Rule2022-20506
Temporary Agricultural Employment of H-2A Nonimmigrants in the United States
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 12, 2022
Effective
November 14, 2022
Issuing agencies
Labor DepartmentEmployment and Training AdministrationWage and Hour Division
Abstract
The Department of Labor (Department or DOL) is amending its regulations governing the certification of agricultural labor or services to be performed by temporary foreign workers in H-2A nonimmigrant status (H-2A workers) and enforcement of the contractual obligations applicable to employers of such nonimmigrant workers. These regulations are consistent with the Secretary of Labor's (Secretary) statutory responsibility to certify that there are not sufficient able, willing, and qualified workers available to fill the petitioning employer's job opportunity, and that the employment of H-2A workers in that job opportunity will not adversely affect the wages and working conditions of workers in the United States similarly employed. Among the issues addressed in this final rule are improving the minimum standards and conditions of employment that employers must offer to workers; expanding the Department's authority to use enforcement tools, such as program debarment for substantial violations of program requirements; modernizing the process by which the Department receives and processes employers' job orders and applications for temporary agricultural labor certifications, including the recruitment of United States workers (U.S. workers); and revising the standards and procedures for determining the prevailing wage rate. This final rule will strengthen protections for workers, modernize and simplify the H- 2A application and temporary labor certification process, and ease regulatory burdens on employers.
Full Text
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<title>Federal Register, Volume 87 Issue 196 (Wednesday, October 12, 2022)</title>
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[Federal Register Volume 87, Number 196 (Wednesday, October 12, 2022)]
[Rules and Regulations]
[Pages 61660-61831]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-20506]
[[Page 61659]]
Vol. 87
Wednesday,
No. 196
October 12, 2022
Part II
Department of Labor
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Employment and Training Administration
20 CFR Parts 653 and 655
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Wage and Hour Division
29 CFR Part 501
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Temporary Agricultural Employment of H-2A Nonimmigrants in the United
States; Final Rule
Federal Register / Vol. 87 , No. 196 / Wednesday, October 12, 2022 /
Rules and Regulations
[[Page 61660]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 653 and 655
Wage and Hour Division
29 CFR Part 501
[DOL Docket No. ETA-2019-0007]
RIN 1205-AB89
Temporary Agricultural Employment of H-2A Nonimmigrants in the
United States
AGENCY: Employment and Training Administration and Wage and Hour
Division, Department of Labor.
ACTION: Final rule.
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SUMMARY: The Department of Labor (Department or DOL) is amending its
regulations governing the certification of agricultural labor or
services to be performed by temporary foreign workers in H-2A
nonimmigrant status (H-2A workers) and enforcement of the contractual
obligations applicable to employers of such nonimmigrant workers. These
regulations are consistent with the Secretary of Labor's (Secretary)
statutory responsibility to certify that there are not sufficient able,
willing, and qualified workers available to fill the petitioning
employer's job opportunity, and that the employment of H-2A workers in
that job opportunity will not adversely affect the wages and working
conditions of workers in the United States similarly employed. Among
the issues addressed in this final rule are improving the minimum
standards and conditions of employment that employers must offer to
workers; expanding the Department's authority to use enforcement tools,
such as program debarment for substantial violations of program
requirements; modernizing the process by which the Department receives
and processes employers' job orders and applications for temporary
agricultural labor certifications, including the recruitment of United
States workers (U.S. workers); and revising the standards and
procedures for determining the prevailing wage rate. This final rule
will strengthen protections for workers, modernize and simplify the H-
2A application and temporary labor certification process, and ease
regulatory burdens on employers.
DATES: This final rule is effective November 14, 2022.
FOR FURTHER INFORMATION CONTACT: For further information regarding 20
CFR part 653, contact Kimberly Vitelli, Administrator, Office of
Workforce Investment, Employment and Training Administration,
Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210,
telephone: (202) 693-3980 (this is not a toll-free number). Individuals
with hearing or speech impairments may access the telephone numbers
above via Teletypewriter (TTY)/Telecommunications Device for the Deaf
(TDD) by calling the toll-free Federal Information Relay Service at 1
(877) 889-5627.
For further information regarding 20 CFR part 655, contact Brian
Pasternak, Administrator, Office of Foreign Labor Certification,
Employment and Training Administration, Department of Labor, 200
Constitution Avenue NW, Room N-5311, Washington, DC 20210, telephone:
(202) 693-8200 (this is not a toll-free number). Individuals with
hearing or speech impairments may access the telephone numbers above
via TTY/TDD by calling the toll-free Federal Information Relay Service
at 1 (877) 889-5627.
For further information regarding 29 CFR part 501, contact Amy
DeBisschop, Director of the Division of Regulations, Legislation, and
Interpretation, Wage and Hour Division, Department of Labor, Room S-
3502, 200 Constitution Avenue NW, Washington, DC 20210, telephone:
(202) 693-0406 (this is not a toll-free number). Individuals with
hearing or speech impairments may access the telephone number above via
TTY/TDD by calling the toll-free Federal Information Relay Service at 1
(877) 889-5627.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
A. Purpose of the Regulatory Action
B. Legal Authority
C. Current Regulatory Framework
D. Summary of Major Provisions of This Final Rule
E. Summary of Costs and Benefits
F. Severability
II. Acronyms and Abbreviations
III. Background and Public Comments Received on the Notice of
Proposed Rulemaking
IV. Discussion of General Comments
V. Section-by-Section Summary of This Final Rule, 20 CFR Part 655,
Subpart B; 20 CFR 653.501(c)(2)(i); and 29 CFR Part 501
A. Introductory Sections
1. Section 655.100, Purpose and Scope of Subpart B
2. Section 655.101, Authority of the Agencies, Offices, and
Divisions of the Department of Labor; and 29 CFR 501.1, Purpose and
Scope
3. Section 655.102, Transition Procedures
4. Section 655.103, Overview of This Subpart and Definition of
Terms; 20 CFR 653.501(c)(2)(i) of the Wagner-Peyser Act Regulations;
and 29 CFR 501.3, Definitions
B. Pre-Filing Procedures
1. Section 655.120, Offered Wage Rate
2. Section 655.121, Job Order Filing Requirements
3. Section 655.122, Contents of Job Offers
4. Section 655.123, Optional Pre-Filing Positive Recruitment of
U.S. Workers
5. Section 655.124, Withdrawal of a Job Order
C. Applications for Temporary Employment Certification Filing
Procedures
1. Section 655.130, Application Filing Requirements
2. Section 655.131, Agricultural Association and Joint Employer
Filing Requirements
3. Section 655.132, H-2A Labor Contractor Filing Requirements;
and 29 CFR 501.9, Enforcement of Surety Bond
4. Section 655.133, Requirements for Agents
5. Section 655.134, Emergency Situations
6. Section 655.135, Assurances and Obligations of H-2A Employers
7. Section 655.136, Withdrawal of an Application for Temporary
Employment Certification and Job Order
D. Processing of Applications for Temporary Employment
Certification
1. Section 655.140, Review of Applications
2. Section 655.141, Notice of Deficiency
3. Section 655.142, Submission of Modified Applications
4. Section 655.143, Notice of Acceptance
5. Section 655.144, Electronic Job Registry
6. Section 655.145, Amendments to Applications for Temporary
Labor Certification
E. Post-Acceptance Requirements
1. Section 655.150, Interstate Clearance of Job Order
2. Section 655.153, Contact With Former U.S. Workers
3. Section 655.154, Additional Positive Recruitment
4. Section 655.155, Referrals of U.S. Workers
5. Section 655.156, Recruitment Report
6. Sections 655.157, Withholding of U.S. Workers Prohibited, and
655.158, Duration of Positive Recruitment
F. Labor Certification Determinations
1. Section 655.161, Criteria for Certification
2. Section 655.162, Approved Certification
3. Section 655.164, Denied Certification
4. Section 655.165, Partial Certification
5. Section 655.166, Requests for Determinations Based on
Nonavailability of U.S. Workers
6. Section 655.167, Document Retention Requirements of H-2A
Employers
G. Post-Certification
1. Section 655.170, Extensions
2. Section 655.171, Appeals
3. Section 655.172, Post-Certification Withdrawals
4. Section 655.173, Setting Meal Charges; Petition for Higher
Meal Charges
5. Section 655.174, Public Disclosure
6. Section 655.175, Post-Certification Amendments
[[Page 61661]]
H. Integrity Measures
1. Section 655.180, Audit
2. Section 655.181, Revocation
3. Section 655.182, Debarment; 29 CFR 501.16, Sanctions and
Remedies--General; 29 CFR 501.19, Civil Money Penalty Assessment; 29
CFR 501.20, Debarment and Revocation; 29 CFR 501.21, Failure To
Cooperate With Investigations; 29 CFR 501.41, Decision and Order of
Administrative Law Judge; 29 CFR 501.42, Procedures for Initiating
and Undertaking Review; 29 CFR 501.43, Responsibility of the Office
of Administrative Law Judges; 29 CFR 501.44, Additional Information,
if Required; and 29 CFR 501.45, Decision of the Administrative
Review Board
I. Labor Certification Process for Temporary Agricultural
Employment in Range Sheep Herding, Goat Herding, and Production of
Livestock Operations
1. Modernizing Recruitment Requirements
2. Regulatory Revisions Implemented by This Final Rule
3. Other Comments
J. Labor Certification Process for Temporary Agricultural
Employment in Animal Shearing, Commercial Beekeeping, and Custom
Combining
1. Section 655.300, Scope and Purpose
2. Section 655.301, Definition of Terms
3. Section 655.302, Contents of Job Orders
4. Section 655.303, Procedures for Filing Applications for
Temporary Employment Certification
5. Section 655.304, Standards for Mobile Housing
VI. Discussion of Revisions to 29 CFR Part 501
A. Conforming Changes
B. Section 501.9, Enforcement of Surety Bond
C. Section 501.20, Debarment and Revocation
D. Terminology and Technical Changes
E. Intervening Rulemakings
VII. Administrative Information
A. Executive Orders 12866 (Regulatory Planning and Review) and
13563 (Improving Regulation and Regulatory Review)
B. Regulatory Flexibility Act, Small Business Regulatory
Enforcement Fairness Act, and Executive Order 13272 (Proper
Consideration of Small Entities in Agency Rulemaking)
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132 (Federalism)
F. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
I. Executive Summary
A. Purpose of the Regulatory Action
This final rule amends the standards and procedures by which the
Department grants certification of agricultural labor or services to be
performed by H-2A workers on a seasonal or temporary basis, and
enforcement of the contractual obligations applicable to employers of
H-2A workers. The major provisions contained in this final rule will
strengthen protections for workers, modernize and simplify the H-2A
application and temporary labor certification process, and ease
regulatory burdens on employers.
It is the policy of the Department to maintain robust protections
for workers and vigorously enforce all laws within its jurisdiction
governing the administration and enforcement of nonimmigrant visa
programs. This includes the coordination of the administration and
enforcement activities of the Employment and Training Administration
(ETA), Wage and Hour Division (WHD), and the Department's Office of the
Solicitor in the promotion of the hiring of U.S. workers and the
safeguarding of wages and working conditions in the United States. In
addition, these agencies make criminal referrals to the Department's
Office of Inspector General to combat visa-related fraud schemes.
The Department is updating its H-2A regulations to ensure that
employers can address temporary labor needs by employing foreign
agricultural workers, without undue cost or administrative burden,
while maintaining the program's strong protections. The changes in this
final rule will enhance WHD's enforcement capabilities, thereby
ensuring that responsible employers are not faced with unfair
competition and allowing for robust enforcement against program fraud
and abuse that undermine the rights and interests of workers.
B. Legal Authority
The Immigration and Nationality Act (INA), as amended by the
Immigration Reform and Control Act of 1986 (IRCA), establishes an ``H-
2A'' nonimmigrant visa classification for a worker ``having a residence
in a foreign country which he has no intention of abandoning who is
coming temporarily to the United States to perform agricultural labor
or services . . . of a temporary or seasonal nature.'' 8 U.S.C.
1101(a)(15)(H)(ii)(a); see also 8 U.S.C. 1184(c)(1) and 1188.\1\ The
admission of foreign workers under this classification involves a
multi-step process before several Federal agencies. A prospective H-2A
employer must first apply to the Secretary for a certification that:
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\1\ For ease of reference, sections of the INA are referred to
by their corresponding section in the United States Code.
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<bullet> there are not sufficient workers who are able, willing,
and qualified, and who will be available at the time and place needed,
to perform the labor or services involved in the petition, and
<bullet> the employment of the alien in such labor or services will
not adversely affect the wages and working conditions of workers in the
United States similarly employed.
8 U.S.C. 1188(a)(1). The INA prohibits the Secretary from issuing this
certification--known as a ``temporary agricultural labor
certification''--unless both of the above-referenced conditions are met
and none of the conditions in 8 U.S.C. 1188(b) apply concerning strikes
or lock-outs, labor certification program debarments, workers'
compensation assurances, and positive recruitment.
The Secretary has delegated the authority to issue temporary
agricultural labor certifications to the Assistant Secretary for
Employment and Training, who in turn has delegated that authority to
ETA's Office of Foreign Labor Certification (OFLC). See Secretary's
Order 06-2010 (Oct. 20, 2010), 75 FR 66268 (Oct. 27, 2010). In
addition, the Secretary has delegated to the Department's WHD the
responsibility under 8 U.S.C. 1188(g)(2) to assure employer compliance
with the terms and conditions of employment under the H-2A program. See
Secretary's Order 01-2014 (Dec. 19, 2014), 79 FR 77527 (Dec. 24, 2014).
Once an employer obtains a temporary agricultural labor
certification from DOL, it may then file a petition for a nonimmigrant
worker with the Secretary of Homeland Security. See 8 U.S.C.
1184(c).\2\ If the employer's petition is approved, the foreign workers
residing outside the United States whom it seeks to employ must,
generally, apply for a nonimmigrant H-2A visa at a U.S. embassy or
consulate abroad, and seek admission to the United States with U.S.
Customs and Border Protection.\3\ If the employer seeks to employ
foreign workers already performing work in the United States in H-2A
status and wishes to petition the workers through an extension of stay
or change of status, the foreign workers are not required to apply for
a visa but should they depart from the United States subsequent to
being granted such H-2A status, must generally obtain an H-2A visa in
order to return to the country.
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\2\ Under sec. 1517 of title XV of the Homeland Security Act of
2002, Public Law 107-296, 116 Stat. 2135, reference to the Attorney
General's or other Department of Justice Official's responsibilities
under sec. 1184(c) have been expressly transferred to the Secretary
of Homeland Security. See 6 U.S.C. 202, 271(b).
\3\ See generally 8 U.S.C. 1225; 8 CFR part 235.
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[[Page 61662]]
C. Current Regulatory Framework
Since 1987, the Department has operated the H-2A temporary labor
certification program under regulations promulgated pursuant to the
INA. The standards and procedures applicable to the certification and
employment of workers under the H-2A program are found in 20 CFR part
655, subpart B, and 29 CFR part 501. The majority of the Department's
current regulations governing the H-2A program were published in
2010.\4\ In addition, the Department has issued special procedures for
the employment of foreign workers in the herding and production of
livestock on the range as well as animal shearing, commercial
beekeeping, and custom combining occupations.\5\ The Department
incorporated the provisions for employment of workers in the herding
and production of livestock on the range into the H-2A regulations,
with modifications, in 2015.\6\ The provisions governing the employment
of workers in the herding and production of livestock on the range are
now codified at 20 CFR 655.200 through 655.235.\7\
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\4\ Final Rule, Temporary Agricultural Employment of H-2A Aliens
in the United States, 75 FR 6884 (Feb. 12, 2010) (2010 H-2A Final
Rule); but see Final Rule, Modernizing Recruitment Requirements for
the Temporary Employment of H-2A Foreign Workers in the United
States, 84 FR 49439 (Sept. 20, 2019) (2019 H-2A Recruitment Final
Rule) (rescinding the requirement that an employer advertise its job
opportunity in a print newspaper of general circulation in the area
of intended employment; expanding and enhancing the Department's
electronic job registry; and leveraging the expertise and existing
outreach activities of State Workforce Agencies (SWAs) to promote
agricultural job opportunities); see also Final Rule, Rules
Concerning Discretionary Review by the Secretary, 85 FR 30608 (May
20, 2020) (establishing a system of discretionary secretarial review
over cases pending before or decided by the Board of Alien Labor
Certification Appeals [BALCA] and to make technical changes to
Departmental regulations governing the timing and finality of
decisions of the Administrative Review Board [ARB] and the BALCA).
\5\ See Training and Employment Guidance Letter (TEGL) No. 32-
10, Special Procedures: Labor Certification Process for Employers
Engaged in Sheepherding and Goatherding Occupations under the H-2A
Program (June 14, 2011), <a href="https://wdr.doleta.gov/directives/corr_doc.cfm?docn=3042">https://wdr.doleta.gov/directives/corr_doc.cfm?docn=3042</a>; TEGL No. 15-06, Change 1, Special
Procedures: Labor Certification Process for Occupations Involved in
the Open Range Production of Livestock under the H-2A Program (June
14, 2011), <a href="https://wdr.doleta.gov/directives/corr_doc.cfm?docn=3044">https://wdr.doleta.gov/directives/corr_doc.cfm?docn=3044</a>;
TEGL No. 17-06, Change 1, Special Procedures: Labor Certification
Process for Employers in the Itinerant Animal Shearing Industry
under the H-2A Program (June 14, 2011), <a href="https://wdr.doleta.gov/directives/corr_doc.cfm?docn=3041">https://wdr.doleta.gov/directives/corr_doc.cfm?docn=3041</a>; TEGL No. 33-10, Special
Procedures: Labor Certification Process for Itinerant Commercial
Beekeeping Employers in the H-2A Program (June 14, 2011), <a href="https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3043">https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3043</a>; TEGL No. 16-06,
Change 1, Special Procedures: Labor Certification Process for Multi-
State Custom Combine Owners/Operators under the H-2A Program (June
14, 2011), <a href="https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3040">https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=3040</a>.
\6\ Final Rule, Temporary Agricultural Employment of H-2A
Foreign Workers in the Herding or Production of Livestock on the
Range in the United States, 80 FR 62958 (Oct. 16, 2015) (2015 H-2A
Herder Final Rule).
\7\ Consistent with a court-approved settlement agreement in
Hispanic Affairs Project, et al. v. Scalia et al., No. 15-cv-1562
(D.D.C.), the Department recently rescinded 20 CFR 655.215(b)(2).
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D. Summary of Major Provisions of This Final Rule
After careful consideration of the public comments received, this
final rule adopts much of the regulatory text proposed in the notice of
proposed rulemaking (NPRM or proposed rule) published in the Federal
Register on July 26, 2019, with some significant changes.\8\ In
particular, and as discussed in detail elsewhere in this preamble, this
final rule adopts the following major changes to the Department's H-2A
program regulations:
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\8\ Notice of Proposed Rulemaking, Temporary Agricultural
Employment of H-2A Nonimmigrants in the United States, 84 FR 36168
(July 26, 2019). In late 2020, the Department published a final rule
to revise the methodology by which it determines the hourly AEWR for
non-range agricultural occupations. Final Rule, Adverse Effect Wage
Rate Methodology for the Temporary Employment of H-2A Nonimmigrants
in Non-Range Occupations in the United States, 85 FR 70445 (Nov. 5,
2020) (2020 H-2A AEWR Final Rule). The 2020 H-2A AEWR Final Rule
addressed only that aspect of the NPRM. This final rule addresses
the remaining aspects of the NPRM published on July 26, 2019.
