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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: May 29, 2009 (Volume 74, Number 102)]
[Rules and Regulations]               
[Page 25971-26015]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29my09-17]                         


[[Page 25971]]

-----------------------------------------------------------------------

Part III





Department of Labor





-----------------------------------------------------------------------



Employment and Training Administration



20 CFR Part 655



-----------------------------------------------------------------------



Wage and Hour Division

29 CFR Parts 501, 780, and 788



-----------------------------------------------------------------------



Temporary Employment of H-2A Aliens in the United States; Final Rule; 
Labor Certification Process for the Temporary Employment of Aliens in 
Agriculture and Logging in the United States: 2009 Adverse Effect Wage 
Rates, Allowable Charges for Agricultural and Logging Workers' Meals, 
and Maximum Travel Subsistence Reimbursement; Notice


[[Page 25972]]


-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

Wage and Hour Division

29 CFR Parts 501, 780, and 788

RIN 1205-AB55

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

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

ACTION: Final rule; suspension of rule.

-----------------------------------------------------------------------

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

DATES: Effective June 29, 2009.

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

SUPPLEMENTARY INFORMATION: 

I. Background and Overview

    The H-2A visa program provides a means for U.S. agricultural 
employers to employ foreign workers on a temporary basis to perform 
agricultural labor or services when U.S. labor is in short supply. 
Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act 
(INA or the Act) (8 U.S.C. 1101(a)(15)(H)(ii)(a)) defines an H-2A 
worker as a nonimmigrant admitted to the U.S. on a temporary or 
seasonal basis to perform agricultural labor or services. Section 
214(c)(1) of the INA (8 U.S.C. 1184(c)(1)) mandates that the Secretary 
of the Department of Homeland Security (DHS) consult with the Secretary 
of the Department of Labor (the Secretary) with respect to the 
adjudication of H-2A petitions, and, by cross-referencing Section 218 
of the INA (8 U.S.C. 1188), with respect to determining the 
availability of U.S. workers and the effect on wages and working 
conditions. Section 218 also provides further details of the H-2A 
application process and the requirements to be met by the agricultural 
employer.
    The Department's regulations at 20 CFR part 655, subpart B--``Labor 
Certification Process for Temporary Agricultural Employment Occupations 
in the United States (H-2A Workers),'' govern the H-2A labor 
certification process. The Department's regulations at 29 CFR part 501 
implement its enforcement responsibilities under the H-2A program. The 
Department's regulations on Fair Labor Standards Act (FLSA) exemptions 
applicable to agriculture, processing of agricultural commodities, and 
related subjects under the FLSA at 29 CFR part 780, and the 
Department's regulations on FLSA exemptions applicable to forestry and 
logging operations at 29 CFR part 788, set forth the Department's 
interpretation of the FLSA provisions relating to agriculture, 
forestry, and logging.
    On December 18, 2008, the Department published a Final Rule 
revising title 20 of the Code of Federal Regulations (20 CFR) part 655 
and title 29 of the Code of Federal Regulations (29 CFR) parts 501, 
780, and 788 (the December 2008 Rule or Final Rule). See 73 FR 77110, 
Dec. 18, 2008. The December 2008 Rule replaced the previous versions of 
20 CFR part 655 (2008) and 29 CFR part 501 (2008) that, for the most 
part, were first published at 52 FR 20507, Jun. 1, 1987. With respect 
to the provisions under 29 CFR parts 780 and 788 that were amended by 
the December 2008 Rule, the previous versions of 29 CFR 780.115, 
780.201, 780.205, and 780.208 were published at 37 FR 12084, Jun. 17, 
1972, and the previous version of 29 CFR 788.10 was published at 34 FR 
15784, Oct. 14, 1969.
    Following the issuance of the December 2008 Rule, United Farm 
Workers and others filed a lawsuit in the U.S. District Court for the 
District of Columbia on January 12, 2009 challenging the December 2008 
Rule. United Farm Workers, et al. v. Chao, et al., Civil No. 09-00062 
RMU (D.D.C.). The plaintiffs asserted that in promulgating the December 
2008 Rule, the Department violated section 218 of the Immigration and 
Nationality Act as well as the Administrative Procedure Act. The 
plaintiffs requested a temporary restraining order and preliminary 
injunction, along with a permanent injunction that would prohibit DOL 
from implementing the December 2008 Rule. On January 15, 2009, Judge 
Ricardo M. Urbina denied the plaintiffs' request for a temporary 
restraining order and preliminary injunction on the basis that the 
plaintiffs failed to show ``likely, imminent and irreparable harm;'' 
the court did not address the merits of the case or whether the 
plaintiffs demonstrated the substantial likelihood of success on the 
merits. Accordingly, the December 2008 Rule went into effect as 
scheduled on January 17, 2009.
    As the Department began implementing the December 2008 Rule, it 
immediately encountered a number of operational challenges which 
continue to prevent the full, effective and efficient implementation of 
the December 2008 regulation. The Department also has realized that the 
implementation of the December 2008 Rule without further consideration 
of the relevant legal and economic concerns that have arisen since its 
publication was proving to be disruptive and confusing not only to the 
Department's administration of the H-2A program but also to State 
Workforce Agencies (SWAs), agricultural employers, and domestic and 
foreign workers, especially in light of the severe economic conditions 
facing the country. Furthermore, the development of the December 2008 
Rule was based in part on the policy positions of the prior 
Administration with which the current Administration may differ and 
wish to reconsider, especially in light of changed economic conditions. 
This is particularly true with respect to the changes to wages paid to 
H-2A workers wrought by the shift of the Adverse

[[Page 25973]]

Effect Wage Rate (AEWR) from the wage rates based on data compiled by 
the U.S. Department of Agriculture (USDA) to those calculated on data 
from the Bureau of Labor Statistics in its Occupational Employment 
Statistical Survey (OES). This reconsideration may result in new 
rulemaking to seek additional comment from affected users and other 
interested parties. In light of the potential for new rulemaking, the 
Department believes it would not be an efficient use of limited agency 
resources, appropriated from taxpayer funds, to continue to attempt to 
operationalize the December 2008 Rule, and that it would be disruptive 
and confusing for program users and the Department to engage in the 
steps necessary to make the current rule fully operational.
    For these reasons, on March 17, 2009 the Department published a 
Notice of Proposed Suspension of Rule (the Notice), which proposed to 
suspend the December 2008 Rule for 9 months and reinstate on an interim 
basis the prior H-2A regulation in effect on January 16, 2009 (the 
Prior Rule). 74 F.R. 11408 (March 17, 2009). The suspension of the 
December 2008 Rule and temporary reinstatement of the Prior Rule will 
allow the Department to review the December 2008 Rule to ensure that it 
effectively carries out the statutory objectives and requirements of 
the program in a manner that minimizes disruption to the Department, 
SWAs, employers, and workers by temporarily reinstating prior 
regulations which had been in effect for over 20 years and with which 
the agricultural community already is familiar.

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

    The Department received over 800 comments in response to the 
publication of the Notice of Proposed Suspension of Rule (the Notice). 
The majority of the comments were based on form letters raising similar 
issues and concerns. Commenters included individual farmers and 
associations of farmers, farm bureaus, law firms, farmworker advocates, 
State agencies (including SWAs), Members of Congress, and individual 
members of the public. The Department has reviewed the comments and 
taken them into consideration in drafting this Final Suspension Rule 
(Final Rule, or Final Suspension).
    The Department received several comments through means beyond those 
listed in the Notice or after the comment period closed. In fairness to 
all parties, these comments were not reviewed in the consideration of 
the Final Rule. In addition, in the Notice, the Department requested 
that parties limit their comments to the issue of whether the 
Department should suspend the December 2008 Rule for further review and 
consideration of the issues that have arisen since the December 2008 
Rule's publication. Though all comments have been reviewed, only those 
comments responding to issues on which the Department sought comment 
were considered in this Final Rule.

A. Comments Regarding the Stated Policy Rationale for Suspension

1. The Department's Problems in Implementing the December 2008 Rule 
Have Resulted in Confusion, Processing Delays and Program Disruption
a. Lack of Resources
    The Department received a number of comments, both supporting and 
opposing a suspension, responding to the suggestion that both the 
Department and the SWAs lack resources to fully implement and 
administer the current regulations. Some commenters indicated support 
for the Department's position that the December 2008 rule should be 
suspended due to the shortage in resources available for fully 
implementing and administering that rule past the transition period. 
Conversely, a substantial number of comments called into question the 
substance of the rationale, arguing that the Department failed to 
present concrete evidence of a lack of resources to fully implement the 
December 2008 rule. The majority of comments that discussed the lack of 
resources to operationalize the program as written in the December 2008 
Rule argued that the Department presented insufficient evidence and 
only relatively vague statements with no clear supporting evidence. 
Other commenters asserted that the new program is in fact already 
operational and has been for more than two months and is working just 
as the DOL said it would in the December 2008 Rule. One commenter 
pointed to some evidence believed to contradict the Department's claims 
of insufficient resources, citing the DOL's discretionary budget for 
the Fiscal Year 2009 being more than $17.5 billion, constituting a 
nearly 50% increase over Fiscal Year 2008 levels, and indicating that 
the growing trend is likely to continue with the President's budget for 
Fiscal Year (FY) 2010 which includes further increases for the 
Department.
    The Department's FY 2009 budget is irrelevant to the Department's 
ability to implement the December 2008 Rule when it was promulgated. 
The December 2008 rulemaking was commenced and conducted without regard 
to resources required by the Employment and Training Administration 
(ETA) generally or for Office of Foreign Labor Certification (OFLC) 
specifically to implement the changed processes and the potential 
increased use of the program. The Department has determined that the 
agency's mandate is advanced by evaluating the December 2008 Rule, as 
opposed to bringing a potentially flawed program into full operation. 
The suspension will allow the Department to focus its resources in a 
more efficient manner, and will result in a more thorough determination 
regarding the best direction for the H-2A program.
    A few commenters asserted that the Department's claims of resource 
shortfalls are suspect in light of having engaged in the perceived 
costly exercise of suspending the December 2008 Rule and reinstating 
the old regulations that will presumably require more work on the part 
of the Department and the SWAs. Other commenters asserted that 
complaints of funding shortfalls have been prevalent in the State and 
local DOL offices long before the current regulations were implemented. 
A handful of commenters argued that the attestation process under the 
current regulations and related SWA relief from certain housing 
inspection obligations lessened demand on DOL resources, thus 
undermining the Department's argument of budgetary shortfalls. One 
commenter indicated that DOL failed to provide evidence about the new 
role of the SWAs under the current regulations, arguing that SWAs have 
less to do under the current regulations than before and therefore 
should require the same or lesser amount of resources.
    The Department's statutory obligations, especially many of those it 
delegates to the SWAs, have not changed regardless of the set of 
regulations under which they operate. The process of filing an 
application for H-2A workers under either set of regulations still 
begins with the placement of an agricultural order into clearance with 
the SWA having jurisdiction over the work, and continues through the 
State-assisted referral process and the mandatory housing 
inspection.\1\ SWAs retain many

[[Page 25974]]

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

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

b. Inability To Implement Sequence of Operational Events
    In the Notice of Proposed Suspension, the Department cited as 
crucial to the proposed suspension its inability to implement the 
sequence of operational events required to avoid confusion and 
processing delays, including implementing an automated review system, 
and training program users and SWA staff. One commenter supporting this 
rationale for the suspension indicated that the December 2008 
regulations compound the application processing problem with guaranteed 
delays in temporary programs--mainly H-2A and H-2B--by creating an 
additional burden in increased supervised recruitment, as well as 
increased demands from the PERM program. Since its effective date, the 
Department has seen a steady increase in the numbers of delayed 
applications, where compliance with the statutory processing times has 
not been met. (See below section II.A.1.c. Processing Delays.) Delayed 
applications can translate into delayed petitions for nonimmigrant 
workers, delayed entries by needed workers, and--for lack of workers--
delayed activities by farms and farming operations. The Department is 
concerned with the correlation between this increasing delay in the 
Department's meeting of its statutory mandate. The suspension is 
intended to allow the Department to work with a system with which it is 
familiar while it determines whether to retain the new system or engage 
in new rulemaking. Using a system with which the Department is familiar 
and which it has the infrastructure to implement will hopefully reduce 
processing times and enable the Department to more closely meet its 
statutory processing obligations.
    Some commenters argued that all new rules require staff training, 
new materials and programs, but that issues arising during the 
implementation period may not be permanent and should not derail a 
lawfully promulgated rule. The Department readily recognizes that new 
regulations undergo necessary implementation phases and that alone is 
not a reason to suspend a rule, even where (as here) the office is 
promulgating significant changes for the first time in over 20 years 
that create considerable need for re-training staff and establishing of 
new guidelines for adjudication, new policy interpretations, etc. 
However, here the extremely narrow window between the publication and 
the effective date of the current regulations, especially since it 
occurred during the Presidential transition period, simply provided too 
little time for the Department to adequately train both staff and users 
in the basics of the program, much less the many nuances in program 
administration. Thus, absent a suspension, an untenable situation has 
developed in which the newly promulgated H-2A program has not been 
effectively implemented, putting users and adjudicators alike at a 
substantive disadvantage.
    A number of comments focused on the Department's statement of need 
for an automated processing system and asserted that the December 2008 
H-2A program is less resource intensive than the old program which had 
no automated system, and is therefore less in need of such a system. 
Other commenters pointed out that the prior H-2A program never had an 
automated processing system due to its complexity. Another commenter 
said that the Department never promised an automated system nor was the 
regulated community expecting one, and that in its experience, the 
processing times have been faster under the new program. Still other 
commenters pointed out that reverting to the old program, with its 
duplicative filing and requirements for manual processing, will not 
result in shorter processing times.
    In the December 2008 Rule, the Department noted that an automated 
system was contemplated at some future time for the public. However, 
the Department's inability to create an internal automated system for 
tracking and processing of applications, not an external one, is the 
most substantial factor with which the Department is currently 
concerned. In a time in which the Department receives thousands of H-2A 
applications, an automated system geared to the relevant format and 
information collection is a necessity for the 21st century. Core 
program processing requirements--such as the calculation of statutory 
processing dates from date of receipt--require some electronic ability 
for collection and calculation. The current system, designed to a now-
obsolete information collection of two pages (compared to the current 
10 page collection), is simply inadequate to track the increased 
information required under the December 2008 regulations--information 
that, under an attestation-based collection, is critical for analysis 
to determine compliance with program requirements. Use of the current 
system to administer the December 2008 Rule will adversely impact 
program integrity. The Department notes, for example, that an inability 
to systematically track information that would enable it to conduct 
audits of certified applications and undertake actions resulting from 
audits means that the Department cannot effectively implement that part 
of the new system. This lack of functionality creates a significant 
inability to adequately address the procedures and systems necessary to 
implement an attestation-based system.\2\ Furthermore, the ability to 
capture particular data elements from employers' applications as a 
basis for determining how to allocate audit resources was fundamental 
to the design of the December 2008 Rule. As discussed in the preamble 
to the December 2008 Rule, the Department envisioned a robust audit 
system that monitored filings under the re-engineered attestation-based 
process to ensure that the employment of H-2A workers does not 
adversely affect the wages and working conditions of similarly employed 
U.S. workers. Without such a system, the potential for fraud is 
increased, program integrity is in jeopardy, and U.S. workers are at 
risk of adverse affect.
---------------------------------------------------------------------------

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

    In response to the Department's statements about its inability to 
provide sufficient training for SWAs and stakeholders on the December 
2008 regulations, a number of commenters indicated that trainings were 
conducted in Denver and Atlanta in advance of the effective date of the 
regulations. In addition, several commenters asserted that DOL 
conducted more than one training for both SWA staff and employers prior 
to the effective date of the regulations and noted that this was the 
first time DOL presented training on the December 2008 Rule to the user 
community.\3\ Another commenter indicated that extensive training was 
conducted and materials were provided at no charge to stakeholders and 
had been available in PDF on DOL's Web site.
---------------------------------------------------------------------------

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

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

[[Page 25975]]

briefing sessions for the public (in which some SWA staff participated) 
but also for SWAs, limiting the latter to the transition procedures. 
However, the December 2008 Rule, published during the middle of a 
Presidential transition period, became effective only 30 days after the 
publication, as noted above. This gave both internal and external users 
little time to understand, implement, and adapt to the changes 
contained in the December 2008 Rule. Most significantly, the Department 
had little opportunity, prior to the effective date of the rule, to 
provide adequate assistance to the affected communities on both sides 
of the application process.
c. Processing Delays
    In its March 17, 2009 Notice of Proposed Suspension, the Department 
pointed to delays and corresponding disruption to the program in the 
middle of the growing season as a core reason for temporarily 
suspending the current regulations pending additional review.
    Most comments received in response to this statement disagreed with 
the Department's assertion that it had experienced processing delays. 
Many commenters complained that the Department failed to offer 
specific, detailed and concrete evidence demonstrating the nature and 
extent of the processing delays. Large growers associations cited 
contrary experience, indicating either fewer delays under the current 
regulations than in the past, or timely processing of applications. 
However, several commenters along with a substantial number of other 
program users expressed a great deal of frustration with the Department 
for failing to meet their need for extensive technical assistance, as 
well as a general lack of comprehension of the December 2008 Rule.
    One commenter stated that DOL staff has done a good job 
implementing the current regulations on the operational level, despite 
complaints of inadequate staff, improper infrastructure and archaic 
computer support. Others commenters noted that employers have 
experienced fewer delays under the new regulations despite the fact 
that the H-2A program has always been understaffed.
    Despite the anecdotal experiences of individual commenters, the 
ability of the Chicago National Processing Center (CNPC) to issue 
timely case decisions under the new H-2A regulations has decreased. 
Timely case decisions (in which an acceptance/modification letter is 
issued no later than 7 days of receipt of the H-2A application and/or a 
final determination no later than 30 days before the employer's date of 
need) have decreased as a percentage of H-2A applications adjudicated 
in any given week. While the percentage of delayed cases--cases outside 
the statutory timeframes for adjudication--has varied since the 
effective date of the current rule, it has not fallen below 27% of all 
cases in process at that time, and has been as high as 58%. The median 
days processing time for 2009 has also exceeded the times in 2008; in 
February 2009, the median number of days to process a case was 27 days 
(compared to 23 days for the same time period in 2008). In March 2009, 
the median number of days to process a case was 25, compared to 23 days 
in March 2008. In summary, the number of days from case receipt to 
adjudication has increased, as has the Department's percentage of 
delayed cases. Therefore, despite the December 2008 rule's intended 
purpose, that rule is at least one factor in the increases in the time 
in which applications have been handled, which has led to increased 
delays in application processing.
    While the increased processing times may seem modest, they are 
cause for concern to the Department. In a statutory processing 
timeframe in which applications are filed only 45 days prior to the 
date of need and must be adjudicated no later than 30 days prior to 
date of need, delays of even a few days signal a significant failure by 
the Department to meet its statutory timeframes. One of the 
Department's goals in seeking to streamline the processing of H-2A 
applications was to ensure timely processing of applications--which was 
already a concern for the Department. Not only has that goal not been 
achieved, the new processing model has, at least so far, pushed that 
goal farther away. The processing delays also highlight the 
Department's ever-increasing inability to adequately perform its 
functions under the December 2008 Rule. This is particularly worrisome 
considering that the Department has seen its number of H-2A 
applications actually decrease compared to the same time span last 
year, with the Department receiving only 706 H-2A applications in 
February 2009, compared to 930 applications it received during the same 
month last year. Due to this demonstrated trend, the Department 
foresees increased difficulties in meeting its statutory processing 
times if the H-2A program experiences its anticipated increase in 
future participation. Delays in the Department's processing times mean 
that DHS and the Department of State have less time to process visa 
petitions, grant visas and admit workers before the employer's date of 
need. While there is no evidence that the current delays have caused 
harm, if the delays continue to increase, as it appears likely that 
they will, at some point the harm will become very real.
    Though most commenters did not address the effect of additional 
demands on the Department to process incoming applications, one large 
growers' association opposed to the suspension noted that the existing 
DOL-reported delays will be increased by a suspension, resulting in 
unacceptable delays and gridlock for H-2A and H-2B employers for the 
majority of applications scheduled to be filed in April through June 
2009.
    The Department disagrees that a suspension will exacerbate the 
current delays in processing program applications. The process for 
filing and handling applications during the suspension will be the 
filing procedures of the former rule with which CNPC and SWA staff and 
all previous program users are familiar. The burden of review during a 
suspension will be shared by SWAs and the CNPC. As a consequence, 
processing times should decrease with the reinstatement of the former 
rule.
d. Confusion and Disruption Under the Procedures of the December 2008 
Rule
    The Department said in its March 17, 2009 Notice of Proposed 
Suspension that there is increasing evidence that continuing to 
implement the December 2008 regulations in light of existing experience 
and before additional examination is disruptive and confusing to the 
Department's administration of H-2A program, SWAs, agricultural 
employers and domestic and foreign workers.
    The Department received several comments supporting the suspension 
because of this confusion and ensuing disruption. One commenter noted 
that the regulations should be suspended because they have caused 
confusion among employers, State Workforce Agency staff and workers. 
Another commenter cited anecdotal evidence of policy confusion and 
contradictions on the local level requiring a certain group of 
employers to pay overtime wages contrary to the current regulations, 
although this commenter generally opposed suspension of the 2008 rule 
on this basis. Another commenter, writing on behalf of a State 
Workforce Agency, indicated that confusion is already manifest in the 
processing of job orders during the transition period. Yet another 
commenter provided examples of confusion prevalent in communications 
between the SWA and the CNPC on such issues as the timing of receipt of

