbound subsistence                   of having H–2A foreign workers
                                          655.114 provides for annual                              and transportation costs, asserting that
                                          adjustments of the previous year’s                                                                             employed in the United States; these are
                                                                                                   inbound subsistence and transportation                costs which arise out of the employment
                                          allowable meal charges based upon                        costs:
                                          Consumer Price Index (CPI) data. Each                                                                          of H–2A workers.’’ Finally, the court
                                          year the maximum charges allowed are                     [a]re necessary for many reasons—to attract           held that the growers’ practices violated
                                          adjusted from the charges allotted the                   U.S. workers; to encourage employers to fully         the FLSA minimum wage provisions,
                                                                                                   employ the workers in whom they have
                                          previous year by the same percentage as                                                                        even though the H–2A regulations
                                                                                                   invested and to recruit only those workers
                                          the twelve-month percent change in the                   needed; * * * and, because farmworkers                provide that the transportation costs
                                          CPI for all Urban Consumers for Food                     wages are so low, to prevent farmworkers              need not be repaid until the workers
                                          (CPI–U for Food) between December of                     from becoming even more deeply indebted               complete 50 percent of the contract
                                          the year just concluded and December                     (and more exploitable) or from seeking low-           work period. The Eleventh Circuit noted
                                          of the year prior to that. The Department                cost transportation that is often unregulated         that the H–2A regulations require
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                                          reminds employers of their ability to                    and deadly.                                           employers to comply with applicable
                                          petition for higher meal charges, a                        While there was disagreement among                  federal laws, and in accepting the
                                          practice that has been continued in the                  commenters on the current requirement                 contract orders in this case, the ETA
                                          Final Rule in § 655.114. The amount of                   that employers pay inbound subsistence                Regional Administrator informed the
                                          the meal charge, which in the NPRM                       and transportation, there was agreement               growers in writing that their obligation

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                                          to pay the full FLSA minimum wage is                        The FLSA requires employers to pay                 ‘‘kick-back’’ provisions at 29 CFR 531.35
                                          not overridden by the H–2A regulations.                  their employees set minimum hourly                    to those payments. Thus, ‘‘[d]eductions
                                            Comments from employers                                wages. 29 U.S.C. 206(a). The FLSA                     for articles such as tools, miners’ lamps,
                                          recommended continuing the                               allows employers to count as wages                    dynamite caps, and other items which
                                          Department’s requirement that workers                    (and thus count toward the satisfaction               do not constitute ‘board, lodging, or
                                          be reimbursed at the 50 percent point of                 of the minimum wage obligation) the                   other facilities’ ’’ are illegal ‘‘to the
                                          the work contract, stating that the                      reasonable cost of ‘‘furnishing [an]                  extent that they reduce the wages of the
                                          current policy appropriately balances                    employee with board, lodging, or other                employee in any such workweek below
                                          the interests of employers and                           facilities, if such board, lodging, or other          the minimum required by the Act.’’ 29
                                          employees by creating an incentive for                   facilities are customarily furnished by               CFR 531.36(b).
                                          employees to complete at least half of                   such employer to his employees.’’ 29                     In sum, where an employer has paid
                                          the contract. Many employers urged the                   U.S.C. 203(m). The FLSA regulations                   for a particular item or service, under
                                          Department not to require immediate                      provide that ‘‘[t]he cost of furnishing               certain circumstances it may pursuant
                                          reimbursement to workers and that the                    ‘facilities’ found by the Administrator to            to 29 U.S.C. 203(m) count that payment
                                          Department:                                              be primarily for the benefit or                       as wages paid to the employee. On the
                                          should explicitly state that an employer of              convenience of the employer will not be               other hand, when an employee has paid
                                          H–2A workers does not have an obligation                 recognized as reasonable [costs within                for such an item or service, an analysis
                                          under the INA, the Fair Labor Standards Act              the meaning of the statute] and may not               under 29 CFR 531.35 is required to
                                          (‘‘FLSA’’), or DOL regulations to reimburse a            therefore be included in computing                    determine whether the payment
                                          worker’s in-bound transportation expense                 wages.’’ 29 CFR 531.3(d)(1). The FLSA                 constitutes a ‘‘kick-back’’ of wages to the
                                          until the 50 percent point of the work                                                                         employer that should be treated as a
                                          contract and that if a worker’s payment of
                                                                                                   regulations further provide examples of
                                                                                                   various items that the Department has                 deduction from the employee’s wages.
                                          inbound transportation and subsistence costs                                                                      The Arriaga court seems to have
                                          reduces his/her first week’s wage below the              deemed generally to be qualifying
                                                                                                   facilities within the meaning of 29                   assumed that all expenses necessarily
                                          minimum wage, such reduction does not
                                          result in a violation of the FLSA.                       U.S.C. 203(m), see 29 CFR 531.32(a), as               fall into one of these two categories—
                                                                                                   well as examples of various items that                that either they qualify as wages under
                                             Employee advocates, on the other                                                                            29 U.S.C. 203(m) or they constitute a
                                          hand, pressed the Department to require                  the Department has deemed generally
                                                                                                   not to be qualifying facilities, see 29               ‘‘kick-back’’ under 29 CFR 531.35. See
                                          employers to comply with the FLSA                                                                              Arriaga, 305 F.3d at 1241–42 (stating
                                          which, they state, requires the                          CFR 531.3(d)(2), 29 CFR 531.32(c).
                                                                                                                                                         that if a payment ‘‘may not be counted
                                          reimbursement of costs at the beginning                     Separate from the question whether                 as wages’’ under 29 U.S.C. 203(m), then
                                          of employment when those costs are for                   items or expenses furnished or paid for               ‘‘the employer therefore would be
                                          the benefit of the employer and                          by the employer can be counted as                     required to reimburse the expense up to
                                          effectively reduce the workers’ weekly                   wages paid to the employee, the FLSA                  the point the FLSA minimum wage
                                          income below the minimum wage.                           regulations contain provisions                        provisions have been met’’ under 29
                                          Another employee advocate suggested                      governing the treatment under the FLSA                CFR 531.35 and 29 CFR 531.36). That is
                                          that the Department consider requiring                   of costs and expenses incurred by                     incorrect. For example, if an employer
                                          H–2A employers to advance to workers                     employees. The regulations specify that               were to give an employee a valuable
                                          inbound costs and to pay referral fees to                wages, whether paid in cash or in                     item that was not ‘‘customarily
                                          domestic labor contractors to encourage                  facilities, cannot be considered to have              furnished’’ to his or her employees, the
                                          the movement of low-wage U.S. workers                    been paid by the employer and received                employer would not be able to count the
                                          to labor shortage areas.                                 by the employee unless they are paid                  value of that item as wages under 29
                                             After due consideration of the                        finally and unconditionally, or ‘‘free                U.S.C. 203(m) unless the employer
                                          comments, the Department has                             and clear.’’ 29 CFR 531.35. Thus, ‘‘[t]he             ‘‘customarily furnished’’ the item to his
                                          determined to continue the current                       wage requirements of the Act will not be              or her employees. Nevertheless, since
                                          policy of requiring employers to provide                 met where the employee ‘kicks-back’                   the employee paid nothing for that item,
                                          or pay for workers’ inbound and                          directly or indirectly to the employer or             it clearly would not constitute a ‘‘kick-
                                          outbound subsistence and                                 to another person for the employer’s                  back’’ of wages to the employer that
                                          transportation and the corresponding                     benefit the whole or part of the wage                 would have to be deducted from the
                                          requirement for reimbursement of such                    delivered to the employee. This is true               employee’s wages for purposes of
                                          inbound costs upon the worker’s                          whether the ‘kick-back’ is made in cash               determining whether the employer met
                                          completion of 50 percent of the work                     or in other than cash. For example, if                its minimum wage obligations under 29
                                          contract period. Thus, reimbursement at                  the employer requires that the employee               U.S.C. 206(a). Similarly, if a grocery
                                          the 50 percent point is all that the Final               must provide tools of the trade that will             employee bought a loaf of bread off the
                                          Rule requires pursuant to the                            be used in or are specifically required               shelf at the grocery store where he or
                                          Department’s rulemaking authority                        for the performance of the employer’s                 she worked as part of an arms-length
                                          under the INA. Moreover, the                             particular work, there would be a                     commercial transaction, the payment
                                          Department believes that the better                      violation of the Act in any workweek                  made by the employee to the employer
                                          reading of the FLSA and the                              when the cost of such tools purchased                 would not constitute a ‘‘kick-back’’ of
                                          Department’s own regulations is that                     by the employee cuts into the minimum                 wages to the employer, nor would the
                                          relocation costs under the H–2A                          or overtime wages required to be paid                 loaf of bread sold by the employer to the
                                          program are not primarily for the benefit                him under the Act.’’ Id. The regulations              employee be able to be counted toward
                                          of the employer, that relocation costs                   treat employer deductions from an                     the employee’s wages under 29 U.S.C.
                                          paid for by H–2A workers do not                          employee’s wages for costs incurred by                203(m). Both parties would presumably
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                                          constitute kickbacks within the meaning                  the employer as though the deductions                 benefit equally from such a
                                          of 29 CFR 531.35, and that                               were a payment from the employee to                   transaction—it would neither be
                                          reimbursement of workers for such costs                  the employer for the items furnished or               primarily for the benefit of the
                                          in the first paycheck is not required by                 services rendered by the employer, and                employer, nor would it be primarily for
                                          the FLSA.                                                applies the standards set forth in the                the benefit of the employee.

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                                             Expenses paid by an employer that                        As an initial matter, any weighing of              for the purpose of getting to a work site
                                          are primarily for the employer’s benefit                 the relative balance of benefits derived              to work. Moreover, an employee would
                                          cannot be counted toward wages under                     by H–2A employers and employees                       not rationally incur either kind of
                                          29 U.S.C. 203(m). See 29 CFR 531.3(d).                   from inbound transportation costs must                expense but for the existence of the job.
                                          Similarly, expenses paid by an                           take into account the fact that H–2A                  Both the employer and the employee
                                          employee cannot constitute a ‘‘kick-                     workers derive very substantial benefits              derive benefits from the employment
                                          back’’ unless they are for the employer’s                from their relocation. Foreign workers                relationship, and, absent unusual
                                          benefit. See 29 CFR 531.35. An analysis                  seeking employment under the H–2A                     circumstances, an employee’s relocation
                                          conducted under 29 U.S.C. 203(m)                         nonimmigrant visa program often travel                costs to start a new job cannot be said
                                          determining that a particular kind of                    great distances, far from family, friends,            to be primarily for the benefit of the
                                          expense is primarily for the benefit of                  and home, to accept the offer of                      employer.
                                          the employer will thus generally carry                   employment. Their travel not only                        That is not to say that travel and
                                          through to establish that the same kind                  allows them to earn money—typically                   relocation costs are never properly
                                          of expense is primarily for the benefit of               far more money than they could have in                considered to be primarily for the
                                          the employer under 29 CFR 531.35.                        their home country over a similar period              benefit of an employer. The regulations
                                          Each expense, however, must be                           of time—but also allows them to live                  state that travel costs will be considered
                                          analyzed separately in its proper                        and engage in non-work activities in the              to be primarily for the benefit of the
                                          context.                                                 U.S. These twin benefits are so valuable              employer when they are ‘‘an incident of
                                             The question at issue here is whether                 to foreign workers that these workers                 and necessary to the employment.’’ 29
                                          payments made by H–2A employees for                      have proven willing in many instances                 CFR 531.32(c). This might include, for
                                          the cost of relocating to the United                     to pay recruiters thousands of dollars (a             example, a business trip, or an
                                          States, whether paid to a third party                    practice that the Department is now                   employer-imposed requirement that an
                                          transportation provider or paid directly                 taking measures to curtail) just to gain              employee relocate in order to retain his
                                          to the employer, constitutes a ‘‘kick-                   access to the job opportunities, at times             or her job. Relocation costs to start a
                                          back’’ of wages within the meaning of                    going to great lengths to raise the                   new job will rarely satisfy this test,
                                          29 CFR 531.35. If the payment does                       necessary funds. The fact that H–2A                   however.
                                          constitute a ‘‘kick-back,’’ then the                     farmworkers travel such great distances                  In a literal sense it may be necessary
                                          payment must, as the Arriaga court                       and make such substantial sacrifices to               to travel to a new job opportunity in
                                          decided, be counted as a deduction from                  obtain work in the United States                      order to perform the work, but that fact,
                                          the employee’s first week of wages                       indicates that the travel greatly benefits            without more, does not render the travel
                                          under the FLSA for purposes of                           those employees. Many of the comments                 an ‘‘incident’’ of the employment.
                                          determining whether the employer’s                       received by the Department support this               Inbound relocation costs are not, absent
                                          minimum wage obligations have been                       conclusion.                                           unusual circumstances, any more an
                                          met.                                                        Most significantly, however, the                   ‘‘incident of * * * employment’’ than is
                                             The Department does not believe that                  Department’s regulations explicitly state             commuting to a job each day. Indeed,
                                          an H–2A worker’s payment of his or her                   that ‘‘transportation furnished                       inbound relocation costs are quite
                                          own relocation expenses constitutes a                    employees between their homes and                     similar to commuting costs in many
                                          ‘‘kick-back’’ to the H–2A employer                       work where the travel time does not                   respects, which generally are not
                                          within the meaning of 29 CFR 531.35.                     constitute hours worked compensable                   considered compensable. Cf. DOL
                                          It is a necessary condition to be                        under the Act and the transportation is               Opinion Letter WH–538 (August 5,
                                          considered a ‘‘kick-back’’ that an                       not an incident of and necessary to the               1994) (stating that travel time from
                                          employee-paid expense be primarily for                   employment’’ are qualifying ‘‘facilities’’            home to work is ‘‘ordinary home-to-
                                          the benefit of the employer. The                         under 29 U.S.C. 203(m). 29 CFR                        work travel and is not compensable’’
                                          Department need not decide for present                   531.32(a). As qualifying facilities, such             under the FLSA); Vega ex rel. Trevino
                                          purposes whether an employee-paid                        expenses cannot by definition be                      v. Gasper, 36 F.3d 417 (5th Cir. 1994)
                                          expense’s status as primarily for the                    primarily for the benefit of the                      (finding travel to and from work and
                                          benefit of the employer is a sufficient                  employer. 29 CFR 531.32(c). The                       home not compensable activity under
                                          condition for it to qualify as a ‘‘kick-                 wording of the regulation does not                    Portal-to-Portal Act). In fact, there is no
                                          back,’’ because the Department does not                  distinguish between commuting and                     reason to believe that the drafters of 29
                                          consider an H–2A employee’s payment                      relocation costs, and in the context of               U.S.C. 203(m) and 206(a) ever intended
                                          of his or her own relocation expenses to                 the H–2A program, inbound relocation                  for those provisions to indirectly require
                                          be primarily for the benefit of the H–2A                 costs fit well within the definition as               employers to pay for their employees’
                                          employer.                                                they are between the employee’s home                  relocation and commuting expenses. To
                                             Both as a general matter and in the                   country and the place of work.                        qualify as an ‘‘incident of * * *
                                          specific context of guest worker                            The Arriaga court ruled that H–2A                  employment’’ under the Department’s
                                          programs, employee relocation costs are                  relocation expenses are primarily for the             regulations, transportation costs must
                                          not typically considered to be                           benefit of the employer in part because               have a more direct and palpable
                                          ‘‘primarily for the benefit’’ of the                     it believed that under 29 CFR 531.32, ‘‘a             connection to the job in question than
                                          employer. Rather, in the Department’s                    consistent line’’ is drawn ‘‘between                  merely serving to bring the employee to
                                          view, an H–2A worker’s inbound                           those costs arising from the employment               the work site.
                                          transportation costs either primarily                    itself and those that would arise in the                 Taking the Arriaga court’s logic to its
                                          benefit the employee, or equally benefit                 ordinary course of life.’’ 305 F.3d at                ultimate conclusion would potentially
                                          the employee and the employer. In                        1242. The court held that relocation                  subject employers across the U.S. to a
                                          either case, the FLSA and its                            costs do not arise in the ordinary course             requirement to pay relocation expenses
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                                          implementing regulations do not require                  of life, but rather arise from                        for all newly hired employees—or at
                                          H–2A employers to pay the relocation                     employment. Id. Commuting costs and                   least to pay relocation expenses for all
                                          costs of H–2A employees. Arriaga                         relocation costs cannot be distinguished              newly hired foreign employees, since
                                          misconstrued the Department’s                            on those grounds, however. Both kinds                 international relocation is perhaps less
                                          regulations and is wrongly decided.                      of expenses are incurred by employees                 ‘‘ordinary’’ than intranational

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                                                           Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations                                            77151

                                          relocation. That simply cannot be                        compensable under the FLSA, however,                     The current regulation uses the phrase
                                          correct. The language of 29 U.S.C.                       the question is not whether an employer               ‘‘place from which the worker has
                                          203(m) and 206(a) and their                              receives some benefit from an item or                 departed’’ to describe the beginning
                                          implementing regulations provide a                       paid-for cost, but rather whether they                point from which employers are
                                          very thin reed on which to hang such                     receive the primary benefit.                          required to provide or pay for inbound
                                          a seismic shift in hiring practices,                     Significantly, despite the fact that                  transportation and subsistence, and, if
                                          particularly so many years after those                   employers nearly always derive some                   the worker completes the work contract
                                          provisions have gone into effect. Nor                    benefit from the hiring of state-side                 period, the ending point to which
                                          does the fact that H–2A workers are                      workers as well, such workers’                        employers are required to provide or
                                          temporary guest workers change the                       relocation costs generally have not been              pay for outbound transportation and
                                          equation. Even assuming that H–2A                        considered to be ‘‘primarily for the                  subsistence. This phrase has at times
                                          workers derive somewhat less benefit                     benefit of the employer.’’ That is so                 been interpreted by the Department to
                                          from their jobs because they are only                    because the worker benefits from the                  mean the worker’s ‘‘home,’’ or the place
                                          temporary, that fact alone would not                     travel either more than or just as much               from which the worker was recruited.
                                          render the worker’s relocation expenses                  as the employer.                                      Most recently, the phrase was addressed
                                          an ‘‘incident’’ of the temporary job. If it                 The Department obligated H–2A                      in ETA Training and Employment
                                          did, ski resorts, camp grounds, shore                    employers to pay H–2A workers’                        Guidance Letter No. 23–01, Change 1
                                          businesses, and hotels would all be                      transportation costs not because it                   (August 2, 2002): ‘‘ ‘Home’ is where the
                                          legally required to pay relocation costs                 believed that the workers were entitled               worker was originally recruited.’’ While
                                          for their employees at the beginning of                  to such payments under the FLSA, but                  the Department proposed no changes to
                                          each season—again, a result that is very                 rather in the discharge of its                        this regulatory language or
                                          difficult to square with the language and                responsibilities under the INA to insure              interpretation, comments were received
                                          purpose of 29 U.S.C. 203(m) and 29 CFR                   the integrity of the H–2A program. The                on this point. One agricultural
                                          531.35.                                                  Department carefully crafted its                      association suggested that the
                                             A stronger argument could be made,                    regulation to give H–2A workers a                     Department clarify that transportation
                                          perhaps, that employers derive a                         strong incentive to complete at least 50              from and back to the place from which
                                          greater-than-usual benefit from                          percent of their work contract. The                   the worker came to work should be
                                          relocation costs when they hire foreign                  practical effect of the Arriaga decision,             considered to require transportation
                                          guest workers such as H–2A workers,                      however, is to require H–2A employers                 from or to the site of the U.S. Consulate
                                          because employers generally are not                                                                            that issued the visa. This commenter
                                                                                                   to pay for H–2A workers’ inbound
                                          allowed to hire guest workers unless                                                                           stated:
                                                                                                   transportation costs without any
                                          they have first attempted but failed to
                                                                                                   reciprocal guarantee that the workers                    For the past 20 years the phrase ‘‘from the
                                          recruit U.S. workers. Thus, such
                                                                                                   will continue to work for the employer                place from which the worker has come to
                                          employers have specifically stated a
                                                                                                   after the first workweek. The                         work for the employer to the place of
                                          need to hire non-local workers. Given                                                                          employment,’’ has meant payment of
                                                                                                   Department believes that the payment of
                                          the substantially greater benefit that                                                                         transportation from the location of the U.S.
                                                                                                   such transportation costs unattached to
                                          foreign guest workers generally derive                                                                         Consulate which issued the H–2A visa to the
                                                                                                   a reciprocal guarantee that the needed
                                          from work opportunities in the United                                                                          place of employment of the petitioning
                                                                                                   work will ultimately be performed                     employer. Although the Department in its
                                          States than they do from employment
                                          opportunities in their home countries,                   substantially diminishes the benefit of               memoranda refers to ‘‘place of recruitment’’
                                          however, the Department believes that                    the travel to the employer, and certainly             its examples of how this rule works speaks
                                          this at most brings the balance of                       would not allow the travel to be                      only of transportation from and back to the
                                                                                                   considered primarily for the employer’s               worker’s home country. There is no mention
                                          benefits between the employer and the                                                                          of the worker’s village. This interpretation is
                                          worker into equipoise. Moreover, the                     benefit.
                                                                                                                                                         in line with the INA and DHS regulations
                                          employer’s need for non-local workers                       In sum, the Department believes that               which do not allow a worker to enter the U.S.
                                          does nothing to transform the relocation                 the costs of relocation to the site of the            until that foreign worker has an H–2A visa.
                                          costs into an ‘‘incident’’ of the job                    job opportunity generally is not an                   Thus, the worker cannot ‘‘come to work for
                                          opportunity in a way that would render                   ‘‘incident’’ of an H–2A worker’s                      the employer’’ until he or she has an H–2A
                                          the employee’s payment of the                            employment within the meaning of 29                   visa. It is at the point that the worker has the
                                                                                                   CFR 531.32, and is not primarily for the              H–2A visa that he or she is eligible to go to
                                          relocation expenses a ‘‘kick-back’’ to the                                                                     work for the employer.
                                          employer. If it did, courts would soon                   benefit of the H–2A employer. The
                                          be called upon every time an employer                    Department has publicly stated that ‘‘in                 The Department finds this to be a
                                          hired an out-of-state worker to assess                   enforcing the FLSA for H–2A workers,                  compelling argument. It is the
                                          just how great the employer’s need for                   the Department’s general policy is to                 Department’s program experience that
                                          the out-of-state employee was in light of                ensure that workers receive                           workers, particularly H–2A workers,
                                          local labor market conditions.                           transportation reimbursement by the                   gather in groups for processing and
                                          Conversely, the courts would also have                   time they complete 50 percent of their                transfer to the U.S. The logical gathering
                                          to inquire into the employee’s                           work contract period (or shortly                      point for these workers is at the U.S.
                                          circumstances, and whether the                           thereafter) rather than insisting upon                Consulate location where the workers
                                          employee had reasonably comparable                       reimbursement at the first pay period.’’              receive their visa. In most countries that
                                          job prospects in the area from which the                 The Department continues to believe                   send H–2A workers to the U.S., such
                                          employee relocated. Again, the                           that this is the appropriate                          processing is usually centrally located
                                          Department does not believe such a                       interpretation of the interplay between               (in Monterrey, Mexico, for example,
                                          result is consistent with the text or the                the H–2A program regulations and the                  rather than in Mexico City or another
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                                          intent of the FLSA or the Department’s                   FLSA in regards to transportation                     Consulate location). Designating the
                                          implementing regulations.                                reimbursement. The Department states                  Consulate location where the visa is
                                             It is true, of course, that H–2A                      this as a definitive interpretation of its            issued provides the Department with an
                                          employers derive some benefit from an                    own regulations and expects that courts               administratively consistent place from
                                          H–2A worker’s inbound travel. To be                      will defer to that interpretation.                    which to calculate charges and