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Strengthening Worker Protections and Program Integrity
<bullet> Revises the standards and procedures by which employers
qualifying as H-2A Labor Contractors (H-2ALCs) obtain temporary labor
certification by permitting the electronic submission of surety bonds,
adjusting the required surety bond amounts based on changes to adverse
effect wage rates (AEWR), adopting a common bond form that includes
standardized bond language, and permitting debarment of H-2ALCs that
fail to provide adequate surety bonds. These provisions are intended to
reduce the likelihood of program abuse by ensuring H-2ALCs are better
able to meet their payroll and other program obligations to workers,
streamline the process for accepting surety bonds, and strengthen the
Department's authority to address noncompliant bonds.
<bullet> Clarifies the definitions of ``employer'' and ``joint
employment,'' the use of these terms in the filing of Applications for
Temporary Employment Certification, and the responsibilities of joint
employers. Employers that file as joint employers are treated as such
as a matter of law for purposes of compliance and enforcement. In
addition, employers that do not file applications but nonetheless
jointly employ workers under the common law of agency are responsible
as joint employers. These provisions are intended to enhance worker
protections by providing greater clarity regarding the responsibilities
of joint employers, consistent with the statute and the Department's
current policy and practice.
<bullet> Provides that rental and/or public accommodations secured
to house workers must meet applicable local, State, or Federal
standards addressing certain health or safety concerns (e.g., minimum
square footage per occupant, sanitary food preparation and storage
areas, laundry and washing facilities), and requires employers to
submit written documentation that such housing meets applicable
standards and contains enough bed(s) and room(s) to accommodate all
workers requested. These provisions are intended to better protect the
health and safety of workers without imposing an undue burden on
employers.
<bullet> Enhances the Department's debarment authority by holding
agents and attorneys, and their successors in interest, accountable for
their own misconduct independent of the employer's violation(s), and
clarifies that Applications for Temporary Employment Certification
filed by debarred entities during the period of debarment will be
denied without review. These provisions are intended to improve program
integrity and promote greater compliance with program requirements.
Modernizing the H-2A Application Process and Prevailing Wage Surveys
<bullet> Establishes a single point of entry by requiring that
employers, except in limited circumstances, electronically file
Applications for Temporary Employment Certification, job orders, and
all supporting documentation through a centralized electronic system
maintained by the Department, and permits the use of electronic
signatures meeting valid signature standards. These provisions are
intended to reduce costs and burdens for most employers, improve the
quality of applications, reduce the frequency of delays associated with
deficient applications, and better facilitate interagency data-sharing.
<bullet> Codifies the use of electronic methods for the OFLC
Certifying Officer (CO) to send notices and requests to employers,
circulate approved job orders to appropriate SWAs for
[[Page 61663]]
interstate clearance and recruitment of U.S. workers, and issue
temporary labor certification decisions directly to the Department of
Homeland Security (DHS). These provisions are intended to modernize
OFLC's processing of applications to minimize delays, reduce
administrative costs for the employer and the Department, and expedite
the delivery of temporary agricultural labor certifications to DHS,
while maintaining program integrity.
<bullet> Replaces outdated prevailing wage survey guidelines from
the Department's ETA Handbook 385 (Handbook 385) with modernized
standards that are more effective in producing prevailing wages for
distinct crop or agricultural activities, and expands the universe of
State entities that may conduct prevailing wage surveys, including
SWAs, other State agencies, State colleges, or State universities.
These provisions are intended to refine the minimum standards for
prevailing wage surveys, including providing SWAs with the flexibility
to leverage other State survey resources to expand the number and scope
of surveys conducted based on information that is as reliable and
representative as possible. In addition, while the minimum standards
may not ensure statistically valid estimates for larger categories of
workers, they are designed to provide more options for SWAs to make
decisions about prioritizing precision, accuracy, granularity, or other
quality factors in the data they use to inform prevailing wages.
Expanding Employer Access and Flexibilities To Use the H-2A Program
<bullet> Establishes new standards that permit individual employers
possessing the same need for agricultural services or labor to file a
single Application for Temporary Employment Certification and job order
to jointly employ workers in full-time employment, consistent with the
statute and the Department's longstanding practice. This provision is
intended to provide small employers who cannot offer full-time work for
their H-2A employees with an opportunity to participate in the H-2A
program and ensure each employer will be held jointly liable for
compliance with all program requirements.
<bullet> Codifies a unique set of standards and procedures, with
some revisions, for employers that employ workers engaged in animal
shearing, commercial beekeeping, and custom combining according to a
planned itinerary across multiple areas of intended employment (AIE) in
one or more contiguous States. These provisions are intended to provide
appropriate flexibilities for employers engaged in these unique
agricultural activities that are substantially similar to the processes
formerly set out in administrative guidance letters, and greater
certainty in the handling of these applications by the Department under
20 CFR part 655, subpart B.
E. Summary of Costs and Benefits
Executive Order (E.O.) 12866 \9\ and E.O. 13563 \10\ direct
agencies to assess the costs and benefits of available alternatives
and, if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety effects, distributive impacts, and equity).
E.O. 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rulemaking has been designated a ``significant
regulatory action'' under section (sec.) 3(f)(1) of E.O. 12866.
Accordingly, it has been reviewed by the Office of Management and
Budget (OMB).
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\9\ E.O. 12866, Regulatory Planning and Review, 58 FR 51735
(Oct. 4, 1993).
\10\ E.O. 13563, Improving Regulation and Regulatory Review, 76
FR 3821 (Jan. 21, 2011).
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The Department estimates that this final rule will result in costs,
cost savings, and qualitative benefits. The cost of this final rule is
associated with rule familiarization and recordkeeping requirements for
all H-2A employers, as well as increases in the amount of surety bonds
required for H-2ALCs. This final rule is expected to have an annualized
quantifiable cost of $2.75 million and a total 10-year quantifiable
cost of $19.29 million at a discount rate of seven percent. The cost
savings of this final rule are the electronic submission of
applications and application signatures, including the use of
electronic surety bonds, and the electronic sharing of job orders
submitted to the OFLC National Processing Center (NPC) with the SWAs.
This final rule is estimated to have annualized cost savings of $0.16
million and total 10-year quantifiable cost savings of $1.12 million at
a discount rate of seven percent.
The Department estimates that this final rule will result in an
annualized net quantifiable cost of $2.59 million and a total 10-year
net cost of $18.17 million, both at a discount rate of seven percent
and expressed in 2021 dollars. The Department expects that this final
rule will provide qualitative benefits including: (1) clearer
application of certain housing-related standards when employers choose
to meet their H-2A housing obligations by providing rental and/or
public accommodations, which will bolster worker health and safety
protections; (2) an improved process of submitting and reviewing H-2A
applications, which will reduce workforce instability; and (3) the
adoption of electronic surety bonds and a standardized bond form, which
will help streamline the H-2A application process and reduce delays.
The Department believes that the qualitative benefits outweigh the
quantitative net costs in this rule.
F. Severability
To the extent that any portion of this final rule is declared
invalid by a court, the Department intends for all other parts of this
final rule that can operate in the absence of the specific portion that
has been invalidated to remain in effect. Thus, even if a court
decision invalidating a portion of this final rule results in a partial
reversion to the current regulations or to the statutory language
itself, the Department intends that the rest of this final rule
continue to operate, to the extent possible, in tandem with the
reverted provisions.
II. Acronyms and Abbreviations
AEWR Adverse effect wage rate(s)
AIE Area(s) of intended employment
ALJ Administrative Law Judge
AOWL Agricultural Online Wage Library
ARB Administrative Review Board
ARIMA Autoregressive integrated moving average
BALCA Board of Alien Labor Certification Appeals
BLS Bureau of Labor Statistics
CBA Collective bargaining agreement
CFR Code of Federal Regulations
CO Certifying Officer(s)
COVID-19 Novel coronavirus disease
CPI Consumer Price Index
DBA Doing Business As
DC District of Columbia
DHS Department of Homeland Security
DOJ Department of Justice
DOL Department of Labor
DOS Department of State
ECI Employment Cost Index
E.O. Executive Order
E-SIGN Electronic Signatures in Global and National Commerce Act
ETA Employment and Training Administration
FEIN Federal Employer Identification Number
FICA Federal Insurance Contributions Act
FLAG Foreign Labor Application Gateway
FLC Farm Labor Contractor
FLS Farm Labor Survey
FLSA Fair Labor Standards Act
FR Federal Register
FTC Federal Trade Commission
FY Fiscal Year(s)
GPEA Government Paperwork Elimination Act
H-2ALC(s) H-2A Labor Contractor(s)
[[Page 61664]]
HR Human Resources
iCERT iCERT Visa Portal System
ICR Information Collection Request
IFR Interim final rule
INA Immigration and Nationality Act
IRC Internal Revenue Code
IRCA Immigration Reform and Control Act of 1986
IRS Internal Revenue Service
MSA Metropolitan Statistical Area(s)
MSPA Migrant and Seasonal Agricultural Worker Protection Act
NAICS North American Industry Classification System
NOA Notice(s) of Acceptance
NOD Notice(s) of Deficiency
NPC National Processing Center
NPRM Notice of proposed rulemaking
NPWC National Prevailing Wage Center
NW Northwest
OALJ Office of Administrative Law Judges
OEWS Occupational Employment and Wage Statistics
OFLC Office of Foreign Labor Certification
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
OSHA Occupational Safety and Health Administration
PRA Paperwork Reduction Act
Pub. L. Public Law
PWD Prevailing wage determination(s)
QCEW Quarterly Census of Employment and Wages
RFA Regulatory Flexibility Act
RIN Regulation Identifier Number
RV Recreational vehicle
SBA Small Business Administration
Sec. Section of a Public Law
Secretary Secretary of Labor
SOC Standard Occupational Classification
Stat. U.S. Statutes at Large
SWA(s) State Workforce Agency(-ies)
TDD Telecommunications Device for the Deaf
TEGL Training and Employment Guidance Letter
TTY Teletypewriter
UI Unemployment insurance
UMRA Unfunded Mandates Reform Act of 1995
U.S. United States
U.S.C. United States Code
USCIS U.S. Citizenship and Immigration Services
USDA U.S. Department of Agriculture
WHD Wage and Hour Division
III. Background and Public Comments Received on the Notice of Proposed
Rulemaking
On July 26, 2019, the Department published an NPRM requesting
public comments on proposals intended to modernize and simplify the
process by which OFLC reviews employers' job orders and applications
for temporary agricultural labor certifications for use in petitioning
DHS to employ H-2A workers. See 84 FR 36168. The Department also
proposed to amend the regulations for enforcement of contractual
obligations applicable to the employment of H-2A workers and workers in
corresponding employment administered by WHD, and to amend the Wagner-
Peyser Act regulations administered by ETA to provide consistency with
revisions to H-2A program regulations governing the temporary
agricultural labor certification process. Id. The NPRM invited written
comments from the public on all aspects of the proposed amendments to
the regulations. A 60-day comment period allowed for the public to
inspect the proposed rule and provide comments through September 24,
2019.
The Department also received requests for an extension of the
comment period for the NPRM. While the Department appreciated the
issues raised concerning the public's opportunity to examine the rule
and comment, the Department decided not to extend the comment period.
The Department continues to believe that a 60-day comment period was
sufficient to allow the public to inspect the proposed rule and provide
comments, and this conclusion is supported by both the volume of
comments received and by the wide variety of stakeholders that
submitted comments within the 60-day comment period.
The Department received a total of 83,532 public comments in docket
number ETA-2019-007 in response to the NPRM. In addition, the
Department received 128 comments in response to document
WHD_FRDOC_0001-0070 prior to the comment submission deadline. These
comments were incorporated into docket number ETA-2019-007, and each
comment received a note on <a href="http://regulations.gov">regulations.gov</a> indicating that it was
timely received. The commenters represented a wide range of
stakeholders from the public, private, and not-for-profit sectors. The
Department received comments from a geographically diverse cross-
section of stakeholders within the agricultural sector, including
farmworkers, workers' rights advocacy organizations, farm owners, trade
associations for agricultural products and services, not-for-profit
organizations representing agricultural issues, and other organizations
with an interest in farming, ranching, and other agricultural
activities. Public sector commenters included Federal elected
officials, State officials, and agencies representing 14 State
governments. Private sector commenters included business owners,
recruiting companies, and law firms. Other commenters included
immigration advocacy groups, public policy organizations, and trade
associations interested in immigration-related issues. The vast
majority of comments specifically addressed proposals and issues
contained in the NPRM. The Department recognizes and appreciates the
value of comments, ideas, and suggestions from all those who commented
on the proposal, and this final rule was developed after review and
consideration of all public comments timely received in response to the
NPRM.<SUP>11 12</SUP>
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\11\ As explained elsewhere in this rule, the Department
separately published a final rule--the 2020 H-2A AEWR Final Rule--
that addressed the proposal and public comments concerning the AEWR
methodology and was limited to only that aspect of the NPRM. This
final rule addresses the remaining aspects of the NPRM. Previously,
on January 15, 2021, the Department announced and posted on OFLC's
website an unpublished final rule on these remaining aspects of the
NPRM, explaining that the rule was pending publication in the
Federal Register with a 30-day delayed effective date. See
Announcements, U.S. Department of Labor Withdraws Forthcoming H-2A
Temporary Agricultural Program Rule for Review (Jan. 20, 2021),
<a href="https://www.dol.gov/agencies/eta/foreign-labor/news">https://www.dol.gov/agencies/eta/foreign-labor/news</a>. On January 20,
2021, however, the Department withdrew this document from the Office
of the Federal Register, prior to the document being made available
for public inspection, for the purpose of reviewing issues of law,
fact, and policy raised by the rule. Therefore, the unpublished
draft rule (hereinafter referenced as ``the January 2021 draft final
rule'') never took effect. 5 U.S.C. 552(a)(1), 553; cf. Humane
Society v. U.S. Dep't of Ag., No. 20-5291,--F.4th--, 2022 WL
2898893, at *8 (D.C. Cir. 2022) (holding that ``agencies may repeal
a rule made available for public inspection in the Office of the
Federal Register only after complying with the [Administrative
Procedure Act's] procedural requirements''). The Federal Register
and the Code of Federal Regulations remain the official sources for
regulatory information published by the Department. Id. Any
statements in the January 2021 draft final rule do not represent the
Department's formal policy. Moreover, the January 2021 draft final
rule and any statements contained therein do not, and may not be
relied upon to, create or confer any right or benefit, substantive
or procedural, enforceable at law or equity by any individual or
other party.
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IV. Discussion of General Comments
Following careful consideration of the public comments received,
the Department made a number of modifications to the NPRM's proposed
regulatory text. Section V of this preamble sets out the Department's
interpretation and rationale for the amendments adopted to 20 CFR part
655, subpart B, 20 CFR 653.501(c)(2)(i), and 29 CFR part 501, section
by section. Before setting out the detailed section-by-section analysis
below, however, the Department will first acknowledge and respond to
general comments that did not fit readily into this organizational
scheme.
Of the total public comments received, 82,893 comments were
associated with form letters or letter writing campaigns. One not-for-
profit organization submitted the names of 8,602 community members
expressing general concerns about worker wages,
[[Page 61665]]
worker safety, and enforcement of immigration laws. A not-for-profit
foundation and labor union letter writing campaign resulted in the
submission of more than 74,000 form letters and postcards from
individual farmworkers expressing general concerns over issues such as
the growth of the H-2A program, worker wages, costs to workers, working
conditions, housing conditions, job opportunities for U.S. workers, and
enforcement and oversight of program protections. Additional letter
writing campaigns were organized by agricultural associations, trade
associations, local groups of farmers, and private individuals. The
Department recognizes and appreciates the public's interest in this
regulatory action. Where these letters discussed substantive changes
within the scope of the rule, the Department has considered and
addressed these issues, in detail, in the section-by-section analysis
of this preamble.
Many of the comments received expressed general support for or
opposition to the proposed rule, without discussing specific provisions
of the NPRM. The Department received comments from individual business
owners, farmers, and trade associations that expressed general support
for taking action to change the H-2A program, including efforts to
streamline the electronic document filing system, modernizing and
improving the efficiency of the program, making the program more
flexible and responsive to farmer needs, and creating an environment
that fosters a more stable workforce without harming U.S. workers.
Other commenters stressed the importance of protecting and improving
the American farming industry through the proposed regulations. Another
commenter mentioned the growth of the H-2A program in their State as
evidence that the program plays a vital role in the agricultural
sector. The Department values and appreciates these commenters' support
for the proposed rule, as well as their unique and informed
perspectives on the program's strengths and proposed points of
improvement.
In addition to comments expressing general support for the rule,
the Department received several comments supporting other comments that
were submitted in response to the NPRM. Most of these comments were
from individual farmers and ranchers expressing support for a comment
submitted by an agricultural association or trade association. The
Department acknowledges the time and effort undertaken by these
commenters to voice their opinions on this rulemaking and lend their
support for the opinions of others. Where these comments supported
substantive changes within the scope of the rule, the Department has
considered and addressed these issues, in detail, in the section-by-
section analysis of this preamble.
The Department also received several comments in general opposition
to the changes proposed in the NPRM, including from private citizens,
farmworkers, and workers' rights advocacy organizations. These comments
included concerns that changes to the H-2A program could
disproportionately harm small farms. In accordance with the Regulatory
Flexibility Act (RFA), an analysis on the impact on small farms was
performed, and the results were considered in formulating this final
rule. Additional commenters expressed the view that stronger
protections and accountability for worker safety and living conditions
are needed, asserting that the changes proposed in the NPRM would serve
to weaken labor standards and increase instances of abuse within the
immigration system. Some commenters feared that the proposed changes
would disproportionately harm marginalized communities, including
immigrants, individuals with disabilities, and people of color. One
commenter opposed the changes proposed in the NPRM out of a general
concern that such changes, once implemented, would encourage employers
to deny jobs to U.S. farmworkers in order to hire foreign workers for
less pay. Still other commenters stated that the changes proposed in
the NPRM would make working and living conditions worse for farmworkers
both within the H-2A program as well as farmworkers who are already
lawfully present in the United States and employed in that capacity.
These commenters underscored the importance of increasing protections
for both U.S. workers' and H-2A workers' living and working conditions.
Some commenters worried that the proposed changes would increase costs
to workers, decrease their wages, or both. In contrast, one commenter
expressed concern about the proposal increasing costs for employers
through higher wages and labor standards for workers. Other commenters
expressed general concerns about how the changes would impact food
safety and the appeals process. A few commenters criticized the
proposed rule for not including provisions to address recruitment fees
and sectors in agriculture that have year-round needs for labor.
The Department values and appreciates the participation and input
from these commenters and the perspectives they have to offer. The
mission of DOL is to foster, promote, and develop the welfare of the
wage earners, job seekers, and retirees of the United States; improve
working conditions; advance opportunities for profitable employment;
and assure work-related benefits and protection of workers' rights.