[[Page 25976]]

job orders from the CNPC, the use of master applications, and the 
timely identification of traditional labor supply States.
    Another commenter indicated that SWAs are currently receiving 
insufficient support from the CNPC for dealing with pre-filing issues, 
such as rejection of qualified U.S. workers. Confusion also exists 
about the timing of housing inspections which are being conducted under 
two sets of differing regulations. The same commenter provided 
additional evidence of confusion and disruption, including the presence 
of anomalies in wage rates, which have caused the issuance of wage rate 
determinations that are occasionally lower than the State minimum wage 
rate; and also, instances where an SWA was instructed to make referrals 
to non-provider and non-traditional labor supply states, which in turn 
reduced the chances of getting U.S. workers to fill the positions.
    The Department received other comments which challenged its 
assertions about the confusion and disruption caused by the current 
regulations. The most common objection from the commenters challenged 
the very existence of confusion and disruption under the December 2008 
regulations, and noted that DOL did not specify in the Notice of 
Proposed Suspension the types of confusion and disruption experienced 
in administering the program or present examples. In addition, a large 
number of commenters argued that employers and the larger regulated 
community were not experiencing confusion. At least one commenter added 
that DOL would create confusion and disruption by suspending the 
regulations. One large grower association identified DOL as the source 
of confusion and disruption and accused the Department of limiting 
access to guidance, training and informational resources, and 
neglecting to fulfill its obligations in advising the regulated 
community on the current regulations.
    The majority of commenters opposed to the suspension posited that 
there is no disruption among users resulting from the relevant legal 
and economic concerns associated with the December 2008 Rule. One 
commenter indicated that the current H-2A program is different from the 
prior regulatory regime in form and substance but the changes do not 
constitute such a fundamental shift in the Department's obligations, 
given the long lead time before the rule's promulgation to warrant a 
precipitous change in direction. One association noted that the largest 
users of the current H-2A program reported that the December 2008 
regulations have made for a more logical, predictable, reliable and 
less disruptive approach to securing legal labor than the old 
regulations.
    While each commenter's experience may be different, the Department 
disagrees with those commenters that there has been no disruption or 
confusion resulting from the new regulations. That the Department did 
not spell out in detail the specifics of the confusion experienced by 
program users, but only summarized the level of confusion and suggested 
it was sufficient to propose suspending the rule, does not negate the 
existence or lessen the impact of such confusion. Indeed, the 
Department received over 200 e-mail inquiries seeking clarification of 
the December 2008 regulations during the 3 months that a special 
mailbox was open to the public.
    Moreover, the inquiries that the Department has received show the 
general lack of understanding and knowledge among employers with the 
process implemented by the December 2008 Rule. As noted above, the 
Department did conduct two briefing sessions for the public in December 
2008 just before the publication of the December 2008 Rule, which fewer 
than 200 H-2A employers, agents, attorneys, farmworker advocates, State 
Workforce Agency employees, and others were able to attend. The 
attendees were provided an advance (draft) copy of the rule text at the 
meeting, and were provided a brief overview of the new regulations to 
be issued by DOL, (by both ETA and ESA). The Department of Homeland 
Security, which issued its own H-2A regulations at the same time, also 
participated in both briefings. These two briefings, however, did not 
even begin to respond to the questions and concerns arising from the 
new rule. Moreover, because of the resource constraints discussed 
earlier and the change in administrations and priorities, the 
Department has not been able to individually address the subsequent 
comments and questions nor provide adequate general program guidance.
    After that briefing, the Department has received, between late 
December and early March, at least 250 written inquiries from program 
users on the basic program requirements. Some of these questions, both 
simple and complex, have come from some of the same commenters who now 
say they have seen no difficulties with the new rule. While a few 
questions demonstrated an understanding of the new rule, many others 
demonstrated complete confusion with the new regulatory requirements, 
the forms, or the process in general. The following are some of the 
questions received by the Department as recently as March 2009 which 
show a fundamental lack of understanding of the new rule:

    ``Do I advertise before I send in the application and do I send 
copies of this advertising?''
    ``To confirm, does form 9142 take the place of both form 750 and 
790 in the new H-2A certification processing?''
    ``Does employer have to place a job order with SWA before filing 
the application with DOL? Is there any wait time?''

These questions evidence confusion about the basic program requirements 
and employers' obligations under the December 2008 regulations.
    In addition, many more questions were directed to the individual 
SWAs, which at times over the past few months have provided 
contradictory or misinformed guidance (as noted by some commenters), in 
large part due to the SWA staff's own lack of understanding of the 
December 2008 rule. The Department has become aware, for example, that 
at least one SWA, a full month into the program, was erroneously giving 
out incorrect wage rates, which were directly contrary to the 
requirements of the new regulations. Another SWA asked the Department, 
as recently as April 2009, whether, on an application filed under the 
December 2008 Rule, it was required to refer, and the employer required 
to accept, referrals through 50 percent of the contract period (the 
``50 percent rule'' of the former regulations), not the 30 days post-
date of need as required under the December 2008 Rule.
    SWAs still have a significant role under the December 2008 
regulation, so their fundamental misunderstanding of the essential 
elements of the new regulation threatens program integrity and 
contributes to the public's continued confusion about the H-2A 
application process and corresponding employer obligations.
    The most telling evidence of confusion among the farming employer 
community, however, lies in the number of applications the Department 
has received that require modifications in order to be made acceptable 
for processing. In the first three months of the program, January, 
February and March 2009, the Department found that 50%, 56%, and 46% of 
the applications processed in those months, respectively, required 
modifications to the applications. For the same timeframe last year, 
the percentages of applications requiring modifications were 10%, 16%, 
and 26%, respectively. This severe disparity of modifications of 
everything

[[Page 25977]]

from minimum requirements to contract issues demonstrates how little 
knowledge of the new regulations even seasoned users of the program 
have been able to glean.
    Based on the volume and nature of the inquiries that the Department 
has received in the early days of the December 2008 Rule, as well as 
the number of applications that require further investigation, the 
Department disagrees that there is no confusion. The significant lack 
of understanding of the new rule is evident from the questions the 
Department continues to receive daily from even seasoned program users, 
and is of deep concern to the Department. Even if some members of the 
regulated community understand the current implementation of the new 
rule sufficiently for compliance purposes, there remains the fact that 
the December 2008 rule is not yet fully implemented, as the Department 
is still operating the program within the transition procedures prior 
to full Final Rule implementation.
2. Avoiding the Disruption of Fully Implementing a Complex Regulatory 
Scheme When Further Review of Policy and Economic Concerns Are 
Warranted
    In the March 17 Notice, the Department identified as a factor in 
considering whether to suspend the current regulations the disruptive 
effect of implementing a complex regulatory scheme without further 
consideration of the legal and economic concerns that have arisen 
during the current economic downturn, such as the rising unemployment 
among U.S. workers and the impact that may have on the Department's H-
2A statutory obligation to ensure no adverse effect on the U.S. worker 
population from the introduction of the foreign workforce. Although the 
Department received many comments opposing this basis for suspending 
the regulations, the Department also received several comments strongly 
supporting the proposed action.
    One commenter asserted that the current regulations should be 
suspended because of the change in economic circumstances which has 
taken place since the promulgation of the December 2008 Rule, including 
the increased unemployment that is having an effect on the availability 
of U.S. workers. Another commenter on the State level noted that 
unemployment has increased nationally and in its State in a way not 
anticipated during the rulemaking process for the December 2008 Rule. 
The commenter urged that the Department must have an opportunity to 
reconsider policy implications of the H-2A program overall, 
particularly those program components that are likely to have an 
adverse impact on the U.S. workforce in the changed economic 
circumstances.
    Another commenter indicated that DOL did not provide supporting 
evidence showing that the delay in implementation of the December 2008 
regulations will cause disruption in the agricultural sales, production 
and market conditions, even in this unstable economic environment. This 
commenter went on to assert that DOL's proposed suspension will drive 
up costs and force users out of the program and negatively impact 
supporting jobs in the greater economy, thus itself generating a 
disruptive economic impact. Another commenter noted that DOL's mandate 
is not to abate the effects of increased unemployment but to protect 
workers, which it is adequately doing under the current regulations.
    The commenter's objection to the proposed suspension based on the 
purported increase in employers' expenses due to an increase in 
required wage rates is a critical reason the Department needs to 
examine and re-evaluate the wage regime instituted under the December 
2008 Rule. One of the Department's most important functions in its 
administration of the H-2A program is to ensure that admission of H-2A 
workers does not adversely affect the wages of U.S. workers. At all 
times, but particularly in the midst of a severe economic downturn, the 
Department is required to ensure that its regulations do not create or 
compound an adverse effect on U.S. workers. This is particularly the 
case where, as in the H-2A program, the Department has a statutory 
obligation to ensure protection of U.S. agricultural workers, one of 
the most vulnerable sectors of the workforce.\4\ The many commenters 
who cite increased wages as a central reason for not suspending the 
December 2008 Rule are doing so on the grounds that wage costs for 
their foreign workforce under the former regulations will be higher 
than under the December 2008 Rule. One of the primary reasons that the 
new Administration wants to review the December 2008 Rule is precisely 
to determine whether the generally reduced wage rates under that rule 
are having a depressive effect on farmworker wages.
---------------------------------------------------------------------------

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

    The Department stated in its Notice of Proposed Suspension that the 
December 2008 Rule, and the policy positions from which the rule was 
promulgated, may need to be reconsidered given the efforts being made 
by the current Administration to stabilize the economy. A majority of 
commenters criticized the Department for considering a change in the 
regulations on policy grounds. Some of these commenters asserted that 
even if the current Administration does not agree with the policies 
represented by the December 2008 Rule, the December 2008 Rule was 
carefully considered, planned and prepared over a long period of time 
and underwent a significant amount of review. Others noted that the 
December 2008 Rule was legally promulgated and should not be 
``scrapped'' without the Department first undertaking a similarly 
painstaking new rulemaking process.
    The Department also received comments supporting its desire to 
revisit the policies of the previous Administration reflected in the 
December 2008 Rule in light of the goals and objectives of the current 
Administration. One such commenter argued that it would be an 
inefficient use of limited agency resources, as well as confusing and 
disruptive to the program users, to engage in the full implementation 
of the December 2008 Rule if the Department is likely to issue a 
different rule soon. This commenter felt the suspension would be less 
disruptive and confusing than continuation of the December 2008 rule.
    The Department agrees that it is not appropriate to fully implement 
a rule that is under reexamination by the current Administration. The 
Administration has, through the suspension, taken the first step to 
begin a review of the regulatory policies of the previous 
Administration reflected in the December 2008 Rule in light of its own 
policies.
    The Department also agrees with those commenters who feel that less 
disruption will follow from a suspension than from a continuation of 
the December 2008 Rule. The Administration is not at this time 
eliminating the rulemaking of the previous Administration; rather, it 
is temporarily putting that rulemaking on hold in order to review the 
policies in that rulemaking and, if warranted, reopen the issues 
contained in the H-2A program for further notice and comment. The 
suspension is of limited duration in both effect and time; by providing 
notice and an end date, the Department is limiting the impact of the 
suspension as much as is feasible while

[[Page 25978]]

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

B. Impetus for the Timing of Suspension

    The March 17 Notice of Proposed Suspension stresses the importance 
of moving swiftly with the suspension in order to avoid confusion and 
disruption of the H-2A program in the midst of the growing season.
    One group of farmworker advocate organizations offered support for 
the immediate implementation of a suspension, arguing that the 
regulations must be suspended before the end of the transition period 
of the current regulations to avoid compounded confusion and 
disruptions in application processing due to the Department's inability 
to fully and properly implement the complex new regulatory program. 
Other comments supported this position, noting that if there is a 
likelihood that a new program will be designed and the December 2008 
Rule changed, the December 2008 Rule should be suspended immediately in 
order to prevent confusion and disruption.
    Most commenters, however, criticized the Department's timing of the 
suspension, indicating that it would be disruptive during the critical 
time for crop production. The commenters argued that the suspension 
overlapping with the growing season will hurt the employers who have 
already planned and calculated their costs on the basis of the current 
regulations.
    As discussed further below, however, the Department has clearly 
indicated its intent to apply the current regulations to all 
applications filed prior to the effective date of this Final Rule. 
Since most applications for this growing season have been filed or will 
have been filed before this Final Rule becomes effective, the 
Department does not believe that the concerns about disruption for this 
season are a major concern. For additional discussion, see Section III. 
infra.

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

    A number of commenters objected to the proposed suspension of the 
December 2008 Rule because the Department's rulemaking process for the 
proposed suspension was not in compliance with the Administrative 
Procedure Act (APA). There appeared to be differing views among the 
commenters on the conformity of the Notice of Proposed Suspension with 
the rulemaking requirements under the APA. Accordingly, the Department 
reiterates the key facts relating to the rulemaking process undertaken 
thus far. On March 17, 2009, the Department published its Notice of 
Proposed Suspension in the Federal Register. The Notice proposed to 
suspend the December 2008 Rule for nine months and to reinstate the 
Prior Rule. The Notice requested comments relating solely to the 
proposed suspension itself (i.e., not the substance or merits of either 
rule) from the public through March 27, 2009. The publication of the 
Notice of Proposed Suspension did not in any way result in the 
immediate suspension of the December 2008 Rule. Rather, the Department 
accepted comments from the public during the ten-day period between 
March 17, 2009 and March 27, 2009. Once the comment period closed, the 
Department reviewed and considered the comments that it received from 
the public and, through this Final Rule, is suspending the December 
2008 Rule and reinstating the Prior Rule for 9 months. The suspension 
of the December 2008 Rule and reinstatement of the Prior Rule will not 
take effect until 30 days after the date of this Final Rule's 
publication.
    These facts are significant with respect to various comments that 
the Department's actions during this rulemaking process are a violation 
of the APA. Because different actions are cited by the commenters as 
bases of the asserted APA violation, we address each action separately.
1. 10-Day Comment Period
    A number of commenters argued that the 10-day comment period 
provided in the Notice of Proposed Suspension was unreasonable and 
violated the APA. Commenters claimed that many farmers were in the 
midst of their growing season, and 10 days was too short of a period to 
provide a sufficient response to the notice. Rather, these commenters 
stated that an adequate comment period required at least 30 days. 
Additionally, some commenters cited the apparent discrepancy between 
the 10-day comment period for the proposed suspension and the 60-day 
comment period for the Department's rulemaking process for the December 
2008 Rule. Accordingly, there were many requests to extend the comment 
period up to 60-90 days.
    Section 553 of the APA plainly states:

    (b) General notice of proposed rule making shall be published in 
the Federal Register, unless persons subject thereto are named and 
either personally served or otherwise have actual notice thereof in 
accordance with law. The notice shall include:
    a statement of time, place, and nature of public rule making 
proceedings;
    reference to the legal authority under which the rule is 
proposed; and
    either the terms or substance of the proposed rule or a 
description of the subjects and issues involved.
* * * * *
    (c) After notice required by this section, * * * the agency 
shall give interested persons an opportunity to participate in the 
rule making through submission of written data, views, or arguments 
with or without opportunity for oral presentation. After 
consideration of the relevant matter presented, the agency shall 
incorporate in the rules adopted a concise general statement of 
their basis or purpose.

    An agency is only required to provide a ``meaningful opportunity'' 
for comments on a proposed rule, which means that an agency's mind must 
be open to considering them. See Grand Canyon Air Tour Coalition v. 
FAA, 154 F.3d 455 (D.C. Cir. 1998). Nowhere does the APA set forth a 
minimum time period for accepting rulemaking comments. In fact, courts 
have upheld comment periods as short as seven days. See Northwest 
Airlines, Inc. v. Goldschmidt, 645 F.2d 1309 (8th Cir. 1981). 
Additionally, comment periods shorter than 30 days have been upheld 
where there was no evidence of any harm to the petitioners by the short 
comment period, as demonstrated by the volume and substance of comments 
received by the agency and the measurable effect such comments had on 
the final rule. See Florida Power & Light Company v. U.S., 846 F.2d 
765, 772 (D.C. Cir. 1988) (upholding 15-day comment period where 61 
comments were received, ``some of them lengthy'') and Omnipoint 
Corporation v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996) (upholding 15-day 
comment period where 45 comments and 42 letters were received).
    Here, the Department received over 800 comments, many of which 
contained detailed analyses of the impact suspension would have on the 
participants in the H-2A program and which the Final Rule has addressed 
and taken into account. Given the absence of a required minimum comment 
period under the APA, the sheer volume and substance of the comments 
and the Department's detailed discussion and consideration of the 
comments in this Final Rule, the Department believes that the 10-day 
comment period for this rulemaking is reasonable. Furthermore, while 
the Department did provide a longer comment period during the 2008 H-2A 
rulemaking process, a shorter timeframe is warranted here given the

[[Page 25979]]

need for expediency as discussed earlier in this preamble and the much 
more limited scope of this suspension rulemaking.
2. Limitation of Scope of Comments to Suspension
    An agricultural association objected to the Department's limitation 
of the scope of comments to the suspension itself, as opposed to 
comments on the merits or substance of either the current H-2A rule or 
its predecessor rule. The association stated that it has numerous 
comments it would like to offer on both the current regulations, as 
well as the prior regulations, and on this basis the association 
objected to the Department's reinstatement of the old regulations 
during the suspension period.
    As the Notice of Proposed Suspension makes clear, the current 
Administration intends to review and evaluate the social and economic 
implications of the December 2008 Rule. The Department stated that if 
it were to decide to suspend the December 2008 Rule, the Department 
will either ``engage in further rulemaking or the suspension will be 
lifted after 9 months.'' Thus, comments on the merits of the existing 
and previous program would be appropriate when the merits of the 
program are actually at issue in that rulemaking. The suspension of the 
December 2008 Rule and reinstatement of the Prior Rule is strictly a 
temporary measure arising from the Department's need to review in an 
expeditious manner the December 2008 Rule to ensure that the Department 
effectively carries out the statutory objectives and requirements of 
the H-2A program. The December 2008 Rule has not been repealed; it will 
only be held in abeyance for nine months. Unless the Department engages 
in further rulemaking, about which comments on the substance and merits 
of the proposed regulation will be solicited, the December 2008 Rule 
will continue to remain in effect once the suspension expires after 
nine months.
3. Effective Date of Suspension
    As mentioned earlier, there was some confusion among the commenters 
as to when the suspension would take effect. Some commenters believed 
that the suspension took effect upon publication of the Notice of 
Proposed Suspension or would take effect immediately at the close of 
the comment period. Another commenter believed that the suspension 
would take effect before April 1, 2009. Accordingly, a few commenters 
stated that the Department was required to show good cause in order for 
the suspension of the current H-2A rule to take effect immediately. 
However, the Department never stated in the Notice of Proposed 
Suspension, nor does it intend in this Final Rule, that the suspension 
would take effect immediately.
    As explained earlier, neither the publication of the Notice of 
Proposed Suspension, nor the close of the comment period resulted in 
the immediate suspension of the December 2008 Rule. The Department 
never intended to issue, and in fact is not issuing, a Final Rule 
suspending the December 2008 Rule without having undertaken a 
substantive review and consideration of the comments that were 
submitted during the comment period. Part of this misunderstanding may 
be attributed to the Department's reference in its Notice of Proposed 
Suspension that ``if the suspension continues on April 1, 2009, the 
previous regulations that were in effect on April 1, 2008 would appear 
in the next published version of the CFR as 20 CFR 655.1 and 20 CFR 
part 655.'' The Department merely intended to track the publication 
schedule of the CFR, in which title 20 is updated annually as of April 
1st. However, the Department acknowledges that the statement may have 
been thought to erroneously imply that the suspension would have been 
in effect before April 1, 2009, which was not the Department's 
intention. The Department would like to clarify that because the 
suspension did not take effect before April 1, 2009, this year's 
published version of the CFR as 20 CFR 655.1 and 20 CFR part 655 will 
contain the December 2008 Rule in effect as of April 1, 2009.
    A farmworker advocacy organization expressed support for the 
suspension to take effect immediately upon publication of the Final 
Rule of suspension. However, while the circumstances described in this 
preamble warrant suspending the December 2008 Rule, the Department 
recognizes the need to have some period of adjustment to the Prior 
Rule, in light of the challenges associated with changing regulatory 
programs, as noted by many commenters. Accordingly, the Department has 
determined not to waive the 30-day delayed effective date requirement 
in Section 553(d) of the APA.

D. Impact of Suspension

    The Department received many comments expressing concern about the 
impact of the suspension. The Department first would like to explain 
and clarify how the suspension of the current rule and reinstatement of 
the Prior Rule will take effect before addressing the particular 
concerns raised by commenters. The suspension will become effective 30 
days after the date of publication of this Final Rule. The Department 
stated in its Notice of Proposed Suspension that ``[i]f a final 
decision is reached to suspend the H-2A Final Rule, any H-2A 
application for which pre-filing positive recruitment was initiated in 
accordance with the H-2A Final Rule prior to the date of suspension 
will continue to be governed by the H-2A Final Rule.'' This statement 
must be understood in the context of the Department's subsequent 
extension of the transition procedures.
    On April 16, 2009, after the issuance of the Notice of Proposed 
Suspension, the Department published an Interim Final Rule (IFR) which 
extended the transition period under 20 CFR 655.102(b)(2) to cover all 
applications with a date of need on or before January 1, 2010. See 74 
FR 17597. During the transition period employers do not engage in pre-
filing recruitment in traditional or expected labor supply States in 
which there are a significant number of qualified domestic workers. 
Under the transition procedures, employers are provided information on 
expected labor supply States as part of their post-filing recruitment 
instructions. Given that all applications filed before the effective 
date of the suspension will still be subject to the transition 
provision at 20 CFR 655.102(b)(2), which provides for post-filing 
recruitment, no employers will be required to engage in pre-filing 
positive recruitment before the effective date of the suspension. 
Nevertheless, in keeping with the intent expressed in the Notice of 
Proposed Suspension, any H-2A application which is filed while the 
December 2008 Rule is still in effect will continue to be governed by 
the December 2008 Rule, while applications filed on or after the 
effective date of the suspension and the reinstatement of the Prior 
Rule will be governed by the Prior Rule.
    Despite a recommendation from a farmworker advocacy organization to 
apply the Prior Rule to all pending and approved job orders, the 
Department does not believe there is a legal basis to do so, and 
therefore will not apply the Prior Rule to applications filed under the 
December 2008 Rule. Following the farmworker advocacy organization's 
suggestion would undermine employers' expectations and reliance on the 
current rule prior to its suspension. Moreover, implementing this 
suggestion may violate the prohibition on retroactive rulemaking. See 
Nat'l Mining Ass'n v. Dep't of Labor, 292 F.3d 849, 860 (D.C. Cir. 
2002).