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                                          77152            Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations

                                          obligations. We have therefore made                      misrepresenting the length of the                     U.S. workers who show up in the
                                          corresponding changes in the regulatory                  season. They suggested the Department                 middle of the contract period. This
                                          text to clarify that the ‘‘place from                    add language to allow workers to collect              commenter does not believe that an
                                          which the worker has departed’’ for                      the three-fourths guarantee ‘‘based on                employer should have any liability
                                          foreign workers outside of the U.S. is                   the average number of hours worked in                 under the three-fourths guarantee rule
                                          the appropriate U.S. Consulate or port of                a particular crop region and upon a                   for such unreliable employees. The
                                          entry.                                                   showing of having worked through the                  guarantee has never applied to workers
                                             Finally, the Department sought to                     last week in which the employer offered               who voluntarily abandon employment
                                          clarify that minimum safety standards                    work to a full complement of his                      or who never show up for the work,
                                          required for employer provided                           workforce.’’                                          provided notice of such abandonment or
                                          transportation between the worker’s                         The Department believes the rule                   no-show is provided to DOL within the
                                          living quarters (provided or secured by                  provides essential protection for both                time frames for reporting an
                                          the employer pursuant to INA sec.                        U.S. and H–2A workers, in that it                     abandonment that are set forth in
                                          218(c)(4)) and the worksite are the                      ensures their commitment to a                         § 655.104(n). The Department has
                                          standards contained in MSPA (29 U.S.C.                   particular employer will result in real               further clarified that provision in the
                                          1841). The Department does not seek to                   jobs that meet their reasonable                       Final Rule by defining abandonment of
                                          apply MSPA to H–2A workers and has                       expectations. The Department also                     the job as the worker failing to report for
                                          no authority to do so. This clarification                believes the rule is not easy to abuse or             work for 5 consecutive days.
                                          is intended to remove any ambiguity                      circumvent, as it is based on a simple                   Farmworker advocates expressed
                                          concerning the appropriate minimum                       mathematical calculation. For those                   concern that the Department would not
                                          vehicle safety standards for H–2A                        employers that might try to evade their               enforce this provision. The Department
                                          employers and should simplify                            responsibilities, the Department has                  appreciates the concerns raised and
                                          compliance for those H–2A employers                      enforcement measures and penalties to                 assures the public it intends to enforce
                                          that also employ MSPA workers.                           act as a deterrent.                                   this provision fully, as it intends to
                                             Other changes to the language of the                     Changing the three-fourths guarantee               implement the entire rule.
                                          proposed provision—most significantly,                   to be based on a per-crop harvest                        Another commenter requested
                                          the notation that an employer’s return                   calculation using an average of hours                 clarification on what hours an employer
                                          transportation obligation under                          worked rather than a contract period                  may count toward the three-fourths
                                          § 655.104(h)(2) applies where ‘‘the                      would make it nearly impossible to                    guarantee when an employee
                                          worker has no immediately subsequent                     track and enforce the guarantee. To                   voluntarily works more than the
                                          H–2A employment’’—are non-                               require employers to keep track of                    contract requires. The commenter asked
                                          substantive and have been made for                       workers on a per-crop basis and allow                 for language to be inserted into
                                          purposes of clarification.                               the workers to collect money based on                 § 655.104(i)(3) stating that all hours of
                                                                                                   the three-fourths guarantee when the                  work actually performed including
                                          (i) Section 655.104(i) Three-Fourths
                                                                                                   U.S. workers transition from one                      voluntary work over and above the
                                                                                                   employer to another during the peak                   contract requirement can be counted by
                                             The Department chose, in the NPRM,                    harvesting times appears patently unfair              the employer. The Department believes
                                          to continue the so-called ‘‘three-fourths                and the Department is not willing to                  that this principle was already made
                                          guarantee,’’ by which it ensures that H–                 create such an option.                                clear by § 655.104(i)(1), but it has added
                                          2A workers are offered a certain                            Two commenters also suggested that                 the requested language for purposes of
                                          guaranteed number of hours of work                       the Department take out the reference to              clarification.
                                          during the specified period of the                       ‘‘work hours’’ and return the term                       In proposed § 655.104(i)(4) the
                                          contract, and that if they are not offered               ‘‘workday’’ because the commenters                    Department sought to reiterate the
                                          enough hours of work, that they are paid                 believed that the employer might                      employer’s obligation to provide
                                          as though they had completed the                         otherwise submit job orders based on a                housing and meals to workers during
                                          specified minimum number of work                         ‘‘bogus’’ hourly work day or work week.               the entire contract period,
                                          hours. In doing so, the Department                       The Department believes that this                     notwithstanding the three-fourths
                                          suggested some minor changes to make                     concern is misplaced. The new                         guarantee. The proposed paragraph,
                                          the guarantee easier to apply in practice.               terminology proposed by the                           while properly entitled ‘‘Obligation to
                                             One grower association objected to                    Department is no more susceptible to                  provide housing and meals,’’
                                          the continuation of the three-fourths                    abuse than the old terminology is; under              inadvertently discussed an obligation to
                                          guarantee. They stated that it needs to                  either phrasing, employer fraud requires              provide meals and transportation. Two
                                          be eliminated because it is arcane, is                   submitting false calculations of work.                comments were received on this
                                          seldom understood by the growers, and                    The Department purposely added the                    paragraph. One employer association
                                          complicates the system by creating more                  sentence with ‘‘work hours’’ and kept                 suggested that the text of the paragraph
                                          ‘‘red tape’’ for the growers. Other                      the old references to ‘‘workday’’ in the              be revised to reflect that employers are
                                          commenters supported the rule, but                       NPRM to make the formula for                          not obligated to provide housing to
                                          commented on the nuances of the                          calculation of the total amount                       workers who quit or are terminated for
                                          changes made to the rule under the                       guaranteed easier to understand and                   cause. One employee advocacy
                                          NPRM. A few commenters expressed                         calculate. The end result is the same                 organization commented that the
                                          the view that the guarantee deters                       under either phrasing, however.                       clarification that the employer is not
                                          employers from over-recruiting, which                       A farm bureau requested that we                    allowed to shut down the labor camp or
                                          may create an oversupply of workers                      insert language at the end of                         the camp kitchen during the contract
                                          and drive wages down, and also assures                   § 655.104(i)(1) to protect employers                  period is a positive change. The
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                                          long-distance migrants that attractive                   from the costs resulting from U.S.                    Department has modified the paragraph
                                          job opportunities exist. However, some                   workers who voluntarily abandon                       to clarify that it is the employer’s
                                          commenters also believe that the                         employment in the middle of the                       obligation to provide housing and meals
                                          guarantee requirement results in                         contract period and then return at the                during the contract period that is not
                                          employer abuses, such as employers                       end of the contract period or from those              affected by the three-fourths guarantee,

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                                          and to clarify that employers are not                    documentation of a designation of                     that normally required by other
                                          obligated to provide housing to workers                  representative status must be provided                employers in the area.
                                          who voluntarily abandon employment                       to the employer.                                         No commenter explicitly opposed the
                                          or are terminated for cause.                                Instead of changing the term                       change in the methodology by which
                                            Finally, in the NPRM the Department                    ‘‘reasonable’’ notice in the Final Rule to            acceptable productivity standards are
                                          inadvertently deleted some qualifying                    refer to a specific number of days,                   determined, but several employers
                                          phrases from this provision that are                     however, the Department has instead                   asked for additional flexibility to be
                                          contained in the current regulation, and                 decided to adopt in § 655.104(j)(2) of the            allowed to use a productivity standard
                                          has accordingly in the Final Rule                        Final Rule the standard for production                even if the majority of employers in the
                                          reverted to the language of the current                  of records that is currently found at 29              area do not utilize one. We believe the
                                          regulation. Section 655.104(i)(3)                        CFR 516.7 and that the WHD uses under                 ‘‘normal’’ standard, which the
                                          discusses an employee’s failure to work                  the FLSA. The Secretary can already                   Department will retain in the Final
                                          in the context of calculating whether the                request most H–2A records kept                        Rule, will provide adequate flexibility
                                          period of guaranteed employment has                      pursuant to this rule under the FLSA,                 for employers while ensuring that the
                                          been met. The Final Rule reinserts the                   and having one standard will help to                  wages and working conditions of U.S.
                                          phrase currently in the regulations at                   avoid confusion in the regulated                      workers are not adversely affected by
                                          § 655.102(b)(6)(iii) permitting an                       community.                                            the use of productivity rates not normal
                                          employer to count ‘‘all hours of work                                                                          in the area of intended employment.
                                                                                                   (k) Section 655.104(k) Hours and
                                          actually performed (including voluntary                                                                        Clarifying language has been added to
                                                                                                   Earnings Statements
                                          work over 8 hours in a workday or the                                                                          the provision supplying the
                                          worker’s Sabbath or Federal Holidays).’’                   The Department did not receive any                  Department’s interpretation of the term
                                          The Final Rule also reinserts as                         comments on this section. However, the                ‘‘normal’’ to mean ‘‘not unusual.’’ The
                                          § 655.104(i)(4) the statement found in                   Department made non-substantive                       Department has long applied this
                                          the current regulation at                                punctuation changes to the provision in               meaning of the term ‘‘normal’’ In the H–
                                          § 655.102(b)(6)(iv) that an employer is                  the Final Rule to reflect plain language              2A context. See, e.g., ETA Handbook
                                          not liable for payment of the three-                     standards.                                            No. 398 at II–7 (‘‘The terms ‘normal’ and
                                          quarters guarantee to an H–2A worker                     (l) Section 655.104(l) Rates of Pay                   ‘common’, although difficult to
                                          whom the CO certifies has been                                                                                 quantify, for H–2A certification
                                          displaced because of the employer’s                         In the NPRM, the Department                        purposes mean situations which may be
                                          compliance with its obligation under                     proposed to require employers to pay                  less than prevailing, but which clearly
                                          these rules, where applicable, to accept                 the highest of the adverse effect wage                are not unusual or rare.’’); id. at I–40
                                          referrals of U.S. workers after its date of              rate, the prevailing wage rate, or the                (noting that the Department will
                                          need.                                                    Federal, State, or local minimum wage.                carefully examine job qualifications,
                                                                                                   The Final Rule retains this requirement,              which are required by statute to be
                                          (j) Section 655.104(j) Records                           with some minor non-substantive                       ‘‘normal’’ and ‘‘accepted,’’ if the
                                             The NPRM proposed continuing the                      clarifications to the text of the                     qualifications are ‘‘unusual’’). It is also
                                          ‘‘keeping of adequate and accurate                       provision; comments specific to the                   within the range of generally accepted
                                          records’’ with respect to the payment of                 issue of actual rates that will be required           meanings of the term. See, e.g., Black’s
                                          workers, making only minor                               and the timing of their application are               Law Dictionary 1086 (8th ed. 2004)
                                          modifications to the current regulation.                 dealt with in the discussion of                       (‘‘The term describes not just forces that
                                          The Department received several                          § 655.108.                                            are constantly and habitually operating
                                          comments specific to the provisions of                      Because this provision discusses the               but also forces that operate periodically
                                          this section.                                            use of piece rates, several commenters                or with some degree of frequency. In
                                             A commenter requested that the                        took the opportunity to suggest changes               this sense, its common antonyms are
                                          Department eliminate the requirement                     to how piece rates are treated within the             unusual and extraordinary.’’); Webster’s
                                          for employers to provide information to                  H–2A program. Worker advocates                        Unabridged Dictionary 1321 (2d ed.
                                          the worker through the worker’s                          argued for reinstitution of the pre-1986              2001) (supplying ‘‘not abnormal’’ as one
                                          representative upon reasonable notice.                   rules regarding piece rate adjustments.               of several definitions). Thus, ‘‘normal’’
                                          The Department does not believe this                     Some employers argued that the                        does not require that a majority of
                                          requirement should be eliminated                         Department should not attempt to                      employers in the area use the same
                                          because it is the Department’s goal to                   regulate piece rates at all. As the NPRM              productivity standard. If there are no
                                          encourage the availability of                            did not propose changes to the now                    other workers in the area of intended
                                          information to workers. Another                          long-standing procedures for the                      employment that are performing the
                                          commenter suggested refinements to the                   regulation of piece rates, the Department             same work activity, the Department will
                                          provision, including suggesting that a                   did not adopt any of these suggested                  look to workers outside the area of
                                          ‘‘worker’s representative’’ be defined                   changes in the Final Rule.                            intended employment to assess the
                                          and documented in some manner so as                         The NPRM proposed a modest change                  normality of an employer’s proposed
                                          to prevent the theft of information under                to the regulation governing productivity              productivity standard.
                                          the guise of disclosure to worker’s                      standards. Under existing regulations,                   With respect to other provisions in
                                          representatives, and also to require                     an employer who pays on a piece rate                  the NPRM, some commenters argued
                                          disclosure of records within five days                   basis and utilizes a productivity                     that the Department is required by
                                          instead of upon ‘‘reasonable’’ notice.                   standard as a condition of job retention              statute to use a ‘‘prevailing’’ standard
                                             The Department agrees that it did not                 must utilize the productivity standard                with respect to all practices permitted
                                          clarify in sufficient detail how a                       in place in 1977 or the first year the                by the regulations. These commenters
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                                          designated worker’s representative                       employer entered the H–2A system with                 argued that the use of anything less than
                                          should be identified so as to prevent                    certain exceptions and qualifications.                a ‘‘prevailing practice’’ standard
                                          unauthorized disclosure of records, and                  The NPRM proposed to simplify this                    necessarily adversely affects U.S.
                                          it accordingly has added language to the                 provision by requiring that any                       workers. The Department disagrees. The
                                          Final Rule stating that appropriate                      productivity standard be no more than                 Department notes that with respect to

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                                          many types of practices, it may not even                 are paid, and not the amount to which                    One commenter noted that the
                                          be possible to determine what the                        they are entitled.                                    proposed regulation eliminates a current
                                          ‘‘prevailing’’ practice is. For example,                                                                       requirement that ‘‘the employer will
                                                                                                   (n) Section 655.104(n)          Abandonment
                                          there may be a wide range of                                                                                   make efforts to transfer the worker to
                                                                                                   of Employment
                                          productivity standards used by                                                                                 other comparable employment
                                          employers in a given area, none of                          The NPRM included a provision                      acceptable to the worker,’’ and stated
                                          which is used by 50 percent of                           stating that the employer is not required             that U.S. workers, in particular, would
                                          employers or with respect to 50 percent                  to pay the transportation and                         benefit from such an effort. The
                                          of workers. Furthermore, many practices                  subsistence expenses of employees who                 Department declines to adopt this
                                          are not readily susceptible to averaging:                abandon employment, provided the                      suggestion, as it believes the workers
                                          For example, with respect to practices                   employer notifies the Department or                   themselves will be in a better position
                                          regarding the frequency with which                       DHS within 2 workdays of                              to find alternative job opportunities
                                          workers are paid, some employers may                     abandonment. One association of farm                  than an employer whose business
                                          pay workers at the end of each week,                     employers argued that this requirement                enterprise has been substantially
                                          others at the end of every two weeks,                    was unreasonable in that the typical                  impacted by an Act of God. In response
                                          and others twice a month. If one third                   practice is termination 3 days beyond                 to this comment, the Department has,
                                          of employers used each method, which                     the abandonment or ‘‘no show’’ of the                 however, added language to the Final
                                          practice would be ‘‘prevailing’’?                        worker. An employer opined that this                  Rule specifying that the H–2A worker
                                             The Department has examined each                      requirement should create an obligation               may choose whether the employer
                                          type of employment practice and each                     on the part of the Department to help                 terminating the H–2A contract should
                                          type of working condition that is                        employers locate and pursue remedies                  pay to transport them ‘‘to the place from
                                          addressed by this rule to determine                      against employees who voluntarily                     which the worker (disregarding
                                          what parameters or limits are necessary                  abandon employment without returning                  intervening employment) came to work
                                          to ensure that U.S. workers will not be                  to their home country.                                for the employer, or transport the
                                          adversely affected. With respect to                         The Department acknowledges the                    worker to the worker’s next certified H–
                                          productivity standards, the Department                   need for clarification in the provision to            2A employer (but only if the worker can
                                          has determined that a range of practices                 ensure that the requirement begins to                 provide documentation supporting such
                                          are acceptable, and that it is unlikely                  run only when the abandonment or                      employment).’’ The limitation providing
                                          that U.S. workers will be adversely                                                                            that a worker who requests
                                                                                                   abscondment is discovered. The
                                          affected if H–2A employers use a                                                                               transportation to the next employer
                                                                                                   Department has therefore added
                                                                                                                                                         must provide documentation of that
                                          productivity standard that is not                        language to the provision clarifying that
                                                                                                                                                         employment will help to ensure that H–
                                          unusual for non-H–2A employers to                        the employer must notify DOL and DHS
                                                                                                                                                         2A workers who do not have subsequent
                                          apply to their U.S. workers. The                         no later than 2 workdays ‘‘after such
                                                                                                                                                         employment inside the United States
                                          Department will not, however, certify                    abandonment or abscondment occurs.’’
                                                                                                                                                         return to the country from which they
                                          applications containing unusual                          The Department has added further
                                                                                                                                                         came to the United States rather than
                                          productivity standards that are clearly                  clarification to ensure that employers
                                                                                                                                                         remaining in the United States illegally.
                                          prejudicial to U.S. workers.                             must meet the identical standards for                    To conform to similar changes made
                                                                                                   notification to DOL as to DHS, so that                elsewhere in the rule, the Final Rule
                                          (m) Section 655.104(m)           Frequency of
                                                                                                   a worker is deemed to have absconded                  clarifies that ‘‘for an H–2A worker
                                                                                                   when the worker has not reported for                  coming from outside of the U.S., the
                                             The Department proposed in the                        work for a period of 5 consecutive work               place from which the worker
                                          NPRM to continue the requirement of                      days without the agreement of the                     (disregarding intervening employment)
                                          the current regulation that the employer                 employer. The Department has extended                 came to work for the employer is the
                                          must state in the job offer the rate of                  this standard to a worker’s failure to                appropriate U.S. consulate or port of
                                          frequency that the worker is to be paid,                 report at the beginning of a work                     entry.’’
                                          based upon prevailing practice in the                    contract. This is intended to clarify for                Other changes to the language of the
                                          area but in no event less frequently than                the employer that the same standard of                proposed rule are non-substantive and
                                          twice a month. The Department                            reporting applies for both agencies. The              have been made for purposes of
                                          received one comment on this provision                   Department declines to include                        clarifying the provision or to conform to
                                          noting that weekly or daily earnings are                 provisions prescribing new employer                   changes made elsewhere in the Final
                                          ‘‘always’’ the prevailing practice in                    remedies against workers who abandon                  Rule.
                                          agriculture, never bi-weekly, and that                   the job, but notes that abandonment of
                                          the Department should accordingly                        a job may result in a worker being                    (p) Section 655.104(p) Deductions
                                          require weekly payment. After                            ineligible to return to the H–2A                         The Department, in the NPRM,
                                          considering this comment, the                            program.                                              proposed requiring employers to make
                                          Department has determined that it                                                                              assurances in their application that they
                                                                                                   (o) Section 655.104(o)         Contract
                                          would be difficult, and not at all cost-                                                                       will make all deductions from the
                                          effective, to use surveys to determine                                                                         workers’ paychecks that are required by
                                          the frequency with which employers in                       The current and proposed regulations               law. A group of farmworker advocacy
                                          a given area typically pay their                         contain a provision that allows an                    organizations asserted that the
                                          employees. The Department has                            employer to ask permission from the                   Department was skirting its
                                          therefore decided to retain the                          Department to terminate an H–2A                       responsibility under Arriaga by
                                          minimum requirement that employees                       contract if there is an extraordinary,                allowing ‘‘reasonable’’ deductions to be
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                                          must be paid at least twice monthly, but                 unforeseen, catastrophic event or ‘‘Act               taken from a worker’s paycheck without
                                          has dropped the reference to the use of                  of God’’ such as a flood or hurricane (or             any mention of the FLSA. This
                                          prevailing practices. The Department                     other severe weather event) that makes                commenter believes that the Department
                                          notes that this modest change affects                    it impossible for the business to                     inappropriately removed clarifying
                                          only the frequency with which workers                    continue.                                             language in the current regulation that