Under this charge, the Department continues to be as diligent as
possible in safeguarding worker rights, promoting the welfare of all
workers, and investigating and preventing abuse within the U.S.
agricultural economy, and it shares these commenters' concerns for the
protection of all farmworkers in the United States. Where these
comments supported substantive changes within the scope of the rule,
the Department has considered and addressed these issues, in detail, in
the section-by-section analysis of this preamble.
V. Section-by-Section Summary of This Final Rule, 20 CFR Part 655,
Subpart B; 20 CFR 653.501(c)(2)(i); and 29 CFR Part 501
This section of the preamble provides the Department's responses to
public comments received on the NPRM and rationale for the amendments
adopted to 20 CFR part 655, subpart B, 20 CFR 653.501(c)(2)(i), and 29
CFR part 501, section by section, and generally follows the outline of
the regulations. Within each section of the preamble, the Department
has noted and responded to those public comments that are addressed to
that particular section of this final rule. If a proposed change is not
addressed in the discussion below, it is because the public comments
did not substantively address that specific provision and no changes
have been made to the proposed regulatory text. The Department received
some comments on the NPRM that were outside the scope of the proposed
regulations, and the Department offers no substantive response to such
comments. The Department also has made some nonsubstantive changes to
the regulatory text to correct grammatical and typographical errors, in
order to improve readability and conform the document stylistically,
that generally are not discussed below.
A. Introductory Sections
1. Section 655.100, Purpose and Scope of Subpart B
The NPRM proposed minor amendments to this section to clarify the
purpose of the H-2A program regulations in paragraph (a) and the scope
of those regulations in paragraph
[[Page 61666]]
(b). Proposed paragraph (a) reflected the purpose of the final rule as
realizing the Department's statutory authority to establish a process
through which it will make factual determinations regarding the
issuance of a temporary agricultural labor certification and certify
its determination to DHS. See 8 U.S.C. 1188(a). Proposed paragraph (b)
described the scope of the Department's role in receiving, reviewing,
and adjudicating Applications for Temporary Employment Certification,
including establishing standards and obligations with respect to the
terms and conditions of the temporary agricultural labor certification
with which H-2A employers must comply, and the rights and obligations
of H-2A workers and workers in corresponding employment. The Department
received some comments on this provision, but has not made any
substantive changes to the regulatory text in response to these
comments. Therefore, as discussed below, this provision remains
unchanged from the NPRM except for minor technical changes.
Although many commenters generally applauded the Department's
efforts to amend the H-2A regulations through this rulemaking activity,
others stated the proposed regulations were unsatisfactory in
addressing a wide array of immigration and workforce issues impacting
the United States. Some called for an ``overhaul'' of the immigration
system as it relates to agricultural labor through this rule or through
a ``guest'' worker program, and some suggested creation of a system
where the agricultural workforce would have a pathway to citizenship.
Others stated that the changes proposed in this rulemaking would weaken
workers' wages, protections, and U.S. worker recruitment obligations,
and would not incentivize farmers' use of E-Verify administered by DHS
and the Social Security Administration. However, no commenters objected
to the Department's proposed language under Sec. 655.100 stating the
purpose and scope of its H-2A program regulations based on the
Department's statutory authority under the INA.
To the extent commenters urged action beyond the proposed changes
that the Department presented for public comment in the NPRM, their
comments are outside the scope of this rulemaking. To the extent these
commenters commented on the Department's proposals in specific
provisions of the NPRM (e.g., wage requirements or recruitment
obligations), the Department has addressed their specific comments in
the preamble discussion of those particular provisions. Generalized
comments relating to this final rule are addressed in section IV,
Discussion of General Comments. In the absence of objection to the
Department's proposed revisions to this regulatory language describing
the purpose and scope of its H-2A program regulations, the Department
has adopted these provisions as proposed, with minor changes in Sec.
655.100. In this final rule, the Department reversed the order of the
words ``purpose'' and ``scope'' in the section heading in order to
reflect the sequence of topics in paragraphs (a) and (b). The
Department also revised ``temporary agricultural labor or services'' to
now read ``agricultural labor or services of a temporary or seasonal
nature'' and included the word ``temporary'' in front of ``foreign
workers'' to better reflect the determinations made in the Department's
temporary agricultural labor certification.
2. Section 655.101, Authority of the Agencies, Offices, and Divisions
of the Department of Labor; and 29 CFR 501.1, Purpose and Scope
The NPRM proposed minor amendments to this section related to the
delegated authorities of ETA and WHD and the division of
responsibilities between the agencies in administering the H-2A
program. In addition to other statutory responsibilities required by 8
U.S.C. 1188, proposed paragraph (a) addressed ETA's authority to carry
out the Secretary's responsibility to issue temporary agricultural
labor certifications through OFLC, while proposed paragraph (b)
addressed WHD's authority to carry out the Secretary's authority to
investigate and enforce the terms and conditions of H-2A temporary
agricultural labor certifications under 8 U.S.C. 1188, 29 CFR part 501,
and 20 CFR part 655, subpart B (``this subpart'') (collectively, ``the
H-2A program''). Proposed paragraph (c) reminded program users of ETA
and WHD's concurrent authority to impose a debarment remedy, when
appropriate, under ETA regulations at 20 CFR 655.182 or under WHD
regulations at 29 CFR 501.20. The Department received a few comments on
this provision, none of which necessitated substantive changes to the
regulatory text. Therefore, as discussed below, this provision remains
unchanged from the NPRM.
Some commenters raised concerns about potential delays or confusion
related to the manner in which ETA and WHD coordinate enforcement and
share authority, as well as the level of expertise of enforcement
agencies to which ETA and WHD may make referrals. One commenter
expressed concern about the frequency of WHD investigations of H-2A
employers, as compared to non-H-2A employers, and objected to what it
perceived as an expansion of WHD's enforcement authority. Another
commenter suggested that the complementary regulation at 29 CFR
501.1(b) be revised to explicitly reference OFLC's authority to carry
out responsibilities under 20 CFR part 655, subpart B, in addition to
its authority under the statute. As the regulations are promulgated
pursuant to OFLC's statutory authority, the Department considers the
proposed regulations to adequately describe the scope of OFLC's
authority. Further, by adding paragraph (b) to 20 CFR 655.101, the
Department clarifies the role of WHD with regard to 20 CFR part 655,
subpart B, within that subpart rather than solely within the
complementary regulation at 29 CFR 501.1(c) and brings consistency to
20 CFR 655.101 and 29 CFR 501.1; both now address ETA's and WHD's
roles. To the extent commenters raised concerns about the manner in
which ETA and WHD coordinate enforcement and shared authority, in
practice, those specific comments are addressed in connection with the
relevant regulatory provision (e.g., 20 CFR 655.182(g)). As no
commenter raised issues with the proposed revisions to the description
of the authority of the Department's agencies, offices, and divisions
under 20 CFR 655.101 and 29 CFR 501.1 that necessitate changes, the
Department is adopting them in this final rule without change.
3. Section 655.102, Transition Procedures
a. Rescinding the Provision Allowing for the Creation of Special
Procedures
As stated in the NPRM, the Department's H-2A regulations have,
since their creation, provided authority under 20 CFR 655.102 to
``establish, continue, revise, or revoke special procedures for
processing certain H-2A applications,'' and the Department has
exercised a limited degree of flexibility in determining when specific
variations from the normal labor certification processes were necessary
to permit the temporary employment of foreign workers in specific
industries or occupations. However, the Department proposed to rescind
the special procedures provision in its H-2A regulations in light of
the decision in Mendoza v. Perez, 754 F.3d 1002, 1022 (D.C. Cir. 2014),
which found that the
[[Page 61667]]
Department's determination to establish special procedures for sheep,
goat, and cattle herding under Sec. 655.102 was subject to the
Administrative Procedure Act, possessed all the hallmarks of a
legislative rule, and could not be issued through sub-regulatory
guidance. The Department underwent notice-and-comment rulemaking to
convert the sub-regulatory guidance for sheep and goat herding and
production of livestock on the range into formal regulations; those
provisions appear in the Department's H-2A regulations at 20 CFR
655.200 through 655.235. 2015 H-2A Herder Final Rule, 80 FR 62958.\13\
Accordingly, the Department proposed in the NPRM new regulatory
provisions under Sec. Sec. 655.300 through 655.304 to incorporate the
remaining special procedures covering the specific occupations of
animal shearing, commercial beekeeping, and custom combining into the
H-2A regulatory framework, effectively rescinding the TEGLs covering
those occupations. The Department received some comments on the
Department's proposal to rescind existing Sec. 655.102, but as
discussed below, none warranted changes to the Department's proposed
rescission. Therefore, the rescission of this provision remains
unchanged from the NPRM.
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\13\ The Department recently rescinded Sec. 655.215(b)(2) in a
separate rulemaking. Final Rule, Adjudication of Temporary and
Seasonal Need for Herding and Production of Livestock on the Range
Applications Under the H-2A Program, 86 FR 71373 (Dec. 16, 2021)
(2021 H-2A Herder Final Rule).
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Some commenters generally supported the proposal to engage in
rulemaking (i.e., through the NPRM and this final rule) to incorporate
the procedures and standards from the TEGLs for itinerant animal
shearing, commercial beekeeping, and custom combining into the H-2A
regulations, with some remarking that it provided an opportunity to
comment on specific aspects of occupational variances. The Department
addresses these specific comments in the preamble sections below that
discuss Sec. Sec. 655.300 through 655.304. Several other commenters
expressed support for this proposal and cited general agreement with
the conclusion that such procedures are substantive and require formal
notice-and-comment rulemaking.
One trade association stated that it ``takes no position'' on the
proposed rule's rescission of the special procedures provision, but
recommended the procedures and standards set forth in TEGLs should
undergo ``appropriate due process'' before attaining the status of
regulations. Although other trade associations and individual
commenters were in favor of eliminating informal special procedures,
they recommended the Department retain the ability to develop formal
special procedures when circumstances arise in the future. These
commenters noted that U.S. agriculture will continue to evolve, and the
Department must have the appropriate tools to implement immediate
changes to assist farmers while protecting workers.
The Department understands the concerns expressed by a few
commenters that consideration of special variances for specific
industries or occupations, other than those addressed in this final
rule at Sec. Sec. 655.200 through 655.235 and Sec. Sec. 655.300
through 655.304, may be appropriate at some point in the future.
However, in light of the court's decision in Mendoza and the similarity
between the special procedures at issue in that case and the current H-
2A special procedure TEGLs, the Department has determined that it
should engage in formal notice-and-comment rulemaking procedures (i.e.,
through the NPRM and this final rule) to incorporate into the
regulations its current H-2A special procedures. Rescission of the
broad authority in Sec. 655.102 to establish special procedures does
not preclude the Department from engaging in future notice-and-comment
rulemaking or issuing guidance; rather, it reassures the public that
the Department will engage in notice-and-comment rulemaking to
establish variances in the future. Accordingly, the Department is
adopting its proposal to rescind from the H-2A regulations the explicit
provision permitting the Department to establish special procedures for
processing certain Applications for Temporary Employment Certification
under Sec. 655.102.
b. Transition Procedures for Implementing Changes Created by This Final
Rule
As stated in the NPRM, the Department proposed to repurpose Sec.
655.102 to clarify which set of regulations--the 2010 H-2A Final Rule
\14\ or this final rule--an employer must satisfy for each Application
for Temporary Employment Certification that it has already submitted or
that it is preparing to submit when this final rule becomes effective.
The Department proposed to rename Sec. 655.102 as ``Transition
procedures,'' and add regulatory language to support an orderly and
seamless transition between the rules.
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\14\ The Department's reference to ``the 2010 H-2A Final Rule''
herein includes the regulatory text adopted through that rulemaking,
75 FR 6884, and in other minor revisions that took effect prior to
the effective date of this final rule. 2019 H-2A Recruitment Final
Rule, 84 FR 49439 (rescinding the requirement that an employer
advertise its job opportunity in a print newspaper of general
circulation in the area of intended employment; expanding and
enhancing the Department's electronic job registry; and leveraging
the expertise and existing outreach activities of SWAs to promote
agricultural job opportunities); see also Final Rule, Rules
Concerning Discretionary Review by the Secretary, 85 FR 30608
(establishing a system of discretionary secretarial review over
cases pending before or decided by the BALCA and to make technical
changes to Departmental regulations governing the timing and
finality of decisions of the ARB and the BALCA); 2021 H-2A Herder
Final Rule, 86 FR 71373 (amending the regulations regarding the
adjudication of temporary need for employers seeking to employ
nonimmigrant workers in job opportunities covering the herding or
production of livestock on the range).
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Paragraph (a) proposed that an Application for Temporary Employment
Certification submitted to the OFLC NPC before the effective date of
the final rule would be processed under the regulations in effect when
it was submitted (i.e., the 2010 H-2A Final Rule). However, an
employer's engagement with H-2A program requirements begins in advance
of its submission of the Application for Temporary Employment
Certification to the NPC, with its submission of a job order to the SWA
for review and clearance. In order to provide similar regulatory
continuity for H-2A program job orders, paragraphs (b) and (c) proposed
a procedure for determining which set of regulations would apply to an
Application for Temporary Employment Certification submitted to the NPC
on or after the effective date of the final rule.
As a result, any Application for Temporary Employment Certification
with a first date of need no later than 90 days after the effective
date of this final rule would be processed under the 2010 H-2A Final
Rule. All other Applications for Temporary Employment Certification
submitted on or after the effective date of this final rule would be
processed under this final rule. The Department received some comments
on this provision, none of which necessitated substantive changes to
the regulatory text. Therefore, as discussed below, this provision
remains unchanged from the NPRM.
The majority of commenters that addressed transition procedures,
including trade associations, an employer, and a SWA, generally
supported the proposal. However, they expressed concern that the
transition period might occur during a busy season or across calendar
years, depending on the timing of the final rule's publication.
[[Page 61668]]
These commenters urged the Department to include sufficient time in the
transition period for employers to become familiar with new
requirements and for the Department and SWA to develop and implement
processes associated with the changes in the final rule, ideally
outside of busy filing periods (e.g., September, October, and
November). The Department considered these interests and concluded that
the transition procedures adopted in this final rule ensure that all
job orders and Applications for Temporary Employment Certification
submitted to the SWA and/or NPC before the effective date of this final
rule will continue to be governed by the 2010 H-2A Final Rule. Not only
will this approach ensure that the rule change does not complicate or
disrupt an employer's application process mid-stream, but it will
provide an appropriate period after publication of this final rule
during which the Department, SWAs, and employers can adjust to the new
rule before an employer submits its first job order for processing
under this final rule (i.e., with a first date of need more than 90
days after the effective date of this final rule).
Three commenters remarked on the length of the transition period
proposed. Two trade associations objected to what they viewed as a
delay of the actual effective date of the final rule. They remarked
that the final rule would not be fully in effect on the 30th day after
publication. In contrast, a SWA urged the Department to consider a
longer transition period, such as 180 days after the final rule's
publication date, stating that both SWAs and employers need more than
90 days to adjust to the substantive changes being proposed, e.g.,
survey methodologies and staggered entry.\15\
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\15\ The Department decided not to adopt several major changes
proposed in the NPRM (e.g., staggered entry), as discussed in
relevant preamble sections, which mitigates the SWA's concern to
some degree. In addition, as explained in the preamble discussing
Sec. 655.120, the Department anticipates the modernized prevailing
wage determination (PWD) survey requirements will reduce the burden
on SWAs.
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The Department appreciates both the SWA's suggestion for more time
as well as other commenters' concerns about prompt implementation of
the new rule. The transition period implemented in this final rule
balances these concerns. It allows the Department to implement
necessary changes to program operations, application forms, and
technology systems, and to provide training and technical assistance to
the NPC, SWAs, employers, and other stakeholders in order to
familiarize them with changes required by this rule. However, the
transition period also balances the preparation required to properly
implement the new rule with the importance of promptly implementing the
modernized regulations. It requires employers to prepare job orders in
compliance with the new regulations, and it requires the NPC and SWA to
be prepared to receive those job orders, 46 days after publication of
this final rule. Further, using employers' first date of need after
this final rule's effective date, rather than a job order or
Application for Temporary Employment Certification submission date,
better ensures that workers who perform labor or services during the
same season will be covered by the same set of regulations.
4. Section 655.103, Overview of This Subpart and Definition of Terms;
20 CFR 653.501(c)(2)(i) of the Wagner-Peyser Act Regulations; and 29
CFR 501.3, Definitions
a. AEWR
The NPRM proposed conforming changes to the definition of AEWR to
be consistent with the NPRM's proposal to adjust the methodology used
to establish AEWR in the H-2A program. Subsequently, the Department
issued the 2020 H-2A AEWR Final Rule (85 FR 70445), which revised the
AEWR methodology for non-range agricultural occupations and included a
revised definition of AEWR. On December 23, 2020, in United Farm
Workers v. Dep't of Labor, No. 20-cv-01690 (E.D. Cal. filed Nov. 30,
2020), the U.S. District Court for the Eastern District of California
issued an order preliminarily enjoining the Department from further
implementing the 2020 H-2A AEWR Final Rule.\16\ On April 4, 2022, after
the parties submitted summary judgment briefing, the court vacated the
2020 H-2A AEWR Final Rule and remanded the rule to the agency for
further rulemaking consistent with the court's order.\17\ In this final
rule, the Department is implementing the court's vacatur of the 2020 H-
2A AEWR Final Rule by removing from the CFR the regulatory text that
the Department promulgated through that rulemaking at Sec. 655.103(b)
(the definition of AEWR), thereby restoring the regulatory text to
appear as it did before the effective date of the 2020 H-2A AEWR Final
Rule.
---------------------------------------------------------------------------
\16\ Order Granting Plaintiffs' Motion for a Preliminary
Injunction, United Farm Workers v. U.S. Dep't of Labor, No. 20-cv-
1690 (E.D. Cal. Dec. 23, 2020), ECF No. 37. The court's order was
issued two days after the effective date of the 2020 H-2A AEWR Final
Rule.
\17\ Order Granting Plaintiffs' Motion for Summary Judgment,
United Farm Workers v. U.S. Dep't of Labor, No. 20-cv-1690 (E.D.
Cal. Apr. 4, 2022), ECF No. 102; Judgment, United Farm Workers v.
U.S. Dep't of Labor, No. 20-cv-1690 (E.D. Cal. Apr. 4, 2022), ECF
No. 103.
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The Department has good cause to bypass any otherwise applicable
requirements of notice and comment and a delayed effective date for
this portion of the rule because they are unnecessary and would be
contrary to the public interest. See 5 U.S.C. 533(b)(B), (d). First,
the changes made here carry out the ministerial task of effectuating
the court's vacatur order and restores the regulatory text to the
operative regulatory text in place prior to the publication of the now-
vacated rule (the definition of AEWR in effect under the 2010 H-2A
Final Rule). Since the court's vacatur order, no other party has sought
to appeal the court's order or otherwise block it from taking effect.
The Department has therefore concluded that the notice and delayed
effective date requirements are unnecessary.
Second, the Department has concluded that taking comment on this
change would be contrary to the public interest because it could lead
to confusion, particularly among the regulated public, as to the
applicable definition of the AEWR and the AEWR methodology. This is
especially true in light of the Department's December 1, 2021, NPRM
proposing revisions to the reinstated 2010 AEWR methodology. Continuing
to include the vacated methodology in the CFR while simultaneously
proposing to amend the 2010 AEWR methodology in the separate rulemaking
could be unnecessarily confusing to the regulated community. This
change eliminates any possible confusion over the current AEWR
methodology and, more importantly, any confusion over what methodology
the Department has proposed to change in its current AEWR
rulemaking.\18\
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\18\ As noted below, the comment period for the 2021 H-2A AEWR
NPRM closed on January 31, 2022, and the Department will address
comments received in response to that proposal in that separate
rulemaking.