[[Page 25980]]

    The reinstatement of the Prior Rule will be accompanied by the 
reinstatement of Form ETA-750 in the H-2A program. Form ETA-9142 for H-
2A applications\5\ may be filed up to the day before the effective date 
of the suspension. However, as of the effective date of this Final 
Rule, employers will be expected to use Form ETA-750, and any H-2A 
applications filed using the Form ETA-9142 will not be accepted.
---------------------------------------------------------------------------

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

1. Uncertainty of Applicable Regulations; Impact on Planning and 
Operations
    A number of commenters expressed concerns about the confusion and 
disruption that would result from the suspension of the December 2008 
Rule. In particular, a State agricultural agency questioned: (1) 
Whether farmers would be allowed to abandon applications when they 
learn that they are going to be subject to the Prior Rule; (2) whether 
it would be possible for farmers to end up with some workers being 
subject to the December 2008 Rule and some to the Prior Rule; (3) 
whether farmers will find that their applications filed under the 
December 2008 Rule are rejected once the Prior Rule is in place. Such 
concerns were echoed by a number of farmers and agricultural 
associations, particularly as to how the suspension would affect 
applications filed but not yet approved.
    Employers always have had the ability to abandon or withdraw 
pending applications without penalty, regardless of which regulations 
apply. However, as explained above, the Department has clearly 
identified the time frame for determining whether an application falls 
under the December 2008 Rule or the Prior Rule. Applications filed 
before the effective date of this Final Rule will be governed by the 
December 2008 Rule. Applications filed on or after the effective date 
of this Final Rule will be governed by the Prior Rule. Thus, 
applications filed before the effective date of this Final Rule will 
not be governed by the Prior Rule and therefore, could not be rejected, 
nor will the employer be penalized, because the application is not in 
compliance with the Prior Rule.
    The Department understands that one of the results of this 
suspension is that a farmer may have workers subject to two different 
sets of rules, depending on the date on which the applications covering 
the H-2A workers were filed. However, as discussed in greater detail in 
Section II(C)(3) of this preamble, such situations already occur and 
have not detrimentally affected the H-2A enforcement process.
    A number of growers also raised concerns about having invested much 
time and effort in learning the December 2008 Rule, and that their 
reliance on the December 2008 Rule in planning for their 2009 growing 
season will cause them to incur additional administrative, operations, 
and financial burdens if the December 2008 Rule is suspended. In 
particular, one agricultural association stated that their members 
planned for their 2009 crop activities using the December 2008 Rule to 
budget for operating costs, secure financing, plan personnel needs, 
finalize contracts, and schedule product deliveries. They claimed that 
such changes mid-season would not only disrupt their operations, but 
could potentially put them out of business based on differences in 
compliance costs, particularly with respect to wages and 
transportation. One State department of agriculture claimed that the 
suspension would cause disruptions in the harvest due to an 
insufficient labor supply and create shortages of products in the 
marketplace which would raise food prices. Other commenters were 
concerned that the suspension would create a disincentive for employers 
to participate in the H-2A program and result in greater use of illegal 
labor and the outsourcing of food production.
    The Department acknowledges that the suspension of the December 
2008 Rule is a change that will inevitably result in some disruption 
from the status quo created by the December 2008 Rule. However, the 
Department does not believe that the disruption will rise to the 
damaging levels claimed by the commenters. First of all, the Prior Rule 
that will be reinstated through this Final Rule and which was replaced 
by the December 2008 Rule only 3 months ago had been in effect for over 
20 years. Clearly, the agricultural industry did not grind to a halt 
during that period, and most of the current users under the H-2A 
program have a sufficient degree of familiarity and experience with the 
Prior Rule. Even though one agricultural association claimed that there 
was a wide consensus regarding the problems with the Prior Rule and 
that reverting back to it would be more disruptive than staying with 
the December 2008 Rule which has only a few perceived minor problems, 
the rulemaking record of the December 2008 Rule contradicts these 
points. The Department received over 11,000 comments in response to the 
NPRM for the December 2008 Rule, which addressed a diversity of issues 
in the H-2A program and evidenced a lack of consensus regarding the 
purported advantages of the December 2008 Rule. Additionally, as 
discussed earlier, applications which have been filed under the 
December 2008 Rule, and which represent most of the applications that 
will be filed for this growing season, will continue to be governed by 
the December 2008 Rule.
    This Final Rule also suspends the December 2008 revisions to 29 CFR 
part 501, implementing the Department's enforcement of the H-2A 
program, as that regulation is so integrally intertwined into 20 CFR 
part 655, Subpart B that a suspension of the December 2008 rule must 
apply equally to both revised regulations.
2. Elimination of Certain Categories of Activities From the H-2A 
Program
    A number of commenters expressed concern about the impact that the 
proposed suspension would have on certain categories of activities 
which were classified as ``agricultural'' under the December 2008 Rule, 
but which were not part of the H-2A program under the Prior Rule. While 
the Department acknowledges and understands that the suspension may 
affect growers conducting such activities more so than others, the 
Department has determined that for purposes of administrative 
efficiency and advancing consistency in application, the suspension 
will apply to the December 2008 Rule in its entirety. The particular 
concerns of the commenters are addressed in greater detail below.
a. Logging
    The Department received a number of comments from logging 
contractors, employers related to the logging industry (e.g., sawmills, 
land companies), and associations representing the logging industry. 
All of these commenters opposed the proposed suspension arguing that 
the suspension removes the only alternative source of labor for this 
industry for this year. The temporary suspension of the December 2008 
Rule will remove logging from the definition of agricultural labor or 
services, and thus, employers seeking to hire temporary foreign labor 
will have to file applications under the non-agricultural H-2B program. 
The H-2B program is limited to 66,000 visas per year, with 33,000 being 
made available during each 6 month period of a fiscal year. The United 
States Citizenship and Immigration Service (USCIS) announced that the 
cap for the second half of Fiscal Year 2009 was reached on January 7,

[[Page 25981]]

2009.\6\ Therefore, petitions for new H-2B workers seeking employment 
start dates prior to October 1, 2009 would be rejected by USCIS. The 
commenters stated that the suspension would devastate the logging 
industry and harm the related forest products industries. Several of 
these commenters identified June 1, 2009 as the approximate beginning 
date of the upcoming summer harvest season.
---------------------------------------------------------------------------

    \6\ 6 USCIS Press Release, USCIS Reaches H-2B Cap for Second 
Half of Fiscal Year 2009. Available at: http://www.uscis.gov/portal/
site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/
?vgnextoid=b2b547dfb32be110VgnVCM1000004718190aRCRD&vgnextchannel=338
1c0ed71f85110VgnVCM1000004718190aRCRD.
---------------------------------------------------------------------------

    The Department recognizes that the suspension will remove the 
ability of the logging industry to obtain workers via the H-2A program 
for the 9-month period the suspension is in effect. However, as stated 
earlier, any H-2A application which was filed under the December 2008 
Rule prior to the effective date of the suspension will continue to be 
governed by the December 2008 Rule. The Department's experience in 
administering the labor certification processes for the temporary 
worker programs is that the most of the applications for job 
opportunities in the logging industry are received and processed during 
late winter or early spring. Therefore, the Department believes that 
the majority of applications for temporary employment in the logging 
industry will be processed prior to the effective date of this Final 
Rule and will be subject to the December 2008 Rule, as they will have 
been filed before its suspension takes effect. Even taking the 
industry's date of June 1, 2009 as the start of the logging season and 
thus as the beginning date of need, all applications for loggers (of 
which there are only annual applications for approximately 600 workers) 
are expected to be filed and processed prior to the effective date of 
this Final Rule.
b. Incidental Activity and Packing
    Two U.S. Senators expressed concern that reinstating the Prior Rule 
would eliminate the expanded definition of agriculture under the 
December 2008 Rule which included: (1) Work typically performed on a 
farm and incidental to the agricultural labor or services for which the 
H-2A worker is sought, but not specifically listed on the Application 
for Temporary Employment Certification; and (2) packing shed operations 
that were not part of a farming operation, where fresh fruits and 
vegetables are packaged for sale after harvest.
    Even though the definition of ``agricultural or labor services'' 
under the Prior Rule differs from that provided in the December 2008 
Rule, the definition of ``agricultural or labor services'' under the 
Prior Rule still encompasses incidental work and packing shed 
operations. The Prior Rule, like the December 2008 Rule, incorporates 
the definitions of ``agricultural labor'' from Section 3121(g) of the 
Internal Revenue Code and ``agriculture'' from Section 3(f) of the Fair 
Labor Standards Act (FLSA) in the definition of ``agricultural or labor 
services.''
    The definition of ``agriculture'' from Section 3(f) of the FLSA 
includes incidental work:

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

(emphasis added).

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

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

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

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

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

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

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

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

    Although packing shed operations which were not part of the farming 
operation would no longer be included in the definition of agriculture 
once the Prior Rule is reinstated, the Department does not believe that 
the removal of such activities would unduly harm growers; in fact, the 
Department received no comments from any growers objecting to the 
suspension on that ground. Accordingly, while the Department recognizes 
the concerns raised by the commenters about the changes in definition 
of agricultural labor or services of a temporary or seasonal nature, 
the Department does not believe that such changes are so critical that 
they outweigh the benefits of suspending the December 2008 Rule.
3. Enforcement; Wage Discrimination
    Many commenters expressed concern that suspending the December 2008 
Rule and replacing it with the Prior Rule would subject workers 
performing the same work to different certifications, different 
regulatory requirements and different wages.
    Such disparities already exist. Under the December 2008 Rule, for 
example, U.S. workers hired during the period of time set forth in the 
labor certification are entitled to H-2A wages as they are engaged in 
corresponding employment, while U.S. workers who were already in the 
employer's employ are not. Similarly, a grower may pay its own U.S. 
workers one wage and hire a labor contractor employing H-2A workers 
paid at a different wage, though both

[[Page 25982]]

sets of workers will be employed in the same fields performing the same 
work. Suspending the December 2008 Rule will allow for the 
reconsideration of the questions arising from these disparities.
4. Flaws in the Text of the Prior Regulation
    An agricultural association noted that the reinstatement of the 
Prior Rule verbatim would include the reinstatement of certain errors 
in the regulation, such as a pre-McConnell Amendment reference to the 
granting of certifications no later than 20 days before the date of 
need. The Department acknowledges that the Prior Rule contains that 
error, but this error, along with other outdated references in the 
regulatory text, did not and will not prevent the Department from 
complying with its statutory requirements under the Immigration and 
Nationality Act and other laws.

E. Suspension of 29 CFR Part 501

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

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

    As part of the H-2A rulemaking, the Fair Labor Standards Act (FLSA) 
regulations, 29 CFR 780.115, 780.201, 780.205, and 780.208, were 
amended to include the production of Christmas trees within the scope 
of ``agriculture'' under the FLSA and to remove specific reference to 
Christmas trees as part of forestry activities in 29 CFR 788.10. This 
classification of Christmas tree production impacts workers' 
entitlement to minimum wages and overtime pay, as well as the 
application of child labor protections under the FLSA.
    As explained in the preamble to the December 2008 Rule, this 
provision was based on the decision in U.S. Department of Labor v. 
North Carolina Growers Association, 377 F.3d 345 (4th Cir. 2004), which 
held that production of Christmas trees was within the scope of the 
FLSA definition of agriculture at 29 U.S.C. 203(f), thus allowing 
application of exemptions pertaining to agriculture. 29 U.S.C. 
213(a)(6)(A) and 29 U.S.C. 213(b)(12). That decision was contrary to 
regulations dating from the 1950s which included Christmas trees among 
``other forestry products'' that were not included within the scope of 
FLSA agriculture. See 16 FR 481-482, Jan 28, 1950; 21 FR 2933, May 3, 
1956.
    Comments from growers and representatives of this industry opposed 
suspension of these FLSA revisions, pointing out that the treatment of 
Christmas tree production under the FLSA is unrelated to the changes 
made to the H-2A program, and that the Christmas tree regulation is not 
impacted by the programmatic concerns affecting the H-2A regulations.
    The Department acknowledges that this change in FLSA regulations is 
unrelated to the H-2A program and was not necessary to accomplish the 
revisions to the H-2A program. Nevertheless, the Department believes 
that suspending these FLSA regulatory changes will provide an 
opportunity for additional review with an explicit focus on the 
ramifications of the rule on the implementation of the FLSA. For 
example, neither the NPRM nor the preamble to the December 2008 Rule 
mentioned the impact of the regulatory change on child labor 
protections in this industry. Accordingly, no comments were received, 
and no information was obtained, concerning the impact of this change 
on child labor protections. DOL is especially sensitive to potential 
adverse impacts that the December 2008 Rule's FLSA regulatory changes 
might have on our Nation's most vulnerable workers, including low-wage 
workers and youth.
    Given the longstanding nature of the Department's prior position on 
this issue, and the removal of FLSA wage and child labor protections 
that the December 2008 Rule triggered, it is the Department's view that 
a suspension of the December 2008 Rule in its entirety is appropriate 
to provide an opportunity for a more complete review of this important 
regulatory issue.

III. Administrative Information

A. Executive Order 12866--Regulatory Planning and Review

    Under Executive Order (E.O.) 12866, the Department must determine 
whether a regulatory action is ``significant'' and therefore subject to 
the requirements of the E.O. and subject to review by the Office of 
Management and Budget (OMB). Section 3(f) of the E.O. defines a 
``significant regulatory action'' as an action that is likely to result 
in a rule (1) having an annual effect on the economy of $100 million or 
more, or adversely and materially affecting a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local or tribal governments or communities (also 
referred to as ``economically significant''); (2) creating serious 
inconsistency or otherwise interfering with an action taken or planned 
by another agency; (3) materially altering the budgetary impacts of 
entitlement grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raising novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the E.O.
    The Department has determined that this Final Rule is not an 
``economically significant regulatory action'' under Section 3(f)(1) of 
E.O.12866. The procedures for filing an Application for Temporary 
Employment Certification under the H-2A visa category on behalf of 
nonimmigrant temporary agricultural workers, under this regulation, 
will not have an economic impact of $100 million or more. The 
regulation will not adversely affect the economy or any sector thereof, 
productivity, competition, jobs, the environment, or public health or 
safety in a material way. In fact, this Final Rule is intended to 
provide to growers clear and consistent guidance on the requirements 
for participation in the H-2A temporary worker program, and to 
eliminate the potential for disruption, confusion, and processing 
delays resulting from the Department's and SWAs' lack of resources for 
efficient implementation of the December 2008 Rule. The Department, 
however, has determined that this Final Rule is a ``significant 
regulatory action'' under Section 3(f)(4) of the E.O. and accordingly 
OMB has reviewed this Final Rule.
Summary of Impacts
    The changes in this Final Rule are expected to have little net 
direct cost impact on employers, above and beyond the baseline of the 
current costs required by the program as it is currently implemented. 
While the effect of the December 2008 Rule was to require employers to 
engage in recruitment of U.S. workers in advance of filing their 
applications for foreign labor certification, the Department included a 
transition period to enable it to implement the new rule and to enable 
employers to become accustomed to the filing procedures and new 
recruitment regime under the new regulations. During the transition 
period, employers initiate recruitment after filing the temporary labor 
certification application. The transition period contained in the 
December 2008 Rule applied to employers with a date of

[[Page 25983]]

need before July 1, 2009. On April 16, 2009, the Department published 
an Interim Final Rule extending the transition period to include all 
employers with a date of need on or before January 1, 2010. See 74 FR 
17597. Therefore, employers will experience no change from the current 
application filing and recruitment procedures.
    During the 9-month suspension period, employer costs for newspaper 
advertising will decrease slightly, as this Final Rule suspends the 
requirement that one of the two required advertisements be run on a 
Sunday. This Final Rule temporarily reinstates the requirement on 
employers to engage in post-filing recruitment efforts as determined by 
the OFLC Administrator. It is the Department's view that the 
protections and opportunities for employment for U.S. workers provided 
by this requirement more than outweigh the marginal uncertainty in 
recruitment costs for employers.
    During the 9-month suspension period, civil money penalties are 
returned to the level established in 1987 (maximum of $1,000 per 
violation). The Department recognizes the deterrent effect of civil 
money penalties on fostering greater program compliance under the Final 
Rule, and will use, as appropriate, all of the tools available to 
ensure compliance with H-2A program requirements.
    In the December 2008 Rule, the Department estimated the biggest 
cost to employers of that rule to be the increased cost of foreign 
recruitment, since employers can no longer allow foreign recruiters 
with whom they were in privity of contract to charge foreign workers 
fees for recruitment. Despite the temporary suspension, the Department 
does not anticipate any increase in employer costs because regulations 
issued by the Department of Homeland Security, USCIS on December 18, 
2008 prohibit the payment of certain job-placement related fees by 
prospective H-2A workers. See 73 FR 76891 (codified at 8 CFR 
214.2(h)(5)(xi)). Employers are encouraged to review their obligations 
under the USCIS rule with respect to payments made by foreign workers 
to foreign recruiters.
    The Department also estimated that employers' recordkeeping costs 
under the December 2008 Rule would increase minimally; with the return 
to the previous H-2A Final Rule, the costs associated with 
recordkeeping requirements will minimally decrease.
    The Department identified no other specific cost changes as a 
result of the December 2008 Rule and therefore, can identify no other 
specific cost changes that would result from the temporary suspension 
of that rule.
    Based on historical program use, the Department estimates that 
approximately 83% of applications will have been processed by the 
effective date of this Final Rule, therefore few applications will be 
subject to the previous H-2A program rules during the 9-month 
suspension. The Department recognizes that for the employers submitting 
applications under the reinstated regulations, particularly employers 
who have already received certifications based on the December 2008 
Rule, there will be some confusion and perhaps a change in labor costs 
for applications filed after the effective date of the suspension due 
to the different adverse effect wage rate (AEWR) methodology. However, 
in analyzing those potential costs it is unclear that such costs will 
be significant based on the number of users who will have already 
initiated the application process prior to the suspension.

B. Regulatory Flexibility Analysis

    When an agency issues a rulemaking proposal, the Regulatory 
Flexibility Act (RFA) requires that a regulatory flexibility analysis 
be prepared and made available for public comment. The RFA must 
describe the impact of the rule on small entities. See 5 U.S.C. 603(a). 
Section 605 of the RFA allows an agency to certify a rule, in lieu of 
preparing an analysis, if the rulemaking is not expected to have 
significant economic impact on a substantial number of small entities. 
The Secretary has notified the Chief Counsel for Advocacy, Small 
Business Administration (SBA), and certifies under the RFA at 5 U.S.C. 
605(b), that this rule will not have a significant economic impact on a 
substantial number of small entities. The rule does not substantively 
change existing obligations for employers who choose to participate in 
the H-2A temporary agricultural worker program.
    As a factual basis for such a certification, although this rule can 
and does affect small entities, there are not a substantial number of 
small entities that will be affected, nor is there a significant 
economic impact upon those small entities that are affected. Of the 
total 2,089,790 farms in the United States, 98 percent have sales of 
less than $750,000 per year and fall within SBA's definition of small 
entities. In FY 2007, however, only 7,725 employers filed requests for 
only 80,294 workers. That represents fewer than 1 percent of all farms 
in the United States. Even if all of the 7,725 employers who filed 
applications under H-2A in FY2007 were small entities, that is still a 
relatively small number of employers affected. However, the universe of 
filers expected to file applications under this Final Rule is far fewer 
than the 7,725 employers who filed in FY2007. The Department estimates 
approximately 1,313 employers to file during the 9-month period this 
Final Rule is in place, not all of which would be small entities.
    Even more important than the number of small entities affected, the 
Department believes, for the reasons stated above, that the costs 
incurred by employers under this Final Rule will not be substantially 
different from those incurred under the current application filing 
process. Employers seeking to hire foreign workers on a temporary basis 
under the H-2A program must continue to establish to the Secretary of 
Labor's satisfaction that their recruitment attempts have not yielded 
enough qualified and available U.S. workers and that their hiring of 
foreign workers will not adversely affect the wages and working 
conditions of similarly employed U.S. workers. Similar to the current 
process, employers under this process will file a standardized 
application for temporary labor certification and will retain 
recruitment documentation, a recruitment report, and any supporting 
evidence or documentation justifying the temporary need for the 
services or labor to be performed. Therefore, the Department believes 
that this Final Rule is expected to have little net direct cost impact 
on employers, above and beyond the baseline of the current costs 
required by the program as it is currently implemented.

C. Unfunded Mandates Reform Act of 1995

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

[[Page 25984]]

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

D. Executive Order 13132--Federalism

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

E. Executive Order 13175--Indian Tribal Governments

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

F. Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact 
of Federal regulations and policies on families. The assessment must 
address whether the regulation strengthens or erodes the stability, 
integrity, autonomy, or safety of the family.
    The final rule does not have an impact on the autonomy or integrity 
of the family as an institution, as it is described under this 
provision. The Department has determined that although there may be 
some costs associated with the final rule, they are not of a magnitude 
to adversely affect family well-being.

G. Executive Order 12630--Protected Property Rights

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

H. Executive Order 12988--Civil Justice Reform

    Section 3 of E.O. 12988, Civil Justice Reform, requires Federal 
agencies to draft regulations in a manner that will reduce needless 
litigation and will not unduly burden the Federal court system. 
Therefore, agencies are required to review regulations for drafting 
errors and ambiguity; to minimize litigation; ensure that it provides a 
clear legal standard for affected conduct rather than a general 
standard; and promote simplification and burden reduction.
    The rule has been drafted in language that states as clearly as 
possible the bases for the decision to suspend the December 2008 Rule 
and reinstate the Prior Rule. Therefore, the Department has determined 
that the regulation meets the applicable standards set forth in Section 
3 of E.O. 12988. The Department received no comments about this 
section.