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                                          ‘‘an employer subject to the Fair Labor                  expressing approval of the new                        the port of entry without having to file
                                          Standards Act (FLSA) may not make                        attestation-based process, and others                 a new petition. An Application for
                                          deductions which will result in                          opposed to such a change. Still other                 Temporary Employment Certification is
                                          payments to workers of less than the                     commenters expressed general approval                 filed without the names of the foreign
                                          federal minimum wage permitted by the                    of the new attestation-based approach                 workers. Substitution of workers is
                                          FLSA.’’ This commenter opined that                       but suggested changes to the attestations             permitted by the DHS companion rule.
                                          workers under the H–2A program are                       and the process of submitting such
                                                                                                                                                         (a) Section 655.105(a)
                                          entitled to full coverage under the                      attestations.
                                          FLSA, and that the Department should                        The Department received two                           The attestation obligation set forth in
                                          not make regulatory changes which                        comments regarding the substantive                    § 655.105(a) in the NPRM requires the
                                          suggest otherwise. By eliminating this                   obligations imposed on employers                      employer to assure the Department that
                                          language from the rule, this commenter                   through the attestations. One                         the job opportunity is open to any U.S.
                                          believes the Department would                            commenter requested that the                          worker and that the employer
                                          effectively undermine the rights of farm                 Department add another attestation that               conducted (or will conduct) the
                                          workers to be paid the minimum wage                      employers will not confiscate workers’                required recruitment, and was still
                                          free and clear of costs imposed on them                  passports. Another commenter                          unsuccessful in locating qualified U.S.
                                          for inbound transportation and visa                      requested that the Department impose                  applicants in sufficient numbers to fill
                                          costs, as established by case law.                       substantial penalties on employers who                its need. This assurance was criticized
                                             The Department does not agree with                    lure H–2A workers away from contract                  by a farm bureau because it believes that
                                          this commenter’s characterization of the                 jobs before the termination of their                  it is impossible for employers to state
                                          applicability of the FLSA to H–2A                        contracts. This commenter believes that               they ‘‘will conduct’’ recruitment as
                                          workers, including regarding inbound                     such a practice victimizes both the                   required in the regulations and at the
                                          transportation. Nevertheless, we have                    employer, who loses laborers, and the                 same time attest that they were
                                          returned the deleted language to the                     employee, who loses status under U.S.                 unsuccessful in finding any U.S.
                                          Final Rule to clarify that employers                     law when they prematurely terminate a                 workers. The Department has clarified
                                          must of course comply with all statutory                 contract.                                             this language in the Final Rule to enable
                                          requirements applicable to them.                            The Department is not aware that the               employers to attest that the employer
                                                                                                   confiscation of passports is a                        ‘‘has been’’ unsuccessful in locating
                                          (q) Section 655.104(q) Copy of Work                      widespread practice among agricultural                U.S. workers sufficient to fill the stated
                                          Contract                                                 employers hiring H–2A workers.                        need.
                                             The NPRM contained the provision                      However, where evidence of such                          One group of advocacy organizations
                                          found in the current regulation                          practice is found, it would likely                    believes the Department should retain
                                          specifying that a copy of the work                       indicate the presence of other practices              the language from the current
                                          contract must be provided to the worker                  prohibited by the H–2A regulations,                   § 655.103(c), which states: ‘‘Rejections
                                          no later than the date the work                          such as the withholding of pay and                    and terminations of U.S. workers. No
                                          commences. One group of farmworker                       other program entitlements. In such                   U.S. worker will be rejected for or
                                          advocacy organizations pointed out that                  situations, the Department possesses                  terminated from employment for other
                                          this proposed regulation does not                        mechanisms under this Final Rule to                   than a lawful job-related reason, and
                                          require that the work contract be given                  investigate and take appropriate action               notification of all rejections or
                                          to the employee in the employee’s                        against such unscrupulous employers,                  terminations shall be made to the
                                          native language and believed that these                  both through program actions including                SWA.’’ (Emphasis supplied.) This
                                          regulations as proposed are contrary to                  revocation and debarment and through                  commenter requests that the provision
                                          the requirements in MSPA for domestic                    direct enforcement with civil fines and               against termination should be added to
                                          workers. The Department has decided to                   debarment.                                            the assurance found in the new
                                          make no substantive changes to this                         On the subject of changes of                       § 655.105(a), specifically where it states:
                                          provision. Employers seeking to hire H–                  employment, the proposed companion                    ‘‘Any U.S. workers who applied for the
                                          2A workers, as with all employers                        regulation to the Department’s NPRM,                  job were rejected for only lawful, job-
                                          seeking to recruit agricultural workers                  issued by USCIS at 73 FR 8230, Feb. 13,               related reasons.’’
                                          under the Wagner/Peyser system, must                     2008, underscored that H–2A workers                      The Department declines to add
                                          file a Form ETA 790 with the SWA. This                   are free to move between H–2A certified               language regarding terminations at this
                                          Form provides the necessary disclosures                  jobs, and proposed to provide even                    location in the regulations. The
                                          for MSPA purposes. The form itself is                    greater mobility toward that end. The                 provision at issue is an attestation by an
                                          bilingual. In addition, section 10(a) of                 ability of workers to move to new H–2A                employer regarding the hiring of U.S.
                                          the Form specifically requires that the                  employment when the current H–2A                      workers, not their termination. The
                                          summary of the material job                              contract is completed is not something                termination of U.S. workers for
                                          specifications be completed by the                       the Department wishes to discourage. A                inappropriate reasons is already covered
                                          employer in both English and Spanish.                    worker who abandons a job before its                  under the regulations by the prohibition
                                          The changes made to the language of the                  conclusion must be reported to DOL and                in § 655.105(j), discussed below.
                                          provision in the Final Rule are non-                     DHS, and, depending on the reason for                    The Department added several
                                          substantive and were made to provide                     the abandonment, such abandonment                     clarifications and conforming changes to
                                          better clarity.                                          may result in a violation of H–2A status              the text of the proposed provisions.
                                                                                                   and the consequent inability to                       First, the Department added language
                                          Section 655.105 Assurances and                           commence employment with another                      clarifying that the employer must attest
                                          Obligations of H–2A Employers                            employer. Such abandonment may also                   that it will keep the job opportunity
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                                             The Department proposed instituting                   adversely affect a worker’s future                    open to qualified U.S. workers ‘‘through
                                          an application requiring employers to                    eligibility to participate in the H–2A                the recruitment period,’’ which is
                                          attest to their adherence to the                         program.                                              defined at § 655.102(f)(3). Second, the
                                          obligations of the H–2A program. The                        One commenter requested that we                    Department added language clarifying
                                          Department received many comments                        allow substitution of H–2A workers at                 that the employer must attest that it has

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                                          hired and will hire all U.S. workers who                 conditions that are deliberately                      clarify that the Department will evaluate
                                          apply for the job and are not rejected for               designed by employers to discourage                   whether job opportunities are vacant
                                          lawful, job-related reasons. Third, and                  U.S. workers from applying for job                    because of a strike, lockout, or work
                                          relatedly, the Department added                          openings.                                             stoppage on an individual case-by-case
                                          language stating that an employer must                      Because the Department has indicated               basis. As the Department’s current ETA
                                          attest that ‘‘it will retain records of all              in the Final Rule the specific standard               Handbook No. 398 explains at page II–
                                          rejections as required by § 655.119.’’                   (i.e., ‘‘common,’’ ‘‘normal,’’                        23, the Department must ensure that
                                          Other changes to the language of the                     ‘‘prevailing’’) that applies to each type             ‘‘the specific positions vacant because of
                                          provision were minor and non-                            of covered job term and working                       the dispute will not be included in any
                                          substantive, and made for purposes of                    condition, the Department has deleted                 otherwise positive H–2A certification
                                          providing additional clarity.                            language from the proposed rule that                  determination or redetermination.’’
                                                                                                   might have been understood to apply a                    The purpose of the strike/lock-out
                                          (b) Section 655.105(b)                                   catch-all requirement to all job terms                provision is to ensure that striking U.S.
                                             The Department proposed in the                        and working conditions that they be                   workers are not replaced with
                                          NPRM that employers be required to                       ‘‘normal to workers similarly employed                temporary foreign workers, thereby
                                          offer terms and conditions that are                      in the area of intended employment.’’                 adversely affecting such workers.
                                          ‘‘normal to workers similarly                            Retaining this language would have                    However, if an agricultural employer
                                          employed’’ and ‘‘which are not less                      resulted, in some instances, in                       needs twenty workers, and only ten of
                                          favorable than those offered to the H–2A                 application of different standards to the             the positions are vacant because
                                          workers.’’ One commenter believed that                   same job requirements, potentially                    workers are on strike, the employer
                                          this standard is not sufficiently                        creating substantial confusion. The                   should not be prohibited from hiring H–
                                          protective of the wages and working                      deleted language might also have been                 2A workers to fill the ten job openings
                                          conditions of U.S. farmworkers to meet                   misconstrued as applying to job terms                 that are not strike-related. Hiring foreign
                                          the statutory precondition that the                      and working conditions that are not                   workers to fill positions of U.S. workers
                                          employment of foreign workers will not                   elsewhere addressed in the Final Rule.                that are on strike is likely to adversely
                                          adversely affect the wages and working                   The Department never intended for the                 affect the U.S. workers, but hiring H–2A
                                          conditions of U.S. workers. According                    deleted language to apply to such                     workers to fill positions that are not
                                          to this commenter, a practice applying                   peripheral job requirements; those job                vacant because of a strike would not.
                                          to a small percentage of workers may                     terms and working conditions that the                 The language of this provision in the
                                          still be considered ‘‘normal.’’ This                     Department considers to be central to                 Final Rule is also more consistent with
                                          commenter opined that this criterion                     H–2A work and to preventing an                        the Department’s statutory authority to
                                          violates the statute, because requiring                  adverse effect on U.S. workers—such as                withhold a labor certification where
                                          anything less than the prevailing                        wages, housing, transportation, tools,                granting the certification would
                                          practices of non-H–2A employers with                     and productivity requirements—have                    adversely affect the wages and working
                                          respect to job terms will necessarily                    each been specifically addressed                      conditions of U.S. workers.
                                          harm U.S. workers, either by putting                     elsewhere in the Final Rule. The Final                   Comments regarding the NPRM’s
                                          downward pressure on wages and                           Rule retains the requirement that                     labor dispute provisions, which overlap
                                          conditions and/or by facilitating job                    employers must offer job terms and                    with the contents of § 655.109(b)(4)(i) of
                                          offers that are meant to deter U.S.                      working conditions that ‘‘are not less                the NPRM, are addressed in the
                                          workers from applying and accepting                      than the minimum terms and conditions                 discussion of that section below.
                                          work.                                                    required by this subpart.’’ This language
                                             For reasons that have already been                    ensures that employers must attest to                 (d) Section 655.105(d)
                                          discussed above, the Department                          their adherence to the standard                          The NPRM included a provision that
                                          disagrees. Where the Department has                      specified in the Final Rule for each                  required the employer to attest it would
                                          identified particular terms or working                   covered job term and working                          continue to cooperate with the SWA by
                                          conditions that have an important                        condition.                                            accepting referrals of all eligible and
                                          impact on U.S. workers—such as wages                                                                           qualified U.S. workers who apply (or on
                                          or the obligation to provide tools—it has                (c) Section 655.105(c)
                                                                                                                                                         whose behalf an application is made) for
                                          inserted provisions addressing them                         The Department proposed in the                     the job opportunity until the date the H–
                                          directly. Not every term or condition                    NPRM to continue to require that the                  2A workers departed or three days prior
                                          attaching to a job, however, threatens to                employer submitting an application                    to the date of need, whichever was later.
                                          negatively impact the wages and                          attest that the job opportunity being                 The language of the provision in the
                                          working conditions of U.S. workers                       offered to H–2A workers is not vacant                 Final Rule has been modified to render
                                          simply because it is not a ‘‘prevailing’’                because the former occupants are on                   it consistent with § 655.102(f)(3), which
                                          condition. An employer may, for                          strike or locked out in the course of a               specifies that employers must continue
                                          example, be the only employer in the                     labor dispute involving a work                        to accept referrals until the ‘‘end of the
                                          area that grows a particular crop, or that               stoppage. The language of the proposed                recruitment period’’ as defined in that
                                          requires the use of a particular tool.                   provision has been modified in the                    provision.
                                          Such requirements generally do not                       Final Rule by reverting to the language                  The only comment that the
                                          threaten to adversely affect U.S. workers                in the current regulation at § 655.103(a),            Department received on this section is
                                          and are not improper for employers to                    which provides that the employer must                 discussed in greater detail under the
                                          impose. Moreover, as noted above, it is                  assure the Department that ‘‘[t]he                    Department’s discussion of the 50
                                          often very difficult, if not impossible, to              specific job opportunity for which the                percent rule in § 655.102(b), above.
                                          determine what the ‘‘prevailing                          employer is requesting H–2A
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                                          practice’’ is with respect to certain types              certification is not vacant because the               (e) Section 655.105(e)
                                          of job terms and working conditions.                     former occupant is on strike or being                    No comments were received on
                                          Other specific provisions in the                         locked out in the course of a labor                   § 655.105(e)(1) regarding the attestation
                                          regulations safeguard against job                        dispute.’’ The Department is reverting to             promising to comply with all labor laws.
                                          qualifications, terms, and working                       the current regulatory language to                    Comments received on § 655.105(e)(2)

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                                                           Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations                                        77157

                                          pertaining to the housing attestation are                will suffice. In addition, the Department             One commenter opined that the
                                          addressed in the discussion of                           revised the notification requirement in               Department should scrutinize employer
                                          §§ 655.102(e) and 655.104(d). Comments                   the Final Rule to reflect that a report               applications that offer U.S. workers a
                                          received on § 655.105(e)(3) pertaining to                must be made no later than 2 workdays                 30-hour work week arguing that such a
                                          the workers’ compensation attestation                    after the employee absconds, which,                   requirement is not normal and is meant
                                          are addressed in the discussion of                       consistent with DHS, has been defined                 to dissuade U.S. workers from applying
                                          § 655.104(e). Finally, comments                          as 5 consecutive days of not reporting                when in reality H–2A workers would
                                          received with respect to § 655.105(e)(4)                 for work. The text of this provision has              work 50–60 hours a week. The
                                          about the transportation attestation are                 been modified accordingly.                            commenter argues, under the new rule,
                                          addressed in the discussion of                              The Department also received                       it will become impossible for the
                                          § 655.104(h) and the comments received                   comments on this section relating to                  Department to deny an application
                                          in connection with § 655.105(e)(4)                       notification when H–2A workers leave                  because the standard for what is
                                          regarding worker protections are                         their home country for the first place of             ‘‘normal’’ is so lax.
                                          addressed in the discussion of the                       intended employment. The Department                      The word ‘‘normal’’ in § 655.105(i)
                                          section on revocation at § 655.117.                      believes those comments pertain to                    does not refer to the requirement that
                                          Several minor non-substantive                            requirements in the DHS NPRM                          the jobs be full-time, but rather to the
                                          modifications have been made to the                      published February 13, 2008 rather than               qualifications provision in that section.
                                          text of the provision for purposes of                    the Department’s NPRM of the same                     Thirty hours a week is the minimum to
                                          clarity and to conform to changes made                   date.                                                 be considered full-time employment in
                                          elsewhere in the Rule.                                                                                         the H–2A program and the Department
                                                                                                   (g) Section 655.105(g) Offered Wage
                                          (f) Section 655.105(f)                                   Assurances                                            has, as a clarification, provided that
                                                                                                                                                         definition of full-time in this section in
                                             Several comments were received on                        Comments received pertaining to the                the Final Rule. Moreover, other
                                          § 655.105(f), which as published in the                  offered wage are addressed in the                     provisions in these regulations (see, e.g.,
                                          NPRM required employers to notify the                    response to comments on § 655.108. The                §§ 655.103, 655.105(b)) prohibit giving
                                          Department and DHS within 48 hours if                    Department added language to the text                 H–2A workers more favorable job terms
                                          an H–2A worker leaves the employer’s                     of this provision in the Final Rule to                than were advertised to U.S. workers,
                                          employ prior to the end date stipulated                  clarify that, as a matter of enforcement              which include the number of hours of
                                          on the labor certification. The                          policy, the adverse effect wage rates that            employment.
                                          commenters thought that 48 hours was                     are in effect at the time that recruitment
                                          not enough time to accomplish this                                                                                Another commenter noted that
                                                                                                   is initiated will remain valid for the
                                          especially in light of DHS’ requirement                                                                        requirements that the job duties be
                                                                                                   entire period of the associated work
                                          that proof of notification be kept for up                                                                      normal to the occupation and not
                                                                                                   contract. This enforcement policy will
                                          to one year. The commenters thought it                                                                         include a combination of duties not
                                                                                                   honor the settled expectations of
                                          was unfair to require the employer to                                                                          normal to the occupation has led to
                                                                                                   workers and employers regarding their
                                          comply with this requirement and incur                                                                         frequent disputes, particularly in
                                                                                                   respective earnings and costs under an
                                          the added expense of sending the notice                                                                        specialty areas of agriculture. This
                                                                                                   H–2A work contract and will avoid
                                          by certified mail. One commenter went                                                                          commenter noted that there is a
                                                                                                   surprises that might give rise to
                                          on to say that such notice is not needed                                                                       distinction between restrictive
                                                                                                   disputes. It will also be an easy rule for
                                          in all cases. The commenter cited the                                                                          requirements that are clearly contrived
                                                                                                   the Department to administer,
                                          example of an employee transferring to                                                                         for the purpose of disqualifying
                                                                                                   particularly when calculating payments
                                          another employer with approval to do                                                                           domestic workers and those directly
                                                                                                   due under the three-quarters guarantee.
                                          so by the Department and DHS and asks                                                                          designed to producing specialized
                                                                                                   Because H–2A contracts never last more
                                          why the employer should still be                                                                               products, utilizing unusual production
                                                                                                   than a year, locking in wage rates for the
                                          required to provide notification in such                                                                       techniques or otherwise seeking to
                                                                                                   duration of a contract in this manner
                                          cases. According to this commenter,                                                                            distinguish their products in the
                                                                                                   will not significantly prejudice workers
                                          notification should only be required if                                                                        marketplace.
                                                                                                   or employers in the event that wage
                                          the H–2A worker absconds from the                                                                                 The Department agrees that the INA
                                                                                                   rates happen to rise or fall during the
                                          work site.                                                                                                     was not meant to require employers to
                                                                                                   middle of a work contract.
                                             The notification is necessary in all                                                                        adhere to timeworn formulas for
                                          circumstances because the early                          (h) Section 655.105(h) Wages Not                      production in the H–2A or any other
                                          separation of a worker impacts not only                  Based on Commission                                   employment-based category, and that
                                          the rights and responsibilities of the                     Comments pertaining to the offered                  job duties for which there is a legitimate
                                          employer and worker but also                             wage are addressed in the response to                 business reason are permissible. The
                                          implicates DOL’s and DHS’s                               comments on § 655.108.                                requirement that job qualifications be
                                          enforcement responsibilities. For                                                                              ‘‘normal’’ and ‘‘accepted,’’ however, is
                                          instance, an employer would no longer                    (i) Section 655.105(i)                                statutory and cannot be altered. Section
                                          be responsible for providing or paying                      The NPRM contained an assurance                    218(c)(3)(A) of the INA requires the
                                          for the subsequent transportation and                    requiring the employer to attest that it              Department, when determining whether
                                          subsistence expenses or the ‘‘three-                     was offering a full-time temporary                    an employer’s asserted job qualifications
                                          fourths guarantee’’ for a worker who has                 position whose qualifications are                     are appropriate, to apply ‘‘the normal
                                          separated prior to the end date                          consistent with the ‘‘normal and                      and accepted qualifications required by
                                          stipulated on the labor certification,                   accepted qualifications required by non-              non-H–2A employers in the same or
                                          either through voluntary abandonment                     H–2A employers in the same or                         comparable occupations and crops.’’ For
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                                          or termination for cause. There is no                    comparable occupations or crops.’’ This               the reasons provided in the discussion
                                          requirement that the notification be                     was a continuation of current                         of § 655.104(b) of the Final Rule above,
                                          made by certified mail, however. A file                  obligations.                                          the Department has deleted the phrase
                                          copy of a letter sent by regular U.S.                       The Department received several                    ‘‘in that they shall not require a
                                          mail, with notation of the posting date,                 comments relevant to this provision.                  combination of duties not normal to the