---------------------------------------------------------------------------
The Department has concluded that each of these reasons--that
notice and comment and a delayed effective date are unnecessary,
impracticable, and contrary to the public interest--independently
provides good cause to bypass any otherwise applicable requirements of
notice and comment and a delayed effective date.
b. Area of Intended Employment and Place of Employment
The NPRM proposed minor amendments to the definition of AIE by
[[Page 61669]]
replacing the terms ``place of the job opportunity'' and ``worksite''
with a newly defined term ``place(s) of employment.'' The Department
received some comments on this provision, none of which necessitated
substantive changes to the regulatory text. Therefore, as discussed
below, these definitions remain unchanged from the NPRM with one minor
revision.
As explained in the NPRM, the CO will continue using the definition
of AIE to assess whether each place of employment--defined as a
worksite or physical location where work under the job order actually
is performed by the H-2A workers and workers in corresponding
employment--is within normal commuting distance from the first place of
employment listed on the job order as a work location or, if
designated, the centralized ``pick-up'' point (e.g., worker housing) to
every other place of employment identified in the application and job
order. After considering comments, as discussed below, the Department
adopts the proposed definitions of AIE and place of employment with one
minor change, to use the term ``place of employment'' in the singular
in the definition of AIE.
Some commenters suggested the Department make substantive revisions
to the proposed definition of ``place of employment,'' given how it is
applied in the proposed definition of AIE at 20 CFR 655.103(b), and the
explicit limitation of an Application for Temporary Employment
Certification to one AIE that the Department proposed to incorporate at
Sec. 655.130(e). Some commenters asserted that travel time from one
point on a farm to another (e.g., from one field to another
noncontiguous field, or from a field to a packing facility) and/or
incidental travel off the farm to places outside of the AIE should not
be considered in the Department's AIE evaluation. Several commenters,
including a trade association, agent, and employers, used job
opportunities involving trucking duties (e.g., delivering an employer's
crops to storage or market) as examples of their concerns. These
commenters objected to listing all of a trucker's delivery and pick-up
locations on the Application for Temporary Employment Certification as
worksites, which the CO would analyze under the definition of AIE at
Sec. 655.103(b) and subject to the geographic limitation at Sec.
655.130(e). Several trade associations, agents, and employers commented
that the Department should adopt the H-1B definition of place of
employment at Sec. 655.715, asserting that the Board of Alien Labor
Certification Appeals (BALCA) has done so in some appeal decisions. One
commenter stated that adopting the H-1B definition would ensure that
certain locations where work is performed for short durations are
excluded from consideration in analysis of the AIE. An employer
supported this approach as flexible and efficient, while other
commenters stated it would provide clarity and certainty to the AIE
evaluation. An agent acknowledged that the H-1B definition might be
``less-than-ideal for the H-2A program for other reasons'' and proposed
a slightly modified version of the H-1B definition.
The Department declines to adopt the H-1B definition of ``place of
employment'' for the H-2A program because doing so would be a major
change that commenters and stakeholders generally could not have
anticipated as an outcome of the rulemaking, thus warranting additional
public notice and opportunity for comment. Additionally, the H-1B
definition of ``place of employment'' is tailored to the specialty
occupations eligible for the H-1B program, and this definition is not
easily retrofitted or modified to apply to agricultural occupations
eligible for the H-2A program.\19\ Finally, such a change is not
necessary to address commenters' concerns.
---------------------------------------------------------------------------
\19\ For example, the H-1B regulations provide the following
examples of non-worksites (i.e., locations that do not constitute a
place of employment) for an H-1B worker: ``[a] computer engineer
sent to customer locations to `troubleshoot' complaints regarding
software malfunctions; a sales representative making calls on
prospective customers or established customers within a `home
office' sales territory; a manager monitoring the performance of
out-stationed employees; an auditor providing advice or conducting
reviews at customer facilities; a physical therapist providing
services to patients in their homes within an area of employment; an
individual making a court appearance; an individual lunching with a
customer representative at a restaurant; or an individual conducting
research at a library.'' See Sec. 655.715. These examples have
limited parallels within the agricultural economy.
---------------------------------------------------------------------------
The Department's proposed definition of AIE considers the normal
commuting distance to the place of employment where the workday begins,
not the geographic scope of a worker's route after the workday begins.
Under the proposed definition of ``place of employment,'' a truck
driver's delivery locations, for example, are places of employment, as
they are worksites or other physical locations at which the truck
driver performs work under the job order. However, those delivery
locations are not considered in the AIE analysis of normal commute to
the place of employment because the workday for the job opportunity
begins before a worker travels to those locations. The geographic scope
limitation on such places of employment (i.e., after the workday
begins) are addressed under Sec. 655.130(e), which, as revised,
accommodates work at ``places of employment outside of a single [AIE]
only as is necessary to perform the duties specified in the Application
for Temporary Employment Certification, and provided that the worker
can reasonably return to the worker's residence or the employer-
provided housing within the same workday.''
While not assessed as part of an AIE review, an employer must
identify on the Application for Temporary Employment Certification and
job order all places of employment, including those after the workday
begins, to allow both for the Department to review, and U.S. workers to
be apprised of, the material terms and conditions of the job
opportunity. If specific addresses are unknown, such as in the case of
crop delivery to storage or market, the employer may describe the
places to which deliveries will be made with as much specificity as
possible (e.g., county or city names). To be clear, all worksites and
physical locations where work will be performed under the job order,
both those to which a worker must commute and those to which a worker
must travel after their workday begins, must be disclosed in the
Application for Temporary Employment Certification and job order;
however, those worksites and physical locations to which a worker must
travel after the workday begins to perform work under the job order
will not be analyzed under the definition of AIE. These comments and
the limitation of an Application for Temporary Employment Certification
to one AIE, absent an exception, are discussed further in relation to
the geographic scope provision at Sec. 655.130(e).
A State employment agency expressed concern that the term ``places
of employment'' may result in employer misrepresentation of the actual
worksite, lead to confusion around where the ``actual worksite'' is
located when reviewing a job order, and require the SWAs to identify
more deficiencies in cases where the employer does not specify the
worksite as a place of employment. A forestry employer expressed
concern that the proposed definition would be unworkable because the
employer performs work at places of employment across areas wider than
normal commuting distances, considers employer-provided housing to be
home, and does not expect workers to return home to their permanent
residence each day.
[[Page 61670]]
To add clarity, the Department has revised the definition of AIE so
that ``place of employment'' is singular. As discussed above, there may
be a number of places of employment listed on an Application for
Temporary Employment Certification, as an employer must identify each
worksite or physical location where work under the job order will be
performed. However, the CO uses only one place--the first place of
employment identified or, if designated, the centralized ``pick-up''
point (e.g., worker housing)--to determine the normal commuting
distance around that place and whether all of the worksites or physical
locations to which a worker may commute to begin the workday are within
that normal commute. Where an employer's job opportunity involves a
planned itinerary (e.g., animal shearing subject to Sec. 655.300), and
in the event an AIE analysis is required, the normal commute at each
place along the planned itinerary would be analyzed.
Some commenters asserted that a normal-commuting-distance analysis
should focus on the location of the housing or pick-up point employers
provide for workers, rather than the places of employment listed on an
employer's Application for Temporary Employment Certification. A trade
association, with support from other commenters, stated that, because
employers are required to provide transportation to worksites from the
housing the employer provides or a pick-up point, a normal commuting
distance for U.S. workers should be measured from their home to the
housing or pick-up point, not the worksite(s); and thus argued that
worksites have little bearing on the AIE labor market test. Another
trade association similarly remarked that the ``housing or pick-up
point, rather than the worksite'' should be the determining factor,
asserting that this would reflect the commuting patterns of
agricultural workers more accurately. An employer urged adoption of a
standard that would consider a worksite to be within the AIE if the
employer has provided housing at the worksite; as normal commuting
distance would be measured from each of the various locations where the
employer provided housing to workers, employers could file fewer
Applications for Temporary Employment Certification, each application
covering multiple AIEs. Similarly, an agent stated that employers are
required to provide housing within a normal commuting distance, which
``would allow for multiple work/housing locations on a single
application.''
The Department disagrees with commenters who assert that the
location of one or more places of employment is not relevant to
evaluating normal commuting distance whenever an employer provides
transportation from a designated pick-up point, such as the housing it
provides to H-2A workers and those workers in corresponding employment
who are not reasonably able to return to their own residence within the
same day, as provided in Sec. 655.122(d)(1). The Department likewise
disagrees that providing additional housing at the place of employment
negates the need for the AIE analysis. A worker who does not reside at
the pick-up point must commute either to the pick-up point or to the
place of employment directly. Further, if the workday does not begin at
the pick-up point, the commute for a worker who travels to the pick-up
point using their own transportation continues from the pick-up point
to the place of employment using the employer's transportation. To the
extent a commute involves multiple segments, workers in corresponding
employment may not be able to reasonably return to their own residences
within the same day. Although an employer would be required to provide
such workers with housing, the Department noted in the NPRM (and
farmworkers and their advocates agreed in comments) that longer-than-
normal commuting distance, transportation issues, and any requirement
to live away from home and family are all factors that can discourage
U.S. workers from accepting temporary agricultural job opportunities,
impacting recruitment and the Department's ability to assess the labor
market prior to issuing a final determination. Should a worker in
corresponding employment choose not to live in employer-provided
housing to reduce the commute, the Department has health and safety
concerns, such as driver fatigue that can be exacerbated by increased
commute times. In a comment addressing transportation safety under
Sec. 655.122(h), a State employment agency noted that driver fatigue
in agriculture is a ``real and concerning issue,'' stating that it is
not uncommon to see workers at worksites that are hours away from
housing sites. (To the extent these commenters are discussing workers'
movement between various places of employment after the workday begins,
the Department has addressed this issue above and in Sec. 655.130(e).)
Separately, a workers' rights advocacy organization discussed the
use of the definition of AIE for other purposes, for example, to frame
the geographic area for prevailing practice and wage surveys, asserting
that regulatory language at Sec. Sec. 655.122(d)(5) and
653.501(c)(2)(i) limits AIE in those contexts to a single State. Those
comments with regard to prevailing wage surveys are addressed in the
discussion of prevailing wage determinations (PWDs) at Sec.
655.120(c).
In addition to soliciting comments on the proposed definitional
changes, the Department invited input on whether it should further
revise the definition of AIE either to continue making fact-based
determinations on a case-by-case basis, with the consideration of other
objective factors such as commuting or labor market area designation
systems or other comprehensive commuting studies and data, or to
implement a uniform standard, like a maximum commuting distance or time
above which a commute would be considered unreasonable in all cases.
The Department asked that comments address the advantages and
disadvantages of different alternatives and how implementation would
provide greater clarity and ensure the integrity of the labor market
test.
Commenters varyingly expressed general concerns that the current
definition of AIE is too broad, too narrow, or too ambiguous, but
without offering an alternative framework. A trade association stated
that AIE ``varies by the nature of the employer's need and does not fit
neatly into one defined box,'' while an employer expressed concern that
the current definition created such a broad standard that it could
result in subjective review of an application. An agent suggested the
definition of AIE should be expanded to reflect that agricultural
employers now have statewide and interstate production to ``reduce crop
failure risks, expand marketing windows, and improve capital
utilization''; otherwise, the commenter suggested, the definition
failed to accommodate modernization of agricultural operations. Many
farmworkers emphasized that it is important to them to work close
either in distance or time to where they live due to the lack of a
driver's license, post-work obligations like schoolwork, and the need
to care for their children and be available if family emergencies
occur. A workers' rights advocacy organization expressed concern that
the definition of AIE leads to a large AIE and results in fewer U.S.
worker applicants for job opportunities because the regulation does not
require employers to provide transportation to local workers.
Some commenters objected to the use of Metropolitan Statistical
Areas (MSAs) in the H-2A program's definition of AIE as an objective
means of evaluating a
[[Page 61671]]
normal commute in particular areas, but did not offer an alternative.
Some trade associations, with support from other commenters, asserted
that MSAs and commuting distance have no correlation with the nature of
agricultural work. For example, one commenter stated that commute times
associated with MSAs ``bear little resemblance to how agricultural
workers get to their jobs.'' A workers' rights advocacy organization
expressed concern that many farmworkers will have difficulty traveling
to and between distant points within large MSAs and cited language from
OMB stating that MSAs ``are not designed as a general-purpose framework
for nonstatistical activities.'' See 2010 Standards for Delineating
Metropolitan and Micropolitan Statistical Areas; Notice, 75 FR 37246
(June 28, 2010). One of the trade associations, with other commenters
echoing its statement, noted that the widely varying commute times
associated with different MSAs will make it difficult for a Farm Labor
Contractor (FLC) to contract with a farmer with certainty about whether
the farm will be determined to be inside or outside an arbitrary
commute time for that specific MSA.
The commenters who addressed whether the Department should impose a
more uniform standard for all employers, such as a maximum commuting
distance or time above which a commute would be considered unreasonable
in all cases, generally did not support a rigid measure of time or
distance applicable in all cases. Several trade associations and an
agent stated that use of a specific metric to determine reasonable
commuting distance would be difficult due to various factors. An agent
commented that employers transport workers to ``wherever the work is
available,'' and the Department should not limit transportation to
commute times that may vary widely based on factors like traffic
patterns. One stated that measuring commutes in miles would be
inappropriate because it would not account for areas in which distance
can be traveled quickly, and measuring in time would penalize those who
travel difficult terrain or encounter heavy traffic during daily
commutes. One trade association stated that there is too much variation
in terrain, weather, population concentration, road quality, and
traffic across the country to apply a rigid definition of normal
commuting distance. Another trade association similarly remarked that
it would be impossible to use a definitive rigid measure of reasonable
commuting distance due to variation in agriculture across the country,
and urged the Department to provide more flexibility. While one agent
suggested that a rigid commuting distance could be consistently
applied, an employer urged the Department to adopt a flexible approach
and not apply a rigid definition of normal commuting distance.
The commenters who suggested a maximum commute distance or commute
time disagreed as to an appropriate limit. Trade associations,
individual employers, and an agent suggested the Department should not
consider a commute time to be unreasonable unless, for example, the
worksite is at least 2 hours from the housing, the pick-up point, or
both. One viewed it as a more easily understood approach that ``would
prevent any misunderstanding of whether a specific farm will fit an
MSA's commute time and better conform to the realities of agricultural
employment.'' An agent commented that a smaller, more restrictive AIE
is not helpful to anyone, neither the small local workforce that is not
large enough for farmers' needs, nor the farmer who will have to
artificially separate parts of its widespread operation to fit into
discrete AIEs. This commenter argued that the Department has ``no
statistics that legal, local or domestic workers would take jobs if
they were just confined to about a 60-mile radius of any one farm.'' By
comparison, a workers' rights advocacy organization urged the
Department to limit the definition of ``normal commuting distance'' to
distances ``considerably shorter than the 60+ mile figure'' requested
by employers and suggested that a more reasonable maximum distance
might be 45 miles. Some commenters who opposed a maximum commuting
distance stated that if the Department were to adopt a maximum distance
standard, it should provide flexibility to account for typical travel
delays.
Upon careful consideration of all comments received, the Department
declines to further modify the definition of AIE. Although using MSAs
as a proxy for commuting area may result in broader geographic areas
than might seem typical for jobs in rural areas, employers are required
to provide housing to any worker in corresponding employment unable to
reasonably return home at the end of the workday, including those who
reside within the broadly identified commuting area. Some commenters
appeared to conflate the concept of ``reasonable commuting distance''
as used in this section with the requirement that the employer provide
housing to workers in corresponding employment who are not reasonably
able to return to their residence within the same day. The Department
notes that reasonable commuting distance as it relates to AIE is a
general concept, whereas a determination as to whether a worker in
corresponding employment is reasonably able to return to their
residence at the end of the day is specific to the worker in question.
Therefore, it is possible that a worker in corresponding employment
could reside within a reasonable commuting distance of the place of
employment, but could not reasonably return to their residence at the
end of the day due to personal circumstances (e.g., lack of a private
vehicle or public transportation). In such a situation, the employer
would be required to offer housing to the worker in corresponding
employment. Therefore, while commenters provided certain arguments that
MSAs might be an imperfect fit in some situations, these comments
neglect to consider the continued value in using MSAs to provide a
level of predictability and adjudicatory consistency for employers
nationwide, which the Department and many commenters both consider
important. As commenters have not identified any clearly superior
alternative, this final rule continues to rely on a case-by-case
approach to assessing AIE given the varying circumstances across areas
that affect travel and commuting times.
c. Average AEWR
The NPRM proposed to define a new term ``average adverse effect
wage rate'' (average AEWR). The term is necessary to effectuate the
Department's proposal to make adjustments to the H-2ALC surety bond
amounts based on changes to a nationwide average AEWR. The Department
proposed to calculate the average AEWR as a simple average of the
published AEWRs applicable to the Standard Occupational Classification
(SOC) 45-2092 (Farmworkers and Laborers, Crop, Nursery, and Greenhouse)
and publish an updated average AEWR annually to serve as the benchmark
for future adjustments to the required bond amounts.
The Department received only two comments specifically relating to
the proposal to define the average AEWR. Both commenters misunderstood
the nature of this proposal, believing that the Department was
proposing an alternative to the wage sources listed in Sec.
655.120(a), and opposed the proposal for this reason. The Department
reiterates that the average AEWR is only intended to be used as a
benchmark for
[[Page 61672]]
making adjustments to the required bond amounts. Under this proposal,
the average AEWR does not change or replace the wage rate required
under Sec. 655.120(a).\20\
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\20\ See 84 FR 36168, 36179 (explaining that the Department
proposes to maintain the current requirement in Sec. 655.120(a)
that an employer must offer, advertise in its recruitment, and pay a
wage that is the highest of the AEWR, the prevailing wage, the
agreed-upon collective bargaining wage, the Federal minimum wage, or
the State minimum wage, with only minor changes).
---------------------------------------------------------------------------
Accordingly, the Department adopts the definition of average AEWR
with minor modifications. As defined in this final rule, the average
AEWR is the simple average of the AEWRs applicable to the SOC 45-2092
(Farmworkers and Laborers, Crop, Nursery, and Greenhouse) and published
by the OFLC Administrator in accordance with Sec. 655.120.\21\ The
revised definition clarifies that once set, the average AEWR remains in
effect until the OFLC Administrator publishes an adjusted average AEWR
and it becomes effective. Adjustments to the average AEWR will occur
consistent with the schedule for adjusting the relevant AEWRs under
Sec. 655.120.
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\21\ The AEWR methodology proposed in the NPRM would have
resulted in the publication of separate AEWRs specific to the SOC
45-2092 and other occupational classifications for field and
livestock workers. Under the modifications made to the Department's
AEWR methodology in the 2020 H-2A AEWR Final Rule, the OFLC
Administrator would instead publish an AEWR for each State for a
combined field and livestock workers category, which would be
applicable to the SOC 45-2092. However, as discussed above, the 2020
H-2A AEWR Final Rule was preliminarily enjoined in United Farm
Workers v. U.S. Dep't of Labor, No. 20-cv-01690 (E.D. Cal. Dec. 23,
2020). Regardless of the precise AEWR methodology used, the average
AEWR will be based on the AEWRs that apply to the SOC 45-2092,
whether they are SOC-specific or for a combined field and livestock
workers category.