I. Plain Language

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

J. Executive Order 13211--Energy Supply

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

K. Paperwork Reduction Act

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

List of Subjects

20 CFR Part 655

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

29 CFR Part 501

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

29 CFR Part 780

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

29 CFR Part 788

    Employment, Forests and forest products, Labor, Overtime pay, 
Wages.


0
Accordingly, the Department of Labor amends 20 CFR part 655 and 29 CFR 
parts 501, 780, and 788 as follows:

[[Page 25985]]

Title 20--Employees' Benefits

PART 655--TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES

0
1. The authority citation for part 655 is revised to read as follows:

    Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i) 
and (ii), 1182(m), (n), and (t), 1184, 1188, and 1288(c) and (d); 29 
U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 
2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 
4978, 5027 (8 U.S.C. 1184 note); sec. 323, Pub. L. 103-206, 107 
Stat. 2149; Title IV, Pub. L. 105-277, 112 Stat. 2681; Pub. L. 106-
95, 113 Stat. 1312 (8 U.S.C. 1182 note); and 8 CFR 213.2(h)(4)(i).
    Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184, 
and 1188; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
    Subparts A and C issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b) and 
1184; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
    Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and 
1188; and 29 U.S.C. 49 et seq.
    Subparts D and E issued under 8 U.S.C. 1101(a)(15)(H)(i)(a), 
1182(m), and 1184; 29 U.S.C. 49 et seq.; and sec. 3(c)(1), Pub. L. 
101-238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note).
    Subparts F and G issued under 8 U.S.C. 1184 and 1288(c); and 29 
U.S.C. 49 et seq.
    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and 
(b1), 1182(n), 1182(t), and 1184; 29 U.S.C. 49 et seq.; sec 
303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1182 
note); and Title IV, Pub. L. 105-277, 112 Stat. 2681.
    Subparts J and K issued under 29 U.S.C. 49 et seq.; and sec. 
221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note).
    Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c), 
1182(m), and 1184; and 29 U.S.C. 49 et seq.

0
2. Revise the heading to part 655 to read as set forth above.


Sec.  655.5  [Redesignated as Sec.  655.81 and Suspended]

0
3a. Redesignate Sec.  655.5 as Sec.  655.81 and suspend it.


Sec.  655.1  [Redesignated as Sec.  655.5 and Suspended]

0
3b. Redesignate Sec.  655.1 as Sec.  655.5 and suspend it.

0
4. Add Sec.  655.1 to read as follows:


Sec.  655.1  Scope and purpose of subpart A.

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

Subpart B [Redesignated as Subpart N and Suspended]

0
5. Redesignate subpart B, consisting of Sec. Sec.  655.90, 655.92, 
655.93, and 655.100 through 655.119, as subpart N, consisting of 
Sec. Sec.  655.1290, 655.1292, 655.1293, and 655.1300 through 655.1319, 
and suspend newly designated subpart N.

0
6. Add subpart B to read as follows:
Subpart B--Labor Certification Process for Temporary Agricultural 
Employment in the United States (H-2A Workers)
Sec.
655.90 Scope and purpose of subpart B.
655.92 Authority of the Office of Foreign Labor Certification (OFLC) 
Administrator.
655.93 Special circumstances.
655.100 Overview of this subpart and definition of terms.
655.101 Temporary alien agricultural labor certification 
applications.
655.102 Contents of job offers.
655.103 Assurances.
655.104 Determinations based on acceptability of H-2A applications.
655.105 Recruitment period.
655.106 Referral of U.S. workers; determinations based on U.S. 
worker availability and adverse effect; activities after receipt of 
the temporary alien agricultural labor certification.
655.107 Adverse effect wage rates (AEWRs).
655.108 H-2A applications involving fraud or willful 
misrepresentation.
655.110 Employer penalties for noncompliance with terms and 
conditions of temporary alien agricultural labor certifications.
655.111 Petition for higher meal charges.
655.112 Administrative review and de novo hearing before an 
administrative law judge.
655.113 Job Service Complaint System; enforcement of work contracts.

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


Sec.  655.90  Scope and purpose of subpart B.

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

    (A) There are not sufficient workers who are able, willing, and 
qualified, and who will be available at the time and place needed, 
to perform the labor or services involved in the petition, and
    (B) The employment of the alien in such labor or services will 
not adversely affect the wages and working conditions of workers in 
the United States similarly employed.

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

    (1) There is a strike or lockout in the course of a labor 
dispute which, under the regulations, precludes such certification.
    (2)(A) The employer during the previous two-year period employed 
H-2A workers and the Secretary has determined, after notice and 
opportunity for a hearing, that the employer at any time during that 
period substantially violated a material term or condition of the 
labor certification with respect to the employment of domestic or 
non-immigrant workers.
    (B) No employer may be denied certification under subparagraph 
(A) for more than three years for any violation described in such 
subparagraph.
    (3) The employer has not provided the Secretary with 
satisfactory assurances that if the employment for which the 
certification is sought is not covered by State workers' 
compensation law, the employer will provide, at no cost to the 
worker, insurance covering injury and disease arising out of and in 
the course of the worker's employment which will provide benefits at 
least equal to those provided under the State workers' compensation 
law for comparable employment.
    (4) The Secretary determines that the employer has not made 
positive recruitment efforts within a multistate region of 
traditional or expected labor supply where the Secretary finds that 
there are a significant number of qualified United States workers 
who, if recruited, would be willing to make themselves available for 
work at the time and place needed. Positive recruitment under this 
paragraph is in addition to, and shall be conducted within the same 
time period as, the circulation through the interstate

[[Page 25986]]

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

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

    (i) The employer has complied with the criteria for 
certification (including criteria for the recruitment of eligible 
individuals as prescribed by the Secretary), and
    (ii) The employer does not actually have, or has not been 
provided with referrals of, qualified individuals who have indicated 
their availability to perform such labor or services on the terms 
and conditions of a job offer which meets the requirements of the 
Secretary.

    (c) The Secretary's determinations. Before any factual 
determination can be made concerning the availability of U.S. workers 
to perform particular job opportunities, two steps must be taken. 
First, the minimum level of wages, terms, benefits, and conditions for 
the particular job opportunities below which similarly employed U.S. 
workers would be adversely affected must be established. (The 
regulations in this subpart establish such minimum levels for wages, 
terms, benefits, and conditions of employment.) Second, the wages, 
terms, benefits, and conditions offered and afforded to the aliens must 
be compared to the established minimum levels. If it is concluded that 
adverse effect would result, the ultimate determination of availability 
within the meaning of the INA cannot be made since U.S. workers cannot 
be expected to accept employment under conditions below the established 
minimum levels. Florida Sugar Cane League, Inc. v. Usery, 531 F. 2d 299 
(5th Cir. 1976). Once a determination of no adverse effect has been 
made, the availability of U.S. workers can be tested only if U.S. 
workers are actively recruited through the offer of wages, terms, 
benefits, and conditions at least at the minimum level or the level 
offered to the aliens, whichever is higher. The regulations in this 
subpart set forth requirements for recruiting U.S. workers in 
accordance with this principle.
    (d) Construction. This subpart shall be construed to effectuate the 
purpose of the INA that U.S. workers rather than aliens be employed 
wherever possible. Elton Orchards, Inc. v. Brennan, 508 F. 2d 493, 500 
(1st Cir. 1974); Flecha v. Quiros, 567 F. 2d 1154, 1156 (1st Cir. 
1977). Where temporary alien workers are admitted, the terms and 
conditions of their employment must not result in a lowering of the 
wages, terms, and conditions of domestic workers similarly employed. 
Williams v. Usery, 531 F. 2d 305, 306 (5th Cir. 1976), cert. denied, 
429 U.S. 1000, and the job benefits extended to any U.S. workers shall 
be at least those extended to the alien workers.


Sec.  655.92  Authority of the Office of Foreign Labor Certification 
(OFLC) Administrator.

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


Sec.  655.93  Special circumstances.

    (a) Systematic process. The regulations under this subpart are 
designed to provide a systematic process for handling applications from 
the kinds of employers who have historically utilized nonimmigrant 
alien workers in agriculture, usually in relation to the production or 
harvesting of a particular agricultural crop for market, and which 
normally share such characteristics as:
    (1) A fixed-site farm, ranch, or similar establishment;
    (2) A need for workers to come to their establishment from other 
areas to perform services or labor in and around their establishment;
    (3) Labor needs which will normally be controlled by environmental 
conditions, particularly weather and sunshine; and
    (4) A reasonably regular workday or workweek.
    (b) Establishment of special procedures. In order to provide for a 
limited degree of flexibility in carrying out the Secretary's 
responsibilities under the INA, while not deviating from the statutory 
requirements to determine U.S. worker availability and make a 
determination as to adverse effect, the OFLC Administrator has the 
authority to establish special procedures for processing H-2A 
applications when employers can demonstrate upon written application to 
and consultation with the OFLC Administrator that special procedures 
are necessary. In a like manner, for work in occupations characterized 
by other than a reasonably regular workday or workweek, such as the 
range production of sheep or other livestock, the OFLC Administrator 
has the authority to establish monthly, weekly, or bi-weekly adverse 
effect wage rates for those occupations, for a Statewide or other 
geographical area, other than the rates established pursuant to Sec.  
655.107 of this part, provided that the OFLC Administrator uses a 
methodology to establish such adverse effect wage rates which is 
consistent with the methodology in Sec.  655.107(a). Prior to making 
determinations under this paragraph (b), the OFLC Administrator may 
consult with employer representatives and worker representatives.
    (c) Construction. This subpart shall be construed to permit the 
OFLC Administrator to continue and, where the OFLC Administrator deems 
appropriate, to revise the special procedures previously in effect for 
the handling of applications for sheepherders in the Western States 
(and to adapt such procedures to occupations in the range production of 
other livestock) and for custom combine crews.


Sec.  655.100  Overview of this subpart and definition of terms.

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

[[Page 25987]]

(a)(1). Sufficient time should be allowed for delays that might arise 
due to the need for amendments in order to make the application 
acceptable for consideration.
    (2) Amendment of applications. This subpart provides for the 
amendment of applications, at any time prior to the OFLC 
Administrator's certification determination, to increase the number of 
workers requested in the initial application; without requiring, under 
certain circumstances, an additional recruitment period for U.S. 
workers.
    (3) Untimely applications. If an H-2A application does not satisfy 
the specified time requirements, this subpart provides for the OFLC 
Administrator's advice to the employer in writing that the 
certification cannot be granted because there is not sufficient time to 
test the availability of U.S. workers; and provides for the employer's 
right to an administrative review or a de novo hearing before an 
administrative law judge. Emergency situations are provided for, 
wherein the OFLC Administrator may waive the specified time periods.
    (4) Recruitment of U.S. workers; determinations--(i) Recruitment. 
This subpart provides that, where the application is accepted for 
consideration and meets the regulatory standards, the State agency and 
the employer begin to recruit U.S. workers. If the employer has 
complied with the criteria for certification, including recruitment of 
U.S. workers, by 20 calendar days before the date of need specified in 
the application (except as provided in certain cases), the OFLC 
Administrator makes a determination to grant or deny, in whole or in 
part, the application for certification.
    (ii) Granted applications. This subpart provides that the 
application for temporary alien agricultural labor certification is 
granted if the OFLC Administrator finds that the employer has not 
offered foreign workers higher wages or better working conditions (or 
has imposed less restrictions on foreign workers) than those offered 
and afforded to U.S. workers; that sufficient U.S. workers who are 
able, willing, and qualified will not be available at the time and 
place needed to perform the work for which H-2A workers are being 
requested; and that the employment of such aliens will not adversely 
affect the wages and working conditions of similarly employed U.S. 
workers.
    (iii) Fees--(A) Amount. This subpart provides that each employer 
(except joint employer associations) of H-2A workers shall pay to the 
OFLC Administrator fees for each temporary alien agricultural labor 
certification received. The fee for each employer receiving a temporary 
alien agricultural labor certification is $100 plus $10 for each job 
opportunity for H-2A workers certified, provided that the fee to an 
employer for each temporary alien agricultural labor certification 
received shall be no greater than $1,000. In the case of a joint 
employer association receiving a temporary alien agricultural labor 
certification, each employer-member receiving a temporary alien 
agricultural labor certification shall pay a fee of $100 plus $10 for 
each job opportunity for H-2A workers certified, provided that the fee 
to an employer for each temporary alien agricultural labor 
certification received shall be no greater than $1,000. The joint 
employer association will not be charged a separate fee.
    (B) Timeliness of payment. The fee must be received by the OFLC 
Administrator no later than 30 calendar days after the granting of each 
temporary alien agricultural labor certification. Fees received any 
later are untimely. Failure to pay fees in a timely manner is a 
substantial violation which may result in the denial of future 
temporary alien agricultural labor certifications.
    (iv) Denied applications. This subpart provides that if the 
application for temporary alien agricultural labor certification is 
denied, in whole or in part, the employer may seek review of the 
denial, or a de novo hearing, by an administrative law judge as 
provided in this subpart.
    (b) Definitions of terms used in this subpart. For the purposes of 
this subpart:
    Accept for consideration means, with respect to an application for 
temporary alien agricultural labor certification, the action by the 
OFLC Administrator to notify the employer that a filed temporary alien 
agricultural labor certification application meets the adverse effect 
criteria necessary for processing. An application accepted for 
consideration ultimately will be approved or denied in a temporary 
alien agricultural labor certification determination.
    Administrative law judge means a person within the Department of 
Labor Office of Administrative Law Judges appointed pursuant to 5 
U.S.C. 3105; or a panel of such persons designated by the Chief 
Administrative Law Judge from the Board of Alien Labor Certification 
Appeals established by part 656 of this chapter, but which shall hear 
and decide appeals as set forth in Sec.  655.112 of this part. ``Chief 
Administrative Law Judge'' means the chief official of the Department 
of Labor Office of Administrative Law Judges or the Chief 
Administrative Law Judge's designee.
    Administrator, Office of Foreign Labor Certification (OFLC) means 
the primary official of the Office of Foreign Labor Certification (OFLC 
Administrator), or the OFLC Administrator's designee.
    Adverse effect wage rate (AEWR) means the wage rate which the OFLC 
Administrator has determined must be offered and paid, as a minimum, to 
every H-2A worker and every U.S. worker for a particular occupation 
and/or area in which an employer employs or seeks to employ an H-2A 
worker so that the wages of similarly employed U.S. workers will not be 
adversely affected.
    Agent means a legal entity or person, such as an association of 
agricultural employers, or an attorney for an association, which (1) is 
authorized to act on behalf of the employer for temporary alien 
agricultural labor certification purposes, and (2) is not itself an 
employer, or a joint employer, as defined in this paragraph (b).
    Department of Homeland Security (DHS) through the United States 
Citizenship and Immigration Services (USCIS) makes the determination 
under the INA on whether or not to grant visa petitions to employers 
seeking H-2A workers to perform temporary agricultural work in the 
United States.
    DOL means the United States Department of Labor.
    Eligible worker means a U.S. worker, as defined in this section.
    Employer means a person, firm, corporation or other association or 
organization which suffers or permits a person to work and (1) which 
has a location within the United States to which U.S. workers may be 
referred for employment, and which proposes to employ workers at a 
place within the United States and (2) which has an employer 
relationship with respect to employees under this subpart as indicated 
by the fact that it may hire, pay, fire, supervise or otherwise control 
the work of any such employee. An association of employers shall be 
considered the sole employer if it has the indicia of an employer set 
forth in this definition. Such an association, however, shall be 
considered as a joint employer with an employer member if it shares 
with the employer member one or more of the definitional indicia.
    Employment Service (ES), in this subpart, refers to the system of 
Federal and State entities responsible for administration of the labor 
certification process for temporary and seasonal agricultural 
employment of nonimmigrant foreign workers. This

[[Page 25988]]

includes the State Workforce Agencies (SWAs), the National Processing 
Centers (NPCs) and the Office of Foreign Labor Certification (OFLC).
    Employment Standards Administration means the agency within the 
Department of Labor (DOL), which includes the Wage and Hour Division, 
and which is charged with the carrying out of certain functions of the 
Secretary under the INA.
    Employment and Training Administration (ETA) means the agency 
within the Department of Labor (DOL) which includes the Office of 
Foreign Labor (OFLC).
    Federal holiday means a legal public holiday as defined at 5 U.S.C. 
6103.
    H-2A worker means any nonimmigrant alien admitted to the United 
States for agricultural labor or services of a temporary or seasonal 
nature under section 101(a)(15)(H)(ii)(a) of the INA (8 U.S.C. 
1101(a)(15)(H) (ii)(a)).
    INA means the Immigration and Nationality Act, as amended (8 U.S.C. 
1101 et seq.).
    Job offer means the offer made by an employer or potential employer 
of H-2A workers to both U.S. and H-2A workers describing all the 
material terms and conditions of employment, including those relating 
to wages, working conditions, and other benefits.
    Job opportunity means a job opening for temporary, full-time 
employment at a place in the United States to which U.S. workers can be 
referred.
    Office of Foreign Labor Certification (OFLC) means the 
organizational component within the ETA that provides national 
leadership and policy guidance and develops regulations and procedures 
to carry out the responsibilities of the Secretary of Labor under the 
INA concerning alien workers seeking admission to the United States in 
order to work under the Immigration and Nationality Act, as amended.
    Positive recruitment means the active participation of an employer 
or its authorized hiring agent in locating and interviewing applicants 
in other potential labor supply areas and in the area where the 
employer's establishment is located in an effort to fill specific job 
openings with U.S. workers.
    Prevailing means, with respect to certain benefits other than wages 
provided by employers and certain practices engaged in by employers, 
that:
    (i) Fifty percent or more of employers in an area and for an 
occupation engage in the practice or offer the benefit; and
    (ii) This 50 percent or more of employers also employs 50 percent 
or more of U.S. workers in the occupation and area (including H-2A and 
non-H-2A employers for purposes of determinations concerning the 
provision of family housing, frequency of wage payments, and workers 
supplying their own bedding, but non-H-2A employers only for 
determinations concerning the provision of advance transportation and 
the utilization of farm labor contractors).
    Secretary means the Secretary of Labor or the Secretary's designee.
    Solicitor of Labor means the Solicitor, United States Department of 
Labor, and includes employees of the Office of the Solicitor of Labor 
designated by the Solicitor to perform functions of the Solicitor under 
this subpart.
    State Workforce Agency (SWA) means the State employment service 
agency designated under Sec.  4 of the Wagner-Peyser Act to cooperate 
with OFLC in the operation of the ES System.
    Temporary alien agricultural labor certification means the 
certification made by the Secretary of Labor with respect to an 
employer seeking to file with DHS a visa petition to import an alien as 
an H-2A worker, pursuant to sections 101(a)(15)(H)(ii)(a), 214(a) and 
(c), and 216 of the INA that (1) there are not sufficient workers who 
are able, willing, and qualified, and who will be available at the time 
and place needed, to perform the agricultural labor or services 
involved in the petition, and (2) the employment of the alien in such 
agricultural labor or services will not adversely affect the wages and 
working conditions of workers in the United States similarly employed 
(8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184 (a) and (c), and 1186).
    Temporary alien agricultural labor certification determination 
means the written determination made by the OFLC Administrator to 
approve or deny, in whole or in part, an application for temporary 
alien agricultural labor certification.
    United States (U.S.) worker means any worker who, whether a U.S. 
national, a U.S. citizen, or an alien, is legally permitted to work in 
the job opportunity within the United States (as defined at Sec.  
101(a)(38) of the INA (8 U.S.C. 1101(a)(38)).
    Wages means all forms of cash remuneration to a worker by an 
employer in payment for personal services.
    (c) Definition of agricultural labor or services of a temporary or 
seasonal nature. For the purposes of this subpart, ``agricultural labor 
or services of a temporary or seasonal nature'' means the following:
    (1) ``Agricultural labor or services''. Pursuant to section 
101(a)(15)(H)(ii)(a) of the INA (8 U.S.C. 1101(a)(15)(H) (ii)(a)), 
``agricultural labor or services'' is defined for the purposes of this 
subpart as either ``agricultural labor'' as defined and applied in 
section 3121(g) of the Internal Revenue Code of 1954 (26 U.S.C. 
3121(g)) or ``agriculture'' as defined and applied in section 3(f) of 
the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)). An occupation 
included in either statutory definition shall be ``agricultural labor 
or services'', notwithstanding the exclusion of that occupation from 
the other statutory definition. For informational purposes, the 
statutory provisions are quoted below:
    (i) ``Agricultural labor''. Section 3121(g) of the Internal Revenue 
Code of 1954 (26 U.S.C. 3121(g)), quoted as follows, defines the term 
``agricultural labor'' to include all service performed:

    (1) On a farm, in the employ of any person, in connection with 
cultivating the soil, or in connection with raising or harvesting 
any agricultural or horticultural commodity, including the raising, 
shearing, feeding, caring for, training, and management of 
livestock, bees, poultry, and furbearing animals and wildlife;
    (2) Services performed in the employ of the owner or tenant or 
other operator of a farm, in connection with the operation, or 
maintenance of such farm and its tools and equipment, or in 
salvaging timber or clearing land of brush and other debris left by 
a hurricane, if the major part of such service is performed on a 
farm;
    (3) In connection with the production or harvesting of any 
commodity defined as an agricultural commodity in section 15(g) of 
the Agricultural Marketing Act, as amended (12 U.S.C. 1141j), or in 
connection with the ginning of cotton, or in connection with the 
operation or maintenance of ditches, canals, reservoirs, or 
waterways, not owned or operated for profit, used exclusively for 
supplying and storing water for farming purposes;
    (4)(A) In the employ of the operator of a farm in handling, 
planting, drying, packing, packaging, processing, freezing, grading, 
storing, or delivering to storage or to market or to a carrier for 
transportation to market, in its unmanufactured state, any 
agricultural or horticultural commodity; but only if such operator 
produced more than one-half of the commodity with respect to which 
such service is performed;
    (B) In the employ of a group of operators of farms (other than a 
cooperative organization) in the performance of service described in 
subparagraph (A), but only if such operators produced all of the 
commodity with respect to which such service is performed. For 
purposes of this subparagraph, any unincorporated group of operators 
shall be deemed a cooperative organization if the number of 
operators comprising such group is more than 20 at any time during 
the calendar quarter in which such service is performed;
    (C) The provisions of subparagraphs (A) and (B) shall not be 
deemed to be applicable

[[Page 25989]]

with respect to service performed in connection with commercial 
canning or commercial freezing or in connection with any 
agricultural or horticultural commodity after its delivery to a 
terminal market for distribution for consumption; or
    (5) On a farm operated for profit if such service is not in the 
course of the employer's trade or business or is domestic service in 
a private home of the employer.