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                                          occupation’’ from the NPRM to conform                    (k) Sections 655.105(k) and (l)                         Several minor non-substantive
                                          to the language of the statute.                          Retaliation and Discharge                             modifications were made to the text of
                                            In the Final Rule, the language of this                                                                      the provision for purposes of clarity and
                                          provision has been modified in one                          One commenter reasoned that the                    style.
                                          additional respect to conform to the                     Department has weakened its own
                                          language of § 655.104(b). The provision                  enforcement ability by eliminating the                (l) Section 655.105(m) Timeliness of
                                          now states that job qualifications must                  word ‘‘discharge’’ from the list of                   Fee Payment
                                          not ‘‘substantially deviate from the                     prohibited retaliatory acts against a                    The Department received one
                                          normal and accepted qualifications                       worker who files a complaint or testifies             comment on this section and has
                                          required by employers that do not use                    against the employer, consults with an                addressed it in the comments on
                                          H–2A workers in the same or                              attorney, or asserts any rights on behalf             § 655.118 on debarment, below.
                                          comparable occupations or crops.’’                       of himself/herself or other workers.
                                                                                                                                                         (m) Section 655.105(n) Notification of
                                                                                                      The Department believes it has, in                 Departure Requirements
                                          (j) Section 655.105(j) Layoffs
                                                                                                   fact, strengthened its enforcement
                                             The Department in its NPRM added a                    ability by addressing discharge                          The Department did not receive any
                                          new provision prohibiting employers                      separately in § 655.105(l). By making                 comments on this provision. For
                                          from hiring H–2A workers if they laid                    this a separate assurance, the employer               purposes of simplicity, and to avoid any
                                          off workers within a stated time frame,                  acknowledges even more obviously the                  potential conflict with DHS’s
                                          unless such laid-off workers were                        prohibition against discharge as                      regulations, the phrase ‘‘another
                                          offered and rejected the H–2A positions.                 retaliation.                                          employer and that employer has already
                                          Two commenters saw the new provision                                                                           filed and received a certified
                                                                                                      One group of farmworker advocacy
                                          on layoffs as unnecessary and                                                                                  Application for Temporary Employment
                                                                                                   organizations commented that the
                                          unworkable. One commenter saw this as                                                                          Certification and has filed that
                                                                                                   NPRM’s proposed language requiring
                                          contrary to the section on unforeseeable                                                                       certification in support of a petition to
                                                                                                   employers to attest that they will not
                                          events and also illogical because many                                                                         employ that worker with DHS’’ has been
                                                                                                   discharge any person ‘‘for the sole
                                          employers request a contract period of                                                                         deleted from the Final Rule and
                                                                                                   reason’’ that they engaged in protected
                                          ten months. This would mean that                                                                               replaced with the terms ‘‘another
                                                                                                   activity under § 655.105(k) would
                                          employers would be unable to lay off                                                                           subsequent employer.’’ This change is
                                                                                                   substantially weaken the anti-retaliation
                                          workers at the end of one season,                                                                              non-substantive; subsequent employers
                                                                                                   language in the current regulations. The
                                          because the new season begins within                                                                           still cannot legally employ H–2A
                                                                                                   Department agrees with this commenter
                                          60 days and the proposed 75-day                                                                                workers without an approved labor
                                                                                                   that a ‘‘sole reason’’ standard would
                                          requirement will not have lapsed.                                                                              certification.
                                          Another commenter suggested a change                     impose an inappropriately high burden
                                                                                                   on retaliation claimants. A retaliation               (n) Section 655.105(o) and New Section
                                          to the language in this section to include
                                                                                                   claimant should only be required to                   655.105(p) Prohibition on Cost-
                                          a caveat that such layoffs shall be
                                                                                                   prove that protected activity was a                   Shifting
                                          permitted where the employer also
                                          attests that it will offer or has offered the            contributing factor to the discharge.                    The Department included in the
                                          opportunity to the laid-off U.S.                         Thus, the Department has modified the                 NPRM a provision prohibiting
                                          worker(s) beginning on the date of need,                 language of § 655.105(l) to require                   employers from shifting costs for
                                          and said U.S. worker(s) either refused                   employers to attest that they will not                activities related to obtaining labor
                                          the job opportunity or were rejected for                 discharge any person ‘‘because of’’                   certification to the worker and further
                                          the job opportunity for lawful, job-                     protected activity under § 655.105(k).                requiring the employer to contractually
                                          related reasons.                                            Section 655.104(k)(4) provides that an             forbid its agents from accepting money
                                             The Department agrees, in general,                    employer may not retaliate against an                 from the H–2A worker for hiring him or
                                          with the changes proposed by the                         employee who has consulted with an                    her. The Department received several
                                          commenters. We have accordingly                          employee of a legal assistance program.               comments in relation to this provision.
                                          modified the language of the provision                   This provision does not, however,                        A State Workforce Agency expressed
                                          in the Final Rule to limit the effect of                 provide employees license to aid or abet              concern that this prohibition will create
                                          the provision to 60 days on either side                  trespassing on an employer’s property,                another disincentive for U.S. employers
                                          of an employer’s date of need. This                      including by persons offering advocacy                to use the program because it gives the
                                          modification is also consistent with the                 or legal assistance. No matter how                    impression that workers will be able to
                                          revised timetables for recruitment in the                laudable the intent of those offering                 request reimbursement from the
                                          Final Rule. This 120-day protective                      advocacy or legal services, an employee               employer for any monies paid to a
                                          period will provide U.S. workers                         does not have the legal right to grant                recruiter. The Department notes in
                                          important protections during the period                  others access to the private property of              response that the H–2A rule does not
                                          of time that H–2A workers are being                      an employer without the employer’s                    require the employer to reimburse the
                                          recruited and through the beginning of                   permission. A farm owner is entitled to               H–2A worker for any recruitment-
                                          the work season, which is the period of                  discipline employees who actively aid                 related fees he or she may pay. Rather,
                                          time that U.S. workers are most                          and abet those who engage in illegal                  with an exception discussed below, the
                                          vulnerable to layoffs related to the                     activity such as trespassing. Absent any              rule requires the employer to
                                          hiring of H–2A workers, while avoiding                   evidence of a workers’ actively aiding or             contractually forbid any foreign
                                          most of the problems cited by the                        abetting such activity, however, an                   recruiters it hires from charging the H–
                                          commenters. We also agree that a laid                    employer’s adverse action against an                  2A worker any fees in order to be hired
                                          off worker must be qualified for the                     employee in response to that employee                 or considered for employment. This
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                                          opportunity and that U.S. workers may                    meeting with a representative of an                   may mean that employers are required
                                          only be rejected for lawful, job-related                 advocacy or legal services organization,              to pay foreign recruiters more than they
                                          reasons, a limitation that preserves an                  particularly on the worker’s own time                 do today for the services that they
                                          employer’s right to reject those workers                 and not on the employer’s property,                   render, but the Department considers
                                          it knows to be unreliable.                               would be viewed as retaliation.                       this a necessary step toward preventing

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                                          the exploitation of foreign workers, with                and not by the foreign worker. Examples               2A program. Many employer advocates
                                          its concomitant adverse effect on U.S.                   of exploitation of foreign workers, who               noted that there is no definition of
                                          workers.                                                 in some instances have been required to               ‘‘recruiter’’ and it is unclear whether
                                             One group of farmworker advocacy                      give recruiters thousands of dollars to               ‘‘facilitators’’ who help the H–2A
                                          organizations believes this rule does not                secure a job, have been widely reported.              workers apply for visas are included in
                                          go far enough to protect workers from                    The Department is concerned that                      this prohibition. This is a concern to
                                          exploitation by recruiters. The                          workers who have heavily indebted                     employers because DHS, in its
                                          commenter specifically suggested that                    themselves to secure a place in the H–                companion H–2A proposed regulation,
                                          DOL should require employers to attest                   2A program may be subject to                          requires disclosure of payments to
                                          that they are ‘‘directly paying the entire               exploitation in ways that would                       ‘‘facilitators,’’ whether by the alien or
                                          recruiting/processing fee charged to any                 adversely affect the wages and working                the employer. The Department, on the
                                          foreign labor contractor whom they                       conditions of U.S. workers by creating                other hand, forbids employers and their
                                          engage to perform international                          conditions resembling those akin to                   agents from receiving remuneration
                                          recruitment of H–2A workers.’’                           indentured servitude, driving down                    from the H–2A worker for access to job
                                          Employers are permitted to pay fees to                   wages and working conditions for all                  opportunities and further requires the
                                          recruiters for their recruiting services,                workers, foreign and domestic. We                     employer to contractually forbid its
                                          and indeed the Department expects that                   believe that requiring employers to                   agents from accepting money from the
                                          they will have to do so, as it is unlikely               incur the costs of recruitment is                     H–2A worker for hiring him or her. To
                                          that recruiters will work for free. The                  reasonable, even when taking place in a               allay any confusion, we note that our
                                          Department sees little value, however,                   foreign country. Employers may easily                 own proposed regulation was intended
                                          in an over-complicated and over-                         band together for purposes of                         to prohibit foreign labor contractors or
                                          prescriptive rule allowing foreign                       recruitment to defray costs. To ensure                recruiters, with whom an employer in
                                          recruiters to charge H–2A workers                        that employers do not attempt to use                  the U.S. contracts, from soliciting or
                                          recruiting fees, but then requiring the                  surrogates to attempt to extract                      requiring payments from prospective H–
                                          employer to pay the fee directly.                        recruitment fees from H–2A workers,                   2A workers to secure job opportunities
                                          Moreover, this rule represents the                       the Final Rule has been modified to                   in the U.S. The Department believes that
                                          Department’s first effort to regulate in                 specify that employers must attest that               this is consistent with the DHS position
                                          this area under the H–2A program and                     they and their ‘‘agents’’ have not sought             of disclosure, which is presumably
                                          we decline to go further, at this time.                  or received payment of any kind for any               intended to deter such payments. The
                                          We will consider further actions if                      activity related to obtaining labor                   Department has not defined ‘‘recruiter’’
                                          experience dictates that they are                        certification, including payment of the               as we believe this term is well
                                          necessary, if specific actions are                       employer’s attorneys’ fees, application               understood by the regulated
                                          identified that would be effective, and if               fees, or recruitment costs.                           community. Many commenters believe
                                          those actions are within the                                                                                   that the new rule prohibits the use of
                                          Department’s enforcement authority,                         The Department notes, however, that
                                                                                                   it is only prohibiting employers and                  foreign recruiters. It does not. It requires
                                          taking into account limits on the                                                                              employers to contractually forbid
                                          Department’s territorial jurisdiction.                   their recruiter agents from shifting to
                                                                                                   workers the cost of recruiting for open               foreign recruiters from receiving
                                             Several farmers commented that they
                                                                                                   job opportunities. This rule does not                 payments directly or indirectly from the
                                          need agents to find H–2A workers
                                                                                                   prevent a person or entity (which could               foreign worker. Employers who would
                                          because they are unable to travel to
                                                                                                   be a ‘‘facilitator’’ under the DHS Final              be unable to find workers without
                                          different countries to find employees,
                                                                                                   Rule) from charging workers reasonable                recruiters are not prohibited from hiring
                                          interview them, and help them process
                                          all the necessary paperwork to obtain                    fees for rendering assistance in applying             such recruiters. When they do, they
                                          their visas. Employer commenters                         for or securing services related to                   must make it abundantly clear that the
                                          believe that an H–2A worker receives a                   passports, visas, or transportation, so               recruiter and its agents are not to receive
                                          substantial benefit from the job,                        long as such fees are not made a                      remuneration from the alien recruited in
                                          including more money than he or she is                   condition of access to the job                        exchange for access to a job opportunity.
                                          able to earn in his or her home country.                 opportunity by the recruiter, employer,               As noted above, reasonable payments
                                          Therefore, workers should also bear                      or facilitator. The Department will,                  from workers in exchange for rendering
                                          some of the financial responsibility for                 however, monitor such activities to the               assistance in applying for or securing
                                          the opportunity in the form of paying                    extent possible to ensure that any such               services related to passports, visas, or
                                          for the services that enable that worker                 charges are not ‘‘de facto’’ recruitment              transportation is not prohibited by this
                                          to find his or her way through the                       fees charged for access to the H–2A                   rule.
                                          bureaucratic maze both in the worker’s                   program. In addition, government                         Some commenters opined that the
                                          country and the U.S. Consulate.                          processing fees and document                          Department does not have the authority
                                          According to these commenters, many                      preparation fees related to securing a                to regulate cost-shifting abroad. The
                                          of these workers would never be able to                  passport and visa to prepare for travel               Department recognizes that its power to
                                          apply for H–2A visas without help                        to the United States are the                          enforce regulations across international
                                          because they do not have passports from                  responsibility of the worker and the                  borders is constrained. However, it can
                                          their own countries and they may not                     employer is not required to pay those                 and should do as much as possible in
                                          have the required computer and internet                  fees. We note that the DHS Final H–2A                 the U.S. to protect workers from
                                          access for applying to the U.S.                          Rule also precludes the approval of an                unscrupulous recruiters. Consequently,
                                          Consulate for the visa.                                  H–2A petition, and provides for                       the Department is requiring that the
                                             While the Department does not                         possible revocation of an already                     employer make, as a condition of
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                                          disagree that this provision will result                 approved H–2A petition, if the                        applying for labor certification, and
                                          in an additional expense for employers,                  employer knows or has reason to know                  therefore, as a condition to lawful H–2A
                                          the Department is adamant that                           that the worker has paid, or has agreed               employment within the U.S., the
                                          recruitment of the foreign worker is an                  to pay fees to a recruiter or facilitator as          commitment that the employer is
                                          expense to be borne by the employer                      a condition of gaining access to the H–               contractually forbidding any foreign

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                                          labor contractor or recruiter whom the                      In addition, and based upon the                    Section 655.106 Assurances and
                                          employer engages in international                        comments received, the Department has                 Obligations of Farm Labor Contractors
                                          recruitment of H–2A workers to seek or                   revised the provision on cost-shifting to             (a) General Comments
                                          receive payments from prospective                        provide for greater clarity. As
                                          employees in exchange for access to job                  mentioned above, the Department has                      As discussed earlier, the definition of
                                          opportunities. As stated above, we will                  added language to the Final Rule                      Farm Labor Contractor in the Proposed
                                          examine program experience in this area                  clarifying that the provision only                    Rule has been rewritten and is for
                                          and will consider further actions as                     applies to payments by employees. This                purposes of H–2A now an H–2A Labor
                                          experience dictates.                                     rendered the language providing an                    Contractor (H–2ALC). The Farm Labor
                                             One commenter suggested that we                                                                             Contractor definition in the NPRM was
                                                                                                   exemption for certain payments to
                                          certify recruiting agencies to ensure                                                                          borrowed from MSPA and the
                                                                                                   employers by third-parties unnecessary,
                                          against exploitation of workers whereas                                                                        Department has determined that
                                                                                                   and it has accordingly been deleted to
                                          two other commenters thought we                                                                                definition causes confusion when
                                                                                                   avoid confusion. We have also
                                                                                                                                                         applied to the H–2A program. A
                                          should make employers attest that the                    eliminated the qualifying language
                                                                                                                                                         fundamental distinction between these
                                          fee employees paid to foreign recruiters                 stating that the provision applied to                 two terms is the requirement that an H–
                                          was reasonable or did not go above a                     payments made as an ‘‘incentive and                   2A Labor Contractor must employ the
                                          reasonable market-based ceiling set by                   inducement to filing,’’ again for                     workers. This distinction addresses the
                                          the Department. The Department simply                    purposes of simplification and clarity.               concerns of commenters who
                                          does not have the infrastructure or                      By simplifying the provision to prohibit              mistakenly believed that agents and
                                          expertise to assess on a country-by-                     employers from seeking or receiving                   attorneys would have to register as Farm
                                          country basis what a reasonable fee                      payment for any activity related to the               Labor Contractors (FLC) as a
                                          would be. The prophylactic rule                          recruitment of H–2A workers, the                      requirement of the H–2A program. In
                                          adopted by the Department guards                         Department hopes to achieve consistent                order for a person or entity under H–2A
                                          against worker exploitation in a manner                  and enforceable compliance.                           to meet the definition of an H–2ALC,
                                          that is enforceable. If a U.S. employer                                                                        that person or entity would have to
                                                                                                      In the Final Rule the Department has
                                          cannot find foreign workers without the                                                                        employ the workers who are subject to
                                                                                                   separated the provision on cost-shifting
                                          help of a recruiter, then the U.S.                                                                             Section 218 of the INA.
                                                                                                   into two sections, again to achieve
                                          employer must bear the cost of such                                                                               Other commenters believed that the
                                                                                                   clarity regarding the use of foreign
                                          recruitment efforts.                                                                                           definition of farm labor contractor also
                                                                                                   contractors. The Rule’s new § 655.105(p)
                                             One commenter requested that we                                                                             includes the activities of the foreign
                                                                                                   now contains the language that requires
                                          provide clarification on several terms                                                                         recruiters and obligates the employers to
                                                                                                   the employer to contractually forbid any
                                          used in this section. The first is                                                                             take on liabilities for the acts of the
                                                                                                   foreign labor contractor whom they
                                          ‘‘received payment * * * as an                                                                                 foreign recruiters because the definition
                                                                                                   engage from seeking or receiving
                                          incentive or inducement to file * * *.’’                                                                       of FLC in the NPRM was taken directly
                                                                                                   payments from prospective employees
                                          The second is ‘‘* * * from the                                                                                 from the MSPA. The definition of an H–
                                                                                                   in exchange for access to job
                                          employee or any other party, except                                                                            2ALC is no longer taken directly from
                                          when work to be performed by the H–                      opportunities. In this manner the
                                                                                                   Department hopes to achieve clear and                 MSPA.
                                          2A worker * * * will benefit or accrue                                                                            While the Department cannot reach
                                          to the person or entity making the                       consistent compliance with the
                                                                                                   prohibitions contained in the Rule. To                the conduct of foreign recruiters abroad,
                                          payment, based on that person’s or                                                                             it can regulate the conduct of U.S.
                                          entity’s established business                            make the provision on cost-shifting by
                                                                                                   recruiters consistent with DHS’s Final                employers participating in the foreign
                                          relationship with the employer.’’ For                                                                          labor certification process who do
                                          reasons discussed below, we have                         Rule, we have added clarifying language
                                                                                                                                                         business with these recruiters. The
                                          removed this language from the Final                     stating that the prohibition does not
                                                                                                                                                         Department cannot by regulation
                                          Rule to provide greater clarity to the                   apply where ‘‘provided for in DHS
                                                                                                                                                         impose strict liability on employers for
                                          provision’s effect.                                      regulations at 8 CFR 214.2(h)(5)(xi)(A).’’
                                                                                                                                                         labor contractors’ activities abroad, but
                                             Some commenters expressed concern                     This language clarifies that the
                                                                                                                                                         the Department, as a condition for an
                                          that the rule passed on too many costs                   prohibition does not apply to worker
                                                                                                                                                         employer to obtain approval of a
                                          in recruitment to the employer. One                      expenses such as the cost of
                                                                                                                                                         temporary labor certification
                                          commenter estimated that the                             transportation and passport, visa, and
                                                                                                                                                         application, can require the employer to
                                          recruitment cost to each employer                        inspection fees, except where such
                                                                                                                                                         contractually forbid foreign recruiters
                                          would be $1,000 per H–2A worker. We                      shifting of expenses to the worker is
                                                                                                                                                         that an employer uses as its agent from
                                          believe these estimates were not                         expressly forbidden by law.
                                                                                                                                                         seeking or receiving payments from
                                          supported by data and note that                             Paragraph (p) from the NPRM has                    prospective employees, as discussed in
                                          employers can collaborate with respect                   now been redesignated as paragraph (q).               the discussion of § 655.105(o) and (p),
                                          to recruitment to defray costs.                          The Department did not receive any                    addressing the prohibition on cost
                                             A farmworker advocate argued that                     comments specifically addressing this                 shifting.
                                          new labor contractors are often                          provision. Several minor non-                            There was considerable comment
                                          undercapitalized and can barely meet                     substantive modifications have been                   about the lack of a provision in the
                                          their payroll obligations. The                           made to the text of the provision for                 NPRM addressing ‘‘override fees,’’
                                          commenter claimed that labor                             purposes of clarity and to conform to                 which is essentially the commission
                                          contractors’ primary source of income is                 changes made elsewhere in the Rule.                   paid by employers to labor contractors
                                          from the foreign recruiters who give                     We have deleted what was paragraph (q)                for their services. One commenter
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                                          them payments from the recruitment                       in the NPRM, an assurance on housing                  elaborated on this point by explaining
                                          fees paid by the aliens. It is precisely                 vouchers, because, for the reasons given              that employers in an area where labor
                                          this type of activity that the employer                  in the discussion of § 655.104(d), we                 contractors with U.S. workers are well
                                          assurances are meant to prevent, for all                 have decided not to implement housing                 established could bypass the labor
                                          of the reasons previously mentioned.                     vouchers.                                             contractor by hiring H–2A workers

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                                                           Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations                                        77161