---------------------------------------------------------------------------
d. Corresponding Employment
The NPRM did not propose amendments to the definition of
corresponding employment or request comments on any aspect of the
definition. However, the Department received a few comments suggesting
modifications to the definition, none of which necessitated substantive
changes to the regulatory text from the NPRM. Therefore, this final
rule retains the definition of corresponding employment from the
current rule without change.
Several commenters stated that the definition should be modified to
include a de minimis exception, allowing non-H-2A workers to perform a
limited amount of work similar to the duties described in the job order
or performed by the H-2A workers without being considered to be engaged
in corresponding employment. Alternatively, several commenters
indicated that the definition should be more similar to the definition
of corresponding employment under the H-2B program regulations, which
defines corresponding employment to include work that is either
substantially similar to the work included in the job order or
substantially the same work performed by H-2B workers, and excludes
certain full-time, incumbent employees. See 20 CFR 655.5; 29 CFR 503.4.
The Department has carefully considered these comments requesting
that the definition of corresponding employment be revised and narrowed
but declines to alter the definition of corresponding employment at
this time. The Department did not propose any changes to the definition
of corresponding employment or request comments on any aspect of the
definition. Many parties who would be affected by any change in the
definition of corresponding employment therefore had no reason to
anticipate any change in the current definition or to provide input as
to how the definition could be revised. The Department received only a
limited number of comments on this topic, all from employers and their
representatives, with no feedback from other affected parties to enable
the Department to obtain multiple perspectives on this issue. Further,
the regulation provides important protections for workers by requiring
that non-H-2A workers performing the same work as H-2A workers receive
the same wages and working conditions as H-2A workers. Accordingly, the
Department declines to adopt any changes to the definition of
corresponding employment.
e. Employer and Joint Employment
The NPRM proposed amendments to the definitions of ``employer'' and
``joint employment'' to clarify the use of these terms in the filing of
Applications for Temporary Employment Certification and the
responsibilities of joint employers, consistent with the INA and the
Department's longstanding administrative and enforcement practice. The
Department received many comments on these proposed definitions, none
of which necessitated substantive changes to the regulatory text.
Therefore, as discussed below, these definitions remain unchanged from
the NPRM with one minor revision.
Section 218 of the INA recognizes that growers, agricultural
associations, and H-2ALCs that file applications are employers or joint
employers.\22\ In conformity with the statute as well as the
Department's current policy and practice, the NPRM proposed to clarify
the definitions of employer and joint employment with respect to the H-
2A program to include all of those entities the statute deems employers
or joint employers. Specifically, the Department proposed to add
language to the definition of joint employment to clarify that an
agricultural association that files an application as a joint employer
is, at all times, a joint employer of all H-2A workers sponsored under
the application and, if applicable, of corresponding workers. The
Department further proposed to clarify the definition of joint
employment to include an employer-member of an agricultural association
that is filing as a joint employer, but only during the period in which
the employer-member employs H-2A workers sponsored under the
association's joint employer application. The Department proposed to
add language to the definition of joint employment to clarify that
growers that file the joint employer application proposed in Sec.
655.131(b) are joint employers, at all times, with respect to the H-2A
workers sponsored under the application and all workers in
corresponding employment. In light of these proposed changes, the
Department also proposed a slight change to the joint employment
language in the current regulation to clarify that entities that do not
file applications but jointly employ workers under the common law of
agency are also joint employers that may be held liable for violations
under the statute. In other words, entities that file applications as
joint employers are joint employers as a matter of law, regardless of
the common law of agency. The Department will assess the joint employer
status of all other entities based on the nature of the employment
relationship between the putative joint employer and the worker under
the common law of agency, as provided in the existing definition of
employee at Sec. 655.103 and required by Supreme Court precedent. In
addition to the proposed changes to the definition of joint employment,
the Department proposed to add language to the definition of employer
to clarify that a
[[Page 61673]]
person who files an application other than as an agent is an employer
and, similarly, that a person on whose behalf an application is filed
is an employer. As the Department noted in the NPRM, these proposed
revisions reflected the Department's longstanding administrative and
enforcement practice that is already familiar to employers.
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\22\ See 8 U.S.C. 1188(c)(2) (``The employer shall be notified
in writing within seven days of the date of filing if the
application does not meet the [relevant] standards''); 8 U.S.C.
1188(c)(3)(A)(i) (``The Secretary of Labor shall make . . . the
certification described in subsection (a)(1) if . . . the employer
has complied with the criteria for certification''); 8 U.S.C.
1188(d)(2) (``If an association is a joint or sole employer of
temporary agricultural workers, . . . [H-2A] workers may be
transferred among its [employer-]members'').
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Joint Employment for Agricultural Associations Filing as a Joint
Employer With Their Employer-Members
The Department received numerous comments related to its proposal
to clarify that an agricultural association that files an application
as a joint employer is, at all times, a joint employer of all H-2A
workers sponsored under the application and, if applicable, of
corresponding workers. Two associations supported the proposed
definition of joint employment. Two other associations submitted
lengthy comments opposing the proposal. The two associations opposing
the proposal each asserted the INA does not permit the Department to
impose joint employer liability on an agricultural association for the
violations of an association member, unless the association committed,
participated in, or had knowledge of the violation. The associations
cited sec. 1188(d)(3)(A) of the INA, which limits the debarment of
joint employer agricultural associations based on violations an
employer-member commits to instances in which the agricultural
association committed, participated in, had knowledge of, or had reason
to know of the violation. The associations submitted that Congress's
specific choice to permit debarment for an employer-member violation
only when an agricultural association meets this standard evinces a
general intent to hold agricultural associations otherwise accountable
for employer-member violations only when they committed, participated
in, or knew of the underlying violation.
The associations explained that Congress conferred a ``special
status'' on agricultural associations ``in order to level the playing
field for small employers'' and that imposing joint employer liability
on agricultural associations that elect to file a joint employer
application would ``frustrate that status'' because associations cannot
afford exposure to such liability. Both assert that exposure to such
liability would result in associations' inability to file joint
employer applications. The associations also stated that the Department
has historically applied the common law of agency to determine whether
an entity employs a worker and oppose the ``proposed radical change to
agency law.''
Two other associations asserted that the Department has never held
an association liable for employer-member violations unless the
association was involved in or directly participated in the violation.
One of these associations also agreed with the two associations
described immediately above that the proposal to hold agricultural
associations accountable for employer-member violations when the
agricultural association elected to file a joint employer application
is inconsistent with the statute. That association also commented that
the proposal will reduce small farmers' access to the program and
potentially threaten the existence and participation of associations in
the program. And finally, various other employer commenters lodged
general objections to holding associations liable for the violations
that their employer-members commit.\23\
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\23\ Another agricultural association that submitted a comment
(generally supported by several other commenters, including trade
associations and individual employers) offered no criticism of the
NPRM's clarification that agricultural associations that file a
joint employer application are liable at all times for violations
committed against H-2A workers sponsored under the applications as
well as any applicable corresponding workers.
---------------------------------------------------------------------------
A workers' rights advocacy organization supported the Department's
proposal to clarify that an agricultural association that elects to
file a joint employer application is at all times a joint employer of
the H-2A workers sponsored under the application as well as any
corresponding workers. The commenter submitted that the clarification
will incentivize associations to monitor employer-member compliance
with program requirements.
After carefully considering the comments it received, the
Department has decided to retain its proposed clarification of the
definition of joint employment to include language specifying that an
agricultural association that files an application as a joint employer
is, at all times, a joint employer of all H-2A workers sponsored under
the application and any corresponding workers. The plain language of
sec. 1188(d) of the INA requires this interpretation. Section
1188(d)(2) only allows an agricultural association to file a single
application on behalf of its employer-members to sponsor H-2A workers
that it may ``transfer'' among its membership ``[i]f [the agricultural]
association is a joint or sole employer of temporary agricultural
workers.'' \24\ Thus, an association attests to joint employer status
when it submits a joint employer application for authorization to
transfer H-2A workers among its membership. In addition to permitting
the association to transfer H-2A workers, filing a single application
rather than individual applications on behalf of each employer-member
of an agricultural association results in significant financial savings
and substantially reduces the efforts and costs associated with the
required recruitment and advertising. The statute requires an
agricultural association to assume joint employer (or sole employer)
status to qualify for these benefits.\25\ Even if the statutory
language did not compel this result, the Department would nevertheless
adopt this interpretation as agricultural associations are uniquely
positioned to be knowledgeable of program requirements, and this
requirement encourages associations that transfer workers among their
employer-members to ensure that their employer-members understand
program rules and regulations, assist their membership in achieving
compliance, and provide accountability for agricultural associations
filing as joint employers.
---------------------------------------------------------------------------
\24\ See also the title of sec. 1188(d)(2) (``Treatment of
Associations Acting as Employers.'') (emphasis added).
\25\ See Admin. v. WAFLA, ALJ No. 2018-TAE-00013 (OALJ Aug. 25,
2021), appeal pending, ARB No. 2021-0069 (agricultural association
is a joint employer of workers employed under master application as
a matter of law); Little v. Solis, 297 FRD. 474, 478 (D. Nev. Jan.
27, 2014) (as a joint employer applicant, agricultural association
is a joint employer of H-2A workers for purposes of the H-2A
program); Ruiz v. Fernandez, 949 F. Supp. 2d 1055, 1072 (E.D. Wash.
June 7, 2013) (an agricultural association that submits a joint
employer application is a party to the H-2A workers' work contracts
as a matter of law); Martinez-Bautista v. D & S Produce, 447 F.
Supp. 2d 954, 962 (E.D. Ark. Aug. 25, 2006) (entities that jointly
applied to employ H-2A workers are joint employers of the workers);
cf. WHD v. Native Techs., Inc., ARB No. 98-034, 1999 WL 377285, *6
(ARB May 28, 1999) (filer of a labor condition application under H-
1B provisions of the INA is an ``employer'' by operation of law,
independent of criteria under the common law test of employer); but
see Admin. v. Azzano Farms & WAFLA, ALJ No. 2019-TAE-00002 (OALJ
Oct. 2, 2019), appeal pending, ARB No. 2020-0013.
---------------------------------------------------------------------------
Should an agricultural association prefer not to accept the
obligations of joint (or sole) employment, it may choose instead to
file individual applications on behalf of its employer-members as an
agent, thereby limiting its liability, consistent with sec. 1188(d)(1)
(but also foregoing the privileges that apply if it files a Master
Application). The statutory scheme accordingly permits an agricultural
association to choose to assume the
[[Page 61674]]
traditional responsibilities of a joint/sole employer, including any
liability to the workers it jointly/solely employs--or file an
application as an agent and generally avoid employer liability.
However, when associations file as agents, H-2A workers cannot be
transferred among their employer-members, pursuant to sec. 1188(d)(2).
The Department notes the contention that it has never sought to
hold an agricultural association liable for employer-member violations
unless the agricultural association was involved in the violations is
inaccurate. Holding an association accountable for employer-member
violations when the association attested to joint employer status is
consistent with WHD's current statutory interpretation and its
enforcement policy. WHD is presently asserting before the ARB that an
association is liable for its employer-member's violations based solely
on its having filed a joint employer application.\26\ WHD has also
previously sought to enforce program requirements against other
associations based solely on their election of joint employer status.
---------------------------------------------------------------------------
\26\ See Azzano Farms, ARB No 2020-0013; WAFLA, ARB No. 2021-
0069.
---------------------------------------------------------------------------
Additionally, it is inaccurate to state that sec. 1188(d)(3)(A)
provides that violations committed by an association member are not the
responsibility of an association unless the Secretary determines that
the association participated in, had knowledge of, or had reason to
know of the violations. Rather, this section provides that an
association is not subject to debarment when an employer-member commits
a violation (unless the Secretary determines that the association or
other employer-member participated in, had knowledge of, or had reason
to know of the violations). Read together, sec. 1188(d)(2) and (3)(A)
assign full legal responsibility to agricultural associations for
employer-member violations, with the exception of a release from
program debarment for an agricultural association when the Department
cannot satisfy sec. 1188(d)(3)(A)'s more exacting standard.
The debarment standard provides a meaningful limitation on the
Department's authority to debar an agricultural association for its
employer-member's violations. Consistent with the provision, the
Department's implementing regulations do not permit the Department to
debar an association merely because its employer-member committed a
substantial violation that subjects the employer-member to debarment.
See 29 CFR 501.20(f).
When an association is not subject to debarment, civil money
penalty assessments against the agricultural association for employer-
member violations may be lower than those assessed for association
members. As the Department noted in the NPRM, it will continue to apply
its longstanding policy with respect to imposing liability among
culpable joint employers. This policy includes consideration of the
factors at Sec. 501.19(b) when the Department assesses civil money
penalties. The Department applies these factors to joint employers on a
case-by-case basis. Thus, for example, if the Department determines an
agricultural association achieved no financial gain from an employer-
member's failure to pay the required wage to H-2A or corresponding
workers, but that the employer-member achieved significant financial
gain, the civil money penalty, if any, applicable to the association
would likely be less than that applicable to the employer-member for
this violation.
Joint Employment for Employers Filing Joint Employer Applications Under
Sec. 655.131(b)
The Department received various comments concerning its proposal to
add language to the definition of joint employment clarifying that
growers that file the joint employer application proposed in Sec.
655.131(b) are joint employers, at all times, with respect to the H-2A
workers sponsored under the application and any corresponding workers.
Five organizations representing growers' interests expressed
appreciation that the Department was proposing to permit ``small
growers to jointly apply'' for H-2A workers and to permit such growers
to share H-2A workers. However, these commenters, as well as a sixth
organization, all opposed the Department's proposal to treat each
grower as a joint employer at all times for purposes of liability. The
five organizations representing growers' interests requested that the
Department only hold employer(s) that commit a program violation
accountable. They asserted that co-applicants that do not commit the
violations are ``innocent'' and should not be held liable ``for another
employer's violation(s).'' The sixth organization similarly submitted
that ``[o]nly the employer [that] is guilty for violating the terms of
the program should be penalized.'' Another organization representing
growers' interests likewise contended ``there is no basis for extending
liability to any entity that did not have knowledge of or participate
in any violation . . . .''
A workers' rights advocacy organization suggested that the job
order that joint employers file in connection with a Sec. 655.131(b)
joint employer application should include language specifying that all
named employers are agreeing to joint employment liability for the
entire period of employment listed on the order. Otherwise, the
commenter asserted, joint employers might contend liability extends
solely to the dates on which H-2A workers complete work at the property
owned or operated by the particular employer. The commenter
specifically submitted this addition is necessary to prevent joint
employer applicants from ``disputing joint employment should something
go wrong.''
The Department has reviewed closely the comments it received on
this subject. It has decided to retain its proposed clarification of
the definition of joint employment to include language specifying that
the joint employers that file an application under Sec. 655.131(b)
are, at all times, joint employers of all H-2A workers sponsored under
the application and, if applicable, of corresponding workers. The
purpose of the Department's proposal to add Sec. 655.131(b) to its
implementing regulations was to permit a small grower that has a need
for H-2A workers but cannot, alone, guarantee full-time employment to
use the H-2A program by joining with another (or other) small grower(s)
in the same area to obtain H-2A workers to perform the same work. Full-
time employment under the program is 35 hours per workweek. See Sec.
655.135(f). The proposal accordingly permits co-applicants that cannot,
alone, employ a worker for 35 hours per workweek to file an application
together to employ H-2A workers and to move sponsored H-2A workers from
one employer to another to satisfy the 35 hours per workweek
requirement.
The statute specifically contemplates that all filers (other than
agents) are employers and only expressly permits an entity (i.e., an
agricultural association) to move H-2A workers from one employer to
another when the entity agrees to retain program responsibility and
liability with respect to the workers it moves. See 8 U.S.C.
1188(d)(2). Therefore, as the Department stated in the NPRM and
reaffirms here, the statute requires entities that jointly apply for H-
2A workers whom they intend to move among themselves to retain program
responsibility with respect to the H-2A workers and, if applicable, any
corresponding workers. Because the statute provides that an entity
permitted to move H-2A workers from one employer to another must
[[Page 61675]]
retain program responsibility with respect to the workers, and because
the retention of such responsibility will aid the Department's
enforcement of the program and enable corresponding workers and H-2A
workers to obtain the wages they are owed consistent with joint
employment principles, the Department is not adopting the commenters'
request to release co-applicants from liability for the violations that
another co-applicant commits. Thus, if the Department determines any
employer named in the Application for Temporary Employment
Certification under Sec. 655.131(b) has committed a violation, either
one or all of the employers named in the Application for Temporary
Employment Certification can be found responsible for remedying the
violation(s) and for attendant penalties. For example, if employer C
and employer D file a joint employer application under proposed Sec.
655.131(b) and employer C fails to pay the H-2A workers the required
wage, employer D will be jointly liable for employer C's violations.
This approach not only conforms to the statute, it is consistent with
judicial authority.\27\ Further, even if the statutory language did not
require this interpretation, the Department would adopt it. The
Department believes this policy will encourage employer compliance
while helping to ensure that any back wages owed by joint employers
will be paid. As an enforcement matter, it can be difficult to
determine exactly where workers employed by joint employers are
employed in a given workweek. The focus on the joint nature of the
employment rather than the individual employer will assist in obtaining
the wages owed to workers in the event they are underpaid and provide
an incentive for all joint employers to maintain and monitor
compliance.
---------------------------------------------------------------------------
\27\ Martinez-Bautista v. D & S Produce, 447 F. Supp. 2d 954,
960-62 (E.D. Ark. 2006) (ruling entities that jointly applied to
employ H-2A workers are joint employers of the workers and rejecting
application of agricultural association liability principles when
the joint employers had not filed through an association).
---------------------------------------------------------------------------
However, the Department retains discretion to impose lower civil
money penalties against the joint employers that did not commit the
underlying violation. If it determines any such penalties are
appropriate, such penalties may be less than those it imposes against
the joint employer that committed the violation. As the Department
noted above, it will continue to apply its longstanding policy with
respect to imposing liability among culpable joint employers. This
policy includes consideration of the factors at 29 CFR 501.19(b) when
the Department assesses civil money penalties. The Department applies
these factors to joint employers on a case-by-case basis. Thus, for
example, if the Department determines a joint employer had no previous
history of violations, but that the other joint employer had a previous
history of violations, the civil money penalty, if any, applicable to
the joint employer with no previous history of violations would likely
be less than that applicable to the joint employer that committed the
violation.
Furthermore, as with agricultural associations that filed a joint
employer application with their employer-members, the Department will
not debar a joint employer that filed a joint employer application
under 20 CFR 655.131(b) merely because another joint employer committed
a substantial violation that subjects that other joint employer to
debarment. Thus, for instance, if employer D in the example above did
not participate in employer C's violation, the Department will not seek
to debar employer D, even if employer C's underlying violation is
substantial and subjects employer C to a debarment remedy. The
Department has edited 20 CFR 655.182(h) and 29 CFR 501.20(f) to confirm
this approach.