As used in this subsection, the term ``farm'' includes stock, dairy, 
poultry, fruit, fur-bearing animal, and truck farms, plantations, 
ranches, nurseries, ranges, greenhouses or other similar structures 
used primarily for the raising of agricultural or horticultural 
commodities, and orchards.

    (ii) ``Agriculture''. Section 203(f) of title 29, United States 
Code, (section 3(f) of the Fair Labor Standards Act of 1938, as 
codified), quoted as follows, defines ``agriculture'' to include:

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

    (iii) ``Agricultural commodity''. Section 1141j(g) of title 12, 
United States Code, (section 15(g) of the Agricultural Marketing Act, 
as amended), quoted as follows, defines ``agricultural commodity'' to 
include:

    (g) * * * in addition to other agricultural commodities, crude 
gum (oleoresin) from a living tree, and the following products as 
processed by the original producer of the crude gum (oleoresin) from 
which derived: Gum spirits of turpentine, and gum rosin, as defined 
in section 92 of Title 7.

    (iv) ``Gum rosin''. Section 92 of title 7, United States Code, 
quoted as follows, defines ``gum spirits of turpentine'' and ``gum 
rosin'' as--

    (c) ``Gum spirits of turpentine'' means spirits of turpentine 
made from gum (oleoresin) from a living tree.
    (h) ``Gum rosin'' means rosin remaining after the distillation 
of gum spirits of turpentine.

    (2) ``Of a temporary or seasonal nature''--(i) ``On a seasonal or 
other temporary basis''. For the purposes of this subpart, ``of a 
temporary or seasonal nature'' means ``on a seasonal or other temporary 
basis'', as defined in the Employment Standards Administration's Wage 
and Hour Division's regulation at 29 CFR 500.20 under the Migrant and 
Seasonal Agricultural Worker Protection Act (MSPA).
    (ii) MSPA definition. For informational purposes, the definition of 
``on a seasonal or other temporary basis'', as set forth at 29 CFR 
500.20, is provided below:

    ``On a seasonal or other temporary basis'' means:
    Labor is performed on a seasonal basis, where, ordinarily, the 
employment pertains to or is of the kind exclusively performed at 
certain seasons or periods of the year and which, from its nature, 
may not be continuous or carried on throughout the year. A worker 
who moves from one seasonal activity to another, while employed in 
agriculture or performing agricultural labor, is employed on a 
seasonal basis even though he may continue to be employed during a 
major portion of the year.
    A worker is employed on ``other temporary basis'' where he is 
employed for a limited time only or his performance is contemplated 
for a particular piece of work, usually of short duration. 
Generally, employment, which is contemplated to continue 
indefinitely, is not temporary.
    ``On a seasonal or other temporary basis'' does not include the 
employment of any foreman or other supervisory employee who is 
employed by a specific agricultural employer or agricultural 
association essentially on a year round basis.
    ``On a seasonal or other temporary basis'' does not include the 
employment of any worker who is living at his permanent place of 
residence, when that worker is employed by a specific agricultural 
employer or agricultural association on essentially a year round 
basis to perform a variety of tasks for his employer and is not 
primarily employed to do field work.

    (iii) ``Temporary''. For the purposes of this subpart, the 
definition of ``temporary'' in paragraph (c)(2)(ii) of this section 
refers to any job opportunity covered by this subpart where the 
employer needs a worker for a position, either temporary or permanent, 
for a limited period of time, which shall be for less than one year, 
unless the original temporary alien agricultural labor certification is 
extended based on unforeseen circumstances, pursuant to Sec.  
655.106(c)(3) of this part.


Sec.  655.101  Temporary alien agricultural labor certification 
applications.

    (a) General--(1) Filing of application. An employer who anticipates 
a shortage of U.S. workers needed to perform agricultural labor or 
services of a temporary or seasonal nature may apply to the OFLC 
Administrator, for a temporary alien agricultural labor certification 
for temporary foreign workers (H-2A workers). A signed application for 
temporary alien agricultural worker certification shall be filed by the 
employer, or by an agent of the employer, with the OFLC Administrator. 
At the same time, a duplicate application shall be submitted to the SWA 
serving the area of intended employment.
    (2) Applications filed by agents. If the temporary alien 
agricultural labor certification application is filed by an agent on 
behalf of an employer, the agent may sign the application if the 
application is accompanied by a signed statement from the employer 
which authorizes the agent to act on the employer's behalf. The 
employer may authorize the agent to accept for interview workers being 
referred to the job and to make hiring commitments on behalf of the 
employer. The statement shall specify that the employer assumes full 
responsibility for the accuracy of the application, for all 
representations made by the agent on the employer's behalf, and for 
compliance with all regulatory and other legal requirements.
    (3) Applications filed by associations. If an association of 
agricultural producers which uses agricultural labor or services files 
the application, the association shall identify whether it is: (i) The 
sole employer; (ii) a joint employer with its employer-member 
employers; or (iii) the agent of its employer-members. The association 
shall submit documentation sufficient to enable the OFLC Administrator 
to verify the employer or agency status of the association; and shall 
identify by name and address each member which will be an employer of 
H-2A workers.
    (b) Application form. Each H-2A application shall be on a form or 
forms prescribed by ETA. The application shall state the total number 
of workers the employer anticipates employing in the agricultural labor 
or service activity during the covered period of employment. The 
application shall include:
    (1) A copy of the job offer which will be used by each employer for 
the recruitment of U.S. and H-2A workers. The job offer shall state the 
number of workers needed by the employer, based upon the employer's 
anticipation of a shortage of U.S. workers needed to perform the 
agricultural labor or services, and the specific estimated date on 
which the workers are needed. The job offer shall comply with the 
requirements of Sec. Sec.  655.102 and 653.501 of this chapter, and 
shall be signed by the employer or the employer's agent on behalf of 
the employer; and
    (2) An agreement to abide by the assurances required by Sec.  
655.103 of this part.
    (c) Timeliness. Applications for temporary alien agricultural labor 
certification are not required to be filed

[[Page 25990]]

more than 45 calendar days before the first day of need. The employer 
shall be notified by the OFLC Administrator in writing within seven 
calendar days of filing the application if the application is not 
approved as acceptable for consideration. The OFLC Administrator's 
temporary alien agricultural labor certification determination on the 
approved application shall be made no later than 20 calendar days 
before the date of need if the employer has complied with the criteria 
for certification. To allow for the availability of U.S. workers to be 
tested, the following process applies:
    (1) Application filing date. The entire H-2A application, including 
the job offer, shall be filed with the OFLC Administrator, in 
duplicate, no less than 45 calendar days before the first date on which 
the employer estimates that the workers are needed. Applications may be 
filed in person; may be mailed to the OFLC Administrator (Attention: H-
2A Certifying Officer) by certified mail, return receipt requested; or 
delivered by guaranteed commercial delivery which will ensure delivery 
to the OFLC Administrator and provide the employer with a documented 
acknowledgment of receipt of the application by the OFLC Administrator. 
Any application received 45 calendar days before the date of need will 
have met the minimum timeliness of filing requirement as long as the 
application is eventually approved by the OFLC Administrator as being 
acceptable for processing.
    (2) Review of application; recruitment; certification determination 
period. Section 655.104 of this part requires the OFLC Administrator to 
promptly review the application, and to notify the applicant in writing 
within seven calendar days of any deficiencies which render the 
application not acceptable for consideration and to afford an 
opportunity for resubmittal of an amended application. The employer 
shall have five calendar days in which to file an amended application. 
Section 655.106 of this part requires the OFLC Administrator to grant 
or deny the temporary alien agricultural labor certification 
application no later than 20 calendar days before the date on which the 
workers are needed, provided that the employer has complied with the 
criteria for certification, including recruitment of eligible 
individuals. Such recruitment, for the employer, the State agencies, 
and DOL to attempt to locate U.S. workers locally and through the 
circulation of intrastate and interstate agricultural clearance job 
orders acceptable under Sec.  653.501 of this chapter and under this 
subpart, shall begin on the date that an acceptable application is 
filed, except that the SWA shall begin to recruit workers locally 
beginning on the date it first receives the application. The time 
needed to obtain an application acceptable for consideration (including 
the job offer) after the five-calendar-day period allowed for an 
amended application will postpone day-for-day the certification 
determination beyond the 20 calendar days before the date of need, 
provided that the OFLC Administrator notifies the applicant of any 
deficiencies within seven calendar days after receipt of the 
application. Delays in obtaining an application acceptable for 
consideration which are directly attributable to the OFLC Administrator 
will not postpone the certification determination beyond the 20 
calendar days before the date of need. When an employer resubmits to 
the OFLC Administrator (with a copy to the SWA) an application with 
modifications required by the OFLC Administrator, and the OFLC 
Administrator approves the modified application as meeting necessary 
adverse effect standards, the modified application will not be rejected 
solely because it now does not meet the 45-calendar-day filing 
requirement. If an application is approved as being acceptable for 
processing without need for any amendment within the seven-calendar-day 
review period after initial filing, recruitment of U.S. workers will be 
considered to have begun on the date the application was received by 
the OFLC Administrator; and the OFLC Administrator shall make the 
temporary alien agricultural labor certification determination required 
by Sec.  655.106 of this part no later than 20 calendar days before the 
date of need provided that other regulatory conditions are met.
    (3) Early filing. Employers are encouraged, but not required, to 
file their applications in advance of the 45-calendar-day minimum 
period specified in paragraph (c)(1) of this section, to afford more 
time for review and discussion of the applications and to consider 
amendments, should they be necessary. This is particularly true for 
employers submitting H-2A applications for the first time who may not 
be familiar with the Secretary's requirements for an acceptable 
application or U.S. worker recruitment. Such employers particularly are 
encouraged to consult with DOL and SWA staff for guidance and 
assistance well in advance of the minimum 45-calendar-day filing 
period.
    (4) Local recruitment; preparation of clearance orders. At the same 
time the employer files the H-2A application with the OFLC 
Administrator, a copy of the application shall be submitted to the SWA 
which will use the job offer portion of the application to prepare a 
local job order and begin to recruit U.S. workers in the area of 
intended employment. The SWA also shall begin preparing an agricultural 
clearance order, but such order will not be used to recruit workers in 
other geographical areas until the employer's H-2A application is 
accepted for consideration and the clearance order is approved by the 
OFLC Administrator and the SWA is so notified by the OFLC 
Administrator.
    (5) [Reserved]
    (d) Amendments to application to increase number of workers. 
Applications may be amended at any time, prior to an OFLC Administrator 
certification determination, to increase the number of workers 
requested in the initial application by not more than 20 percent (50 
percent for employers of less than ten workers) without requiring an 
additional recruitment period for U.S. workers. Requests for increases 
above the percent prescribed, without additional recruitment, may be 
approved only when the need for additional workers could not have been 
foreseen, and that crops or commodities will be in jeopardy prior to 
the expiration of an additional recruitment period.
    (e) Minor amendments to applications. Minor technical amendments 
may be requested by the employer and made to the application and job 
offer prior to the certification determination if the OFLC 
Administrator determines they are justified and will have no 
significant effect upon the OFLC Administrator's ability to make the 
labor certification determination required by Sec.  655.106 of this 
part. Amendments described at paragraph (d) of this section are not 
``minor technical amendments''.
    (f) Untimely applications--(1) Notices of denial. If an H-2A 
application, or any part thereof, does not satisfy the time 
requirements specified in paragraph (c) of this section, and if the 
exception in paragraph (d) of this section does not apply, the OFLC 
Administrator may then advise the employer in writing that the 
certification cannot be granted because, pursuant to paragraph (c) of 
this section, there is not sufficient time to test the availability of 
U.S. workers. The notice of denial shall inform the employer of its 
right to an administrative review or de novo hearing before an 
administrative law judge.
    (2) Emergency situations. Notwithstanding paragraph (f)(1) of this 
section, in emergency situations the

[[Page 25991]]

OFLC Administrator may waive the time period specified in this section 
on behalf of employers who have not made use of temporary alien 
agricultural workers (H-2 or H-2A) for the prior year's agricultural 
season or for any employer which has other good and substantial cause 
(which may include unforeseen changes in market conditions), provided 
that the OFLC Administrator has an opportunity to obtain sufficient 
labor market information on an expedited basis to make the labor 
certification determination required by Sec.  216 of the INA (8 U.S.C. 
1186). In making this determination, the OFLC Administrator will accept 
information offered by and may consult with representatives of the U.S. 
Department of Agriculture.
    (g) Length of job opportunity. The employer shall set forth on the 
application sufficient information concerning the job opportunity to 
demonstrate to the OFLC Administrator that the need for the worker is 
``of a temporary or seasonal nature'', as defined at Sec.  
655.100(c)(2) of this part. Job opportunities of 12 months or more are 
presumed to be permanent in nature. Therefore, the OFLC Administrator 
shall not grant a temporary alien agricultural labor certification 
where the job opportunity has been or would be filled by an H-2A worker 
for a cumulative period, including temporary alien agricultural labor 
certifications and extensions, of 12 months or more, except in 
extraordinary circumstances.


Sec.  655.102  Contents of job offers.

    (a) Preferential treatment of aliens prohibited. The employer's job 
offer to U.S. workers shall offer the U.S. workers no less than the 
same benefits, wages, and working conditions which the employer is 
offering, intends to offer, or will provide to H-2A workers. 
Conversely, no job offer may impose on U.S. workers any restrictions or 
obligations which will not be imposed on the employer's H-2A workers. 
This does not relieve the employer from providing to H-2A workers at 
least the same level of minimum benefits, wages, and working conditions 
which must be offered to U.S. workers consistent with this section.
    (b) Minimum benefits, wages, and working conditions. Except when 
higher benefits, wages or working conditions are required by the 
provisions of paragraph (a) of this section, DOL has determined that in 
order to protect similarly employed U.S. workers from adverse effect 
with respect to benefits, wages, and working conditions, every job 
offer which must accompany an H-2A application always shall include 
each of the following minimum benefit, wage, and working condition 
provisions:
    (1) Housing. The employer shall provide to those workers who are 
not reasonably able to return to their residence within the same day 
housing, without charge to the worker, which may be, at the employer's 
option, rental or public accommodation type housing.
    (i) Standards for employer-provided housing. Housing provided by 
the employer shall meet the full set of DOL Occupational Safety and 
Health Administration standards set forth at 29 CFR 1910.142, or the 
full set of standards at Sec. Sec.  654.404-654.417 of this chapter, 
whichever are applicable, except as provided for under paragraph 
(b)(1)(iii) of this section. Requests by employers, whose housing does 
not meet the applicable standards, for conditional access to the 
intrastate or interstate clearance system, shall be processed under the 
procedures set forth at Sec.  654.403 of this chapter.
    (ii) Standards for range housing. Housing for workers principally 
engaged in the range production of livestock shall meet standards of 
the DOL Occupational Safety and Health Administration for such housing. 
In the absence of such standards, range housing for sheepherders and 
other workers engaged in the range production of livestock shall meet 
guidelines issued by ETA.
    (iii) Standards for other habitation. Rental, public accommodation, 
or other substantially similar class of habitation must meet local 
standards for such housing. In the absence of applicable local 
standards, State standards shall apply. In the absence of applicable 
local or State standards, Occupational Safety and Health Administration 
standards at 29 CFR 1910.142 shall apply. Any charges for rental 
housing shall be paid directly by the employer to the owner or operator 
of the housing. When such housing is to be supplied by an employer, the 
employer shall document to the satisfaction of the OFLC Administrator 
that the housing complies with the local, State, or Federal housing 
standards applicable under this paragraph (b)(1)(iii).
    (iv) Charges for public housing. If public housing provided for 
migrant agricultural workers under the auspices of a local, county, or 
State government is secured by an employer, and use of the public 
housing unit normally requires charges from migrant workers, such 
charges shall be paid by the employer directly to the appropriate 
individual or entity affiliated with the housing's management.
    (v) Deposit charges. Charges in the form of deposits for bedding or 
other similar incidentals related to housing shall not be levied upon 
workers by employers who provide housing for their workers. However, 
employers may require workers to reimburse them for damage caused to 
housing by the individual workers found to have been responsible for 
damage which is not the result of normal wear and tear related to 
habitation.
    (vi) Family housing. When it is the prevailing practice in the area 
of intended employment and the occupation to provide family housing, 
family housing shall be provided to workers with families who request 
it.
    (2) Workers' compensation. The employer shall provide, at no cost 
to the worker, insurance, under a State workers' compensation law or 
otherwise, covering injury and disease arising out of and in the course 
of the worker's employment which will provide benefits at least equal 
to those provided under the State workers' compensation law, if any, 
for comparable employment. The employer shall furnish the name of the 
insurance carrier and the insurance policy number, or, if appropriate, 
proof of State law coverage, to the OFLC Administrator prior to the 
issuance of a labor certification.
    (3) Employer-provided items. Except as provided below, the employer 
shall provide, without charge including deposit charge, to the worker 
all tools, supplies, and equipment required to perform the duties 
assigned; the employer may charge the worker for reasonable costs 
related to the worker's refusal or negligent failure to return any 
property furnished by the employer or due to such worker's willful 
damage or destruction of such property. Where it is a common practice 
in the particular area, crop activity and occupation for workers to 
provide tools and equipment, with or without the employer reimbursing 
the workers for the cost of providing them, such an arrangement is 
permissible if approved in advance by the OFLC Administrator.
    (4) Meals. Where the employer has centralized cooking and eating 
facilities designed to feed workers, the employer shall provide each 
worker with three meals a day. When such facilities are not available, 
the employer either shall provide each worker with three meals a day or 
shall furnish free and convenient cooking and kitchen facilities to the 
workers which will enable the workers to prepare their own meals. Where 
the employer provides the meals, the job offer shall state the charge, 
if any, to the worker for such meals. Until a new

[[Page 25992]]

amount is set pursuant to this paragraph (b)(4), the charge shall not 
be more than $5.26 per day unless the OFLC Administrator has approved a 
higher charge pursuant to Sec.  655.111 of this part. Each year the 
charge allowed by this paragraph (b)(4) will be changed by the same 
percentage as the 12-month percent change in the Consumer Price Index 
for All Urban Consumers for Food between December of the year just 
concluded and December of the year prior to that. The annual 
adjustments shall be effective on the date of their publication by the 
OFLC Administrator as a notice in the Federal Register.
    (5) Transportation; daily subsistence--(i) Transportation to place 
of employment. The employer shall advance transportation and 
subsistence costs (or otherwise provide them) to workers when it is the 
prevailing practice of non-H-2A agricultural employers in the 
occupation in the area to do so, or when such benefits are extended to 
H-2A workers. The amount of the transportation payment shall be no less 
(and shall not be required to be more) than the most economical and 
reasonable similar common carrier transportation charges for the 
distances involved. If the employer has not previously advanced such 
transportation and subsistence costs to the worker or otherwise 
provided such transportation or subsistence directly to the worker by 
other means and if the worker completes 50 percent of the work contract 
period, the employer shall pay the worker for costs incurred by the 
worker for transportation and daily subsistence from the place from 
which the worker has come to work for the employer to the place of 
employment. The amount of the daily subsistence payment shall be at 
least as much as the employer will charge the worker for providing the 
worker with three meals a day during employment. If no charges will be 
made for meals and free and convenient cooking and kitchen facilities 
will be provided, the amount of the subsistence payment shall be no 
less than the amount permitted under paragraph (b)(4) of this section.
    (ii) Transportation from place of employment. If the worker 
completes the work contract period, the employer shall provide or pay 
for the worker's transportation and daily subsistence from the place of 
employment to the place from which the worker, disregarding intervening 
employment, came to work for the employer, or, if the worker has 
contracted with a subsequent employer who has not agreed in that 
contract to provide or pay for the worker's transportation and daily 
subsistence expenses from the employer's worksite to such subsequent 
employer's worksite, the employer shall provide or pay for such 
expenses; except that, if the worker has contracted for employment with 
a subsequent employer who, in that contract, has agreed to pay for the 
worker's transportation and daily subsistence expenses from the 
employer's worksite to such subsequent employer's worksite, the 
employer is not required to provide or pay for such expenses.
    (iii) Transportation between living quarters and worksite. The 
employer shall provide transportation between the worker's living 
quarters (i.e., housing provided by the employer pursuant to paragraph 
(b)(1) of this section) and the employer's worksite without cost to the 
worker, and such transportation will be in accordance with applicable 
laws and regulations. This paragraph (b)(5)(iii) is applicable to the 
transportation of workers eligible for housing, pursuant to paragraph 
(b)(1) of this section.
    (6) Three-fourths guarantee--(i) Offer to worker. The employer 
shall guarantee to offer the worker employment for at least three-
fourths of the workdays of the total periods during which the work 
contract and all extensions thereof are in effect, beginning with the 
first workday after the arrival of the worker at the place of 
employment and ending on the expiration date specified in the work 
contract or in its extensions, if any. If the employer affords the U.S. 
or H-2A worker during the total work contract period less employment 
than that required under this paragraph (b)(6), the employer shall pay 
such worker the amount which the worker would have earned had the 
worker, in fact, worked for the guaranteed number of days. For purposes 
of this paragraph (b)(6), a workday shall mean the number of hours in a 
workday as stated in the job order and shall exclude the worker's 
Sabbath and Federal holidays. An employer shall not be considered to 
have met the work guarantee if the employer has merely offered work on 
three-fourths of the workdays if each workday did not consist of a full 
number of hours of work time specified in the job order. The work shall 
be offered for at least three-fourths of the workdays (that is, \3/4\ x 
(number of days) x (specified hours)). Therefore, if, for example, the 
contract contains 20 eight-hour workdays, the worker shall be offered 
employment for 120 hours during the 20 workdays. A worker may be 
offered more than the specified hours of work on a single workday. For 
purposes of meeting the guarantee, however, the worker shall not be 
required to work for more than the number hours specified in the job 
order for a workday, or on the worker's Sabbath or Federal holidays.
    (ii) Guarantee for piece-rate-paid worker. If the worker will be 
paid on a piece rate basis, the employer shall use the worker's average 
hourly piece rate earnings or the AEWR, whichever is higher, to 
calculate the amount due under the guarantee.
    (iii) Failure to work. Any hours which the worker fails to work, up 
to a maximum of the number of hours specified in the job order for a 
workday, when the worker has been offered an opportunity to do so 
pursuant to paragraph (b)(6)(i) of this section and all hours of work 
actually performed (including voluntary work over 8 hours in a workday 
or on the worker's Sabbath or Federal holidays) may be counted by the 
employer in calculating whether the period of guaranteed employment has 
been met.
    (iv) Displaced H-2A worker. The employer shall not be liable for 
payment under this paragraph (b)(6) with respect to an H-2A worker whom 
the OFLC Administrator certifies is displaced because of the employer's 
compliance with Sec.  655.103(e) of this part.
    (7) Records. (i) The employer shall keep accurate and adequate 
records with respect to the workers' earnings including field tally 
records, supporting summary payroll records and records showing the 
nature and amount of the work performed; the number of hours of work 
offered each day by the employer (broken out by hours offered both in 
accordance with and over and above the three-fourths guarantee at 
paragraph (b)(6) of this section); the hours actually worked each day 
by the worker; the time the worker began and ended each workday; the 
rate of pay (both piece rate and hourly, if applicable); the worker's 
earnings per pay period; the worker's home address; and the amount of 
and reasons for any and all deductions made from the worker's wages;
    (ii) If the number of hours worked by the worker is less than the 
number offered in accordance with the three-fourths guarantee at 
paragraph (b)(6) of this section, the records shall state the reason or 
reasons therefore.
    (iii) Upon reasonable notice, the employer shall make available the 
records, including field tally records and supporting summary payroll 
records for inspection and copying by representatives of the Secretary 
of Labor, and by the worker and representatives designated by the 
worker; and
    (iv) The employer shall retain the records for not less than three 
years after the completion of the work contract.