                                          directly and thus not have to pay an                     employer desiring to hire H–2A                        employment, that workers from the
                                          override fee.                                            workers, and must also list the sites                 previous season be contacted and
                                             Labor contractors operate in the free                 where work will occur.                                offered employment before H–2A
                                          market system, both in hiring workers                      One group of farmworker advocacy                    workers can be hired, and that housing
                                          and in providing contract labor services,                organizations commented that H–                       inspections be conducted in a timely
                                          and do not require any special                           2ALCs, under the new rule, are not                    manner.
                                          government provisions to ensure they                     required to have a physical presence in                  New § 655.106(a)(1) acknowledges
                                          are paid for the services they provide.                  the U.S. This commenter points out that               that, because of the itinerant nature of
                                          Whether an employer chooses to utilize                   even under the current system, which                  H–2ALCs, their job orders ‘‘may contain
                                          a farm labor contractor or hire workers                  does require physical locations in the                work locations in multiple areas of
                                          directly is a decision to be made by the                 U.S., there is still room for deception by            intended employment.’’ As with other
                                          employer based on what best suits his                    H–2ALCs. The commenter misreads the                   employers with multiple work
                                          business needs. Labor contractors                        rule. The definition of an H–2ALC in                  locations, H–2ALCs may submit job
                                          typically enter into contracts with fixed                the Final Rule requires H–2ALCs to                    orders ‘‘to any one of the SWAs having
                                          site employers in advance of the season.                 meet the definition of an ‘‘employer,’’               jurisdiction over the anticipated work
                                          The Department does not seek to                          and the definition of employer requires               areas.’’ The SWA receiving the job order
                                          regulate private transactions between                    a place of business in the United States.             is responsible for circulating the job
                                          employers and labor contractors with                                                                           order to ‘‘all States listed in the
                                                                                                   (b) Description of H–2ALC obligations
                                          regard to the appropriate price of                                                                             application as anticipated worksites, as
                                          contract services. Employers are                            The Department’s review of                         well as those States, if any, designated
                                          required to advertise before they can                    comments regarding the obligations of                 by the Secretary as traditional or
                                          apply for H–2A workers, and both H–                      labor contractors under the proposed                  expected labor supply States for each
                                          2ALCs and the U.S. workers employed                      rule persuaded the Department that                    area in which the employer’s work is to
                                          by the H–2ALCs will have an                              these obligations were poorly                         be performed.’’ The provision further
                                          opportunity to take the advertised jobs                  understood. To provide a clearer                      clarifies how long SWAs receiving
                                          at the wage rates and subject to the                     description of those obligations, and to              multiple-area job orders should keep the
                                          terms and working conditions required                    avoid confusion on the part of                        job orders posted, and specifies that
                                          by the Department. The Department is                     employers, SWAs, workers, and worker                  they ‘‘may make referrals for job
                                          confident that the required wage rates,                  advocates alike, the Final Rule has                   opportunities in any area of intended
                                          job terms, and working conditions are                    collected, consolidated, and refined the              employment that is still in an active
                                          sufficient to prevent any adverse effect                 NPRM’s description of H–2ALC pre-                     recruitment period.’’
                                          on U.S. workers.                                         filing recruiting obligations. The Final                 New § 655.106(a)(2) clarifies that H–
                                             One group of farmworker advocacy                      Rule therefore splits proposed § 655.106              2ALCs with multiple work locations in
                                          organizations complained that the                        into two separate parts. Section                      multiple areas of intended employment
                                          Department has eliminated all                            655.106(a) of the Final Rule                          are required to conduct separate
                                          requirements that employers contact                      consolidates, refines, and explains H–                positive recruitment, following all of the
                                          and recruit through established FLCs                     2ALCs’ recruitment obligations under                  normal rules specified in § 655.102(g)–
                                          (now H–2ALCs). This commenter                            the H–2A program. Section 655.106(b)                  (i), but are not required to conduct
                                          believes that the elimination of this                    of the Final Rule contains all of the                 separate positive recruitment for each
                                          requirement allows growers to bypass                     provisions proposed in the NPRM that                  work location within a single area of
                                          H–2ALCs in favor of filing H–2A                          impose additional obligations on H–                   intended employment. Instead, positive
                                          applications. The Department disagrees.                  2ALCs that do not apply to other types                recruitment within each area of
                                          As previously mentioned, employers are                   of H–2A employers.                                    intended employment is required to
                                          required to spread information about job                    Although the language of § 655.106(a)              ‘‘list the name and location of each
                                          opportunities in a variety of ways, and                  of the Final Rule is new, the substantive             fixed-site agricultural business to which
                                          there is nothing that would prevent an                   obligations it imposes on H–2ALCs are                 the H–2A Labor Contractor expects to
                                          H–2ALC from responding to such                           derived from the basic requirements that              provide H–2A workers, the expected
                                          advertisements by offering its services.                 apply to other H–2A employers under                   beginning and end dates when the H–
                                             Many commenters advocated the                         the NPRM. The fact that H–2ALCs do                    2A Labor Contractor will be providing
                                          removal of labor contractors from the H–                 not stay at one fixed location but travel             workers to each fixed site, and a
                                          2A program. The use of labor                             from one worksite to another over the                 description of the crops and activities
                                          contractors to supply workers, however,                  course of a season, and the fact that they            the workers are expected to perform at
                                          is a reality in the agricultural industry,               frequently rely on the fixed site                     such fixed site.’’ Positive recruitment for
                                          and reflects the substantial need for a                  employers with whom they contract to                  each area of intended employment,
                                          flexible labor supply in a sector                        provide housing and transportation to                 including positive recruitment in any
                                          characterized by many different crops                    their workers, makes it operationally                 designated labor supply states
                                          requiring different work at different                    problematic to shoehorn H–2ALCs into                  associated with each area of intended
                                          times, all of which are subject to                       the exact same recruitment framework                  employment, must, in accordance with
                                          seasons, weather, and market                             that applies to fixed site employers.                 the standard rule under these
                                          conditions. To forbid labor contractors                  New § 655.106(a) refines for H–2ALCs                  regulations, be conducted no more than
                                          from utilizing the H–2A program would                    the core recruitment requirements that                75 and no fewer than 60 days before the
                                          only encourage them to operate outside                   apply to all other H–2A employers,                    listed arrival date applicable to that area
                                          the system and potentially use                           including requirements that job orders                of intended employment.
                                          undocumented workers to fill their                       be submitted to SWAs, that referrals of                  New § 655.106(a)(3) specifies that H–
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                                          ranks. Labor contractors desiring to hire                qualified U.S. workers be accepted                    2ALC recruitment, including both
                                          H–2A workers must apply for a labor                      during the recruitment period, that                   positive recruitment and job orders, may
                                          certification, recruit for U.S. workers,                 positive recruitment be conducted in                  require that workers applying for jobs in
                                          and attest to the terms and conditions of                advance of H–2A workers performing                    any given area of intended employment
                                          H–2A employment, just like any other                     work in a given area of intended                      ‘‘complete the remainder of the H–

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                                          2ALC’s itinerary.’’ H–2ALCs are by                       U.S. workers and that are thus free to                Because H–2ALCs are itinerant and
                                          nature itinerant, and the work that they                 require prospective workers to complete               because the timing of agricultural work
                                          offer is thus itinerant as well. Workers                 their remaining itinerary.                            is difficult to predict with precision, H–
                                          applying for labor contractor jobs cannot                   The Department considered, as an                   2ALCs may often need to amend their
                                          expect to selectively choose which work                  alternative, requiring H–2ALCs to file a              applications mid-season to include
                                          locations they are willing to work at,                   separate application for work to be                   additional work locations or additional
                                          unless the H–2ALC permits them to do                     performed in each separate area of                    areas of intended employment.
                                          so. Certainly, U.S. workers applying to                  intended employment, but rejected the                 Amendments will be readily permitted,
                                          work for farm labor contractors that are                 idea for several reasons. First, it is far            but special responsibilities attach to
                                          not H–2ALCs have no ability to                           more administratively convenient for                  such amendments for H–2ALCs. Where
                                          selectively choose which portion of a                    both the Department and the employer                  an amendment adds a new area of
                                          job offer they want to accept and which                  if all of the employer’s seasonal work for            intended employment, or where an
                                          they will reject.                                        the year with the same initial date of                amendment adds a new work site in an
                                             Without this rule, H–2ALCs would at                   need is included in a single application.             already-listed area of employment and
                                          times be placed in impossibly difficult                  Filing multiple applications in such a                the job duties at the new work site(s) are
                                          hiring situations. For example, an H–                    situation is needlessly duplicative,                  substantially different from those
                                          2ALC might enter into contracts to serve                 wasting valuable time and resources. In               already listed, additional recruitment
                                          work locations in three different areas of               theory, an H–2ALC could be conceived                  will be required. Because amendments
                                                                                                   of as having a separate date of need for              of H–2ALC applications may often need
                                          intended employment, requiring twenty
                                                                                                   each new work site or for each new area               to be made at the last minute to take
                                          workers in each area. If the H–2ALC is
                                                                                                   of intended employment, but the reality               into account changing weather
                                          unable to recruit any U.S. workers in the
                                                                                                   of labor contract work is that the                    conditions, the required additional
                                          first and third areas of intended
                                                                                                   responsibilities of workers to the labor              recruitment may be completed on an
                                          employment, but finds ten U.S. workers
                                                                                                   contractor employer, as well as their                 expedited schedule. Housing
                                          in the second area of intended
                                                                                                   associated job duties, continue from                  inspections of any new housing
                                          employment who are willing to
                                                                                                   work location to work location and do                 arrangements that have not yet been
                                          complete its itinerary, then the H–2ALC
                                                                                                   not re-start with each new work site.                 inspected must also be secured in a
                                          should be allowed to hire ten H–2A
                                                                                                   Second, the ‘‘single application’’                    timely fashion.
                                          workers for the duration of its itinerary,               method will maximize recruitment of                      H–2ALCs are encouraged to attempt
                                          and ten H–2A workers for the dates of                    U.S. workers through posted job orders,               to avoid needing to make last-minute
                                          need applicable to the first area of                     since the SWAs for all the areas of                   amendments to their applications by
                                          intended employment (or, if these ten                    intended employment will refer workers                listing all reasonably probable work
                                          H–2A workers were initially hired with                   for jobs opportunities in all of the other            locations in their original application
                                          the expectation that they would                          areas of intended employment. Third                   and job order. In doing so, H–2ALCs are
                                          complete the itinerary, the H–2ALC                       and finally, the ‘‘single application’’               reminded that the ‘‘reasonably
                                          would be permitted to release them at                    method will better manage the                         probable’’ standard should be closely
                                          the time its subsequent positive                         expectations of incoming H–2A                         adhered to—purely speculative
                                          recruitment for the second area of                       workers, who will know at the outset                  employment should not be listed on an
                                          intended employment resulted in the                      whether the H–2ALC expects to employ                  application. While U.S. workers benefit
                                          hiring of ten additional U.S. workers),                  them for the entire season, or rather                 from seeing in an advertisement or job
                                          ensuring that the H–2ALC would at all                    only for a more limited duration.                     order a list of all the locations that the
                                          times have the twenty workers needed                        H–2ALCs are free to file separate                  H–2ALC is reasonably likely to service,
                                          to fulfill its contracts. If, however, the               applications for separate areas of                    information that is intentionally
                                          ten U.S. worker applicants for jobs in                   intended employment where it makes                    misleading detracts from the ability of
                                          the second area of intended                              sense for them to do so. Indeed, they                 U.S workers to make intelligent
                                          employment were not willing to                           may be required to file separate                      decisions about whether to apply. The
                                          complete the H–2ALC’s itinerary, and if                  applications where, for example, they                 Department assumes that H–2ALCs will
                                          these regulations nevertheless required                  need extra workers with a different date              be deterred from listing purely
                                          the H–2ALC to hire those workers, the                    of need to report for work in areas of                speculative work sites on their
                                          H–2ALC would be forced to choose                         intended employment that they will                    applications by the three-quarters
                                          between releasing ten of its H–2A                        reach later in the season. For purposes               guarantee and by the requirement that
                                          workers at the time it hired the ten U.S.                of administrative convenience, however,               H–2ALCs secure written statements
                                          workers since only twenty workers were                   and to comport with the realities of the              from fixed-site employers regarding
                                          needed in the second area of intended                    nature of the underlying job positions,               housing and transportation if the H–
                                          employment. As a result, the H–2ALC                      the Department will permit single                     2ALC will not be providing the required
                                          would be left with only ten workers                      applications to be filed by H–2ALCs                   housing and transportation itself.
                                          total to fulfill its contracts when it got               covering extended itineraries.                           New § 655.106(a)(6) reiterates the
                                          to the third area of intended                               New § 655.106(a)(4) provides that H–               obligation of SWAs to complete
                                          employment, or, to avoid this                            2ALCs that hire U.S. workers part-way                 required housing inspections ‘‘no later
                                          consequence, would have to keep all                      through the season, whether through                   than 30 days prior to the
                                          thirty workers on its payrolls during its                referrals or some other form of                       commencement of employment in each
                                          work in the second area of intended                      recruitment, may discharge a like                     area of intended employment in the
                                          employment, thereby incurring the                        number of H–2A workers and, in                        itinerary of an H–2ALC.’’
                                          significant additional cost of paying ten                accordance with § 655.104(i)(4), are                     New § 655.106(a)(7) provides that H–
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                                          unnecessary workers. The Department                      released from the three-quarters                      2ALCs must contact all U.S. workers
                                          declines to force H–2ALCs to make that                   guarantee with respect to those workers.              that worked for the H–2ALC during the
                                          unnatural choice, which would place                         New § 655.106(a)(5) explains the rules             previous season, and must advise each
                                          them at a competitive disadvantage vis-                  that apply to an H–2ALC’s amendment                   such worker ‘‘that a separate job
                                          a-vis farm labor contractors that hire all               of its application under § 655.107(d)(3).             opportunity exists for each area of

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                                          intended employment that is covered by                   contractor to disclose its clientele, but to             The Department believes that the
                                          the application.’’ A worker who applies                  ensure that the labor contractor has real             procurement of a surety bond will show
                                          for a job opportunity in an area of                      employment opportunities available for                that an H–2ALC is serious about doing
                                          intended employment may be required                      the prospective worker. A good-faith                  business legitimately, and that a surety
                                          to complete the remainder of the                         compilation of the roster of clients and              bond gives the Department leverage over
                                          itinerary.                                               dates of arrangements with each is                    the employer so that if the employer
                                             The additional obligations that the                   integral to ensure there is work available            fails in performing its obligations, the
                                          Department proposed in the NPRM to                       requiring the use of H–2A workers. It is              bond will be available for the
                                          impose on H–2ALC employers have                          also essential to ensure that recruiting is           government to recover unpaid wages.
                                          been consolidated in new § 655.106(b).                   properly performed and that U.S.                      The surety bond is simply a device to
                                          Each provision is discussed separately                   workers are given access to all job                   ensure the Department has reasonable
                                          below.                                                   opportunities. With respect to the                    assurance that the labor contractor will
                                          (c) Proposed Sections 655.106(a) and                     commenter’s concerns about disclosure,                adhere to its program obligations; the
                                          (b), New Sections 655.106(b)(1) and (2)                  if the list of clientele is properly                  labor contractor’s ability to retain its
                                          Provide MSPA Farm Labor Contractor                       considered confidential business                      interest in the bond depends entirely
                                          Certificate of Registration Number and                   information under FOIA, it would be                   upon its adherence to performance
                                          Identify Authorized Activities                           exempt from disclosure.                               obligations. The commenter is correct
                                                                                                      One commenter suggested that                       that the surety bond applies only to
                                             One commenter opined that MSPA is                                                                           those cases that come before the
                                                                                                   wording should be added to allow labor
                                          not explicitly included in the rule even                                                                       Administrator/WHD. We have no
                                                                                                   contractors to add or change out growers
                                          though it is mentioned throughout. This                                                                        authority to require it for actions beyond
                                                                                                   during the season by informing the
                                          commenter believes that legal services                                                                         the Department’s jurisdiction.
                                                                                                   Department. These comments have been
                                          groups that file lawsuits under these                                                                             One agricultural employer association
                                                                                                   addressed in the discussion of
                                          regulations will be able to include                                                                            states that the bonding requirement is
                                                                                                   § 655.106(a)(5), pertaining to the
                                          claims based on MSPA as well. This                                                                             unrealistic because underwriters will
                                                                                                   amendment of H–2ALC applications,
                                          commenter believes there are enough                                                                            not provide the bonds to anyone but the
                                          protections in the H–2A rule without                                                                           largest labor contractors. This in effect
                                          including MSPA.                                          (e) Proposed Section 655.106(d), New                  will eliminate smaller labor contractors
                                             While references to certain specific                  Section 655.106(b)(4) Surety Bonds                    from the program. This commenter
                                          provisions of MSPA have been included                                                                          proposes that this requirement be
                                          in the H–2A regulations, such language                     The Department required in its NPRM
                                                                                                   that FLCs (now H–2ALCs) secure a                      eliminated or in the alternative that the
                                          is not intended to apply MSPA to H–2A                                                                          discretion of the Administrator/WHD to
                                          workers or employers. The provisions of                  surety bond as proof of their ability to
                                                                                                                                                         increase the bond requirements should
                                          H–2A and MSPA operate independently                      discharge their financial obligations
                                                                                                                                                         be limited to the use of reasonable and
                                          from one another and the inclusion of                    under the H–2A program. We received
                                                                                                                                                         objective criteria.
                                          terms used in MSPA does not provide                      some comments opposing the surety                        There is no evidence that only large
                                          a legal basis upon which to hold H–2A                    bond requirement, and others insisting                labor contractors will be able to obtain
                                          employers to MSPA standards. Nothing                     that the requirement did not go far                   surety bonds. The bond is a necessary
                                          in this rule expands the scope of MSPA                   enough.                                               compliance mechanism to ensure
                                          or increases liabilities under it.                         One commenter suggested that the                    compliance with program obligations,
                                             Some clarifying, non-substantive                      Department has no statutory authority to              namely the assurance of payment of the
                                          modifications have been made to the                      require H–2ALCs to be bonded. This                    wages of H–2A workers covered by
                                          language of these provisions in the Final                commenter believes that the Department                Section 218 of the INA. The Department
                                          Rule, and a statutory citation to MSPA                   has plenty of methods available to it to              can adjust bonds as necessary through
                                          has been added.                                          weed out the abusive H–2ALCs and                      notice and comment rulemaking to
                                                                                                   does not need the provision for bonding.              balance the requirement against the
                                          (d) Proposed Section 655.106(c), New                     The bonding requirement for labor                     financial constraints faced by smaller
                                          Section 655.106(b)(3) Disclosure of All                  contractors, who may be transient and                 employers.
                                          Locations                                                undercapitalized, provides a basis to
                                             One agricultural employer association                 assure compliance with an attestation-                (f) Proposed Section 655.106(e), New
                                          asserted that it is not reasonable to                    based program. The language in the INA                Section 655.106(b)(5) Positive
                                          require H–2ALCs to disclose all                          in Section 218(g)(2) which authorizes                 Recruitment in Each Fixed-Site Location
                                          customers, clients, dates, and services,                 the Secretary to take such action as may              of Services
                                          and that providing evidence that the                     be necessary to assure employer                          In § 655.106(e) of the NPRM, the
                                          customers and clients of H–2ALCs are                     compliance with the terms and                         Department proposed to impose
                                          established business operations should                   conditions of the Act provides the                    additional recruitment obligations on
                                          be sufficient because the proposed                       authority for the bonding requirement.                FLCs (now H–2ALCs). One commenter,
                                          requirement would otherwise subject                        Another commenter believes that the                 a large agricultural employer
                                          the labor contractor to disclosure of its                surety bond required is woefully                      association, believes that the positive
                                          clientele should an FOIA request be                      inadequate to guarantee H–2ALC                        recruitment requirements should be the
                                          made, and also because a labor                           compliance with program requirements,                 same as they are for non-H–2ALCs who
                                          contractor should not have to know all                   and that it only applies to those cases               have several fixed-site locations. The
                                          of the locations so far in advance and                   that come before the Administrator of                 Department believes that the
                                          should have the flexibility to change                    the Wage and Hour Division (herein                    recruitment standards for H–2ALCs in
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                                          plans. The disclosure requirement is                     referred to as Administrator/WHD) and                 the Final Rule spring from the same
                                          contained in the current regulations and                 not to civil actions filed in state or                principles that apply to fixed-site
                                          has been for many years. The                             Federal court. Another commenter                      employers, but that some modification
                                          Department requires such information                     believes that all H–2A employers should               was necessary because of the level of
                                          not for the purpose of forcing a labor                   be required to post a bond.                           mobility of H–2ALCs. To ensure that

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                                          U.S. workers are provided notice of all                    As a general matter, one employer                   rewritten to address many of these
                                          available job opportunities, H–2ALCs                     suggested that § 655.107 should include               concerns. To avoid the possibility that
                                          are expected to recruit in all areas in                  a provision that the Department will                  vague and ambiguous terminology in
                                          which employment will take place,                        have an adequately staffed information                the provision could cause confusion,
                                          rather than just the area where the work                 service to answer employer questions                  however, proposed § 655.107(a)(1) and
                                          will begin or the greatest concentration                 and help employers comply with the                    (a)(2) have been combined in the Final
                                          of work will take place. The modified                    process. The Department appreciates the               Rule, and the applicable criteria for
                                          recruitment obligations of H–2ALCs                       need for such services, particularly                  certification have been listed through
                                          under the Final Rule are examined at                     among first-time program users.                       cross-references. Furthermore, to avoid
                                          greater length in the discussion of new                  However, existing program resources are               confusion regarding the timing
                                          § 655.106(a) above.                                      limited and the funding of such a                     requirements set forth in the NPRM,
                                                                                                   specialized information service does not              § 655.107(a)(2) of the Final Rule
                                          (g) Proposed Section 106(f), New
                                                                                                   appear possible at this time. The                     specifies that when the Department
                                          Section 106(b)(6) Housing and
                                                                                                   Department is committed to conducting                 issues a notice or a request requiring a
                                                                                                   briefings for users of the program to                 response by an employer, it will use
                                             The NPRM required a labor contractor                  acquaint them with the terms and                      means normally assuring next-day
                                          to attest that it has obtained written                   processes of the regulation prior to its              delivery, which may include e-mail and
                                          assurances from fixed-site providers of                  implementation. The Department is also                fax. It further specifies that an
                                          housing and transportation that such                     examining other ways to make program                  employer’s response to such a notice or
                                          housing and transportation complies                      information and instructions available                request will be considered to be filed
                                          with the applicable standards. One                       to users on an ongoing basis,                         with the Department on the date that it
                                          agricultural employer association                        particularly through its Web site.                    is sent to the Department, which may be
                                          observed that housing and                                                                                      established, for example, by a postmark.
                                          transportation provided by H–2ALCs                       (a) Proposed Sections 655.107(a)(1) and                  The trade association also pointed out
                                          should be required to meet the same                      (a)(2) Review Criteria                                that, although the language related to
                                          standards as the housing provided by                        The Department, in describing the                  the nature of the employer’s need
                                          any other H–2A employer. The                             review process for each application,                  included ‘‘temporary,’’ it did not also
                                          Department agrees that H–2ALCs are to                    stated in the NPRM that each                          include ‘‘seasonal.’’ In addition, the
                                          be held to the same standards, but                       application ‘‘will be substantively                   association suggested the phrase
                                          disagrees that an H–2ALC can simply                      reviewed for compliance with the                      ‘‘assurances and obligations related to
                                          attest, without more, that housing it has                criteria for certification’’ and further              the recruitment of U.S. workers’’ in
                                          not secured itself meets all of the                      defined criteria for certification to                 proposed § 655.107(a)(3) [new
                                          applicable standards. Because many H–                    ‘‘include, but not be limited to, the                 § 655.107(b)] be clarified and
                                          2ALC s rely upon the activities of others                nature of the employer’s need for the                 recommended that if the language is
                                          in meeting their own obligations, the                    agricultural services or labor to be                  intended to be construed broadly, the
                                          Department requires the contractor to                    performed is temporary; all assurances                Department should include all of the
                                          obtain written assurances so that the                    and obligations outlined in § 655.105 in              required assurances and obligations to
                                          contractor can, in turn, fully attest to the             this part; compliance with the                        make this clear.
                                          conditions required to employ H–2A                       timeliness requirements as outlined in                   The Department, as mentioned above,
                                          workers. The Department also deleted                     § 655.102 of this part; and a lack of                 agrees this section of the NPRM was
                                          the reference to H–2A workers in this                    errors in completing the application                  confusing and has accordingly clarified
                                          section to conform to § 655.104(d) and                   prior to submission, which would make                 the regulatory text. The new § 655.107
                                          to clarify the issue raised by                           the application otherwise non-                        references the general criteria for
                                          commenters on § 655.104(d) regarding                     certifiable.’’ A major trade association of           certification that ensures the application
                                          the need to have housing meet local,                     agricultural employers believed this                  will be evaluated for whether the
                                          State, and Federal standards and                         language contained ambiguous phrases,                 employer has ‘‘established the need for
                                          guidelines for all agricultural workers,                 particularly ‘‘include but not be limited             the agricultural services or labor to be
                                          not just H–2A workers. Other minor,                      to’’ and ‘‘errors * * * which would                   performed on a temporary or seasonal
                                          non-substantive modifications have                       make the application otherwise non-                   basis; made all the assurances and met
                                          been made to the language of this                        certifiable’’ and, as a result, the phrase            all the obligations required by § 655.105,
                                          provision to conform to other provisions                 ‘‘criteria for certification’’ was largely            and/or, if an H–2ALC by § 655.106;
                                          of the Final Rule.                                       undefined. A farmworker/community                     complied with the timeliness
                                                                                                   advocacy organization commented the                   requirements in § 655.102; and
                                          Section 655.107 Processing of                            language incorporates no actual                       complied with the recruitment
                                          Applications                                             determination of whether the                          obligations required by § 655.102 and
                                            The Department promulgated in its                      application complies with the statutory               § 655.103.’’ By referencing back to these
                                          proposed rule the general parameters for                 requirements for labor certification                  sections rather than enumerating the
                                          the submission and processing of                         unlike the current regulations, which                 assurances and obligations in this
                                          applications. Section 655.107 of the                     require a determination at the outset as              provision, the Department both provides
                                          NPRM laid out the process by which the                   to whether an application is ‘‘acceptable             a clear frame of reference for the
                                          Department intends to review                             for consideration’’ based on compliance               evaluation of obligations and also puts
                                          applications and included provision for                  with the adverse effect and timeliness                employers on notice of the review
                                          the modification of deficient                            criteria. This organization maintains                 process.
                                          applications as well as the amendment                    that the lack of substantive review in                   New language has been inserted in
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                                          of pending and approved applications.                    processing attestation-based                          § 655.107(a) in the Final Rule stating
                                          Several commenters expressed concern                     applications violates the statute. The                that ‘‘[a]pplications requesting that zero
                                          with this section, specifically in the area              Department has previously addressed                   job opportunities be certified for H–2A
                                          of deficient applications. These specific                that argument in the discussion of                    employment because the employer has
                                          areas of concern are addressed below.                    § 655.101, which has now been                         been able to recruit a sufficient number