Joint Employment Period for Employer-Members Employing H-2A Workers
Under an Agricultural Association Filing as a Joint Employer With the
Employer-Members
The Department proposed to clarify the definition of joint
employment to include an employer-member of an agricultural association
that is filing as a joint employer during the time the employer-member
employs H-2A workers sponsored under the association's joint employer
application. Therefore, an employer that employs H-2A workers sponsored
under an agricultural association joint employer application is jointly
employing the H-2A workers with the agricultural association and,
accordingly, is liable for any violations committed during the period
it employs such workers. The proposed rule additionally clarified that
an employer that is a member of an agricultural association that filed
a joint employer application is only in joint employment with the
agricultural association when it is employing the pertinent H-2A
workers. Thus, if employer-member A commits program violations at a
time when it is the only employer-member jointly employing the
pertinent H-2A workers with the agricultural association, other
employer-members within the association are not liable for such
violations (provided the other employer-members did not participate in
the violations, which were substantial, and thereby subject themselves
to debarment). See 8 U.S.C. 1188(d)(3)(A); 29 CFR 501.20(f). The
Department received no comments that caused it to reconsider this
proposal. The Department has accordingly implemented the provision
unchanged from the NPRM in this final rule.
The Department notes that the arrangement described above under
Sec. 655.103(b) is different from employers filing joint employer
applications under Sec. 655.131(b) that are, at all times, liable for
any violation that another joint employer commits. As discussed
previously, each Sec. 655.131(b) joint employer is permitted to move
H-2A workers to its co-applicants, whereas it is the agricultural
association, not the employer-member, that may transfer workers when
the agricultural association files as a joint or sole employer. The
statute expressly permits an association to move H-2A workers from one
entity to another only when the association agrees to retain program
responsibility with respect to the moved H-2A workers by filing as a
joint or sole employer. The Department has accordingly concluded that
to permit Sec. 655.131(b) joint employers to move workers, it must
require the joint employers, like an agricultural association permitted
to transfer H-2A workers, to retain program responsibility with respect
to the H-2A workers. In short, the legally relevant analog to Sec.
655.131(b) joint employers for purposes of determining whether to
require such employers to retain program responsibility at all times is
an agricultural association that files a joint or sole employer
application (not an employer-member of such an association). As a
matter of policy, providing joint employers joint responsibility also
serves to better ensure compliance with statutory and regulatory
requirements in the same way that shared responsibility between
associations and their membership incentivizes compliance.
The Joint Employment Language More Expressly Codifies That the Common
Law of Agency Determines Joint Employer Status for Non-Filers
In the NPRM, the Department proposed a slight change to the joint
employment language in the current regulation to make clear that an
entity that meets the definition of employer under the common law of
agency but did not file an H-2A application is a joint employer. As the
Department explained in the NPRM, controlling judicial and
administrative decisions provide that to the extent a Federal
[[Page 61676]]
statute does not define the term employer, the common law of agency
governs whether an entity is an employer.\28\ Accordingly, the proposal
continued to use the common law of agency, as provided by current Sec.
655.103 in the definition of employee, to define the term joint
employment for associations and growers that have not filed
applications (as well as to define the term employer when an entity has
not filed an application). Thus, for example, under the Department's
current and continuing enforcement policy--with which employers are
already familiar--a grower is a joint employer with an H-2ALC with
which it contracts to provide H-2A workers if the grower is jointly
employing the H-2A workers under the common law of agency. The
Department received no comments that caused it to reconsider this
proposal. It has accordingly implemented the proposal unchanged from
the NPRM in this final rule.\29\
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\28\ See Nationwide Mutual Insurance v. Darden, 503 U.S. 318,
322-24 (1992); Garcia-Celestino v. Ruiz Harvesting, 843 F.3d 1276,
1288 (11th Cir. 2016); Admin. v. Seasonal Ag. Services, Inc., ARB
Case No. 15-023, 2016 WL 5887688, at *6 (ARB Sept. 30, 2016). The
focus of the common law standard is the ``hiring entity's `right to
control the manner and means by which the product is accomplished.'
'' Ruiz Harvesting, 843 F.3d at 1292-93 (quoting Darden, 503 U.S. at
323). Application of the standard typically entails consideration of
a variety of factors. See id. at 1293 (citing Darden, 503 U.S. at
323-24).
\29\ The Department additionally notes, as it did in the NPRM,
that the current H-2A program definitions of employer and joint
employment, as well as those the Department is implementing herein,
are different from the definitions of ``employer,'' ``employee,''
and ``employ'' in the Fair Labor Standards Act, 29 U.S.C. 201 et
seq. (FLSA) and the definition of ``employ'' in the Migrant and
Seasonal Agricultural Worker Protection Act, 29 U.S.C. 1801 et seq.
(MSPA).
---------------------------------------------------------------------------
The Department Is Adopting Clarifications to the Definition of Employer
Proposed in the NPRM
In the NPRM, the Department proposed to add language to the
definition of employer to clarify both that a person who files an
application other than as an agent is an employer and that a person on
whose behalf an application is filed is an employer. An employer
association opposed the proposed clarification. Its comment appeared to
say that the definition of employer should be no broader than an entity
that employs H-2A workers under the common law of agency. Two other
associations asserted the proposed clarifications to the definition of
employer are inconsistent with the INA. These two associations
specifically asserted the statute does not permit the Department to
hold agricultural associations accountable as an ``employer'' when they
have filed a joint employer application on behalf of their employer-
members. The Department addressed above why the statute not only
permits but also requires it to treat an agricultural association that
files a Master Application as a joint employer of the pertinent
workers. Because a joint employer is simply an employer of workers that
another entity also employs, the statute requires the Department to
treat an agricultural association that files an application as a joint
employer as an ``employer.'' The Department's clarification of the
definition of employer to include those that file an application (other
than as an agent) is not only consistent with the INA; the INA compels
it. Further, even if the INA did not compel this conclusion, the
Department would nonetheless adopt these clarifications as a matter of
good policy. The Department believes this policy will encourage
employer compliance by providing an incentive for associations to
disseminate information, make additional inquiries regarding their
employer-members' responsibilities to workers under certified H-2A
applications, and help to assure that any back wages owed by joint
employers will be paid in full.
The Department also received a comment that the current definition
of employer does not adequately contemplate complex business
organizations. It is beyond the scope of this rulemaking for the
Department to determine all the ways that a business seeking to use the
H-2A program might organize itself. The Department hopes the following
general guidance will be useful to entities that use complex business
structures. The Department will treat the entity that files an
application as an employer unless the filer identifies itself as an
agent. If the filer identifies itself as an agent, the Department will
treat as an employer the entity the agent identifies as its principal.
The Department will also treat any other entity that actually employs
the pertinent H-2A workers under the common law of agency as an
employer. For example, if one entity within a complex business
organization files an application as an employer and another entity
within the same complex business organization employs the workers under
the common law of agency, the Department will treat each entity as an
employer (whether or not the filer jointly employs the workers under
the common law). Other tests that may pertain to the employment
relationship under Federal common law such as the integrated employer
or the successor in interest tests may also be applicable depending on
the facts of the individual case. This paragraph is intended to provide
general guidance, however, and as mentioned above, it is beyond the
scope of this rulemaking to determine all the ways that a business
seeking to participate in the program might organize itself.
A commenter also brought to the Department's attention a minor
grammatical error in the regulatory text's definition of employer at
paragraph (iii). The Department agrees with the commenter and has made
a minor technical change to the language to address the grammatical
error.
Employer-Member Responsibility for Violations Committed Under a Joint
Employer Application Filed by an Agricultural Association
Consistent with existing practice, the Department observed in the
NPRM that when an agricultural association files a joint employer
application, an employer-member of that association is an employer of
the H-2A workers during the time the employer-member employs the
workers. The Department further noted that when only one employer-
member is employing the H-2A workers at the time of a program
violation, only that employer-member and its agricultural association
are fiscally responsible for program violations. The Department
received no comments opposing this approach and is accordingly
implementing it unchanged from the NPRM.
Department's Approach To Imposing Liability Among Culpable Joint
Employers
In the NPRM, the Department proposed to continue to apply its
longstanding policy with respect to imposing liability among culpable
joint employers. This policy, as noted previously, includes
consideration of the factors at 29 CFR 501.19(b) when the Department
assesses civil money penalties. The Department applies these factors to
joint employers on a case-by-case basis. For example, if the Department
determines an agricultural association achieved no financial gain from
an employer-member's failure to pay the required wage to H-2A or
corresponding workers, but that the employer-member achieved
significant financial gain, the civil money penalty, if any, applicable
to the association would likely be less than that applicable to the
employer-member for this violation.
The Department received multiple comments supporting this approach.
For example, a grower association specifically voiced its support for
the
[[Page 61677]]
case-by-case approach. The Department also received a comment from
another grower association opposing this approach, however, arguing
that only the culpable party or parties should be assessed a civil
money penalty. As noted above, the Department will apply the relevant
factors on a case-by-case basis to joint employers and thus
appropriately consider culpability. The Department accordingly intends
to continue to assess civil money penalties against joint employers in
this manner.
Proposal To Move Certain Requirements in the Definition of Employer
The current definition of employer in the H-2A program requires an
employer to have a place of business in the United States and a means
of contact for employment as well as a Federal Employer Identification
Number (FEIN). The Department proposed to move these requirements to
Sec. Sec. 655.121(a)(1) and 655.130(a). The proposal required a
prospective employer to include its FEIN, its place of business in the
United States, and a means of contact for employment in both its job
order submission to the NPC and its Application for Temporary
Employment Certification. The Department is implementing its proposal
to move these requirements unchanged from the NPRM in this final rule.
f. First Date of Need and Period of Employment
The NPRM proposed to add definitions of the terms ``first date of
need'' and ``period of employment.'' The Department received many
comments on the definition of ``first date of need'' and has revised
the proposed definition after consideration of these comments, as
discussed below. The Department received no comments on the proposed
definition of ``period of employment'' and has adopted the definition
without change from the NPRM.
The Department explained in the NPRM that an employer indicates the
period of employment on its job order and Application for Temporary
Employment Certification by identifying the first and last dates on
which it requires the temporary agricultural labor or services for
which it seeks a temporary agricultural labor certification. The first
date the employer identifies on the job order and Application for
Temporary Employment Certification is used as the date on which work
will start for purposes of recruitment and for calculating program
requirements (e.g., the positive recruitment period under Sec.
655.158). However, as actual start dates may vary due to such factors
as travel delays or crop conditions at the time the employer expected
work to begin, the Department proposed to define the term ``first date
of need'' as the first date on which the employer ``anticipates''
requiring the temporary agricultural labor or services sought. The
Department explained that the inclusion of the word ``anticipates'' in
the definition would provide a limited degree of flexibility--up to 14
calendar days after the first date of need listed on the temporary
agricultural labor certification--for the actual start date of work for
some or all of the temporary workers hired to occur.
Commenters who supported the proposed definition and the inclusion
of the word ``anticipates,'' included employers, agents, trade
associations, two State government commenters, and a State elected
official. These commenters asserted that some flexibility to adjust
actual start dates would simplify the program and facilitate both
compliance and administration, while ensuring workers still receive the
benefits promised.
Commenters who opposed the definition, including a workers' rights
advocacy organization and farmworkers, focused their opposition on the
potential for actual start date variability underlying the word
``anticipates.'' These commenters asserted that delayed start dates are
harmful to workers, who value predictability and certainty in
employment start dates, particularly where they turn down other work or
have to travel far to make themselves available to work at the time and
place needed. In addition, these commenters stated that farmworkers
have expenses beyond housing and meals and cannot afford to lose
expected pay for up to 2 weeks, should the actual start date be later
than the first date of need offered. Similarly, one State government
commenter recommended the Department further clarify employer
obligations to provide subsistence and/or meals to workers when work
does not start on the anticipated start date to ensure that employers
understand and satisfy those obligations.
The workers' rights advocacy organization urged the Department to
strengthen protections in the employment service regulations at Sec.
653.501(c)(5) if the Department retains the proposal, by requiring the
employer to pay workers the hourly rate for the hours listed on the job
order on each day work is delayed (not only the workdays in the first
workweek), unless the employer notifies both the SWA and worker (not
only the SWA) at least 10 days before the anticipated start date, and
setting the three-fourths guarantee calculation to the anticipated
start date, rather than the actual start date. Amending the regulations
at Sec. 653.501(c)(5) as suggested would be a major change to that
regulation that commenters and stakeholders could not have anticipated
as an outcome of the proposed definitions, thus warranting additional
public notice and opportunity for comment. As such, the Department
declines to adopt the suggestion at this time.
A number of commenters expressed concern about the proposal. One
employer thought workers might misuse the definition to arrive ``late''
and, as a result, employers would not have workers in place when
needed. However, the Department did not intend for this definition to
provide a flexible window for workers' arrival at the place of
employment without the employer's consent. During recruitment, workers
agree to make themselves available at the time and place needed. Should
a worker not report for work for 5 consecutive working days without the
employer's consent, the employer may exercise the abandonment provision
at Sec. 655.122(n). In addition, a workers' rights advocacy
organization expressed concern about the definition's application in
master applications (i.e., applications agricultural associations may
file in joint employment with their employer-members). The commenter
thought that the actual start date flexibility, when combined with the
Department's proposal to allow employer-members' actual start dates to
vary by up to 14 days, could result in workers employed under a master
application having actual start dates that vary by up to 28 days. This
commenter asserted that this combination would increase the complexity
of master applications and uncertainty for workers, which could
discourage U.S. workers from applying. However, the proposed definition
was intended to anchor the 14-day actual start date flexibility
applicable to all employer-members on the master application to the
earliest anticipated start date of any employer-member included in the
application. As a result, all employer-members included in the master
application would have been limited to the same 14-day ``anticipated''
start date flexibility window as any other H-2A application, calculated
from the earliest employer-member start date included in the
application.
One commenter supported the definition and the 14-day flexibility
discussed but stated 30 days of flexibility would be preferable. The
commenter's suggestion would amplify
[[Page 61678]]
concerns other commenters have expressed about workers waiting for work
to begin, which is a concern shared by the Department. In addition, the
suggestion is inconsistent with the Department's observation of
existing practice, as discussed above, in which a start date may vary
slightly due to factors beyond an employer's control. Because the
Department intended in the NPRM to clarify, not change, existing
requirements and practice regarding anticipated and actual start dates,
the Department declines to adopt the suggestion by the commenter.
After consideration of the comments and suggestions, the Department
reiterates that the proposed definition, including the word
``anticipates,'' was only intended to make plain the Department's
existing understanding that a projected start date of need is difficult
to set with certainty, given the required time periods for filing, and
the actual start date of agricultural work must be afforded some
flexibility to accommodate environmental and other agricultural
conditions at the time work was projected to begin. For example, the
Wagner-Peyser agriculture clearance system uses the term
``anticipated'' in relation to start dates and provides a process close
to the start date the employer identified in the job order for the
employer, the SWA, and referred farmworkers to communicate regarding
the actual start date of work. See Sec. 653.501(c)(1)(iv)(D),
(c)(3)(i) and (iv), (c)(5), and (d)(4). These regulations require an
employer to notify the SWA of start date changes at least 10 business
days before the originally anticipated start date and require the SWA
to notify farmworkers that they should contact the SWA between 9 and 5
business days before the anticipated start date to verify the actual
start date of work. Sec. 653.501(c)(5) and (d)(4).
The Department also appreciates the opportunity to clarify employer
obligations and worker protections regarding possible changes from the
first date of need disclosed in the H-2A job order to the actual start
date of work. As discussed above, the Wagner-Peyser agriculture
clearance system regulations facilitate communication between employers
and farmworkers before workers who must travel to the place of
employment depart for the place of employment. If an employer fails to
timely notify the SWA of a start date change (i.e., at least 10
business days before the anticipated first date identified in the job
order), beginning on the first date of need, it must offer work hours
and pay hourly wages to each farmworker who followed the procedure to
contact the SWA for updated start date information. See Sec.
653.501(c)(3)(i) and (c)(5). In addition, under the Department's H-2A
regulations at Sec. 655.145(b), if an employer requests a start date
delay after workers have departed for the place of employment, the
employer must assure the CO that it will provide housing and
subsistence to all workers who are already traveling to the place of
employment, without cost to the workers, until work commences. If an
employer fails to comply with its obligations, the SWA may notify the
Department's WHD for possible enforcement, as provided in Sec.
653.501(c)(5), or the Department may pursue revocation of the temporary
agricultural labor certification, following the procedures at Sec.
655.181, or debarment of the employer, following the procedures at 20
CFR 655.182 or 29 CFR 501.20.
Although the January 2021 draft final rule would have adopted the
proposed definition of ``first date of need,'' after further
consideration of the comments, the Department has determined that
adopting the definition as proposed--including the term
``anticipates,'' which the Department explained as a 14-day start date
flexibility in the actual start date of work--in this final rule could
increase, rather than decrease, complexity and confusion with regard to
an employer's obligations in the event a start date delay is necessary.
Including the word ``anticipates'' in the definition added ambiguity to
the requirement, which could increase the potential for
miscommunication or misunderstandings about when workers should be
expected to begin work, or from when they should expect to be
compensated. For example, as discussed above, commenters interpreted
the proposal to mean that workers could choose to arrive within a
flexible window of time, or that this would allow a variability of up
to 28 days in master applications. In addition to the potential
confusion this change might cause, the Department agrees that adding
this language without also considering additional worker protections
could be detrimental to workers, and this was not the Department's
intention. As such, the Department has revised the definition of
``first date of need'' in this final rule to remove the term
``anticipates'' and the related 14-day flexibility for the actual start
date of work.
While the Department appreciates the suggestions commenters made
with regard to enhancing existing worker protections related to start
date delays, those suggestions are beyond the scope of this rulemaking
as noted above. The proposal within the scope of this rulemaking was
inclusion of start date flexibility of up to 14 days in the definition
of ``first date of need'' and conforming language. For clarity, the
Department reiterates that revising the proposed definition has no
impact on the employer's obligations in the event of a start date
delay, for example, under the Wagner-Peyser agriculture clearance
system regulations.
g. Job Order
The NPRM proposed minor amendments to the definition of ``job
order'' to conform to the proposed change under Sec. 655.121,
requiring electronic filing of the job order by the employer and
transmittal of the approved job order by the CO to the SWA, and
updating the job order form name and number. The Department received
one comment on the proposed changes to this definition, which did not
necessitate substantive changes to the regulatory text. Therefore, as
discussed below, this definition remains unchanged from the NPRM.
A workers' rights advocacy organization expressed support for the
proposal, explaining that electronic filing would streamline processing
times and reduce burden, but commented that the SWA, in addition to the
NPC, should receive immediate notice of the filing of the job order and
proposed that the words ``and SWA'' be added to the end of the proposed
definition. The Department appreciates the comment but respectfully
declines. As explained in addressing comments on Sec. 655.121, the
changes to the job order filing process, under this final rule, avoid
duplication of processes and will create significant savings and
efficiencies for employers, SWAs, and the Department. Furthermore,
transmission of the job order to the SWA will be virtually
instantaneous upon submission in OFLC's Foreign Labor Application
Gateway (FLAG) system.
h. Prevailing Wage
Proposed Definition in 20 CFR 655.103(b)
The NPRM defined prevailing wage as the wage rate established by
the OFLC Administrator for a crop activity or agricultural activity and
geographic area based on a survey conducted by a State that meets the
requirements in Sec. 655.120(c). The Department received no comments
on this change. This final rule therefore adopts the language of the
NPRM with a minor revision to account for a prevailing wage for a
distinct work task or tasks performed within a crop or
[[Page 61679]]
agricultural activity, as applicable. This modification conforms the
definition of prevailing wage with current practice and language in ETA
Handbook 385, as well as changes made to other portions of Sec.