[[Page 25993]]

    (8) Hours and earnings statements. The employer shall furnish to 
the worker on or before each payday in one or more written statements 
the following information:
    (i) The worker's total earnings for the pay period;
    (ii) The worker's hourly rate and/or piece rate of pay;
    (iii) The hours of employment which have been offered to the worker 
(broken out by offers in accordance with and over and above the 
guarantee);
    (iv) The hours actually worked by the worker;
    (v) An itemization of all deductions made from the worker's wages; 
and
    (vi) If piece rates are used, the units produced daily.
    (9) Rates of pay. (i) If the worker will be paid by the hour, the 
employer shall pay the worker at least the adverse effect wage rate in 
effect at the time the work is performed, the prevailing hourly wage 
rate, or the legal Federal or State minimum wage rate, whichever is 
highest, for every hour or portion thereof worked during a pay period; 
or
    (ii)(A) If the worker will be paid on a piece rate basis and the 
piece rate does not result at the end of the pay period in average 
hourly piece rate earnings during the pay period at least equal to the 
amount the worker would have earned had the worker been paid at the 
appropriate hourly rate, the worker's pay shall be supplemented at that 
time so that the worker's earnings are at least as much as the worker 
would have earned during the pay period if the worker had been paid at 
the appropriate hourly wage rate for each hour worked; and the piece 
rate shall be no less than the piece rate prevailing for the activity 
in the area of intended employment; and
    (B) If the employer who pays by the piece rate requires one or more 
minimum productivity standards of workers as a condition of job 
retention,
    (1) Such standards shall be specified in the job offer and be no 
more than those required by the employer in 1977, unless the OFLC 
Administrator approves a higher minimum; or
    (2) If the employer first applied for H-2 agricultural or H-2A 
temporary alien agricultural labor certification after 1977, such 
standards shall be no more than those normally required (at the time of 
the first application) by other employers for the activity in the area 
of intended employment, unless the OFLC Administrator approves a higher 
minimum.
    (10) Frequency of pay. The employer shall state the frequency with 
which the worker will be paid (in accordance with the prevailing 
practice in the area of intended employment, or at least twice monthly 
whichever is more frequent).
    (11) Abandonment of employment; or termination for cause. If the 
worker voluntarily abandons employment before the end of the contract 
period, or is terminated for cause, and the employer notifies the SWA 
of such abandonment or termination, the employer will not be 
responsible for providing or paying for the subsequent transportation 
and subsistence expenses of any worker for whom the employer would have 
otherwise been required to pay such expenses under paragraph (b)(5)(ii) 
of this section, and that worker is not entitled to the ``three-fourths 
guarantee'' (see paragraph (b)(6) of this section).
    (12) Contract impossibility. If, before the expiration date 
specified in the work contract, the services of the worker are no 
longer required for reasons beyond the control of the employer due to 
fire, hurricane, or other Act of God which makes the fulfillment of the 
contract impossible the employer may terminate the work contract. In 
the event of such termination of a contract, the employer shall fulfill 
the three-fourths guarantee at paragraph (b)(6) of this section for the 
time that has elapsed from the start of the work contract to its 
termination. In such cases the employer will make efforts to transfer 
the worker to other comparable employment acceptable to the worker. If 
such transfer is not effected, the employer shall:
    (i) Offer to return the worker, at the employer's expense, to the 
place from which the worker disregarding intervening employment came to 
work for the employer,
    (ii) Reimburse the worker the full amount of any deductions made 
from the worker's pay by the employer for transportation and 
subsistence expenses to the place of employment, and
    (iii) Notwithstanding whether the employment has been terminated 
prior to completion of 50 percent of the work contract period 
originally offered by the employer, pay the worker for costs incurred 
by the worker for transportation and daily subsistence from the place 
from which the worker, without intervening employment, has come to work 
for the employer to the place of employment. Daily subsistence shall be 
computed as set forth in paragraph (b)(5)(i) of this section. The 
amount of the transportation payment shall be no less (and shall not be 
required to be more) than the most economical and reasonable similar 
common carrier transportation charges for the distances involved.
    (13) Deductions. The employer shall make those deductions from the 
worker's paycheck which are required by law. The job offer shall 
specify all deductions not required by law which the employer will make 
from the worker's paycheck. All deductions shall be reasonable. The 
employer may deduct the cost of the worker's transportation and daily 
subsistence expenses to the place of employment which were borne 
directly by the employer. In such cases, the job offer shall state that 
the worker will be reimbursed the full amount of such deductions upon 
the worker's completion of 50 percent of the worker's contract period. 
However, an employer subject to the Fair Labor Standards Act (FLSA) may 
not make deductions which will result in payments to workers of less 
than the Federal minimum wage permitted by the FLSA as determined by 
the Secretary at 29 CFR part 531.
    (14) Copy of work contract. The employer shall provide to the 
worker, no later than on the day the work commences, a copy of the work 
contract between the employer and the worker. The work contract shall 
contain all of the provisions required by paragraphs (a) and (b) of 
this section. In the absence of a separate, written work contract 
entered into between the employer and the worker, the required terms of 
the job order and application for temporary alien agricultural labor 
certification shall be the work contract.
    (c) Appropriateness of required qualifications. Bona fide 
occupational qualifications specified by an employer in a job offer 
shall be consistent with the normal and accepted qualifications 
required by non-H-2A employers in the same or comparable occupations 
and crops, and shall be reviewed by the OFLC Administrator for their 
appropriateness. The OFLC Administrator may require the employer to 
submit documentation to substantiate the appropriateness of the 
qualification specified in the job offer; and shall consider 
information offered by and may consult with representatives of the U.S. 
Department of Agriculture.
    (d) Positive recruitment plan. The employer shall submit in 
writing, as a part of the application, the employer's plan for 
conducting independent, positive recruitment of U.S. workers as 
required by Sec. Sec.  655.103 and 655.105(a) of this part. Such a plan 
shall include a description of recruitment efforts (if any) made prior 
to the actual submittal of the application. The plan shall describe how 
the employer will engage in positive recruitment of U.S. workers to an 
extent (with respect to both effort and location(s)) no less than that 
of non-H-2A agricultural employers of comparable or smaller size in the 
area

[[Page 25994]]

of employment. When it is the prevailing practice in the area of 
employment and for the occupation for non-H-2A agricultural employers 
to secure U.S. workers through farm labor contractors and to compensate 
farm labor contractors with an override for their services, the 
employer shall describe how it will make the same level of effort as 
non-H-2A agricultural employers and provide an override which is no 
less than that being provided by non-H-2A agricultural employers.


Sec.  655.103  Assurances.

    As part of the temporary alien agricultural labor certification 
application, the employer shall include in the job offer a statement 
agreeing to abide by the conditions of this subpart. By so doing, the 
employer makes each of the following assurances:
    (a) Labor disputes. The specific job opportunity for which the 
employer is requesting H-2A certification is not vacant because the 
former occupant is on strike or being locked out in the course of a 
labor dispute.
    (b) Employment-related laws. During the period for which the 
temporary alien agricultural labor certification is granted, the 
employer shall comply with applicable Federal, State, and local 
employment-related laws and regulations, including employment-related 
health and safety laws.
    (c) Rejections and terminations of U.S. workers. No U.S. worker 
will be rejected for or terminated from employment for other than a 
lawful job-related reason, and notification of all rejections or 
terminations shall be made to the SWA.
    (d) Recruitment of U.S. workers. The employer shall independently 
engage in positive recruitment until the foreign workers have departed 
for the employer's place of employment and shall cooperate with the ES 
System in the active recruitment of U.S. workers by:
    (1) Assisting the ES System to prepare local, intrastate, and 
interstate job orders using the information supplied on the employer's 
job offer;
    (2) Placing advertisements (in a language other than English, where 
the OFLC Administrator determines appropriate) for the job 
opportunities in newspapers of general circulation and/or on the radio, 
as required by the OFLC Administrator:
    (i) Each such advertisement shall describe the nature and 
anticipated duration of the job opportunity; offer at least the adverse 
effect wage rate; give the \3/4\ guarantee; state that work tools, 
supplies and equipment will be provided by the employer; state that 
housing will also be provided, and that transportation and subsistence 
expenses to the worksite will be provided or paid by the employer upon 
completion of 50% of the work contract, or earlier, if appropriate; and
    (ii) Each such advertisement shall direct interested workers to 
apply for the job opportunity at the appropriate office of the State 
Workforce Agency in their area;
    (3) Cooperating with the ES System and independently contacting 
farm labor contractors, migrant workers and other potential workers in 
other areas of the State and/or Nation by letter and/or telephone; and
    (4) Cooperating with the ES System in contacting schools, business 
and labor organizations, fraternal and veterans' organizations, and 
nonprofit organizations and public agencies such as sponsors of 
programs under the Job Training Partnership Act throughout the area of 
intended employment and in other potential labor supply areas in order 
to enlist them in helping to find U.S. workers.
    (e) Fifty-percent rule. From the time the foreign workers depart 
for the employer's place of employment, the employer, except as 
provided for by Sec.  655.106(e)(1) of this part, shall provide 
employment to any qualified, eligible U.S. worker who applies to the 
employer until 50% of the period of the work contract, under which the 
foreign worker who is in the job was hired, has elapsed. In addition, 
the employer shall offer to provide housing and the other benefits, 
wages, and working conditions required by Sec.  655.102 of this part to 
any such U.S. worker and shall not treat less favorably than H-2A 
workers any U.S. worker referred or transferred pursuant to this 
assurance.
    (f) Other recruitment. The employer shall perform the other 
specific recruitment and reporting activities specified in the notice 
from the OFLC Administrator required by Sec.  655.105(a) of this part, 
and shall engage in positive recruitment of U.S. workers to an extent 
(with respect to both effort and location) no less than that of non-H-
2A agricultural employers of comparable or smaller size in the area of 
employment. When it is the prevailing practice in the area of 
employment and for the occupation for non-H-2A agricultural employers 
to secure U.S. workers through farm labor contractors and to compensate 
farm labor contractors with an override for their services, the 
employer shall make the same level of effort as non-H-2A agricultural 
employers and shall provide an override which is no less than that 
being provided by non-H-2A agricultural employers. Where the employer 
has centralized cooking and eating facilities designed to feed workers, 
the employer shall not be required to provide meals through an 
override. The employer shall not be required to provide for housing 
through an override.
    (g) Retaliation prohibited. The employer shall not intimidate, 
threaten, restrain, coerce, blacklist, discharge, or in any manner 
discriminate against, and shall not cause any person to intimidate, 
threaten, restrain, coerce, blacklist, discharge, or in any manner 
discriminate against, any person who has with just cause:
    (1) Filed a complaint under or related to Sec.  216 of the INA (8 
U.S.C. 1186), or this subpart or any other DOL regulation promulgated 
pursuant to Sec.  216 of the INA;
    (2) Instituted or caused to be instituted any proceeding under or 
related to Sec.  216 of the INA, or this subpart or any other DOL 
regulation promulgated pursuant to Sec.  216 of the INA (8 U.S.C. 
1186);
    (3) Testified or is about to testify in any proceeding under or 
related to Sec.  216 of the INA (8 U.S.C. 1186), or this subpart or any 
other DOL regulation promulgated pursuant to Sec.  216 of the INA;
    (4) Consulted with an employee of a legal assistance program or an 
attorney on matters related to Sec.  216 of the INA (8 U.S.C. 1186), or 
this subpart or any other DOL regulation promulgated pursuant to Sec.  
216 of the INA; or
    (5) Exercised or asserted on behalf of himself/herself or others 
any right or protection afforded by Sec.  216 of the INA (8 U.S.C. 
1186), or this subpart or any other DOL regulation promulgated pursuant 
to Sec.  216 of the INA.
    (h) Fees. The application shall include the assurance that fees 
will be paid in a timely manner, as follows:
    (1) Amount. The fee for each employer receiving a temporary alien 
agricultural labor certification is $100 plus $10 for each job 
opportunity for H-2A workers certified, provided that the fee for an 
employer for each temporary alien agricultural labor certification 
received shall be no greater than $1,000. In the case of a joint 
employer association receiving a temporary alien agricultural labor 
certification, the fee for each employer-member receiving a temporary 
alien agricultural labor certification shall be $100 plus $10 for each 
job opportunity for H-2A workers certified, provided that the fee for 
an employer for each temporary alien agricultural labor certification 
received shall be no greater than $1,000. The joint employer 
association will not be

[[Page 25995]]

charged a separate fee. Fees shall be paid by a check or money order 
made payable to ``Department of Labor'', and are nonrefundable. In the 
case of employers of H-2A workers which are members of a joint employer 
association applying on their behalf, the aggregate fees for all 
employers of H-2A workers under the application may be paid by one 
check or money order.
    (2) Timeliness. Fees received by the OFLC Administrator within 30 
calendar days after the date of the temporary alien agricultural labor 
certification determination are timely.


Sec.  655.104  Determinations based on acceptability of H-2A 
applications.

    (a) State Workforce Agency activities. The State Workforce Agency 
(SWA), using the job offer portion of the H-2A application, shall 
promptly prepare a local job order and shall begin to recruit U.S. 
workers in the area of intended employment. The OFLC Administrator 
should notify the SWA by telephone no later than seven calendar days 
after the application was received by the OFLC Administrator if the 
application has been accepted for consideration. Upon receiving such 
notice or seven calendar days after the application is received by the 
SWA, whichever is earlier, the SWA shall promptly prepare an 
agricultural clearance order which will permit the recruitment of U.S. 
workers by the Employment Service System on an intrastate and 
interstate basis.
    (b) National Processing Center activities. The OFLC Administrator, 
upon receipt of the H-2A application, shall promptly review the 
application to determine whether it is acceptable for consideration 
under the timeliness and adverse effect criteria of Sec. Sec.  655.101-
655.103 of this part. If the OFLC Administrator determines that the 
application does not meet the requirements of Sec. Sec.  655.101-
655.103, the OFLC Administrator shall not accept the application for 
consideration on the grounds that the availability of U.S. workers 
cannot be adequately tested because the benefits, wages and working 
conditions do not meet the adverse effect criteria; however, if the 
OFLC Administrator determines that the application is not timely in 
accordance with Sec.  655.101 of this part and that neither the first-
year employer provisions of Sec.  655.101(c)(5) nor the emergency 
provisions of Sec.  655.101(f) apply, the OFLC Administrator may 
determine not to accept the application for consideration because there 
is not sufficient time to test the availability of U.S. workers.
    (c) Rejected applications. If the application is not accepted for 
consideration, the OFLC Administrator shall notify the applicant in 
writing (by means normally assuring next-day delivery) within seven 
calendar days of the date the application was received by the OFLC 
Administrator with a copy to the SWA. The notice shall:
    (1) State all the reasons the application is not accepted for 
consideration, citing the relevant regulatory standards;
    (2) Offer the applicant an opportunity for the resubmission within 
five calendar days of a modified application, stating the modifications 
needed in order for the OFLC Administrator to accept the application 
for consideration;
    (3) Offer the applicant an opportunity to request an expedited 
administrative review of or a de novo administrative hearing before an 
administrative law judge of the nonacceptance; the notice shall state 
that in order to obtain such a review or hearing, the employer, within 
seven calendar days of the date of the notice, shall file by facsimile 
(fax), telegram, or other means normally assuring next-day delivery a 
written request to the Chief Administrative Law Judge of the Department 
of Labor (giving the address) and simultaneously serve a copy on the 
OFLC Administrator; the notice shall also state that the employer may 
submit any legal arguments which the employer believes will rebut the 
basis of the OFLC Administrator's action; and
    (4) State that if the employer does not request an expedited 
administrative-judicial review or a de novo hearing before an 
administrative law judge within the seven calendar days no further 
consideration of the employer's application for temporary alien 
agricultural labor certification will be made by any DOL official.
    (d) Appeal procedures. If the employer timely requests an expedited 
administrative review or de novo hearing before an administrative law 
judge pursuant to paragraph (c)(3) of this section, the procedures at 
Sec.  655.112 of this part shall be followed.
    (e) Required modifications. If the application is not accepted for 
consideration by the OFLC Administrator, but the OFLC Administrator's 
written notification to the applicant is not timely as required by 
Sec.  655.101 of this part, the certification determination will not be 
extended beyond 20 calendar days before the date of need. The notice 
will specify that the OFLC Administrator's temporary alien agricultural 
labor certification determination will be made no later than 20 
calendar days before the date of need, provided that the applicant 
submits the modifications to the application which are required by the 
OFLC Administrator within five calendar days and in a manner specified 
by the OFLC Administrator which will enable the test of U.S. worker 
availability to be made as required by Sec.  655.101 of this part 
within the time available for such purposes.


Sec.  655.105  Recruitment period.

    (a) Notice of acceptance of application for consideration; required 
recruitment. If the OFLC Administrator determines that the H-2A 
application meets the requirements of Sec. Sec.  655.101-655.103 of 
this part, the OFLC Administrator shall promptly notify the employer 
(by means normally assuring next-day delivery) in writing with copies 
to the State agency. The notice shall inform the employer and the State 
agency of the specific efforts which will be expected from them during 
the following weeks to carry out the assurances contained in Sec.  
655.103 with respect to the recruitment of U.S. workers. The notice 
shall require that the job order be laced into intrastate clearance and 
into interstate clearance to such States as the OFLC Administrator 
shall determine to be potential sources of U.S. workers. The notice may 
require the employer to engage in positive recruitment efforts within a 
multi-State region of traditional or expected labor supply where the 
OFLC Administrator finds, based on current information provided by a 
State agency and such information as may be offered and provided by 
other sources, that there are a significant number of able and 
qualified U.S. workers who, if recruited, would likely be willing to 
make themselves available for work at the time and place needed. In 
making such a finding, the OFLC Administrator shall take into account 
other recent recruiting efforts in those areas and will attempt to 
avoid requiring employers to futilely recruit in areas where there are 
a significant number of local employers recruiting for U.S. workers for 
the same types of occupations. Positive recruitment is in addition to, 
and shall be conducted within the same time period as, the circulation 
through the interstate clearance system of an agricultural clearance 
order. The obligation to engage in such positive recruitment shall 
terminate on the date H-2A workers depart for the employer's place of 
work. In determining what positive recruitment shall be required, the 
OFLC Administrator will ascertain the normal recruitment practices of 
non-H-2A agricultural employers in the area and the kind and degree of 
recruitment efforts which the potential H-2A employer made to obtain H-
2A workers.