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                                          of U.S. workers must comply with other                   received, modified if required, and                      The Department also deleted the word
                                          requirements for H–2A applications and                   accepted prior to the employer’s                      ‘‘amendment’’ from the regulatory text
                                          must be supported by a recruitment                       recruitment efforts. Under the proposed               in this section to prevent confusion.
                                          report, in which case the application                    rule, recruitment will be conducted                   Modifications and amendments are, in
                                          will be denied.’’ The reasons for the                    prior to submission of the application.               fact, different actions under this Rule
                                          insertion of this new language are                          A major trade association requested                and amendments are described in
                                          explained below in the discussion of                     clarification on the effect a modification            § 655.107(d).
                                          § 655.110(e) of the Final Rule.                          will have on the validity of the                      (d) Proposed Section 655.107(a)(6), New
                                          (b) Proposed Section 655.107(a)(3), New                  recruitment effort and recommended the                Section 655.107(d) Amendments
                                          Section 655.107(b) Notice of                             regulations state that if an application is
                                                                                                   ultimately accepted, even after                          The Department did not propose to
                                          Deficiencies                                                                                                   change the requirements from the
                                                                                                   modification, any required
                                             Several minor, non-substantive                        modifications to the application will not             current regulation for amendments to an
                                          modifications were made to the                           invalidate any recruitment conducted                  application seeking additional workers.
                                          language of the proposed provision for                   based on the application as originally                An association of growers/producers
                                          purposes of clarity and to conform it to                 submitted. A professional association                 requested that the requirement in
                                          changes made elsewhere in the Final                      recommended that if an initial                        proposed § 655.107(a)(6)(i) limiting the
                                          Rule. One significant clarification was                  application contains a deficiency related             increase in the number of workers to not
                                          also added at § 655.107(b)(2)(iv) of the                 to recruitment, the CO could require
                                                                                                                                                         more than 20 percent (or 50 percent for
                                          Final Rule to specifically address the                                                                         employers of fewer than 10 workers) be
                                                                                                   remedial recruitment efforts to be
                                          handling of applications initially                                                                             changed to allow employers of fewer
                                                                                                   completed prior to the final
                                          rejected for failure to comply with the                                                                        than 10 workers to increase the number
                                                                                                   determination and the remedial
                                          Final Rule’s recruitment obligations.                                                                          of workers in their initial application by
                                                                                                   recruitment efforts and the date of need
                                          Some employer and trade association                                                                            up to 10 workers. A State government
                                                                                                   extended to accommodate the required
                                          commenters noted that the structure of                                                                         agency noted its agreement with
                                                                                                   recruitment efforts. This association
                                          the processing procedures in the NPRM                                                                          retaining the current limitations.
                                                                                                   believed such a process would be better                  The Department has decided to retain
                                          would have required an employer
                                                                                                   than the issuance of a denial, which                  the provisions from the NPRM regarding
                                          whose application was rejected for
                                                                                                   would require the employer to begin the               the number of workers that may be
                                          failing to recruit properly to begin the
                                          entire pre-filing recruitment sequence                   process, including the pre-filing                     requested through amendments. Our
                                          over again. As a result, approval of the                 recruitment, over again and, therefore,               experience indicates these limits are
                                          re-filed application would have been                     be unable to complete the process in                  necessary to discourage employers from
                                          substantially delayed by the minimum                     time to meet the employer’s actual date               requesting a lower number of workers
                                          period specified that positive                           of need. As discussed above, the                      than actually needed and subsequently
                                          recruitment must be conducted in                         Department has clarified the effect of                submitting an amendment to increase
                                          advance of the date of need (75 days in                  deficient recruitment in                              the number. Moreover, the exception for
                                          the NPRM, 60 days in the Final Rule).                    § 655.107(b)(2)(iv) of the Final Rule.                employers of 10 or fewer H–2A workers
                                             Recruitment is an essential part of the               This revised procedure will allow                     has not been changed, as interest in
                                          H–2A program, and is necessary for the                   modified applications to move forward                 such a change was not widespread.
                                          Department to be able to certify that no                 after the application originally                         In the NPRM the Department
                                          qualified U.S. workers are able, willing,                submitted is found to have deficient                  included new provisions relating to
                                          and available for the job opportunity,                   recruitment.                                          amendments to reflect the shift to an
                                          and that hiring H–2A workers would                          The NPRM proposed to revise the                    attestation-based process. A group of
                                          not adversely affect the wages and                       current timeframe for an employer to                  farmworker advocacy organizations
                                          working conditions of U.S. workers                       submit a modification to the application              commented that they believed the new
                                          similarly employed. Although the                         from 5 calendar days to 5 business days,              language is weaker than the language in
                                          positive recruitment requirements will                   and this change was supported by a                    the current regulations. The
                                          not be waived, the Department will                       major trade association. However, the                 organization objected to the deletion of
                                          allow re-recruitment to be conducted on                  association commented that 5 business                 language making explicit that labor
                                          an expedited schedule so that                            days still is not sufficient time for an              certifications are subject to the
                                          employers can secure H–2A workers in                     employer to decide whether to modify                  conditions and assurances made during
                                          a timely fashion where no U.S. workers                   the application or submit a request for               the application process and
                                          are available. Even with an expedited                    an expedited administrative judicial                  recommended this language be
                                          schedule, however, failure to properly                   review. The association requested the                 included. The Department did not deem
                                          recruit will inevitably delay approval of                timeframe for requesting an expedited                 this change necessary, as it is already
                                          an application to at least some extent,                  review should be extended to 7 business               clear from the text and structure of the
                                          and the Department encourages                            days. The Department has decided to                   Final Rule. The organization also
                                          employers to be mindful of all of the                    retain the requirement for submission of              recommended the language prohibiting
                                          recruitment requirements specified in                    either a modification or a request for                changes to the benefits, wages, and
                                          the Final Rule.                                          administrative review within 5 business               working conditions as contained in the
                                                                                                   days, as proposed, which will allow the               current regulation should be included in
                                          (c) Proposed Section 655.107(a)(5), New                  Department to meet the timeframes for                 the new rule. The Department believes
                                          Section 655.107(c) Modifications                         review that are established by statute.               the language in the Final Rule
                                             The proposed regulations retain the                   The Department believes that due to the               specifying that in deciding whether to
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                                          process for issuance of a Notice of                      time-sensitive nature of the H–2A                     accept an amendment, the CO must
                                          Deficiency by the CO and the                             program, the majority of employers also               ‘‘take into account the effect(s) of a
                                          submission of a modified application by                  prefer a speedy timeline that ensures                 decision to approve on the adequacy of
                                          the employer. However, under the                         disputes and deficiencies are resolved                the underlying test of the domestic labor
                                          current regulations, applications are                    as quickly as possible.                               market for the job opportunity’’ fulfills

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                                          this function. An amendment to effect a                  growers commented that ‘‘there is no                     Adverse effect wage rates were
                                          non-trivial increase in the offered                      valid basis for setting an adverse effect             established for the first time in 1961
                                          wages, for example, would likely render                  wage rate, separate and distinct from the             pursuant to an agreement with Mexico,
                                          the job more attractive to U.S. workers,                 prevailing wage for the occupation in                 which provided that the wages offered
                                          and such an amendment would not be                       the area of intended employment, and                  under the Bracero program could be no
                                          approved without new recruitment                         requiring the payment of such a wage if               less than an adverse effect wage rate
                                          being conducted. However, the Final                      it is higher than the prevailing wage.’’              determined by the Secretary of Labor.
                                          Rule clarifies that amendments should                    An association of growers commented                   The H–2 program, which is the
                                          be approved by the CO ‘‘if the CO                        that ‘‘DOL’s discussion in the preamble               predecessor to the H–2A program, was
                                          determines the proposed amendment(s)                     to the proposed regulation makes the                  initially created in 1952. H–2 workers
                                          are justified by a business reason and                   case against an AEWR.’’ Another                       were initially required to be paid only
                                          will not prevent the CO from making the                  grower’s association doubts the                       prevailing wage rates. Adverse effect
                                          labor certification determination                        Department’s assertion ‘‘in the preamble              wage rates were extended to the H–2
                                          required under § 655.109.’’                              that the wages and working conditions                 program for the first time, however, in
                                            Finally, the organization believed that                of agricultural workers are depressed by              1963, as the Bracero program was being
                                          the provision in proposed                                the presence of a high proportion of                  phased out. Two circumstances
                                          § 655.107(a)(6) (now § 655.107(d)(2)),                   illegal aliens.’’ This organization further           motivated the creation of these wage
                                          which allows minor changes in the                        asserts that field and livestock workers’             rates. First, the federal minimum wage
                                          period of employment, and also requires                  average wages have increased at a faster              had not yet been extended to
                                          an assurance that U.S. workers will be                   rate than those for non-farm workers.                 agricultural workers. Second, concerns
                                          provided with housing and subsistence                    Other comments focused on an apparent                 were raised that large numbers of
                                          costs under certain circumstances when                   inconsistency between the H–2A                        foreign workers, many of whom were
                                          the season is delayed, does not go far                   program and other temporary worker                    undocumented, had depressed wage
                                          enough because it does not address                       programs, none of which requires an                   rates in the agricultural sector. 54 FR
                                          problems that H–2A workers might                         AEWR in addition to a prevailing wage.                28041.
                                          encounter related to housing,                               Congress did not mandate the creation                 Between 1963 and 1989, the
                                          subsistence, lost work opportunities,                    of an adverse effect wage rate for the H–             Department applied a variety of
                                          and an employer’s failure to meet its                    2A program. Rather, Congress provided                 methodologies to determine how
                                          obligation under the three-fourths rule.                 in sec. 218(a)(1)(B) of the INA that                  adverse effect wage rates should be set.
                                          The Department does not agree with this                  before an employer is permitted to hire               It is clear that the Department has
                                          characterization. Both the DOL and DHS                   an H–2A worker, the Secretary of Labor                always been motivated in setting
                                          Final Rules allow for minor                              must certify that the hiring of the H–2A              adverse effect wage rates to counteract
                                          modifications in the period of                           worker ‘‘will not adversely affect the                the potential impact on the wages of
                                          employment that do not change any of                     wages and working conditions of                       U.S. workers of the large numbers of
                                          the employer’s responsibilities with                     workers in the United States similarly                foreign workers, particularly
                                          respect to its workers. All of an                        employed.’’ This language is identical to             undocumented workers, in the
                                          employer’s obligations, attested to in the               the general labor certification language              agricultural sector. Id. The Department’s
                                          original application, apply to any                       in sec. 212(a)(5)(A)(i) of the INA, which             comprehensive 1989 study of adverse
                                          amendment thereto.                                       provides that ‘‘[a]ny alien who seeks to              effect wage rates came to several
                                            A sentence was added to the Final                      enter the United States for the purpose               important conclusions, however. First,
                                          Rule clarifying that the CO will transmit                of performing skilled or unskilled labor              none of the methodologies employed by
                                          accepted amendments to SWAs, where                       is inadmissible, unless the Secretary of              the Department ‘‘ever has purported to
                                          necessary, so that posted job orders can                 Labor has determined’’ that hiring that               add an enhancement’’ to wage rates
                                          be modified. A further sentence was                      alien ‘‘will not adversely affect the                 calculated by the United States
                                          added clarifying that the Department                     wages and working conditions of                       Department of Agriculture (USDA). 54
                                          will review proposed amendments as                       workers in the United States similarly                FR 28040. Second, although some
                                          quickly as possible, ‘‘taking into account               employed.’’                                           adverse effect wage rates did exceed the
                                          revised dates of need for work locations                    For most of its temporary and                      wage rates set by the USDA, that was
                                          associated with the amendment.’’                         permanent foreign worker programs, the                ‘‘an unintended result of the application
                                                                                                   Department applies the assumption that                of the various methodologies used in the
                                          (e) Proposed Section 655.107(a)(7), New                  U.S. workers in the same occupation                   1960s’’ and ‘‘cannot in any way be
                                          Section 655.107(e) Appeal Procedures                     will be adequately protected from                     viewed as a measurement of the
                                             Some minor, non-substantive changes                   having their wages adversely affected by              quantum of adverse effect.’’ Id. Indeed,
                                          were made to the language of this                        the hiring of foreign workers so long as              the Department concluded that some of
                                          provision in the Final Rule for purposes                 the workers are paid prevailing wage                  its past methodologies for calculating
                                          of clarity and consistency. The language                 rates. Congress itself has applied this               adverse effect wage rates ‘‘led to AEWRs
                                          has also been modified to specify that                   assumption by statute with respect to                 which were higher than Statewide
                                          ‘‘the denial of a requested amendment                    the granting of labor certifications under            agricultural earning in some states and
                                          under paragraph (d) of this section’’ and                the H–1B program. See Sections                        lower in others,’’ a result that the
                                          ‘‘a notice of denial issued under                        212(n)(1)(A) and 212(p) of the INA. For               Department labeled ‘‘erratic.’’ 54 FR
                                          § 655.109(e)’’ do not constitute final                   historical reasons, however, the                      28041.
                                          agency action, and may be appealed                       Department established special ‘‘adverse                 The Department stated in 1989 that
                                          pursuant to the procedures set forth in                  effect’’ wage rates for the H–2A                      the adverse effect wage rate ‘‘is a
                                          § 655.115.                                               program. The Department                               ‘method of avoiding wage deflation.’ ’’
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                                                                                                   comprehensively recounted the history                 54 FR 28045, citing Williams v. Usery,
                                          Section 655.108—Offered Wage Rate                        of adverse effect wage rates in its last              531 F.2d 305, 306 (5th Cir. 1976). Thus,
                                            A number of commenters questioned                      major rulemaking on the H–2A program                  the Department performed a
                                          the continued need for an adverse effect                 in 1989. 54 FR 28037, 28039–28041                     comprehensive study of the then-
                                          wage rate (AEWR). An association of                      (July 5, 1989).                                       existing literature on agricultural wages

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                                          to determine whether wage depression                     depression from the presence of illegal               H–2A program’s wage rates, and to use
                                          in fact existed in the agricultural sector,              alien workers on the USDA data series.’’              the USDA survey to measure average
                                          and if so, what its likely sources were.                 54 FR 28043. Second, ‘‘[t]o the extent                agricultural wage rates, were challenged
                                          The Department concluded that ‘‘there                    that there is some anecdotal evidence of              but were upheld by the DC Circuit. AFL-
                                          is a tendency for illegal alien workers to               wage depression from these sources, the               CIO v. Dole, 923 F.2d 182 (DC Cir.
                                          adversely affect wage rates.’’ 54 FR                     evidence also suggests that the adverse               1991). The Court noted that there is no
                                          28041. The Department relied in part on                  effects are highly localized and                      ‘‘statutory requirement to adjust for past
                                          a General Accounting Office report                       concentrated in specific areas and crop               wage depression,’’ and that in
                                          finding that ‘‘illegal aliens do, in some                activities.’’ Id. Third, an ‘‘explicit                determining appropriate wage rates
                                          cases, exert downward pressure on                        enhancement’’ to agricultural wages can               there is a ‘‘range of reasonable
                                          wages and working conditions with                        only be justified ‘‘if the extent of the              methodological choices open to the
                                          low-wage low-skilled jobs in certain                     depression can be measured.’’ Id.                     Department.’’ Id. at 187. The Court
                                          labor markets.’’ 54 FR 28042, quoting                       In 1989, the Department decided that,              further noted that the Department had
                                          General Accounting Office, Illegal                       taking all of these considerations into               expressed that one of its objectives in
                                          Aliens: Influence of Illegal Workers on                  account, ‘‘setting the AEWR at the level              adopting the new wage methodology
                                          Wages and Working Conditions of Legal                    of average agricultural wages, as                     was to avoid impeding ‘‘IRCA’s goal of
                                          Workers (GAO/PEMD–88–13BR) (March                        determined by the USDA survey, is the                 replacing illegal aliens with
                                          1988). The Department also relied on a                   correct approach.’’ 54 FR 28043. The                  documented foreign workers.’’ Id. at
                                          study published by the National                          Department noted that the ‘‘new                       186. Where ‘‘the data is inconclusive,’’
                                          Commission for Employment Policy,                        methodology ties AEWRs directly to the                the Department merely needs to
                                          which found that ‘‘[u]ndocumented                        average wage, as opposed to the old                   ‘‘identify the considerations it found
                                          workers do displace some native-born                     methodology which resulted in AEWRS                   persuasive in making its decision’’ as to
                                          U.S. workers and do lower wages and                      substantially higher than agricultural                what methodology to apply. Id. at 187.
                                          working conditions in some occupations                   earnings in many States, and lower for
                                                                                                   some States.’’ 54 FR 28038. The                       (a) Retaining the Adverse Effect Wage
                                          and geographical areas.’’ 54 FR 28042,
                                                                                                   Department found that the use of an                   Rate
                                          quoting National Commission for
                                          Employment Policy, Illegal Immigrants                    average wage rate as the adverse effect                  Many commenters who opposed
                                          and Refugees—Their Economic                              wage rate was particularly appropriate                retaining the adverse effect wage rate
                                          Adaptation and Impact on Local U.S.                      because ‘‘AEWRs, if set too high, might               seemed to believe that the AEWR is
                                          Labor Markets: A Review of the                           be a disincentive to the use of H–2A and              intended to be an enhanced wage rate,
                                          Literature (October 1986). The                           U.S. workers, and could undermine                     and that its existence must be
                                          Department also relied on a study                        efforts to eradicate the employment of                predicated on the existence of wage
                                          conducted by Dr. Phillip L. Martin,                      illegal aliens.’’ 54 FR 28044.                        depression in the agricultural sector.
                                          Professor of Agricultural Economics,                        Having determined to use average                   Both of those views were squarely
                                          University of California at Davis, who                   agricultural wage rates to set the H–2A               rejected by the Department in the 1989
                                          concluded that ‘‘[t]he removal of illegal                program’s adverse effect wage rates, the              rulemaking, when the Department
                                          alien workers should raise farm wages.’’                 Department chose the USDA survey to                   expressly declined to adopt any form of
                                          54 FR 28043, quoting Dr. Phillip L.                      measure average agricultural wage rates               enhancement to the average agricultural
                                          Martin, IRCA and the U.S. Farm Labor                     for two main reasons. First, the                      hourly wage rate, and when it retained
                                          Market (February 1988).                                  Department found that at that time the                the adverse effect wage rate despite its
                                             There were, however, countervailing                   USDA survey of farm and livestock                     finding that evidence of generalized
                                          findings indicating that any adverse                     workers ‘‘presents the best available                 wage depression in the agricultural
                                          effects on agricultural wages caused by                  data on hourly wages in the agricultural              sector was inconclusive.
                                          illegal alien workers at that time were                  sector.’’ 54 FR 28041. The Department                    The Department is retaining the
                                          ‘‘minor and localized.’’ 54 FR 28041.                    noted in this regard that ‘‘all crops and             concept of the adverse effect wage rate,
                                          The Department noted that ‘‘the only                     activities now covered by the H–2A                    despite the fact that is adopting a
                                          wage depression shown in agricultural                    program will be included in the survey                methodology that will actually set
                                          employment in the GAO report                             data and the peak work periods also will              AEWRs at prevailing wage rates, for
                                          appeared in two limited, localized                       be covered.’’ Id. Second, although the                three reasons. First, by definition, the
                                          studies of San Diego County, California,                 Department had found that evidence                    adverse effect wage rate is the wage rate
                                          pole tomatoes and Ventura County,                        concerning wage depression in the                     at which the wages of U.S. workers will
                                          California, citrus,’’ and that ‘‘GAO itself              agricultural sector caused by                         not be adversely affected. The
                                          noted that these studies were probably                   undocumented workers was                              Department is firmly committed to the
                                          atypical.’’ 54 FR 28042. The National                    inconclusive, ‘‘[t]o the extent the wage              principle that the wage rates required by
                                          Council for Employment Policy study                      depression does exist on a concentrated               the H–2A program should ensure that
                                          found that ‘‘[t]he evidence regarding the                local basis, the average agricultural                 the wages of U.S. workers will not be
                                          labor market impact of undocumented                      wage does not appear to be significantly              adversely affected by the hiring of H–2A
                                          entrants is mixed and somewhat                           affected by wage depression. Further,                 workers, and therefore declines to
                                          inconclusive.’’ Id., quoting Illegal                     none of the studies reviewed by DOL                   jettison the ‘‘adverse effect wage rate’’
                                          Immigrants and Refugees, supra. And                      here quantifies or measured any wage                  concept. Second, as is explained further
                                          Dr. Martin noted that ‘‘the evidence of                  depression that might exist in the USDA               below, the Department was guided in its
                                          these possible wage-depressing effects                   series.’’ 54 FR 28043. Thus, although                 choice of methodologies for determining
                                          of illegals is sparse.’’ 54 FR 28043,                    ‘‘the evidence is not conclusive on the               prevailing wage rates, and in its
                                          quoting Martin, supra.                                   existence of past adverse effect,’’ any               ultimate selection of the Bureau of
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                                             The Department thus drew three                        adverse effect ‘‘which might have                     Labor Statistics (BLS) Occupational
                                          significant conclusions in the 1989                      occurred may not be reflected in the                  Employment Statistics (OES) survey, by
                                          rulemaking. First, ‘‘DOL views the data                  USDA data series.’’ Id.                               its commitment to selecting the
                                          and literature as inconclusive on the                       The Department’s decisions to use                  methodology that will best prevent an
                                          issue of adverse effect or wage                          average agricultural wage rates to set the            adverse effect on the wages of U.S.