655.120(c) in this final rule, discussed below.
Proposal in 20 CFR 653.501(c)(2)(i)
The current H-2A regulation defines ``prevailing wage'' as the
``[w]age established pursuant to Sec. 653.501(d)(4),'' the Wagner-
Peyser Act regulation that covers clearance of both H-2A and non-H-2A
interstate and intrastate agricultural job orders. Due to regulatory
revisions to part 653, Sec. 653.501(d)(4) no longer addresses
prevailing wages but rather discusses the referral of workers.\30\ The
current version of Sec. 653.501(c)(2)(i), in turn, requires SWAs to
ensure the employer has offered no less than the higher of prevailing
wages or the applicable Federal or State minimum wage for H-2A and non-
H-2A agricultural job orders, but it does not address how prevailing
wages are established.
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\30\ The Department revised 20 CFR part 653 in 2016 in response
to the enactment of the Workforce Innovation and Opportunity Act in
2014, which amended the Wagner-Peyser Act. See Final Rule, Workforce
Innovation and Opportunity Act, 81 FR 56072 (Aug. 19, 2016). The
contents in Sec. 653.501(d)(4) are now located, with changes not
relevant here, in Sec. 653.501(c)(2)(i).
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In the NPRM, the Department proposed to use the same methodology to
establish the prevailing wage for both H-2A and non-H-2A agricultural
job orders. As a result, it proposed to amend Sec. 653.501(c)(2)(i) to
define ``prevailing wage'' for the agricultural recruitment system in
the same manner as the Department proposed to define ``prevailing
wage'' for the H-2A program in Sec. 655.103(b). Section 655.103(b), as
proposed, defined ``prevailing wage'' as ``[a] wage rate established by
the OFLC Administrator for a crop activity or agricultural activity and
geographic area based on a survey conducted by a [S]tate that meets the
requirements in Sec. 655.120(c).'' As discussed below, this final rule
adopts the proposed amendment to Sec. 653.501(c)(2)(i) with minor
clarifying changes.
A workers' rights advocacy organization opposed the Department's
proposed change to Sec. 653.501(c)(2)(i) on the basis that it only
referred to prevailing wage surveys, thus establishing such surveys as
the ``sole mechanism'' to determine whether the prevailing wage rate is
the highest rate of pay. This commenter expressed concern that the
proposal would reduce the SWA's role in determining prevailing wages.
The commenter explained the current regulation at Sec.
653.501(c)(2)(i) allows an ``active role'' by SWAs to ``independently
determine'' that prevailing wages in some areas of a State are higher
than the AEWR, the minimum wage, or the prevailing wage in other areas.
By codifying a survey methodology, the commenter believed, the
Department would restrict the SWAs' ability to use other methods to
determine whether the job order is offering an ``adequate'' wage.
According to the commenter, the current regulation protects U.S.
workers, especially piece rate workers, who receive a higher wage rate
than their peers in other parts of the State, as a result of collective
bargaining or market conditions.
After careful consideration of the commenter's concerns, the
Department has decided to retain the NPRM proposal with minor
clarifying changes. Specifically, this final rule adopts the NPRM's
proposal to amend Sec. 653.501(c)(2)(i) so that it incorporates the
Department's revised prevailing wage survey methodology in Sec.
655.120(c) and revised definition of ``prevailing wage'' in Sec.
655.103(b). In addition, this final rule revises Sec. 653.501(c)(2)(i)
to more clearly distinguish the minimum requirements for wages and
working conditions. The existing regulation addresses the minimum
requirements for working conditions within the minimum requirements for
wages, which may cause confusion as to the standards that apply to each
requirement. Accordingly, this final rule separates these requirements
into two different sentences to clarify that agricultural positions
subject to 20 CFR part 653, subpart F, must, at a minimum, offer (1)
the applicable prevailing wage or the applicable Federal or State
minimum wage, whichever is higher, and (2) working conditions that are
not less than the prevailing working conditions among similarly
employed workers in the AIE. The standards governing the prevailing
wage methodology are set forth in revised Sec. Sec. 655.103(b) and
655.120(c), and addressed in the preamble to Sec. 655.120(c). The
standards governing the wage rate an H-2A employer must offer,
advertise in its recruitment, and pay are set forth in revised
Sec. Sec. 655.120(a) and 655.122(l).
The Department disagrees with the commenter that the above-
referenced revisions to Sec. 653.501(c)(2)(i) will diminish the SWA's
role in determining prevailing wages under the H-2A program. Under this
final rule, SWAs will continue to follow the Department's criteria for
prevailing wage surveys, either to conduct a survey itself or to select
a survey conducted by another State agency to submit to the Department.
Prior to this rule, the SWAs used ETA Handbook 385, which was last
updated in 1981, and other sub-regulatory guidance to conduct such
surveys and submit prevailing wage findings, when available, to the
Department for review. In this sense, the Department has directed SWAs
to use prevailing wage surveys to determine prevailing wage rates for
agricultural job orders since at least 1981. The NPRM simply proposed
to amend Sec. Sec. 655.103(b) and 653.501(c)(2)(i) to reflect the new
proposed survey methodology at Sec. 655.120(c).
Under the revised methodology, SWAs continue to play an active role
in determining prevailing wages. They retain the discretion to develop,
administer, and report the results of prevailing wage surveys to the
Department, including the discretion to determine where to conduct
surveys for particular crop or agricultural activities and, if
applicable, distinct work task(s) within those activities, subject to
the methodological requirements of this final rule. For example, SWAs
may conduct prevailing wage surveys of State, sub-State, and regional
geographic areas based on the factors listed in Sec.
655.120(c)(1)(vi). In instances where a non-SWA State entity conducts
the prevailing wage survey, the SWA will review the survey and submit,
if appropriate and as before, the applicable information to the
Department.
Moreover, prevailing wage surveys are but one method used to
determine whether the wage offer in a job order for temporary
agricultural work is ``adequate.'' Employers applying for H-2A
temporary labor certification must generally offer in their job order
and pay the highest of five wage sources (i.e., the AEWR, the
prevailing wage, the agreed-upon collective bargaining wage, the
Federal minimum wage, or the State minimum wage). See Sec. 655.120(a)
(excluding certain employment). All other (non-H-2A) employers seeking
to place interstate or intrastate job orders for temporary agricultural
work must still pay the highest of the applicable prevailing wage or
the applicable Federal or State minimum wage, as specified under this
section.
The commenter's assertion that the current regulation protects U.S.
workers who enjoy a higher wage rate as a result of collective
bargaining conflates the prevailing wage and the required wage for
purposes of the H-2A program. As explained above, prevailing wage
surveys are but one of the distinct wage sources the Department
compares to
[[Page 61680]]
determine which wage source is the highest and therefore the wage that
an H-2A employer must offer and pay. If an employer files an H-2A
application for job opportunities subject to the agreed-upon collective
bargaining wage, the collective bargaining wage would be evaluated as
one of the applicable wage sources under Sec. 655.120(a). If the
collective bargaining wage is the highest of available wage sources
applicable to the H-2A application, the employer must offer and pay
that wage to its H-2A workers and non-H-2A workers in corresponding
employment. Similar principles hold for a non-H-2A interstate or
intrastate agricultural job order, in which the prevailing wage may
differ from the required wage a particular employer may be legally
obligated to offer and pay. Section 653.501(c)(2)(i) provides a floor,
rather than a ceiling, for the wage that must be offered in an
interstate or intrastate job order for a temporary agricultural
position. Employers may always offer wages that exceed the minimum
required under this section, and in some instances, such as where an
applicable collective bargaining agreement (CBA) requires a higher wage
offer, they may be obligated to do so. However, the Department reminds
H-2A employers that any job offer to U.S. workers must offer no less
than the same benefits, wages, and working conditions that the employer
is offering, intends to offer, or will provide to H-2A workers. Sec.
655.122(a).
i. Successor in Interest
The Department proposed conforming changes to the definition of
``successor in interest'' consistent with proposed changes to 20 CFR
655.182 and 29 CFR 501.20, which clarify that the Department may take
action against an employer, agent, attorney, or combination thereof,
for debarrable violations described under those sections. As discussed
below, this provision remains unchanged from the NPRM. A workers'
rights advocacy organization supported the conforming changes to the
definition without further comment. An agent further proposed that the
Department should modify the definition of successor in interest to
formally adopt guidance issued under the 2010 H-2A Final Rule where the
Department determined that the regulation could be reasonably
interpreted to allow a temporary agricultural labor certification to be
assumed by a successor employer. The commenter also thought the
definition should be more generalized, rather than framed from an
enforcement perspective. Although the Department appreciates this
comment, further modification to the definition is unnecessary. The
Department added agents and attorneys to the definition to clarify that
successor in interest to agents and attorneys may be subject to
enforcement actions, consistent with 20 CFR 655.182 and 29 CFR 501.20.
In doing so, the Department made no change to the definition with
regard to employers. The Department maintains its position, established
in the supporting guidance, that a successor in interest entity may use
a temporary agricultural labor certification issued, provided that it
assumes all obligations, liabilities, and undertakings arising under
the temporary agricultural labor certification. Therefore, this final
rule adopts the proposed definition from the NPRM without change.
j. Additional Definitions Adopted in This Final Rule
The NPRM proposed minor amendments to the definition of Temporary
Agricultural Labor Certification and proposed adding definitions of the
following terms to provide greater clarity throughout the regulations:
Act, Administrator, applicant, Application for Temporary Employment
Certification, BALCA, Chief Administrative Law Judge (ALJ), DHS, ETA,
H-2A Petition, MSA, OFLC Administrator, piece rate, place of
employment, Secretary of Labor, Secretary of Homeland Security, U.S.
Citizenship and Immigration Services (USCIS), WHD, and WHD
Administrator. The Department received no comments on the proposed
definitions of these terms. Therefore, this final rule adopts the
definitions of these terms from the NPRM, with two minor changes. In
this final rule, the Department simplifies the definition of ``USCIS''
to mean U.S. Citizenship and Immigration Services, an operational
component of DHS, while defining ``DHS'' as the Department of Homeland
Security as established by sec. 111 of title 6, U.S. Code. The
respective authorities and functions of DHS and USCIS, as an
operational component of DHS, are set forth in their authorizing
statutes, implementing regulations, and delegation of authorities.
k. 20 CFR 655.103(c) and 29 CFR 501.3(b), Definition of Agricultural
Labor or Services
The NPRM proposed amendments to expand the regulatory definition of
agricultural labor or services pursuant to 8 U.S.C.
1101(a)(15)(H)(ii)(a) to include reforestation and pine straw
activities. The Department received many comments on this section and,
for the reasons explained below, has decided to rescind the proposal to
incorporate reforestation and pine straw activities into the definition
of agricultural labor or services at Sec. 655.103(c). However, in
proposing the occupational definitions for itinerant employment in
animal shearing, commercial beekeeping, and custom combining at Sec.
655.301, subject to the proposed procedural variances contained in
Sec. Sec. 655.300 through 655.304, the Department has made a
technical, conforming revision to this section to clarify that the job
duties under Sec. 655.301 qualify for certification under the H-2A
program.
The Department proposed to define reforestation activities as
predominantly manual forestry operations associated with developing,
maintaining, or protecting forested areas, including, but not limited
to, planting tree seedlings in specified patterns using manual tools,
and felling, pruning, pre-commercial thinning, and removing trees and
brush from forested areas. The proposed definition of reforestation
activities would have included some forest fire prevention or
suppression duties, when incidental to other reforestation activities,
and would have excluded vegetation management activities in and around
utility, highway, railroad, and other rights-of-way because these
activities involve the destruction of vegetation, not cultivation. The
NPRM proposed to define pine straw activities as operations associated
with clearing the ground of underlying vegetation, pine cones, and
debris; and raking, lifting, gathering, harvesting, baling, grading,
and loading of pine straw for transport from pine forests, woodlands,
pine stands, or plantations.
In the NPRM, the Department reasoned that reforestation and pine
straw activities share fundamental similarities with traditional
agricultural industries, both in terms of activities performed and
working conditions. These similarities had previously prompted the
Department to consider similar proposals to include reforestation and
pine straw activities within the H-2A program in the 2008 and 2009-2010
rulemakings, but ultimately the Department rejected these proposals due
to lack of stakeholder support. 2010 H-2A Final Rule, 75 FR 6884; 2008
H-2A NPRM, 73 FR 8538, 8555 (Feb. 13, 2008). The NPRM posited that many
of the comments that led the Department to opt against expanding the
definition of agriculture in the 2009-2010 rulemaking were no longer
applicable due to recent regulatory changes in the H-2B program--
specifically the publication of the 2015 H-2B Interim Final Rule (IFR)
(80 FR
[[Page 61681]]
24042, Apr. 29, 2015), which implemented cost-related requirements in
the H-2B program similar to those currently found in H-2A.
Comments Related to the Inclusion of Reforestation and Pine Straw
Gathering Activities in the H-2A Program
Comments attributable to the reforestation industry or its
representatives either opposed the change or did so absent significant
changes to the proposal. Some industry commenters simply stated that
the H-2A program, particularly with the changes proposed in the NPRM,
was a less attractive, more costly, and more burdensome alternative to
the H-2B program. Other commenters rejected the assertion that
reforestation shared similar characteristics to traditional
agricultural industries and stated that these differences resulted in
the H-2A program, or certain key H-2A provisions, being essentially
unworkable for the reforestation industry.
Many industry commenters stated that the unpredictable nature of
reforestation work precluded compliance with the H-2A program. Some
commenters posited that the H-2A program was designed for workers
returning to the same fields each year, whereas reforestation occurs on
a rotating cycle of up to 30 years and is heavily weather-dependent.
Industry commenters stated that the flexibility required for
reforestation work presents difficulties in obtaining pre-inspected
housing that complies with H-2A housing standards, and that it would be
impossible at the time of the application to determine whether each
potential motel along an itinerary would meet these standards. Another
industry commenter stated that it would be impossible to make hotel
reservations in advance as schedules are constantly changing. Some
commenters also indicated that remote worksites require additional
housing flexibility, such as tents or mobile housing.
Industry commenters further stated that the unpredictable and
transient nature of reforestation work would not allow employers to
submit itineraries to the Department when applying for temporary labor
certification, and that the requirement of a separate application per
itinerary was unworkable and would dramatically increase filing costs.
One commenter stated that some reforestation employers have more than
30 crews working on 30 separate itineraries, and another commenter with
35 crews on separate itineraries stated that its filing costs would
increase from $8,500 for one application to $297,500 for 35
applications.
Similarly, many industry commenters stated that the reforestation
industry would be unable to comply with the H-2A requirement to provide
meals or kitchen facilities to workers. Commenters stated that motel
accommodations for reforestation workers frequently lack kitchen
facilities, and that the unpredictable nature of reforestation work
means that arranging catering is logistically difficult. Some
commenters stated that the workers cook for themselves at the
worksites. One commenter may have misunderstood the H-2A meals
requirement and stated that it could not provide meals and kitchen
facilities (whereas only one or the other is required).
Further, industry commenters opposed the proposed exclusion of
utility right-of-way maintenance activities from the definition of
reforestation activities. These commenters asserted that utility right-
of-way maintenance cannot be divorced from other reforestation
activities because the same companies necessarily engage in both, and
the activities are nearly identical. Commenters stated that a large
number of forestry employers--including three of the top five H-2B
employers overall--also perform utility right-of-way spraying, and
these activities are included in the same contracts and have the same
job duties as reforestation work. Another commenter stated that the
exclusion of utility right-of-way work would bifurcate a successful
business model historically used by the industry, and another stated
that the two industries rely on the same workforce and separating them
between visa classifications would harm both industries.
The Department received significantly fewer comments from the pine
straw industry. Three comments from the pine straw industry supported
the proposal to include pine straw in the definition of agricultural
labor or services for the reasons offered in the NPRM, one of which
represented a letter-writing campaign with 100 identical comments.
These comments emphasized that the pine straw industry is agricultural
in nature and should be regulated as such under agricultural rules.
Additionally, one commenter pointed out that many pine straw companies
already use the H-2A program.
Worker advocates opposed the proposal, primarily because the
inclusion of the pine straw and reforestation industries in the H-2A
program would remove nonimmigrant reforestation and pine straw workers'
access to MSPA protections. These commenters identified access to the
MSPA right to private action as an essential worker protection for H-2B
workers engaged in reforestation and pine straw activities. Employee
advocates also expressed concern that reforestation and pine straw
employers would stop paying overtime to reforestation and pine straw
workers due to a misunderstanding (as explained below) (either from the
commenter itself or on the part of the employer) that H-2A employees
are exempt from the FLSA overtime requirements simply by virtue of
holding an H-2A visa. Some commenters also stated that the inclusion of
reforestation within the uncapped H-2A program removes the numerical
limitation on one of the largest users of the capped H-2B program and
presents a substantial benefit to all H-2B employers by essentially
providing H-2B cap relief.
Commenters raised other concerns and objections to the inclusion of
reforestation and pine straw activities in the H-2A program. Two
commenters stated that the Department's rationale for the proposal was
not justified and does not overcome objections raised in prior
rulemakings to similar proposals. One commenter stated that costs for
reforestation employers would increase because they would not be
permitted to house four employees in the same hotel room under the H-2A
standards. This same commenter also stated that reforestation employers
would be unable to comply with the three-fourths guarantee due to the
uncertainty inherent in reforestation work, that the Department is
unable to enforce the H-2B inbound transportation standards in some
States, and that the Department risked violating the permanent
injunction entered under Bresgal v. Brock, 843 F.2d 1163 (9th Cir.
1987).\31\ Two commenters representing State governments posited that
inclusion of these industries in the H-2A program would increase work
for SWAs and asked if additional funding would be provided. Another
commenter advised that the Department and the Department of State (DOS)
must be fully funded, particularly given any potential expansions to
the H-2A program.
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\31\ In Bresgal v. Brock, the Ninth Circuit Court of Appeals
enjoined the Department to cease refusing to enforce MSPA as to
recruiting, soliciting, hiring, employing, furnishing, or
transporting any migrant or seasonal agricultural worker for all
predominantly manual forestry work, including but not limited to
tree planting, brush clearing, pre-commercial tree thinning, and
forest firefighting.
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Comments from non-industry specific sources, including agents,
State
[[Page 61682]]
governments, State farm bureaus and trade associations, tended to favor
the proposal, albeit mostly in a generic and unsubstantiated way. Some
comments expressed their support for any expansion of the H-2A program.
One commenter representing the landscaping industry expressed support
for the proposal because it would relieve pressure on the H-2B visa
cap, and an insurance association supported the proposal because this
expansion of H-2A would require more employers to obtain surety bonds.
One State farm bureau, however, supported the proposal because the
forest industry adds $6.4 billion annually in value to Arkansas'
economy, and expanding the scope of the H-2A program would allow this
industry to address labor shortages.