[[Page 25996]]

The OFLC Administrator shall ensure that the effort, including the 
location(s) of the positive recruitment required of the potential H-2A 
employer, during the period after filing the application and before the 
date the H-2A workers depart their prior location to come to the place 
of employment, shall be no less than: (1) The recruitment efforts of 
non-H-2A agricultural employers of comparable or smaller size in the 
area of employment; and (2) the kind and degree of recruitment efforts 
which the potential H-2A employer made to obtain H-2A workers.
    (b) Recruitment of U.S. workers. After an application for temporary 
alien agricultural labor certification is accepted for processing 
pursuant to paragraph (a) of this section, the OFLC Administrator shall 
provide overall direction to the employer and the SWA with respect to 
the recruitment of U.S. workers.
    (c) Modifications. At any time during the recruitment effort, the 
OFLC Administrator may require modifications to a job offer when the 
OFLC Administrator determines that the job offer does not contain all 
the provisions relating to minimum benefits, wages, and working 
conditions, required by Sec.  655.102(b) of this part. If any such 
modifications are required after an application has been accepted for 
consideration by the OFLC Administrator, the modifications must be 
made; however, the certification determination shall not be delayed 
beyond the 20 calendar days prior to the date of need as a result of 
such modification.
    (d) Final determination. By 20 calendar days before the date of 
need specified in the application, except as provided for under 
Sec. Sec.  655.101(c)(2) and 655.104(e) of this part for untimely 
modified applications, the OFLC Administrator, when making a 
determination of the availability of U.S. workers, shall also make a 
determination as to whether the employer has satisfied the recruitment 
assurances in Sec.  655.103 of this part. If the OFLC Administrator 
concludes that the employer has not satisfied the requirements for 
recruitment of U.S. workers, the OFLC Administrator shall deny the 
temporary alien agricultural labor certification, and shall immediately 
notify the employer in writing with a copy to the SWA. The notice shall 
contain the statements specified in Sec.  655.104(d) of this part.
    (e) Appeal procedure. With respect to determinations by the OFLC 
Administrator pursuant to this section, if the employer timely requests 
an expedited administrative review or a de novo hearing before an 
administrative law judge, the procedures in Sec.  655.112 of this part 
shall be followed.


Sec.  655.106  Referral of U.S. workers; determinations based on U.S. 
worker availability and adverse effect; activities after receipt of the 
temporary alien agricultural labor certification.

    (a) Referral of able, willing, and qualified eligible U.S. workers. 
With respect to the referral of U.S. workers to job openings listed on 
a job order accompanying an application for temporary alien 
agricultural labor certification, no U.S. worker-applicant shall be 
referred unless such U.S. worker has been made aware of the terms and 
conditions of and qualifications for the job, and has indicated, by 
accepting referral to the job, that she or he meets the qualifications 
required and is able, willing, and eligible to take such a job.
    (b)(1) Determinations. If the OFLC Administrator, in accordance 
with Sec.  655.105 of this part, has determined that the employer has 
complied with the recruitment assurances and the adverse effect 
criteria of Sec.  655.102 of this part, by the date specified pursuant 
to Sec.  655.101(c)(2) of this part for untimely modified applications 
or 20 calendar days before the date of need specified in the 
application, whichever is applicable, the OFLC Administrator shall 
grant the temporary alien agricultural labor certification request for 
enough H-2A workers to fill the employer's job opportunities for which 
U.S. workers are not available. In making the temporary alien 
agricultural labor certification determination, the OFLC Administrator 
shall consider as available any U.S. worker who has made a firm 
commitment to work for the employer, including those workers committed 
by other authorized persons such as farm labor contractors and family 
heads. Such a firm commitment shall be considered to have been made not 
only by workers who have signed work contracts with the employer, but 
also by those whom the OFLC Administrator determines are likely to sign 
a work contract. The OFLC Administrator shall count as available any 
U.S. worker who has applied to the employer (or on whose behalf an 
application has been made), but who was rejected by the employer for 
other than lawful job-related reasons or who has not been provided with 
a lawful job-related reason for rejection by the employer, as 
determined by the OFLC Administrator. The OFLC Administrator shall not 
grant a temporary alien agricultural labor certification request for 
any H-2A workers if the OFLC Administrator determines that:
    (i) Enough able, willing, and qualified U.S. workers have been 
identified as being available to fill all the employer's job 
opportunities;
    (ii) The employer, since the time the application was accepted for 
consideration under Sec.  655.104 of this part, has adversely affected 
U.S. workers by offering to, or agreeing to provide to, H-2A workers 
better wages, working conditions or benefits (or by offering to, or 
agreeing to impose on alien workers less obligations and restrictions) 
than those offered to U.S. workers;
    (iii) The employer during the previous two-year period employed H-
2A workers and the OFLC Administrator has determined, after notice and 
opportunity for a hearing, that the employer at any time during that 
period substantially violated a material term or condition of a 
temporary alien agricultural labor certification with respect to the 
employment of U.S. or H-2A workers;
    (iv) The employer has not complied with the workers' compensation 
requirements at Sec.  655.102(b)(2) of this part; or
    (v) The employer has not satisfactorily complied with the positive 
recruitment requirements specified by this subpart.
    Further, the OFLC Administrator, in making the temporary alien 
agricultural labor certification determination, will subtract from any 
temporary alien agricultural labor certification the specific verified 
number of job opportunities involved which are vacant because of a 
strike or other labor dispute involving a work stoppage, or a lockout, 
in the occupation at the place of employment (and for which H-2A 
workers have been requested). Upon receipt by the OFLC Administrator of 
such labor dispute information from any source, the OFLC Administrator 
shall verify the existence of the strike, labor dispute, or lockout and 
any resulting vacancies prior to making such a determination.
    (2) Fees. A temporary alien agricultural labor certification 
determination granting an application shall include a bill for the 
required fees. Each employer (except joint employer associations) of H-
2A workers under the application for temporary alien agricultural labor 
certification shall pay in a timely manner a nonrefundable fee upon 
issuance of the temporary alien agricultural labor certification 
granting the application (in whole or in part), as follows:
    (i) Amount. The fee for each employer receiving a temporary alien 
agricultural labor certification is $100 plus $10 for

[[Page 25997]]

each job opportunity for H-2A workers certified, provided that the fee 
to an employer for each temporary alien agricultural labor 
certification received shall be no greater than $1,000. In the case of 
a joint employer association receiving a temporary alien agricultural 
labor certification, each employer-member receiving a temporary alien 
agricultural labor certification shall pay a fee of $100 plus $10 for 
each job opportunity for H-2A workers certified, provided that the fee 
to an employer for each temporary alien agricultural labor 
certification received shall be no greater than $1,000. The joint 
employer association will not be charged a separate fee. The fees shall 
be paid by check or money order made payable to ``Department of 
Labor''. In the case of employers of H-2A workers which are members of 
a joint employer association applying on their behalf, the aggregate 
fees for all employers of H-2A workers under the application may be 
paid by one check or money order.
    (ii) Timeliness. Fees received by the OFLC Administrator no more 
than 30 calendar days after the date of the temporary alien 
agricultural labor certification determination are timely.
    (c) Changes to temporary alien agricultural labor certifications; 
temporary alien agricultural labor certifications involving employer 
associations--(1) Changes. Temporary alien agricultural labor 
certifications are subject to the conditions and assurances made during 
the application process. Any changes in the level of benefits, wages, 
and working conditions an employer may wish to make at any time during 
the work contract period must be approved by the OFLC Administrator 
after written application by the employer, even if such changes have 
been agreed to by an employee. Temporary alien agricultural labor 
certifications shall be for the specific period of time specified in 
the employer's job offer, which shall be less than twelve months; shall 
be limited to the employer's specific job opportunities; and may not be 
transferred from one employer to another, except as provided for by 
paragraph (c)(2) of this section.
    (2) Associations--(i) Applications. If an association is requesting 
a temporary alien agricultural labor certification as a joint employer, 
the temporary alien agricultural labor certification granted under this 
section shall be made jointly to the association and to its employer 
members. Except as provided in paragraph (c)(2)(iii) of this section, 
such workers may be transferred among its producer members to perform 
work for which the temporary alien agricultural labor certification was 
granted, provided the association controls the assignment of such 
workers and maintains a record of such assignments. All temporary alien 
agricultural labor certifications to associations may be used for the 
certified job opportunities of any of its members. If an association is 
requesting a temporary alien agricultural labor certification as a sole 
employer, the temporary alien agricultural labor certification granted 
pursuant to this section shall be made to the association only.
    (ii) Referrals and transfers. For the purposes of complying with 
the ``fifty-percent rule'' at Sec.  655.103(e) of this part, any 
association shall be allowed to refer or transfer workers among its 
members (except as provided in paragraph (c)(2)(iii) of this section), 
and an association acting as an agent for its members shall not be 
considered a joint employer merely because of such referral or 
transfer.
    (iii) Ineligible employer-members. Workers shall not be transferred 
or referred to an association's member, if that member is ineligible to 
obtain any or any additional workers, pursuant to Sec.  655.110 of this 
part.
    (3) Extension of temporary alien agricultural labor certification--
(i) Short-term extension. An employer who seeks an extension of two 
weeks or less of the temporary alien agricultural labor certification 
shall apply for such extension to DHS. If DHS grants such an extension, 
the temporary alien agricultural labor certification shall be deemed 
extended for such period as is approved by DHS. No extension granted 
under this paragraph (c)(3)(i) shall be for a period longer than the 
original work contract period of the temporary alien agricultural labor 
certification.
    (ii) Long-term extension. For extensions beyond the period which 
may be granted by DHS pursuant to paragraph (c)(3)(i) of this section, 
an employer, after 50 percent of the work contract period has elapsed, 
may apply to the OFLC Administrator for an extension of the period of 
the temporary alien agricultural labor certification, for reasons 
related to weather conditions or other external factors beyond the 
control of the employer (which may include unforeseen changes in market 
conditions), provided that the employer's need for an extension is 
supported in writing by the employer, with documentation showing that 
the extension is needed and could not have been reasonably foreseen by 
the employer. The OFLC Administrator shall grant or deny the request 
for extension of the temporary alien agricultural labor certification 
based on available information, and shall notify the employer of the 
decision on the request in writing. The OFLC Administrator shall not 
grant an extension where the total work contract period, including past 
temporary alien labor certifications for the job opportunity and 
extensions, would be 12 months or more, except in extraordinary 
circumstances. The OFLC Administrator shall not grant an extension 
where the temporary alien agricultural labor certification has already 
been extended by DHS pursuant to paragraph (c)(3)(i) of this section.
    (d) Denials of applications. If the OFLC Administrator does not 
grant the temporary alien agricultural labor certification (in whole or 
in part) the OFLC Administrator shall notify the employer by means 
reasonably calculated to assure next-day delivery. The notification 
shall contain all the statements required in Sec.  655.104(c) of this 
part. If a timely request is made for an administrative-judicial review 
or a de novo hearing by an administrative law judge, the procedures of 
Sec.  655.112 of this part shall be followed.
    (e) Approvals of applications--(1) Continued recruitment of U.S. 
workers. After a temporary agricultural labor certification has been 
granted, the employer shall continue its efforts to recruit U.S. 
workers until the actual date the H-2A workers depart for the 
employer's place of employment.
    (i) Unless the SWA is informed in writing of a different date, the 
SWA shall deem the third day immediately preceding the employer's first 
date of need to be the date the H-2A workers depart for the employer's 
place of employment. The employer may notify the SWA in writing if the 
workers depart prior to that date.
    (ii)(A) If the H-2A workers do not depart for the place of 
employment on or before the first date of need (or by the stated date 
of departure, if the SWA has been advised of a different date), the 
employer shall notify the SWA in writing (or orally, confirmed in 
writing) as soon as the employer knows that the workers will not depart 
by the first date of need, and in no event later than such date of 
need. At the same time, the employer shall notify the SWA of the 
workers' expected departure date, if known. No further notice is 
necessary if the workers depart by the stated date of departure.
    (B) If the employer did not notify the SWA of the expected 
departure date pursuant to paragraph (e)(1)(ii)(A) of this section, or 
if the H-2A workers do not leave for the place of employment on or 
before the stated date of departure, the employer shall notify the SWA 
in

[[Page 25998]]

writing (or orally, confirmed in writing) as soon as the employer 
becomes aware of the expected departure date, or that the workers did 
not depart by the stated date and the new expected departure date, as 
appropriate.
    (2) Requirement for Active Job Order. The employer shall keep an 
active job order on file until the ``50-percent rule'' assurance at 
Sec.  655.103(e) of this part is met, except as provided by paragraph 
(f) of this section.
    (3) Referrals by ES System. The ES system shall continue to refer 
to the employer U.S. workers who apply as long as there is an active 
job order on file.
    (f) Exceptions--(1) ``Fifty-percent rule'' inapplicable to small 
employers. The assurance requirement at Sec.  655.103(e) of this part 
does not apply to any employer who:
    (i) Did not, during any calendar quarter during the preceding 
calendar year, use more than 500 ``man-days'' of agricultural labor, as 
defined in section 3(u) of the Fair Labor Standards Act of 1938 (29 
U.S.C. 203(u)), and so certifies to the OFLC Administrator in the H-2A 
application; and
    (ii) Is not a member of an association which has applied for a 
temporary alien agricultural labor certification under this subpart for 
its members; and
    (iii) Has not otherwise ``associated'' with other employers who are 
applying for H-2A workers under this subpart, and so certifies to the 
OFLC Administrator.
    (2) Displaced H-2A workers. An employer shall not be liable for 
payment under Sec.  655.102(b)(6) of this part with respect to an H-2A 
worker whom the OFLC Administrator certifies is displaced due to 
compliance with Sec.  655.103(e) of this part.
    (g) Withholding of U.S. workers prohibited--(1) Complaints. Any 
employer who has reason to believe that a person or entity has 
willfully and knowingly withheld U.S. workers prior to the arrival at 
the job site of H-2A workers in order to force the hiring of U.S. 
workers under Sec.  655.103(e) of this part may submit a written 
complaint to the SWA. The complaint shall clearly identify the person 
or entity whom the employer believes has withheld the U.S. workers, and 
shall specify sufficient facts to support the allegation (e.g., dates, 
places, numbers and names of U.S. workers) which will permit an 
investigation to be conducted by the SWA.
    (2) Investigations. The SWA shall inform the OFLC Administrator by 
telephone that a complaint under the provisions of paragraph (g) of 
this section has been filed and shall immediately investigate the 
complaint. Such investigation shall include interviews with the 
employer who has submitted the complaint, the person or entity named as 
responsible for withholding the U.S. workers, and the individual U.S. 
workers whose availability has purportedly been withheld. In the event 
the SWA fails to conduct such interviews, the OFLC Administrator shall 
do so.
    (3) Reports of findings. Within five working days after receipt of 
the complaint, the SWA shall prepare a report of its findings, and 
shall submit such report (including recommendations) and the original 
copy of the employer's complaint to the OFLC Administrator.
    (4) Written findings. The OFLC Administrator shall immediately 
review the employer's complaint and the report of findings submitted by 
the local office, and shall conduct any additional investigation the 
OFLC Administrator deems appropriate. No later than 36 working hours 
after receipt of the employer's complaint and the local office's 
report, the OFLC Administrator shall issue written findings to the 
local office and the employer. Where the OFLC Administrator determines 
that the employer's complaint is valid and justified, the OFLC 
Administrator shall immediately suspend the application of Sec.  
655.103(e) of this part to the employer. Such suspension of Sec.  
655.103(e) of this part under these circumstances shall not take place, 
however, until the interviews required by paragraph (g)(2) of this 
section have been conducted. The OFLC Administrator's determination 
under the provisions of this paragraph (g)(4) shall be the final 
decision of the Secretary, and no further review by any DOL official 
shall be given to it.
    (h) Requests for new temporary alien agricultural labor 
certification determinations based on nonavailability of able, willing, 
and qualified U.S. workers--(1) Standards for requests. If a temporary 
alien agricultural labor certification application has been denied (in 
whole or in part) based on the OFLC Administrator's determination of 
the availability of able, willing, and qualified U.S. workers, and, on 
or after 20 calendar days before the date of need specified in the 
temporary alien agricultural labor certification determination, such 
U.S. workers identified as being able, willing, qualified, and 
available are, in fact, not able, willing, qualified, or available at 
the time and place needed, the employer may request a new temporary 
alien agricultural labor certification determination from the OFLC 
Administrator. The OFLC Administrator shall expeditiously, but in no 
case later than 72 hours after the time a request is received, make a 
determination on the request.
    (2) Filing requests. The employer's request for a new determination 
shall be made directly to the OFLC Administrator. The request may be 
made to the OFLC Administrator by telephone, but shall be confirmed by 
the employer in writing as required by paragraphs (h)(2)(i) or (ii) of 
this section.
    (i) Workers not able, willing, qualified, or eligible. If the 
employer asserts that any worker who has been referred by the ES System 
or by any other person or entity is not an eligible worker or is not 
able, willing, or qualified for the job opportunity for which the 
employer has requested H-2A workers, the burden of proof is on the 
employer to establish that the individual referred is not able, 
willing, qualified, or eligible because of lawful job-related reasons. 
The employer's burden of proof shall be met by the employer's 
submission to the OFLC Administrator, within 72 hours of the OFLC 
Administrator's receipt of the request for a new determination, of a 
signed statement of the employer's assertions, which shall identify 
each rejected worker by name and shall state each lawful job-related 
reason for rejecting that worker.
    (ii) U.S. workers not available. If the employer telephonically 
requests the new determination, asserting solely that U.S. workers are 
not available, the employer shall submit to the OFLC Administrator a 
signed statement confirming such assertion. If such signed statement is 
not received by the OFLC Administrator within 72 hours of the OFLC 
Administrator's receipt of the telephonic request for a new 
determination, the OFLC Administrator may make the determination based 
solely on the information provided telephonically and the information 
(if any) from the SWA.
    (3) National Processing Center review--(i) Expeditious review. The 
OFLC Administrator expeditiously shall review the request for a new 
determination. The OFLC Administrator may request a signed statement 
from the SWA in support of the employer's assertion of U.S. worker 
nonavailability or referred U.S. workers not being able, willing, or 
qualified because of lawful job-related reasons.
    (ii) New determination. If the OFLC Administrator determines that 
the employer's assertion of nonavailability is accurate and that no 
able, willing, or qualified U.S. worker has been refused or is being 
refused employment for other than lawful job-related reasons,

[[Page 25999]]

the OFLC Administrator shall, within 72 hours after receipt of the 
employer's request, render a new determination. Prior to making a new 
determination, the OFLC Administrator promptly shall ascertain (which 
may be through the ES System or other sources of information on U.S. 
worker availability) whether able, willing, and qualified replacement 
U.S. workers are available or can be reasonably expected to be present 
at the employer's establishment within 72 hours from the date the 
employer's request was received.
    (iii) Notification of new determination. If the OFLC Administrator 
cannot identify sufficient able, willing, and qualified U.S. workers 
who are or who are likely to be available, the OFLC Administrator shall 
grant the employer's new determination request (in whole or in part) 
based on available information as to replacement U.S. worker 
availability. The OFLC Administrator's notification to the employer on 
the new determination shall be in writing (by means normally assuring 
next-day delivery), and the OFLC Administrator's determination under 
the provisions of this paragraph (h)(3) shall be the final decision of 
the Secretary, and no further review shall be given to an employer's 
request for a new H-2A determination by any DOL official. However, this 
does not preclude an employer from submitting subsequent requests for 
new determinations, if warranted, based on subsequent facts concerning 
purported nonavailability of U.S. workers or referred workers not being 
eligible workers or not able, willing, or qualified because of lawful 
job-related reasons.


Sec.  655.107  Adverse effect wage rates (AEWRs).

    (a) Computation and publication of AEWRs. Except as otherwise 
provided in this section, the AEWRs for all agricultural employment 
(except for those occupations deemed inappropriate under the special 
circumstances provisions of Sec.  655.93 of this part) for which 
temporary alien agricultural labor certification is being sought shall 
be equal to the annual weighted average hourly wage rate for field and 
livestock workers (combined) for the region as published annually by 
the U.S. Department of Agriculture (USDA) based on the USDA quarterly 
wage survey. The OFLC Administrator shall publish, at least once in 
each calendar year, on a date or dates to be determined by the OFLC 
Administrator, AEWRs for each State (for which USDA publishes regional 
data), calculated pursuant to this paragraph (a) as a notice or notices 
in the Federal Register.
    (b) Higher prevailing wage rates. If, as the result of a State 
agency prevailing wage survey determination, the prevailing wage rate 
in an area and agricultural activity (as determined by the State agency 
survey and verified by the OFLC Administrator) is found to be higher 
that the AEWR computed pursuant to paragraph (a) of this section, the 
higher prevailing wage rate shall be offered and paid to all workers by 
employers seeking temporary alien agricultural labor certification for 
that agricultural activity and area.
    (c) Federal minimum wage rate. In no event shall an AEWR computed 
pursuant to this section be lower than the hourly wage rate published 
in 29 U.S.C. 206(a)(1) and currently in effect.


Sec.  655.108  H-2A applications involving fraud or willful 
misrepresentation.

    (a) Referral for investigation. If possible fraud or willful 
misrepresentation involving a temporary alien agricultural labor 
certification application is discovered prior to a final temporary 
alien agricultural labor certification determination or if it is 
learned that the employer or agent (with respect to an application) is 
the subject of a criminal indictment or information filed in a court, 
the OFLC Administrator shall refer the matter to the DHS and DOL Office 
of the Inspector General for investigation. The OFLC Administrator 
shall continue to process the application and may issue a temporary 
alien agricultural labor certification.
    (b) Continued processing. If a court finds an employer or agent not 
guilty of fraud or willful misrepresentation, or if the Department of 
Justice decides not to prosecute an employer or agent, the OFLC 
Administrator shall not deny the temporary alien agricultural labor 
certification application on the grounds of fraud or willful 
misrepresentation. The application, of course, may be denied for other 
reasons pursuant to this subpart.
    (c) Terminated processing. If a court or the DHS determines that 
there was fraud or willful misrepresentation involving a temporary 
alien agricultural labor certification application, the application is 
thereafter invalid, consideration of the application shall be 
terminated and the OFLC Administrator shall return the application to 
the employer or agent with the reasons therefor stated in writing.


Sec.  655.110  Employer penalties for noncompliance with terms and 
conditions of temporary alien agricultural labor certifications.