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                                          77168            Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations

                                          workers. Thus, the adverse effect                        the Department and none of the studies                on the wages in that sector does not
                                          concept will continue to exert an                        that the Department reviewed in                       appear to be borne out by the facts. A
                                          important influence on the wage rates                    response to those comments provided a                 study analyzing changes in the median
                                          actually supplied by the H–2A program.                   methodology that would allow for the                  weekly earnings for selected
                                          Finally, § 655.108(a) of the Final Rule                  quantification of any agricultural wage               occupations between 1988 and 1999
                                          requires employers to pay ‘‘the highest                  depression that might exist.                          found that median weekly earnings for
                                          of the AEWR in effect at the time                           On the other hand, many experts                    ‘‘farm occupations, except managerial’’
                                          recruitment for a position is begun, the                 assert that evidence indicating that                  had increased 21 percent between 1988
                                          prevailing hourly wage or piece rate, or                 undocumented workers cause wage                       and 1993, and 20 percent between 1994
                                          the Federal or State minimum wage.’’                     depression remains mixed. For example,                and 1999, while median earnings for
                                          The ‘‘prevailing hourly wage rate’’                      Jeffrey S. Passel of the Pew Hispanic                 ‘‘farm workers’’ increased 22 percent
                                          referred to in this provision is defined                 Center recently stated that ‘‘I don’t                 between 1988 and 1993, and 20 percent
                                          to mean ‘‘the hourly wage determined                     know if there’s anything in the data that             between 1994 and 1999. This compared
                                          by the SWA to be prevailing in the area                  clearly points one way or the other. At               favorably to increases in the median
                                          in accordance with State-based wage                      one level, it’s a lot of people: 11.5                 weekly earnings for all workers, which
                                          surveys.’’ A similar formulation is used                 million to 12 million. But it’s about one             increased 20 percent between 1988 and
                                          under the current rule. Retaining the                    in 20 workers, so it’s not a huge share               1993, and 18 percent between 1994 and
                                          phrase ‘‘adverse effect wage rate’’ to                   of the labor market.’’ The Immigration                1999, as well as to workers in many
                                          describe the wage level that is                          Debate: Its Impact on Wages, Workers,                 other specific low-wage occupational
                                          determined by the Department to be                       and Employers, in Knowledge@Wharton                   categories (cooks: 17 percent and 19
                                          prevailing in accordance with Federal                    at p. 4 (May 17, 2006). Bernard                       percent; butchers: 13 percent and 22
                                          wage surveys will retain this traditional                Anderson, who served as Assistant                     percent; laundry and dry cleaning
                                          State/Federal distinction and avoid the                  Secretary for the Employment Standards                operators: 17 percent and 16 percent;
                                          confusion that might result from calling                 Administration during the Clinton                     sewing machine operators, 17 percent
                                          two different wage levels both the                       Administration, has opined that with                  and 19 percent). See Philip Martin,
                                          ‘‘prevailing’’ wage rate.                                respect to the question of ‘‘what impact              Guest Workers: New Solution, New
                                                                                                   there is on wages, economic status and                Problem? at Table A3–4 (Pew Hispanic
                                          (b) Evidence of Wage Depression at the                   employment for American workers
                                          National Level                                                                                                 Center Study, March 21, 2002).
                                                                                                   * * * you get a clear divide in the                   Although the Department assumes that
                                             In 1989, the Department concluded                     economic literature. The evidence                     it is true that undocumented workers
                                          that evidence of wage depression in the                  produced by economists who have                       are more prevalent in the agricultural
                                          agricultural sector was inconclusive. 54                 studied this question is mixed.’’ Id. See             sector than they are in many other
                                          FR 28043. The Department noted that                      also several studies on the effects of                sectors, the available data does not
                                          some studies had identified wage                         immigration generally: Robert D.                      support the notion that they have had a
                                          depression in specific agricultural labor                Emerson, Agricultural Labor Markets                   disproportionately depressive impact on
                                          markets, but labeled that evidence                       and Immigration at p. 57 (Choices, 1st                wages in the agricultural sector.
                                          ‘‘anecdotal.’’ Id. The Department further                Quarter 2007) (‘‘While some economists
                                          noted that even this anecdotal evidence                  suggest that increased immigration has                   In sum, after considering the
                                          of wage depression was ‘‘highly                          reduced wage rates for native-born,                   comments received on the subject of
                                          localized and concentrated in specific                   unskilled workers * * * most have                     wage depression, and after reviewing
                                          areas and crop activities.’’ Id.                         found negative wage effects of increased              relevant literature in an attempt to
                                             Evidence developed during the last 20                 immigration extremely difficult to                    identify empirical support for the
                                          years has not added any additional                       demonstrate once all appropriate                      assertions made in those comments, the
                                          clarity on the issue of wage depression.                 adjustments are made.’’); Pia Orrenius,               Department reaffirms its conclusion in
                                          Some experts continue to claim that                      The Impact of Immigration,                            the 1989 rulemaking that evidence of
                                          undocumented workers cause wage                          Commentary, The Wall Street Journal                   wage depression in the agricultural
                                          depression. See, e.g., Michael J.                        (April 25, 2006) (‘‘[M]ost studies find               sector is inconclusive.
                                          Wishnie, Prohibiting the Employment of                   immigrants have little effect on average              (c) Evidence of Wage Depression at the
                                          Unauthorized Immigrants: The                             wages.’’); Gianmarco I.P. Ottaviao and                Local Level
                                          Experiment Fails, 2007 U.Chic.Leg. For.                  Giovannit Peri, Rethinking the Gains
                                          193, 215 (2007) (‘‘[T]his has almost                     from Immigration: Theory and Evidence                   In the 1989 rulemaking, the
                                          certainly contributed to the depression                  from the U.S. at 28 (August 2005) (‘‘It               Department found that ‘‘[t]o the extent
                                          of wages and working conditions for                      turns out empirically and theoretically               that there is some anecdotal evidence of
                                          U.S. workers.’’). One comment                            that immigration, as we have known it                 wage depression * * *, the evidence
                                          submitted by a group of farmworker                       during the nineties, had a sizeable                   also suggests that the adverse effects are
                                          advocacy organizations acknowledged                      beneficial effect on wages of U.S born                highly localized and concentrated in
                                          that the impact of undocumented                          workers.’’). Several grower and                       specific areas and crop activities.’’ The
                                          workers on wages at a broad national                     employer groups commented that they                   Department did not find that there was
                                          level ‘‘is under dispute,’’ but asserted                 do not believe there is reliable evidence             in fact wage depression in local markets,
                                          that wage depression is clearly evident                  of wage depression in the agricultural                specific areas, or specific crop activities,
                                          in the agricultural sector. This                         sector. They did not, however, provide                but rather noted that the anecdotal
                                          commenter did not provide any wage                       any data or analysis of existing studies              evidence of wage depression that
                                          data supporting this assertion, however.                 to support this assertion.                            existed at that time was confined to
                                          Rather, the commenter relied on data                        The assertion of one group of                      those settings. The relevant facts
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                                          indicating that undocumented workers                     farmworker advocacy organizations that                concerning concentrations of illegal
                                          are more prevalent in the agricultural                   the unusually high concentration of                   workers in specific local markets and
                                          sector than they are in most other                       undocumented workers in the                           crop activities have changed
                                          sectors of the labor force. In fact, none                agricultural sector must necessarily                  substantially in the intervening 20
                                          of the comments that were submitted to                   result in a particularly depressive effect            years, however.

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                                             A group of farmworker advocacy                        other states.’’). In many respects the                pockets of unusually high
                                          organizations commented that ‘‘[t]imes                   growing dispersion of unauthorized                    concentrations of illegal workers
                                          have changed since 1987.’’ This group                    workers is unsurprising, as the number                continue to exist in some places in the
                                          stated that undocumented workers in                      of unauthorized workers in the United                 agricultural sector, the evidence
                                          the agricultural sector are now ‘‘spread                 States has dramatically increased from                concerning the effect high
                                          throughout the nation.’’ This group                      an estimated 2.5 million in the late                  concentrations of illegal workers have
                                          noted that ‘‘undocumented workers now                    1980s to an estimated 12 million or                   on the wages of U.S. workers itself
                                          dominate in the agricultural sector’’ and                more today. See Passel, Unauthorized                  remains equivocal.
                                          ‘‘constitute a majority of the                           Migrants: Numbers and Characteristics
                                                                                                                                                         (d) Inability To Measure Wage
                                          farmworkers in the United States.’’ This                 at p. 10, supra; Hoefer et al. at p. 1,
                                          group argued that the factual change in                  supra.
                                          the prevalence of undocumented                              Recent literature also suggests that,                 None of the commenters and none of
                                          workers in the agricultural sector is so                 even if there are some areas in the                   the literature reviewed by the
                                          significant that ‘‘DOL may not legally                   agricultural sector in which particularly             Department suggested a reliable
                                          ignore [it].’’ It further provided an                    high concentrations of illegal                        methodology for measuring any wage
                                          impressive compilation of statistics                     immigrants remain, such concentrations                depression that may exist in the
                                          from a variety of studies showing that                   may not adversely affect U.S. workers.                agricultural sector. Indeed, one group of
                                          undocumented workers are now                             Jeffrey S. Passel of the Pew Hispanic                 farmworker advocacy organizations
                                          pervasive in the agricultural sector,                    Center has noted that high                            submitted an analysis prepared by a
                                          rather than a sparse or localized                        concentrations of illegal workers in                  PhD economist from the University of
                                          phenomenon. Specifically, the studies                    particular markets are generally                      California, Berkeley, that concluded that
                                          cited found that ‘‘[i]n California, where                correlated with lower local                           ‘‘[g]iven the extremely large share of
                                          35 percent of the nation’s farmworkers                   unemployment rates for native workers:                illegal immigrants working in
                                          are employed, 57 percent of                                The presence of illegals is not associated          agriculture, it is unknowable, absent
                                          farmworkers were undocumented as of                      with higher unemployment among natives                them, how many U.S. workers would be
                                          2003–05,’’ that in Florida, ‘‘50 percent                 and it seems to me you would have to see              willing to and at what price work in the
                                          of farmworkers were unauthorized                         that kind of thing for there to be true               agricultural sector.’’ As the Department
                                          immigrants [in 2004] and the percentage
                                                                                                   displacement in any sense. Geographically, it         explained in 1989, ‘‘an explicit
                                                                                                   tends to be the reverse: Places with large            enhancement could only be justified if
                                          was increasing,’’ that ‘‘[m]ore than 60                  numbers of illegals tend to have lower                alien agricultural employment has
                                          percent of agricultural workers in                       unemployment than places without illegals.            depressed average agricultural earnings,
                                          Washington are believed to be
                                                                                                   The Immigration Debate: Its Impact on                 and if the extent of the depression can
                                          undocumented,’’ that ‘‘in New York
                                                                                                   Wages, Workers, and Employers, in                     be measured at the aggregate level.’’ 54
                                          State approximately 70 percent of
                                                                                                   Knowledge@Wharton at pp. 4–5 (May                     FR 28043. With no conclusive evidence
                                          farmworkers are undocumented,’’ and                      17, 2006). And David Card concluded in                showing that wage depression exists in
                                          that ‘‘45 percent of the Mountain                        a study analyzing the effects of                      the agricultural sector, and with no
                                          region’s farmworkers report they were                    immigration generally (rather the effects             reliable methodology to measure any
                                          working illegally in the U.S.’’                          of unauthorized immigration in                        wage depression that does exist, the
                                             A variety of experts have similarly                   particular) on U.S. workers that                      Department declines to adopt an
                                          concluded that the presence of                           ‘‘[a]lthough immigration has a strong                 adverse effect wage rate that is
                                          undocumented workers in the United                       effect on relative supplies of different              deliberately set above market rates.
                                          States is now a widespread                               skill groups, local labor market
                                          phenomenon rather than a localized                       outcomes of low skilled [U.S.] natives                (e) The Impact of Undocumented
                                          one. A 2005 study by the Pew Hispanic                    are not much affected by the relative                 Workers vs. Guest Workers on U.S.
                                          Center found that ‘‘since the mid-1990s,                 supply shocks.’’ David Card, Is the New               Worker Wages
                                          the most rapid growth in the immigrant                   Immigration Really So Bad?, National                     To the extent that wage depression
                                          population in general and the                            Bureau of Economic Research (August                   may exist in the agricultural sector, the
                                          unauthorized population in particular                    2005).                                                evidence does not indicate that it has
                                          has taken place in new settlement areas                     The Department concludes that there                been caused by the H–2A program.
                                          where the foreign-born had previously                    is no conclusive evidence one way or                  Rather, all of the information available
                                          been a relatively small presence.’’                      the other regarding the existence of                  to the Department strongly indicates
                                          Jeffrey S. Passel, Unauthorized                          wage depression in localized                          that the presence of large numbers of
                                          Migrants: Numbers and Characteristics                    agricultural labor markets. There is                  illegal, undocumented workers in the
                                          at p. 11 (Pew Hispanic Center, June 14,                  strong evidence that there has been a                 agricultural sector poses a much greater
                                          2005). ‘‘The geographic diversification                  seismic shift in the demographics of the              potential threat to the wages of U.S.
                                          of the unauthorized population since                     agricultural labor market in the United               workers than guest workers do.
                                          1990 is very evident * * * .’’ Id. at p.                 States since the Department’s last                       The Department has reviewed anew
                                          13. A 2006 study by the Department of                    rulemaking in 1989, and that                          the studies that it relied on in 1989
                                          Homeland Security reached a similar                      undocumented workers have in the                      when it issued the last rule governing
                                          conclusion. See Michael Hoefer, Nancy                    intervening years come to dominate that               the adverse effect wage rate. Virtually
                                          Rytina, and Christopher Campbell,                        market throughout the United States. In               all of those studies focused on the effect
                                          Estimates of the Unauthorized                            light of the pervasive presence of                    that undocumented alien workers have
                                          Immigrant Population Residing in the                     undocumented workers in the                           on the wages of U.S. workers. See, e.g.,
                                          United States: January 2006 at p. 4                      agricultural sector today, it is                      National Commission for Employment
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                                          (Office of Immigration Statistics, August                substantially less likely than it was in              Policy, supra (‘‘Undocumented workers
                                          2007) (‘‘Growing geographic dispersion                   1989 that wage depression could                       do displace some native-born U.S.
                                          of the unauthorized immigrant                            uniquely be found in highly localized                 workers and do lower wages and
                                          population is reflected by an increase in                agricultural labor markets and specific               working conditions in some occupations
                                          the share of the population living in all                crop activities. Moreover, even if                    and geographical areas.’’); Martin, IRCA

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                                          77170            Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations

                                          and the U.S. Farm Labor Market, supra                    working conditions can seriously                      higher wages than the required wage
                                          ( ‘‘[t]he removal of illegal alien workers               depress wage scales and working                       rate for H–2A workers, since H–2A
                                          should raise farm wages.’’). Indeed, the                 conditions of citizens and legally                    workers impose a number of additional
                                          GAO study that was relied upon by the                    admitted aliens * * *’’).                             costs on employers, including housing,
                                          Department examined the impact of                           A group of farmworker advocacy                     transportation, and application fees, that
                                          undocumented workers not just on the                     organizations suggested that guest                    make them relatively more expensive to
                                          wages of U.S. citizen workers, but on all                worker programs may also threaten the                 employers than U.S. workers.
                                          legal workers in the United States with                  wages and working conditions of U.S.                     Whatever effect guest workers may
                                          low-wage, low-skilled jobs, including                    workers. These organizations primarily                have on the wages of U.S. workers,
                                          guest workers. See Illegal Aliens:                       cited studies finding that between 1950               however, there appears to be virtually
                                          Influence of Illegal Workers on Wages                    and 1964, the period of time during                   unanimous agreement among the
                                          and Working Conditions of Legal                          which the Bracero Program was                         experts and commenters that
                                          Workers (GAO/PEMD–88–13BR) (March                        operating, real wages for agricultural                undocumented workers have a greater
                                          1988) (‘‘illegal aliens do, in some cases,               workers remained flat. Even if these                  impact and pose a greater threat. Indeed,
                                          exert downward pressure on wages and                     studies are correct about the impact of               the very same group of farmworker
                                          working conditions with low-wage low-                    the Bracero Program, however, the                     advocacy organizations that argued that
                                          skilled jobs in certain labor markets.’’).               Department does not consider the                      guest worker programs have a
                                             Other sources also support the notion                 Bracero Program to be representative of               depressive effect on wages submitted a
                                          that any threat that foreign workers may                 the impact of guest worker programs                   PhD economist’s analysis concluding
                                          pose to the wages and working                            generally. The Bracero Program was                    that ‘‘the H–2A program and the AEWR
                                          conditions of U.S. workers is primarily                  notorious for rampant employer abuses                 are severely undermined by the
                                          caused by direct competition from a                      and lack of government enforcement.                   employment of hundreds of thousands
                                          large undocumented workforce within                      See, e.g., Alma M. Garcia, The Mexican                of undocumented immigrant workers.’’
                                          the United States. Illegal aliens may be                 Americans at pp. 30–33 (2002). If                     The economist further opined that
                                          willing to work for illegally low wages                  employers are regularly able to get away              ‘‘[f]irst and foremost, it is in the best
                                          that are paid off the books, and may be                  with violating program requirements                   interest of U.S. domestic and H–2A
                                          reluctant to report an employer’s                        and paying sub-standard wages, such                   workers to mitigate the effects that such
                                          violations of the labor and employment                   rogue activity may of course have a                   a large share of illegal workers has on
                                          laws. A group of farmworker advocacy                     depressive effect on overall wage rates.              wages and employment conditions in
                                          organizations submitted an analysis                      H–2A program enforcement, however, is                 the agricultural industry.’’ See also
                                          prepared by a PhD economist from the                     more rigorous than Bracero Program                    Peter Cappelli, The Immigration Debate:
                                          University of California, Berkeley,                      enforcement was, and is substantially                 Its Impact on Wages, Workers, and
                                          which stated that:                                       aided by watchdog farmworker                          Employers, in Knowledge@Wharton at
                                                                                                   advocacy organizations that help to                   p. 3 (May 17, 2006) (‘‘While it is true
                                            There are other reasons that employers in
                                          the U.S. hire undocumented workers over
                                                                                                   ensure that workers hired through the                 that low-skill workers who enter the
                                          U.S. workers. Undocumented workers—                      H–2A program are paid properly.                       United States legally also exert
                                          afraid of deportation—are perceived to be                   The commenter cited only one other                 downward pressure on wages, there is a
                                          less demanding in terms of non-pecuniary                 supposed example of wage depression                   significant difference between them and
                                          benefits and are less likely to form unions or           caused by the H–2A program: The                       their undocumented counterparts.’’). Of
                                          make demands from employers, as well as                  Florida sugar cane industry. The                      course, guest worker programs could, in
                                          accept pay below legal standards.                        commenter noted that the sugar cane                   the abstract, pose a significant threat to
                                          Senators from both political parties                     harvest in Florida was mechanized in                  the wages of U.S. workers, if, for
                                          remarked upon this phenomenon during                     the early 1990s, and that the industry                example, the required wage rate was set
                                          the recent immigration debates in                        therefore no longer uses substantial                  substantially below the prevailing
                                          Congress.5 As Senator Kennedy stated                     numbers of H–2A workers. The                          market rates, or if enforcement of the
                                          in May 2007,                                             commenter asserted, however, that in                  required wage rates was so lax that
                                                                                                   the late 1980s and early 1990s, while H–              substantially below-market wages were
                                             [W]e have, unfortunately, employers
                                          who—are prepared to exploit the current
                                                                                                   2A workers were still being used, their               regularly paid. There is no indication,
                                          condition of undocumented workers in this                presence depressed the wages of U.S.                  however, that those conditions currently
                                          country—potentially, close to 12 [and] 1⁄2               workers. As support for this                          exist in the H–2A program, nor does the
                                          million are undocumented. Because they are               proposition, the commenter cited                      Department have any intention of
                                          undocumented, employers can have them in                 statistics indicating that sugar cane                 allowing them to occur under the Final
                                          these kinds of conditions. If they don’t like            producers that hired only U.S. workers                Rule.
                                          it, they tell them they will be reported to the          paid their employees substantially more                  Thus, the Department concludes that
                                          immigration service and be deported. That is             per hour than producers that hired H–
                                          what is happening today.6
                                                                                                                                                         while evidence of wage depression in
                                                                                                   2A workers. The Department does not                   the agricultural sector remains
                                          The U.S. Supreme Court has also noted                    consider this to be evidence of wage                  inconclusive, it is quite clear that the
                                          the threat that undocumented workers                     depression; if anything, the wage gap                 most likely source of any wage
                                          pose to the wages and working                            between U.S. workers and H–2A                         depression that does exist is the
                                          conditions of U.S. workers. See Sure-                    workers shows that the AEWR paid to                   hundreds of thousands of
                                          Tan v. NLRB, 467 U.S. 883, 892 (1984)                    H–2A sugar cane workers did not                       undocumented workers in the
                                          (‘‘acceptance by illegal aliens of jobs on               function as the maximum hourly rate                   agricultural labor market.
                                          substandard terms as to wages and                        that U.S. workers in the area could
                                                                                                   make. Rather, U.S. workers were able to               (f) The Department’s Decision To Use
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                                            5 See e.g., 152 Cong. Rec. S9773 (2006) (statement     secure jobs that paid substantially                   More Precise Adverse Effect Wage Rates
                                          of Senator Dianne Feinstein); 153 Cong. Rec. S441–       higher wages than H–2A workers.                          Although evidence of actual wage
                                          S442 (2007) (statement of Senator Larry Craig); and
                                          153 Cong. Rec. S6590 (2007) (statement of Senator        Economically speaking, that result is not             depression in the agricultural sector is
                                          Edward Kennedy).                                         at all surprising; employers generally                equivocal, the Department believes it is
                                            6 153 Cong. Rec. S6590 (2007).                         should be willing to pay U.S. workers                 appropriate to select a wage-