Upon careful consideration of the comments submitted, the
Department declines to adopt the proposal to include reforestation and
pine straw activities within the H-2A program. As noted above, the
Department had hypothesized in the NPRM that objections to similar
proposals in previous rulemakings would no longer be considered
relevant; however, this hypothesis was disproved by the multitude of
comments in opposition. As was found in the 2009-2010 rulemaking,
comments from or on behalf of those that would be most affected by the
reforestation proposal (i.e., from the reforestation industry and
employee advocates) overwhelmingly opposed the proposal, citing, in
part, additional burdens due to the differences between the programs.
While the pine straw industry submitted some comments supporting its
inclusion in the H-2A program, the Department finds persuasive the
concerns raised by employee advocates and accordingly declines to adopt
the proposal with respect to pine straw as well. Additionally, as many
commenters identified, pine straw employers are currently permitted use
of the H-2A program (pursuant to the FLSA definition of agriculture and
if the other requirements of the program are met) if the pine straw
activities are performed by a farmer or on a farm as an incident to or
in conjunction with such farming activities. For example, employees
engaged in the gathering of pine straw on a Christmas tree farm are
engaged in H-2A agriculture if the Christmas trees are produced using
extensive agricultural and horticultural techniques.\32\ Declining to
adopt the proposal has no impact on employers seeking workers to
perform pine straw gathering under these circumstances, and such
employers may continue to use the H-2A program. On the other hand, pine
straw gathering that is not performed by a farmer or on a farm (e.g.,
that occurs in wild or uncultivated forests, in forest tree nurseries,
or on timber tracts, or that is performed in conjunction with
commercial landscaping activities) does not constitute agricultural
labor or services; employers seeking temporary foreign workers to
perform pine straw activities under these circumstances may continue to
use the H-2B program.
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\32\ These techniques include activities such as planting
seedlings in a nursery; ongoing treatment with fertilizer,
herbicides, and pesticides as necessary; replanting in line-out beds
or in cultivated soil; yearly pruning or shearing; and harvesting
for ornamental use. See 29 CFR 780.216(b).
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Though not within the scope of this rulemaking, the Department also
wants to take this opportunity to address comments raising concerns
about the current state of working conditions for H-2B reforestation
workers. When commenters indicate that they cannot reasonably provide
meals or kitchen facilities to reforestation workers because the
worksites are too remote and conditions too uncertain, the Department
cannot ignore the implication that some reforestation workers may not
currently have access to sufficient food and/or facilities to prepare
food. Itinerant workers constitute a vulnerable population; these
workers are frequently wholly dependent on their employer for housing
and transportation, work in remote areas far removed from services, and
may not be fully aware of their geographic location. The Department
reminds employers of itinerant workers not using the H-2A program that
they should, at the very least, facilitate access to food and/or
kitchen facilities by ensuring that workers have sufficient time and
available transportation options to access grocery stores/cooking
facilities, and/or prepared meals.
In response to concerns expressed by commenters that some
reforestation employers using the H-2B program may not provide full-
time job opportunities and may not pay for inbound transportation, the
Department reminds the public that such legal requirements are already
in place. An H-2B job opportunity must be for full-time work, defined
as 35 hours of work per week, and the FLSA applies independently of the
H-2B program's requirements. Specifically, the Fifth Circuit's decision
in Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393 (5th Cir.
2010), affects an employer's responsibility for inbound transportation
costs under the FLSA in that Circuit, but does not affect an employer's
inbound transportation obligations pursuant to the H-2B program
regulations, nor does it affect the Department's ability to enforce
those obligations. See 20 CFR 655.20(d); 20 CFR 655.5; 29 CFR
503.16(d); 29 CFR 503.4; 20 CFR 655.20(j)(1)(i); and 29 CFR
503.16(j)(1)(i).
Other Comments Requesting the Inclusion or Exclusion of Certain
Agricultural Activities or Industries in the H-2A Program
The Department received many comments in this section that did not
address the specific proposal relating to reforestation and pine straw,
but rather suggested modifications to the scope of the H-2A program to
include or exclude other activities or industries. As discussed below,
the Department is not adopting these suggested modifications to the
definition of agricultural labor or services.
These commenters sought to expand the H-2A program to include all
employment in packing houses or processing facilities that pack,
process, or handle agricultural or horticultural commodities, even if,
for example, more than half of the commodities are produced by other
growers. Commenters stated that this division between packing houses
based solely on the producer of the commodity is outdated and
inequitable, because some packing houses have access to the H-2A
program whereas others conducting identical activities do not.
Commenters stated that all packing houses experience the same shortage
of labor, regardless of the producer of the products, and the nature of
the H-2B program is inadequate to address the packing house's needs,
both in terms of the number of workers available under the program and
certification processing timelines. Multiple commenters suggested an
expansive definition of agricultural labor or services encompassing
packing houses and processing facilities.
Many commenters stated that the H-2A program should encompass all
transporting of an agricultural commodity to a facility for preparation
to market, regardless of who produced the commodity or where the
transportation occurs. Several commenters stated that harvesting is not
complete until the product arrives at the packing facility or place of
first processing, and the transportation to the place of first
processing is an essential component of harvesting. Others stated that
a contractor transporting agricultural or horticultural products is
[[Page 61683]]
essentially working for, or acting in the place of, the grower that
produced those products, and thus is engaged in agricultural work. Many
commenters referenced a critical shortage of truck drivers willing,
qualified, and available to transport crops (particularly within the
shorter season inherent in agriculture), and noted that many growers do
not have the means to perform these transportation services themselves.
The expansive definition submitted by multiple commenters similarly
addressed this issue by suggesting inclusion of the following: the
transportation of any agricultural or horticultural product in its
unmanufactured state by any person from the farm to a storage facility,
to market, or to any place of handling, planting, drying, packing,
packaging, processing, freezing, or grading such as a packing house, a
processing establishment, a gin, a seed conditioning facility, a mill,
or a grain elevator; and the handling, planting, drying, packing,
packaging, processing, freezing, or grading by any person of any
agricultural or horticultural commodity in its unmanufactured state.
Some commenters sought the explicit inclusion of specific
industries in the definition of agriculture or more generally in the H-
2A program. Some commenters requested that the H-2A program encompass
work in seafood cultivation, harvesting, and processing due to the
industry's connection to food production and its difficulty in meeting
its labor needs using a domestic workforce and the capped H-2B program.
One commenter requested that the definition explicitly incorporate
activities related to the care and feeding of horses and suggested it
should incorporate grooms, stable-hands, exercise riders, and general
caretakers, regardless of where the work is performed. A different
commenter sought the inclusion of all agribusinesses, including
agricultural retailers, in the program. Some commenters stated that all
aspects of the ginning of cotton, including the related transportation
from the field to the gin, are agricultural. A trade association
representing the landscaping industry suggested the reclassification of
several other industries currently within the H-2B program to reduce
pressure on the H-2B visa cap.
Some commenters stated that specific industries, or employers in
general, should have the flexibility to use either the H-2A or H-2B
program depending on their specific needs. Some commenters opined that
employers have the expertise to know which program best meets their
needs, whereas others stated that their industry was sufficiently
diverse to require participation in both the H-2A and H-2B programs.
One commenter sought to exclude activities from the program that
are currently performed by H-2A workers. Specifically, this commenter
suggested that work in constructing livestock buildings on farms, when
the worker is not employed by the farmer, should not be permitted in
the H-2A program because the work is, generally, non-agricultural.
To the extent that commenters suggested amendments to the
definitions of agricultural labor under sec. 3121(g) of the Internal
Revenue Code (IRC) and agriculture under sec. 3(f) of the FLSA, these
suggestions are outside the scope of this rulemaking as well as beyond
the Department's statutory authority under the H-2A program. Congress
defined these terms in their respective statutes and expressly
incorporated these definitions into sec. 101(a)(15)(H)(ii)(a) of the
INA. Any ability to amend these definitions, or their incorporation in
the INA, also lies with Congress. Similarly, the Department is unable
to reinterpret these statutory definitions solely within the context of
the INA; the Department is constrained by pre-existing interpretations
of these definitions within their respective statutes, including their
implementing regulations, sub-regulatory guidance, and resulting case
law. As a result, the Department cannot edit or limit these definitions
in this rulemaking, such as by removing the 50-percent threshold from
the IRC definition of agricultural labor; reinterpreting the phrase
``in the employ of the operator of a farm''; or excluding all
construction occupations from the H-2A program because, in specific
circumstances, construction work may constitute agricultural labor or
services within one of the statutory definitions. In addition, the
Department notes that it defers to the Department of the Treasury's
Internal Revenue Service (IRS) for interpretation of the IRC.
The Department has carefully considered all comments requesting
that the Secretary use his statutory authority to define additional
activities and/or industries as agricultural labor or services, and
respectfully declines to make further revisions to this definition
beyond the technical or conforming revisions discussed above. These
comments did not respond to proposals made in the NPRM, nor did the
Department propose or invite comment on possible additions to the
definition of agricultural labor or services beyond the proposal to add
reforestation and pine straw activities. All affected parties could not
reasonably expect that the Department was contemplating and seeking
comment on potential additions other than reforestation and pine straw
activities, and thus, the public has not been fully afforded the
opportunity to consider and respond to the potential inclusion of these
activities and/or industries in the H-2A program.
Many comments received in response to the NPRM, as well as in
previous rulemakings, illustrate that some employers perceive
significant advantages in participating in the H-2B program as opposed
to the H-2A program, and vice versa, depending on the labor demands of
the specific industries who commented. Additionally, nearly all
comments regarding additional expansions to the H-2A program originated
from employers and their representatives, with minimal input from other
affected parties, further suggesting that all parties could not
reasonably have thought to comment on the proposals to expand the
definition beyond the additions proposed in the NPRM. Consequently, the
Department is disinclined to further expand the definition of
agricultural labor or services in this rulemaking.
The Department also declines to adopt the suggestion that employers
be afforded the discretion to choose participation in either the H-2A
or H-2B program. As previously explained in the preamble to the 2010 H-
2A Final Rule, Congress clearly intended to create two separate
programs: H-2A for agricultural work and H-2B for other, non-
agricultural work. Compare 8 U.S.C. 1101(a)(15)(H)(ii)(a) with 8 U.S.C.
1101(a)(15)(H)(ii)(b). 2010 H-2A Final Rule, 75 FR 6884, 6888. Allowing
employers the discretion to use either program based on their
individual preferences erases any meaningful distinction between the
two programs and is inconsistent with congressional intent. However, as
some commenters identified, certain industries necessarily will use
both the H-2A and H-2B programs depending on the specific activities
being performed. For example, the grooming and exercise riding of
horses at a racetrack in connection with commercial racing is non-
agricultural, whereas the care and feeding of those horses on a farm is
agricultural work.\33\
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\33\ Employees engaged in the breeding, raising, and training of
horses on farms for racing purposes are agricultural employees as
defined by the FLSA. On the other hand, employees engaged in the
racing, training, and care of horses and other activities performed
off the farm in connection with commercial racing are not employed
in agriculture. For these purposes, a training track at a racetrack
is not a farm. See 29 CFR 780.122.
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[[Page 61684]]
Other Comments Requesting Expansion of the H-2A Program for Year-Round
Employment in Agriculture
Many commenters requested that the scope of the H-2A program be
expanded to include all job opportunities in certain industries,
regardless of whether the opportunity is seasonal or temporary,
including dairy, mushroom, poultry, livestock, aquaculture, and indoor
nursery/greenhouse farming. Commenters emphasized that these industries
encounter the same labor shortages as other agricultural industries,
and that the limitation of the H-2A program to seasonal and temporary
agricultural work is fundamentally inequitable and ignores the
realities faced by year-round agriculture. Of the industries submitting
comments, commenters representing the dairy industry noted particular
concerns with difficulties in obtaining and retaining a sufficient
workforce, and proposed solutions such as allowing for year-round visas
and cycling different short-term H-2A workers through employment in a
given year so that a series of workers on temporary visas could satisfy
the employer's permanent need. Other commenters stated that there was
no statutory basis for allowing herders to be employed for 364 days in
a year while not allowing the same for other industries.
The Department received nearly identical comments in response to
the 2008 and 2009-2010 rulemakings. In response to current comments,
the Department reiterates that it must consider each employer's
specific job opportunity on a case-by-case basis and its program
experience has consistently shown that the majority of activities in
these industries are year-round and therefore cannot be classified as
either temporary or seasonal as required under the H-2A regulations and
the INA, and not because they are non-agricultural. While the
Department recognizes the workforce challenges encountered by various
agricultural industries, it is limited by the INA to certifying H-2A
applications for jobs of a temporary or seasonal nature. As stated in
the preamble to the 2010 H-2A Final Rule, the determination as to
whether a particular activity is eligible for H-2A certification rests
on a finding that the duration of the activity or the need for that
activity is temporary or seasonal. Permanent job opportunities cannot
be classified as temporary or seasonal. 2010 H-2A Final Rule, 75 FR
6884, 6890-6891. Instead, employers that cannot find U.S. workers to
fill permanent rather than temporary or seasonal jobs may wish to
petition for workers under employment-based immigrant visa programs.
See, e.g., 8 U.S.C. 1153(b)(3); see also 8 U.S.C. 1101(a)(15)(H)(ii)(a)
(INA permits only ``agricultural labor or services . . . of a temporary
or seasonal nature'' to be performed under the H-2A visa category).
Finally, with regard to comments above related to the period of need
for herders, the Department recently rescinded, in the separate 2021 H-
2A Herder Final Rule, the 364-day provision that governed the
adjudication of temporary need for employers of sheep and goat herders
(Sec. 655.215(b)(2)) to ensure the Department's adjudication of
temporary or seasonal need is conducted in the same manner for all H-2A
applications.
Other Comments Related to the Requirements for Overtime Pay Under the
FLSA
Some commenters expressed concerns about or requested clarification
of the requirement for overtime pay under the FLSA to H-2A workers. One
commenter said that some employers incorrectly assume that H-2A workers
are always exempt from the FLSA overtime requirement, and another
commenter made this same incorrect assumption in its comment. Other
commenters stated that the classification of certain industries and
activities as agricultural under one Act and non-agricultural under
another was confusing, and that the reclassification of pine straw
activities as agricultural under the INA would simplify compliance.
Another commenter suggested a regulatory clarification that
construction labor performed on a farm for an independent contractor,
as opposed to for the farm operator, is not agricultural employment for
the purposes of the FLSA, and that employees providing such services
are entitled to overtime pay.
In light of these comments, the Department reiterates that the FLSA
applies independently of the H-2A program. H-2A workers are not exempt
from overtime pay under the FLSA simply by virtue of holding an H-2A
visa, nor are workers engaged in corresponding employment with H-2A
workers exempt from FLSA overtime pay simply because they are so
engaged. The FLSA exempts employees employed in agriculture, as defined
in sec. 3(f) of that same Act, from overtime pay (and, in more limited
circumstances, from the Federal minimum wage) in any workweek that the
worker is employed solely in agriculture. See FLSA sec. 13(a)(6) and
(b)(12), 29 U.S.C. 213(b)(6) and (12). However, the INA defines
agriculture more broadly than the FLSA and, consequently, some H-2A
workers are employed in activities that do not constitute FLSA
agriculture and thus are entitled to FLSA overtime pay. For example, H-
2A workers employed by a farmer are exempt from FLSA overtime in any
workweek in which they are engaged in packing fruit grown exclusively
by that same farmer. However, if during a given workweek these same H-
2A workers, in addition to packing fruit grown by their employer also
pack fruit grown by another farmer, they are entitled to FLSA overtime
pay in that workweek.\34\ Because the H-2A program's definition of
agricultural labor or services is broader than the FLSA definition of
agriculture (i.e., it encompasses activities that constitute
agricultural labor under the IRC, as well as logging and pressing of
apples for cider on a farm), workers may be engaged in agricultural
labor for H-2A program purposes but exempt or nonexempt from FLSA
overtime in any particular workweek depending on their activities
during that period. The Department encourages employers to consult the
FLSA regulations at 29 CFR part 780 to determine if employees are
entitled to FLSA overtime, and to consult applicable State and local
laws, which may impose overtime or other wage requirements.
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\34\ As defined by the FLSA, packing, processing, and
transporting agricultural or horticultural commodities do not
constitute agricultural employment unless these activities are
performed by a farmer or on a farm as incident to or in conjunction
with such farming activities (i.e., the farming activities of the
farm or farmer). The packing, processing, or transporting of fruit
produced by a different grower is performed as incident to or in
conjunction with the farming activities of the farmer that produced
the fruit, not the employer, and thus is outside the scope of the
exemption from FLSA overtime pay. See generally 29 CFR part 780,
subparts A, B, and C; Sec. Sec. 780.137 and 780.138. FLSA
exemptions are determined on a workweek basis, and an employee
performing exempt work (i.e., packing, processing, and transporting
the employer's own fruit) and nonexempt work (i.e., packing,
processing, and transporting the fruit produced by a different
grower) in the same workweek is entitled to overtime pay in that
particular workweek. See Sec. Sec. 780.10 and 780.11.
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Reforestation and pine straw activities, as defined in the NPRM,
similarly do not constitute FLSA agriculture unless performed by a
farmer or on a farm as incident to or in conjunction with such farming
activities, and employees engaged in these activities are frequently
entitled to FLSA overtime pay.
One commenter opined that construction labor performed by an
independent contractor on a farm never
[[Page 61685]]
constitutes FLSA agriculture. The Department notes that construction
labor may constitute FLSA agriculture when performed by a farmer or on
a farm as incident to or in conjunction with such farming activities.
Minor Revisions Incorporating Occupational Definitions for Animal
Shearing, Commercial Beekeeping, and Custom Combining in the H-2A
Program
In proposing the occupational definitions for itinerant employment
in animal shearing, commercial beekeeping, and custom combining at 20
CFR 655.301, the Department acknowledged in the NPRM that some of the
listed activities may not otherwise constitute agricultural work under
the current definition of agricultural labor or services in Sec.
655.103(c), but are a necessary part of performing this work on an
itinerary. See 84 FR 36168, 36222. Accordingly, and solely for the
purposes of the proposed variances in Sec. Sec. 655.300 through
655.304, the Department explained that it would include these
activities in the occupational definitions. Id. The Department did not
receive any comments on this aspect of its proposal. However, because
only duties that fall within the definition of agricultural labor or
services under Sec. 655.103(c) may be certified under the H-2A
program, and to clarify that the activities set forth under the
definitions for animal shearing, commercial beekeeping, and custom
combining in Sec. 655.301 qualify for certification under the H-2A
program, the Department is making a technical, conforming revision to
Sec. 655.103(c). Under new Sec. 655.103(c)(5), the Department
expressly states that, for the purposes of Sec. 655.103(c),
agricultural labor or services includes animal shearing, commercial
beekeeping, and custom combining activities as defined and specified in
Sec. Sec. 655.300 through 655.304. Additionally, this final rule
incorporates the minor technical changes to correct the internal
citations from paragraphs (c)(1)(iv) and (v) to now read paragraphs
(c)(1)(i)(D) and (E), respectively, in Sec. 655.103(c)(1)(i)(E) and
(F).
l. 20 CFR 655.103(d) and 29 CFR 501.3(c), Definition of a Temporar
[…truncated; see source link]Indexed from Federal Register on October 12, 2022.
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