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                                          determination methodology that will                      Program and the U.S. Department of                     the H–2A program provides, further
                                          help to prophylactically guard against                   Labor’s Proposed Changes in the                        threatening to degrade U.S. workers’
                                          wage depression. As the Department                       Adverse Effect Wage Rate (‘‘CRS                        working conditions.
                                          noted in the NPRM, one of the most                       Report’’) at 8 (CRS Report for Congress,                  The Department was concerned about
                                          significant actions it can take to protect               November 6, 2008) (‘‘Currently, the                    precisely this phenomenon in the 1989
                                          the wages and working conditions of                      AEWR applies equally to all crop                       rulemaking. The Department presciently
                                          U.S. workers is to render the H–2A                       workers, livestock workers, and farm                   observed that ‘‘AEWRs, if set too high,
                                          program sufficiently functional that                     equipment operators in a region or state.              might be a disincentive to the use of H–
                                          agricultural employers will hire H–2A                    However, within a region or state,                     2A and U.S. workers, and could
                                          workers, with all their accompanying                     [market] wages for the same occupation                 undermine efforts to eradicate the
                                          legal protections, rather than hiring                    may vary because of differences in the                 employment of illegal aliens.’’ 54 FR
                                          undocumented workers. The                                cost of living or in the relative supply               28044. The Department’s choice of the
                                          Department has concluded that this can                   of or demand for workers.’’).                          USDA average agricultural wage to set
                                          best be achieved by setting adverse                         Conversely, an AEWR that is                         AEWRs at the time was predicated on
                                          effect wage rates that (1) are not below                 artificially set too high can also result in           the assumption ‘‘that IRCA will achieve
                                          the prevailing wages being earned by                     harm to U.S. workers. If the AEWR is set               its states purpose of removing illegal
                                          U.S. workers and (2) are not so far above                so high that it does not reflect actual                aliens from the labor force. * * *
                                          local market rates that they encourage                   local labor market conditions, many                    Agricultural employers who have
                                          employers to hire undocumented                           agricultural employers may be priced                   employed illegal alien workers in the
                                          workers instead. Achieving these                         out of participating in the H–2A                       past then must fill their labor needs
                                          objectives requires setting AEWRs that                   program. When employers cannot find                    with U.S. workers * * * or with H–2A
                                          appropriately reflect market realities                   U.S. workers, and also cannot afford H–                workers.’’ Id. IRCA did not, of course,
                                          and labor costs.                                         2A workers because they are required to                succeed in eradicating the employment
                                             There are currently not nearly enough                 pay them above-market wage rates,                      of illegal aliens in the agricultural
                                          U.S. workers in the agricultural sector to               some will inevitably end up hiring                     sector, a fact that the Department must
                                          perform all of the agricultural work that                undocumented workers instead.                          now take into account in determining
                                          needs to be performed. When                                 The resulting influx of undocumented                what wage-setting methodology is most
                                          agricultural employers cannot find U.S.                  foreign workers into the agricultural                  appropriate.
                                          workers, they must of necessity turn to                  sector threatens to erode the earnings                    As noted above, there is demand for
                                          some other labor source. The H–2A                        and employment opportunities of U.S.                   hundreds of thousands of agricultural
                                          program was created by Congress to be                    workers in agricultural occupations.                   workers beyond what the domestic labor
                                          the alternate source of choice for                       U.S. workers may have a difficult time                 market is able to supply. If any wage
                                          agricultural labor. The program is                       fairly competing against undocumented                  depression does currently exist in the
                                          clearly failing to fill the role envisioned              workers, who may accept work at                        agricultural sector, the presence of a
                                          for it, however, as approximately ten                    below-market wages, are viewed by                      large number of undocumented workers
                                          times more undocumented workers than                     employers as less troublesome and less                 is the most likely cause. Replacing the
                                          H–2A workers are employed in the                         likely to assert their rights, and are                 hundreds of thousands of
                                          agricultural sector today. Agricultural                  cheaper to employ than H–2A workers                    undocumented agricultural workers
                                          employers may or may not realize that                    because they do not require the                        currently employed in the U.S. either
                                          specific individuals they are hiring are                 additional payment of H–2A program                     with U.S. workers or with H–2A
                                          in the United States illegally, but                      costs such as transportation and                       program workers who are paid a legally
                                          undocumented workers have clearly                        housing. Although the threat of legal                  required wage would substantially help
                                          become the agricultural sector’s                         sanctions and attendant risks of work                  to protect U.S. workers from adverse
                                          alternate labor market of choice. The                    disruption will constrain some                         effects caused by the undocumented
                                          Department believes that the current                     employers from knowingly employing                     work force. For this reason, the
                                          methodology for determining adverse                      undocumented workers,7 the greater the                 Department believes that it should
                                          effect wage rates, which is not keyed to                 gap between the true market rate for                   select a methodology for setting adverse
                                          actual local labor market conditions,                    farm labor and the total cost to                       effect wage rates that is as precise and
                                          may be partly responsible for the                        employers of H–2A workers, including                   refined as possible.
                                          program’s failure.                                       artificially inflated wage rates plus all                 A group of farmworker advocacy
                                             It is obvious that an AEWR that is set                other attendant H–2A program costs, the                organizations commented that rather
                                          too low is likely to harm U.S. workers.                  greater the likelihood that employers                  than adopt a wage-setting methodology
                                          It is no secret that foreign workers may                 will forego using the H–2A program and                 that may reduce required wage rates in
                                          be willing to work for wages that are                    will instead risk hiring undocumented                  some areas, the government should get
                                          lower, and often substantially lower,                    foreign labor. The undocumented                        rid of undocumented workers by more
                                          than wages that are typically paid to                    foreign workers whose hiring is                        vigorously enforcing the immigration
                                          U.S. workers. Allowing foreign workers                   incentivized when AEWRs are                            laws. Primary enforcement
                                          to work at substandard wages would                       artificially set too high lack the legally             responsibility in these areas is entrusted
                                          likely harm U.S. agricultural workers by                 enforced protections and benefits that                 to DHS and the Department of Justice.
                                          causing them to be displaced or by                                                                              The Department notes, however, that
                                          forcing them to accept lower wages to                       7 Some commenters noted that the Department’s       during the last several years the federal
                                          secure jobs. As will be discussed later,                 discussion of this point in the NPRM preamble          government has in fact embarked upon
                                                                                                   appeared to suggest that the Department believed
                                          there is reason to believe that in some                  agricultural employers intentionally set out to hire
                                                                                                                                                          unprecedented efforts to enforce the
                                          geographic areas and for some                                                                                   immigration laws, both at the border
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                                                                                                   illegal workers. The Department did not intend to
                                          occupations, current AEWRs are set                       suggest such motives. As noted above, many illegal     and in the interior. In fact, this
                                          artificially low, resulting in an adverse                workers in the U.S. possess documentation              rulemaking effort is part of a
                                                                                                   indicating they are legally authorized to work and
                                          effect on U.S. workers similarly                         all employers (not just those in agriculture) are
                                                                                                                                                          comprehensive 26-point immigration
                                          employed. See Gerald Mayer,                              required by current law to accept at face value        reform plan that was announced by the
                                          Temporary Farm Labor: The H–2A                           documentation that appears valid.                      present Administration in August 2007.

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                                          77172            Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations

                                          See Fact Sheet: Improving Border                         does not reflect any belief on the part of            believe that precise tailoring of H–2A
                                          Security and Immigration Within                          the Department that all AEWRs are                     wages to local labor market conditions
                                          Existing Law, http://                                    currently artificially high and that they             is the most critical factor in preventing
                                                        therefore should all be lowered. In fact,             an adverse effect on the wages of U.S.
                                          2007/08/20070810.html (August 10,                        the Department’s preamble analysis also               workers. For example, a single national
                                          2007). This rulemaking is designed to                    explains how AEWRs that are set too                   AEWR applicable to all agricultural jobs
                                          work in tandem with those enforcement                    low hurt U.S. workers. The Department                 in all geographic locations would prove
                                          efforts. The Department does not believe                 seeks to avoid both effects by adopting               to be below market rates in some areas
                                          that it is necessary to choose between a                 a more precise methodology. Because                   and above market rates in other areas. If
                                          functional H–2A program and effective                    the USDA survey that is currently used                the AEWR in any given area does not
                                          immigration enforcement; we can and                      is an average wage rate that is set across            reflect market wages, it will either harm
                                          should have both, as having both will                    broad, typically multi-state regions, the             U.S. workers directly by artificially
                                          maximize protections for U.S. workers.                   actual wages of individual labor markets              lowering wages, or it will harm U.S.
                                             The same commenter argued that if                     within the USDA regions are necessarily               workers indirectly by providing an
                                          agricultural employers substantially                     in some instances above, and in some                  incentive for employers to hire
                                          hiked their wage rates, U.S. workers                     instances below, the USDA average. In                 undocumented workers. AEWRs
                                          would re-enter the agricultural labor                    fact, the statistics provided by this                 covering large multi-state regions suffer
                                          market to secure the higher wages, thus                  commenter show that even according to                 from similar flaws. In an agricultural
                                          substantially reducing the need to resort                the commenter’s calculations, the                     sector where prevailing labor conditions
                                          to foreign labor in the agricultural                     average BLS OES wage for crop workers                 make the need for precision in AEWR
                                          sector. Although the Department                          is higher than the average USDA wage                  determinations paramount, it is
                                          assumes that substantially higher                        for field workers in several States,                  essential that a methodology be adopted
                                          agricultural wages would indeed induce                   including three of the ten biggest H–2A               that allows for as great a degree of
                                          some reentry by U.S. workers into the                    using States (Louisiana, New York, and                geographic refinement as possible.
                                          agricultural labor market, the                           Virginia). A recent report of the                     Improving the geographic precision of
                                          commenter did not provide any data                       Congressional Research found that even                the AEWR is essential to ensuring that
                                          suggesting what level of wage increases                  OES Level I wages are higher than the                 the AEWR meets its statutory objective.
                                          would be required to make such a re-                     current AEWR for some occupations in                     The Department is aware that its
                                          entry phenomenon substantial, or                         some geographic areas. CRS Report at                  rationale for establishing precise,
                                          whether agricultural employers could                     13–17.                                                localized wage rates is quite different
                                          remain competitive if required to pay                       The Department also rejects the                    than the rationale that motivated it in
                                          those wages. As the Department noted                     notion that the only way to replace                   1989 to establish aggregated, regional
                                          in 1989, there is an upper ceiling to how                undocumented workers with U.S.                        wage rates.8 That decision was reached
                                          much U.S. agricultural employers can                     workers and H–2A workers is to lower                  under very different factual
                                          even theoretically afford to pay in labor                AEWRs to the levels that undocumented                 circumstances, however. In 1989, the
                                          costs, as they must ultimately compete                   workers are willing to accept. That                   Department found that there was no
                                          not only with other U.S. producers, but                  might be true if agricultural employers               conclusive evidence of generalized wage
                                          also ‘‘with foreign imports.’’ 54 FR                     viewed U.S. workers, H–2A workers,                    depression in the agricultural sector, but
                                          28044. The Department believes that it                   and undocumented workers as                           noted that there was some anecdotal
                                          is also relevant that U.S. workers have                  completely fungible, but they do not.                 evidence suggesting that wages in
                                          steadily left the agricultural sector over               Many employer and grower association                  particular local labor markets might be
                                          the last two decades, despite the fact                   commenters emphatically stated that                   depressed. The Department chose at that
                                          that agricultural wages have increased                   they want to comply with the law, and                 time to use USDA data to set AEWRs
                                          during that time, suggesting that factors                that in fact they would generally prefer              largely because it believed that USDA’s
                                          other than wages may be causing many                     to hire U.S. workers over H–2A workers                aggregation of wage data at broad
                                          U.S. workers to view agricultural jobs as                or undocumented workers if U.S.                       regional levels would immunize the
                                          undesirable.                                             workers were available. Moreover,                     survey from the effects of any localized
                                             Finally, the same commenter argued                    agricultural employers who even                       wage depression that might exist. 54 FR
                                          that the Department’s rationale                          unknowingly hire undocumented                         28043. As discussed above, however,
                                          effectively calls for a continuous                       workers risk losing their labor force part            undocumented workers are
                                          lowering of agricultural wage rates,                     way through the season due to an                      substantially more dispersed throughout
                                          because in this commenter’s view (1)                     immigration raid, and those who                       the agricultural sector today than they
                                          the Department’s real objective is to                    knowingly hire undocumented workers                   were in 1989. Not only are
                                          lower wage rates and (2) the only way                    risk criminal penalties. These risks are              undocumented workers no longer
                                          to actually replace undocumented                         particularly pronounced today because                 confined to particularized local labor
                                          workers with H–2A workers is to set                      of the government’s recent highly                     markets, but recent studies have also
                                          adverse effect wage rates at the level of                publicized increased worksite                         called into question whether the
                                          wages that undocumented workers are                      immigration enforcement efforts. For all              concentration of undocumented workers
                                          willing to accept. As an initial matter,                 of these reasons, agricultural employers              in particular labor markets actually
                                          the commenter misunderstands the                         are generally willing to pay                          causes localized wage depression.
                                          Department’s objective. The Department                   substantially more to hire a U.S. worker                 In light of these developments, the
                                          seeks to ensure that AEWRs are                           or an H–2A worker than they are to hire               one key advantage the Department
                                          precisely tailored to the conditions of                  an undocumented worker. This                          believed in 1989 was afforded by the
                                          specific agricultural occupations in                     observation is borne out by actual data
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                                                                                                                                                         USDA survey’s broadly aggregated
                                          specific labor markets. Although it is                   showing that undocumented workers                     data—its ability to avoid localized wage
                                          true that the Department’s preamble                      typically make less than U.S. workers
                                          analysis in both the NPRM and the Final                  and H–2A workers do.                                    8 The Department’s underlying motivation—to
                                          Rule explains in detail how artificially                    After reviewing the comments                       protect the wages and working conditions of U.S.
                                          high AEWRs can hurt U.S. workers, that                   received, the Department continues to                 workers—remains the same.

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                                                           Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Rules and Regulations                                       77173

                                          depression effects—has been                              balance, however, the Department has                  broad general categories of field workers
                                          substantially diminished. On the other                   concluded that in light of the current                and livestock workers. The AEWR is
                                          hand, the fact that undocumented                         prevalence of undocumented workers in                 then calculated by combining the
                                          workers have come to dominate the                        the agricultural labor market, AEWRs                  average of the annual wage for field
                                          agricultural labor force in the                          derived from OES survey data will be                  workers and the average annual wage
                                          intervening years has rendered the                       more reflective of actual market wages                for livestock workers into one annual
                                          imprecision of USDA wage data vis-a-  `                  than FLS data, and thus will best protect             wage rate covering both of those general
                                          vis local labor market conditions a                      the wages and working conditions of                   occupational categories. The survey
                                          substantial drawback that may                            U.S. workers from adverse effects.                    thus determines the hourly AEWR based
                                          sometimes actually encourage                                The present methodology for settings               not on reported hourly wages, but rather
                                          employers to hire undocumented                           AEWRs, which was established by the                   on the basis of the numerator (total gross
                                          workers. In fact, the Department                         1989 final rule, calculates regional                  wages for the combined occupations)
                                          expressed concern in the 1989                            AEWRs based on the previous year’s                    and denominator (total hours for the
                                          rulemaking that precisely this                           annual combined average hourly wage                   combined occupations) derived from the
                                          phenomenon might develop, stating that                   rate for field and livestock workers in               information supplied by employers.
                                          ‘‘AEWRs, if set too high, might be a                     each of 15 multi-state regions and 3                     Moreover, the USDA FLS is
                                          disincentive to the use of H–2A workers                  stand-alone States, as compiled by the                administered and funded through
                                          and U.S. workers, and could undermine                    USDA quarterly FLS Reports. The                       USDA, giving the Department no direct
                                          efforts to eradicate the employment of                   aggregation of a widely diverse national              control over its design and
                                          illegal aliens.’’ 54 FR 28044. Many                      agricultural landscape into just 15                   implementation. USDA could terminate
                                          commenters argued that the large                         regions (and 3 stand-alone states) results            the survey at any time and leave the
                                          numbers of undocumented workers in                       in extremely broad generalizations that               Department without the basic data,
                                          the agricultural sector adversely affects                fail to account for specific market                   problematic as it is, used to calculate
                                          U.S. workers. After weighing all of these                conditions at the local level. Wage data              the AEWR. In fact, USDA announced
                                          considerations, the Department has                       collected at each individual State and                that it would suspend the survey in
                                          determined that under the present                        even substate level would be more                     February 2007 due to budget
                                          factual circumstances, the advantages of                 appropriate for purposes of computing                 constraints. Ultimately, USDA resumed
                                          tailoring AEWRs to better reflect the                    an accurate, sub-regional AEWR that                   the survey in May 2007. The possibility
                                          actual wages earned by specific                          reflects local market conditions. Indeed,             that USDA may suspend the survey at
                                          occupational categories in specific local                market-based wage survey data at the
                                                                                                                                                         some point in the future adds a measure
                                          labor markets outweigh the potential                     State or substate level is the standard for
                                                                                                                                                         of instability and uncertainty for AEWR
                                          disadvantages.                                           calculating comparison wages in other
                                                                                                                                                         determinations in future years. USDA’s
                                                                                                   temporary worker programs
                                          (g) The Department’s Decision To Use                                                                           control over the survey also prevents the
                                                                                                   administered by the Department,
                                          the Occupational Employment Statistics                                                                         Department from making improvements
                                                                                                   including the H–2B program that is the
                                          Survey                                                                                                         to it that could help to correct its
                                                                                                   non-agricultural counterpart of H–2A
                                             Having determined that the                                                                                  shortcomings and set more market-
                                                                                                   and the H–1B specialty occupation
                                          Department can best safeguard the                                                                              reflective AEWRs.
                                                                                                   worker program.9
                                          wages and working conditions of U.S.                        The Department’s reliance on USDA                     In 1989, the Department determined
                                          workers from adverse effect by                           FLS data creates several problems for                 that the USDA survey was the best
                                          encouraging employers to replace                         functional program administration. The                available ‘‘barometer’’ for measuring
                                          undocumented workers with either U.S.                    USDA quarterly FLS does not provide                   farm wages on a nationwide basis. In the
                                          workers or H–2A workers, and having                      refined wage data by occupations or                   succeeding years, however, the
                                          further determined that tailoring                        geographic locale. Additionally, the                  Department has gained vast knowledge
                                          AEWRs to local labor market conditions                   USDA FLS does not account at all for                  and experience in applying wage data
                                          is the best way to foster this                           different skill levels required by                    that simply did not exist in 1989. The
                                          replacement process, the Department                      agriculture occupations. Moreover, the                OES wage survey is among the largest
                                          made two independent decisions. First,                   wage levels reported in the USDA FLS                  on-going statistical survey programs of
                                          the Department decided to use the BLS                    are skewed by the inclusion of wages                  the Federal Government. The OES
                                          OES survey to set AEWRs, rather than                     that are paid to many agricultural                    program surveys approximately 200,000
                                          the USDA Farm Labor Survey (FLS).                        occupations that are not typically filled             establishments every 6 months, and
                                          Second, the Department decided to                        by H–2A workers, such as inspectors,                  over 3 years collects the full sample of
                                          attain further precision in setting                      animal breeding technicians, and                      1.2 million establishments. The OES
                                          AEWRs by breaking the OES wage rates                     trained animal handlers.                              program collects occupational
                                          down into four different skill levels,                      The accuracy of AEWRs based on the                 employment and wage data in every
                                          rather than using a single average OES                   USDA FLS is further diminished                        State in the U.S. and the data are
                                          wage rate for each agricultural                          because the FLS is not based on                       published annually. The OES wage data
                                          occupation. While the Department                         reported hourly wage rates. Instead,                  is already utilized by the Department for
                                          viewed the ability to break OES data                     USDA’s FLS asks employers to report                   determining comparison wages in other
                                          into four separate skill levels as an                    total gross wages and total hours worked              temporary worker programs and has
                                          advantage of that survey, its decision to                for all hired workers for the two                     proven to be an accurate, statistically
                                          use the OES survey to set AEWRs was                      reference weeks of the survey. Based on               valid, and successful wage reference. In
                                          not dependent on this feature.                           this limited information, the survey                  1989, when the Department established
                                             The FLS and the OES survey are the                    constructs annual average wages for the               the current AEWR methodology, the
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                                          leading candidates among agricultural                                                                          OES program was not well developed
                                          wage surveys potentially available to the                  9 Calculation of the applicable wage by a SWA
                                                                                                                                                         and thus was not an effective alternative
                                          Department to set AEWRs. Neither                         using the OES survey is, in fact, a ‘‘safe harbor’’   for the USDA Labor Survey. In the
                                                                                                   providing presumption of correctness in the H–1B
                                          survey is perfect. In fact, both surveys                 labor condition application. 20 CFR                   intervening nearly 20 years the OES
                                          have significant shortcomings. On                        655.731(a)(2)(ii)(A)(3).                              program has in several respects

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                                          77174            Federal Register / Vol. 7