    (a) Investigation of violations. If, during the period of two years 
after a temporary alien agricultural labor certification has been 
granted (in whole or in part), the OFLC Administrator has reason to 
believe that an employer violated a material term or condition of the 
temporary alien agricultural labor certification, the OFLC 
Administrator shall, except as provided in paragraph (b) of this 
section, investigate the matter. If, after the investigation, the OFLC 
Administrator determines that a substantial violation has occurred, the 
OFLC Administrator, shall notify the employer that a temporary alien 
agricultural certification request will not be granted for the next 
period of time in a calendar year during which the employer would 
normally be expected to request a temporary alien agricultural labor 
certification, and any application subsequently submitted by the 
employer for that time period will not be accepted by the OFLC 
Administrator. If multiple or repeated substantial violations are 
involved, the OFLC Administrator's notice to the employer shall specify 
that the prospective denial of the temporary alien agricultural labor 
certification will apply not only to the next anticipated period for 
which a temporary alien agricultural labor certification would normally 
be requested, but also to any periods within the coming two or three 
years; two years for two violations, or repetitions of the same 
violations, and three years for three or more violations, or 
repetitions thereof. The OFLC Administrator's notice shall be in 
writing, shall state the reasons for the determinations, and shall 
offer the employer an opportunity to request an expedited 
administrative review or a de novo hearing before an administrative law 
judge of the determination within seven calendar days of the date of 
the notice. If the employer requests an expedited administrative review 
or a de novo hearing before an administrative law judge, the procedures 
in Sec.  655.112 of this part shall be followed.
    (b) Employment Standards Administration investigations. The OFLC 
Administrator may make the determination described in paragraph (a) of 
this section based on information and recommendations provided by the 
Employment Standards Administration, after an Employment Standards 
Administration investigation has been conducted in accordance with the 
Employment Standards Administration procedures, that an employer has 
not complied with the terms and conditions

[[Page 26000]]

of employment prescribed as a condition for a temporary alien 
agricultural labor certification. In such instances, the OFLC 
Administrator need not conduct any investigation of his/her own, and 
the subsequent notification to the employer and other procedures 
contained in paragraph (a) of this section will apply. Penalties 
invoked by the Employment Standards Administration for violations of 
temporary alien agricultural labor certification terms and conditions 
shall be treated and handled separately from sanctions available to the 
OFLC Administrator, and an employer's obligations for compliance with 
the Employment Standards Administration's enforcement penalties shall 
not absolve an employer from sanctions applied by ETA under this 
section (except as noted in paragraph (a) of this section).
    (c) Less than substantial violations--(1) Requirement of special 
procedures. If, after investigation as provided for under paragraph (a) 
of this section, or an Employment Standards Administration notification 
as provided under paragraph (b) of this section, the OFLC Administrator 
determines that a less than substantial violation has occurred, but the 
OFLC Administrator has reason to believe that past actions on the part 
of the employer may have had and may continue to have a chilling or 
otherwise negative effect on the recruitment, employment, and retention 
of U.S. workers, the OFLC Administrator may require the employer to 
conform to special procedures before and after the temporary alien 
labor certification determination (including special on-site positive 
recruitment and streamlined interviewing and referral techniques) 
designed to enhance U.S. worker recruitment and retention in the next 
year as a condition for receiving a temporary alien agricultural labor 
certification. Such requirements shall be reasonable, and shall not 
require the employer to offer better wages, working conditions and 
benefits than those specified in Sec.  655.102 of this part, and shall 
be no more than deemed necessary to assure employer compliance with the 
test of U.S. worker availability and adverse effect criteria of this 
subpart. The OFLC Administrator shall notify the employer in writing of 
the special procedures which will be required in the coming year. The 
notification shall state the reasons for the imposition of the 
requirements, state that the employer's agreement to accept the 
conditions will constitute inclusion of them as bona fide conditions 
and terms of a temporary alien agricultural labor certification, and 
shall offer the employer an opportunity to request an administrative 
review or a de novo hearing before an administrative law judge. If an 
administrative review or de novo hearing is requested, the procedures 
prescribed in Sec.  655.112 of this part shall apply.
    (2) Failure to comply with special procedures. If the OFLC 
Administrator determines that the employer has failed to comply with 
special procedures required pursuant to paragraph (c)(1) of this 
section, the OFLC Administrator shall send a written notice to the 
employer, stating that the employer's otherwise affirmative temporary 
alien agricultural labor certification determination will be reduced by 
twenty-five percent of the total number of H-2A aliens requested (which 
cannot be more than those requested in the previous year) for a period 
of one year. Notice of such a reduction in the number of workers 
requested shall be conveyed to the employer by the OFLC Administrator 
in the OFLC Administrator's written temporary alien agricultural labor 
certification determination required by Sec.  655.101 of this part. The 
notice shall offer the employer an opportunity to request an 
administrative review or a de novo hearing before an administrative law 
judge. If an administrative review or de novo hearing is requested, the 
procedures prescribed in Sec.  655.112 of this part shall apply, 
provided that if the administrative law judge affirms the OFLC 
Administrator's determination that the employer has failed to comply 
with special procedures required by paragraph (c)(1) of this section, 
the reduction in the number of workers requested shall be twenty-five 
percent of the total number of H-2A aliens requested (which cannot be 
more than those requested in the previous year) for a period of one 
year.
    (d) Penalties involving members of associations. If, after 
investigation as provided for under paragraph (a) of this section, or 
notification from the Employment Standards Administration under 
paragraph (b) of this section, the OFLC Administrator determines that a 
substantial violation has occurred, and if an individual producer 
member of a joint employer association is determined to have committed 
the violation, the denial of temporary alien agricultural labor 
certification penalty prescribed in paragraph (a) shall apply only to 
that member of the association unless the OFLC Administrator determines 
that the association or other association member participated in, had 
knowledge of, or had reason to know of the violation, in which case the 
penalty shall be invoked against the association or other association 
member as well.
    (e) Penalties involving associations acting as joint employers. If, 
after investigation as provided for under paragraph (a) of this 
section, or notification from the Employment Standards Administration 
under paragraph (b) of this section, the OFLC Administrator determines 
that a substantial violation has occurred, and if an association acting 
as a joint employer with its members is determined to have committed 
the violation, the denial of temporary alien agricultural labor 
certification penalty prescribed in paragraph (a) of this section shall 
apply only to the association, and shall not be applied to any 
individual producer member of the association unless the OFLC 
Administrator determines that the member participated in, had knowledge 
of, or reason to know of the violation, in which case the penalty shall 
be invoked against the association member as well.
    (f) Penalties involving associations acting as sole employers. If, 
after investigation as provided for under paragraph (a) of this 
section, or notification from the Employment Standards Administration 
under paragraph (b) of this section, the OFLC Administrator determines 
that a substantial violation has occurred, and if an association acting 
as a sole employer is determined to have committed the violation, no 
individual producer member of the association shall be permitted to 
employ certified H-2A workers in the crop and occupation for which the 
H-2A workers had been previously certified for the sole employer 
association unless the producer member applies for temporary alien 
agricultural labor certification under the provisions of this subpart 
in the capacity of an individual employer/applicant or as a member of a 
joint employer association, and is granted temporary alien agricultural 
labor certification by the OFLC Administrator.
    (g) Types of violations--(1) Substantial violation. For the 
purposes of this subpart, a substantial violation is one or more 
actions of commission or omission on the part of the employer or the 
employer's agent, with respect to which the OFLC Administrator 
determines:
    (i)(A) That the action(s) is/are significantly injurious to the 
wages, benefits, or working conditions of 10 percent or more of an 
employer's U.S. and/or H-2A workforce; and that:
    (1) With respect to the action(s), the employer has failed to 
comply with one or more penalties imposed by the

[[Page 26001]]

Employment Standards Administration for violation(s) of contractual 
obligations found by that agency (if applicable), or with one or more 
decisions or orders of the Secretary or a court pursuant to Sec.  216 
of the INA (8 U.S.C. 1186), this subpart, or 29 CFR part 501 
(Employment Standards Administration enforcement of contractual 
obligations); or
    (2) The employer has engaged in a pattern or practice of actions 
which are significantly injurious to the wages, benefits, or working 
conditions of 10 percent or more of an employer's U.S. and/or H-2A 
workforce;
    (B) That the action(s) involve(s) impeding an investigation of an 
employer pursuant to Sec.  216 of the INA (8 U.S.C. 1186), this 
subpart, or 29 CFR part 501 (Employment Standards Administration 
enforcement of contractual obligations);
    (C) That the employer has not paid the necessary fee in a timely 
manner;
    (D) That the employer is not currently eligible to apply for a 
temporary alien agricultural labor certification pursuant to Sec.  
655.210 of this part (failure of an employer to comply with the terms 
of a temporary alien agricultural labor certification in which the 
application was filed under subpart C of this part prior to June 1, 
1987); or
    (E) That there was fraud involving the application for temporary 
alien agricultural labor certification or that the employer made a 
material misrepresentation of fact during the application process; and
    (ii) That there are no extenuating circumstances involved with the 
action(s) described in paragraph (g)(1)(i) of this section (as 
determined by the OFLC Administrator).
    (2) Less than substantial violation. For the purposes of this 
subpart, a less than substantial violation is an action of commission 
or omission on the part of the employer or the employer's agent which 
violates a requirement of this subpart, but is not a substantial 
violation.


Sec.  655.111  Petition for higher meal charges.

    (a) Filing petitions. Until a new amount is set pursuant to this 
paragraph (a), the OFLC Administrator may permit an employer to charge 
workers up to $6.58 for providing them with three meals per day, if the 
employer justifies the charge and submits to the OFLC Administrator the 
documentation required by paragraph (b) of this section. In the event 
the employer's petition for a higher meal charge is denied in whole or 
in part, the employer may appeal such denial. Such appeals shall be 
filed with the Chief Administrative Law Judge. Administrative law 
judges shall hear such appeals according to the procedures in 29 CFR 
part 18, except that the appeal shall not be considered as a complaint 
to which an answer is required. The decision of the administrative law 
judge shall be the final decision of the Secretary. Each year the 
maximum charge allowed by this paragraph (a) will be changed by the 
same percentage as the twelve-month percent change for the Consumer 
Price Index for all Urban Consumers for Food between December of the 
year just concluded and December of the year prior to that. The annual 
adjustments shall be effective on the date of their publication by the 
OFLC Administrator as a notice in the Federal Register. However, an 
employer may not impose such a charge on a worker prior to the 
effective date contained in the OFLC Administrator's written 
confirmation of the amount to be charged.
    (b) Required documentation. Documentation submitted shall include 
the cost of goods and services directly related to the preparation and 
serving of meals, the number of workers fed, the number of meals served 
and the number of days meals were provided. The cost of the following 
items may be included: Food; kitchen supplies other than food, such as 
lunch bags and soap; labor costs which have a direct relation to food 
service operations, such as wages of cooks and restaurant supervisors; 
fuel, water, electricity, and other utilities used for the food service 
operation; and other costs directly related to the food service 
operation. Charges for transportation, depreciation, overhead and 
similar charges may not be included. Receipts and other cost records 
for a representative pay period shall be available for inspection by 
the OFLC Administrator for a period of one year.


Sec.  655.112  Administrative review and de novo hearing before an 
administrative law judge.

    (a) Administrative review--(1) Consideration. Whenever an employer 
has requested an administrative review before an administrative law 
judge of a decision not to accept for consideration a temporary alien 
agricultural labor certification application, of the denial of a 
temporary alien agricultural labor certification, or of a penalty under 
Sec.  655.110 of this part, the OFLC Administrator shall send a 
certified copy of the ETA case file to the Chief Administrative Law 
Judge by means normally assuring next-day delivery. The Chief 
Administrative Law Judge shall immediately assign an administrative law 
judge (which may be a panel of such persons designated by the Chief 
Administrative Law Judge from the Board of Alien Labor Certification 
Appeals established by part 656 of this chapter, but which shall hear 
and decide the appeal as set forth in this section) to review the 
record for legal sufficiency. The administrative law judge shall not 
remand the case and shall not receive additional evidence.
    (2) Decision. Within five working days after receipt of the case 
file the administrative law judge shall, on the basis of the written 
record and after due consideration of any written submissions submitted 
from the parties involved or amici curiae, either affirm, reverse, or 
modify the OFLC Administrator's denial by written decision. The 
decision of the administrative law judge shall specify the reasons for 
the action taken and shall be immediately provided to the employer, 
OFLC Administrator, and DHS by means normally assuring next-day 
delivery. The administrative law judge's decision shall be the final 
decision of the Secretary and no further review shall be given to the 
temporary alien agricultural labor certification application or the 
temporary alien agricultural labor certification determination by any 
DOL official.
    (b) De novo hearing--(1) Request for hearing; conduct of hearing. 
Whenever an employer has requested a de novo hearing before an 
administrative law judge of a decision not to accept for consideration 
a temporary alien agricultural labor certification application, of the 
denial of a temporary alien agricultural labor certification, or of a 
penalty under Sec.  655.110 of this part, the OFLC Administrator shall 
send a certified copy of the case file to the Chief Administrative Law 
Judge by means normally assuring next-day delivery. The Chief 
Administrative Law Judge shall immediately assign an administrative law 
judge (which may be a panel of such persons designated by the Chief 
Administrative Law Judge from the Board of Alien Labor Certification 
Appeals established by part 656 of this chapter, but which shall hear 
and decide the appeal as set forth in this section) to conduct the de 
novo hearing. The procedures contained in 29 CFR part 18 shall apply to 
such hearings, except that:
    (i) The appeal shall not be considered to be a complaint to which 
an answer is required,
    (ii) The administrative law judge shall ensure that, at the request 
of the employer, the hearing is scheduled to take place within five 
working days after the administrative law judge's receipt of the case 
file, and

[[Page 26002]]

    (iii) The administrative law judge's decision shall be rendered 
within ten working days after the hearing.
    (2) Decision. After a de novo hearing, the administrative law judge 
shall either affirm, reverse, or modify the OFLC Administrator's 
determination, and the administrative law judge's decision shall be 
provided immediately to the employer, OFLC Administrator, and DHS by 
means normally assuring next-day delivery. The administrative law 
judge's decision shall be the final decision of the Secretary, and no 
further review shall be given to the temporary alien agricultural labor 
certification application or the temporary alien agricultural labor 
certification determination by any DOL official.


Sec.  655.113  Job Service Complaint System; enforcement of work 
contracts.

    Complaints arising under this subpart may be filed through the Job 
Service Complaint System, as described in 20 CFR part 658, subpart E. 
Complaints which involve worker contracts shall be referred by the 
local office to the Employment Standards Administration for appropriate 
handling and resolution. See 29 CFR part 501. As part of this process, 
the Employment Standards Administration may report the results of its 
investigation to ETA for consideration of employer penalties under 
Sec.  655.110 of this part or such other action as may be appropriate.

0
7. Add subpart C to read as follows:
Subpart C--Labor Certification Process for Logging Employment and Non-
H-2A Agricultural Employment
Sec.
655.200 General description of this subpart and definition of terms.
655.201 Temporary labor certification applications.
655.202 Contents of job offers.
655.203 Assurances.
655.204 Determinations based on temporary labor certification 
applications.
655.205 Recruitment period.
655.206 Determinations of U.S. worker availability and adverse 
effect on U.S. workers.
655.207 Adverse effect rates.
655.208 Temporary labor certification applications involving fraud 
or willful misrepresentation.
655.209 Invalidation of temporary labor certifications.
655.210 Failure of employers to comply with the terms of a temporary 
labor certification.
655.211 Petition for higher meal charges.
655.212 Administrative-judicial reviews.
655.215 Territory of Guam.

Subpart C--Labor Certification Process for Logging Employment and 
Non-H-2A Agricultural Employment


Sec.  655.200  General description of this subpart and definition of 
terms.

    (a) This subpart applies to applications for temporary alien 
agricultural labor certification filed before June 1, 1987, and to 
applications for temporary alien labor certification for logging 
employment.
    (b) An employer who desires to use foreign workers for temporary 
employment must file a temporary labor certification application 
including a job offer for U.S. workers with an appropriate State 
Workforce Agency. The employer should file an application a minimum of 
80 days before the estimated date of need for the workers. If filed 80 
days before need, sufficient time is allowed for the 60-day recruitment 
period required by the regulations and a determination by the OFLC 
Administrator as to the availability of U.S. workers 20 days before the 
date of need. Shortly after the application has been filed, the OFLC 
Administrator makes a determination as to whether or not the 
application has been filed in enough time to recruit U.S. workers and 
whether or not the job offer for U.S. workers offers wages and working 
conditions which will not adversely affect the wages and working 
conditions of similarly employed U.S. workers, as prescribed in the 
regulations in this subpart. If the application does not meet the 
regulatory wage and working condition standards, the OFLC Administrator 
shall deny the temporary labor certification application and offer the 
employer an administrative-judicial review of the denial by an 
Administrative Law Judge. If the application is not timely, the OFLC 
Administrator has discretion, as set forth in these regulations, to 
either deny the application or permit the process to proceed reasonably 
with the employer recruiting U.S. workers upon such terms as will 
accomplish the purposes of the INA and the DHS regulations. Where the 
application is timely and meets the regulatory standards, the State 
Workforce Agency, the employer, and the Department of Labor recruit 
U.S. workers for 60 days. At the end of the 60 days, the OFLC 
Administrator grants the temporary labor certification if the OFLC 
Administrator finds that (1) the employer has not offered foreign 
workers higher wages or better working conditions (or less 
restrictions) than that offered to U.S. workers, and (2) U.S. workers 
are not available for the employer's job opportunities. If the 
temporary labor certification is denied, the employer may seek an 
administrative-judicial review of the denial by an Administrative Law 
Judge as provided in these regulations. The Department of Labor 
thereafter advises the United States Citizenship and Immigration 
Services of the Department of Homeland Security (DHS) of approvals and 
denials of temporary labor certifications. The DHS may accept or reject 
this advice. 8 CFR 214.2(h)(3). The DHS makes the final decision as to 
whether or not to grant visas to the foreign workers. 8 U.S.C. 1184(a).
    (c) Definitions for terms used in this subpart.
    Administrative Law Judge means an official who is authorized to 
conduct administrative hearings.
    Administrator, Office of Foreign Labor Certification (OFLC 
Administrator) means the primary official of the Office of Foreign 
Labor Certification or the OFLC Administrator's designee.
    Adverse effect rate means the wage rate which the OFLC 
Administrator has determined must be offered and paid to foreign and 
U.S. workers for a particular occupation and/or area so that the wages 
of similarly employed U.S. workers will not be adversely affected. The 
OFLC Administrator may determine that the prevailing wage rate in the 
area and/or occupation is the adverse effect rate, if the use (or non-
use) of aliens has not depressed the wages of similarly employed U.S. 
workers. The OFLC Administrator may determine that a wage rate higher 
than the prevailing wage rate is the adverse effect rate if the OFLC 
Administrator determines that the use of aliens has depressed the wages 
of similarly employed U.S. workers.
    Agent means a legal person, such as an association of employers, 
which (1) is authorized to act as an agent of the employer for 
temporary labor certification purposes, and (2) which is not itself an 
employer, or a joint employer, as defined in this section.
    Area of intended employment means the area within normal commuting 
distance of the place (address) of intended employment. If the place of 
intended employment is within a Standard Metropolitan Statistical Area 
(SMSA), any place within the SMSA is deemed to be within normal 
commuting distance of the place of intended employment.
    Department of Homeland Security (DHS) through the United States 
Citizenship and Immigration Services (USCIS) makes the determination 
under the INA on whether or not to grant visa petitions to an alien 
seeking to perform temporary agricultural or logging work in the United 
States.

[[Page 26003]]

    Employer means a person, firm, corporation or other association or 
organization (1) which currently has a location within the United 
States to which U.S. workers may be referred for employment, and which 
proposes to employ a worker at a place within the United States and (2) 
which has an employer relationship with respect to employees under this 
subpart as indicated by the fact that it hires, pays, fires, supervises 
and otherwise controls the work of such employees. An association of 
employers shall be considered an employer if it has all of the indicia 
of an employer set forth in this definition. Such an association, 
however, shall be considered as a joint employer with the employer 
member if it shares with the employer member one or more of the 
definitional indicia.
    Employment and Training Administration (ETA) means the agency 
within the Department of Labor (DOL) which includes the Office of 
Foreign Labor (OFLC).
    Job opportunity means a job opening for temporary, full-time 
employment at a place in the United States to which U.S. workers can be 
referred.
    Office of Foreign Labor Certification (OFLC) means the 
organizational component within the ETA that provides national 
leadership and policy guidance and develops regulations and procedures 
to carry out the responsibilities of the Secretary of Labor under the 
INA concerning alien workers seeking admission to the United States in 
order to work under the Immigration and Nationality Act, as amended.
    Secretary means the Secretary of Labor or the Secretary's designee.
    State Workforce Agency (SWA) means the State employment service 
agency.
    Temporary labor certification means the advice given by the 
Secretary of Labor to the United States Citizenship and Immigration 
Services (USCIS) of the Department of Homeland Security (DHS), pursuant 
to the regulations of that agency at 8 CFR 214.2(h)(3)(i), that (1) 
there are not sufficient U.S. workers who are qualified and available 
to perform the work and (2) the employment of the alien will not 
adversely affect the wages and working conditions of similarly employed 
U.S. workers.
    United States workers means any worker who, whether U.S. national, 
citizen or alien, is legally permitted to work permanently within the 
United States.


Sec.  655.201  Temporary labor certification applications.

    (a)(1) An employer who anticipates a labor shortage of workers for 
agricultural or logging employment may request a temporary labor 
certification for temporary foreign workers by filing, or by having an 
agent file, in duplicate, a temporary labor certification application, 
signed by the employer, with a SWA in the area of intended employment.
    (2) If the temporary labor certification application is filed by an 
agent, however, the agent may sign the application if the application 
is accompanied by a letter from each employer the agent represents, 
signed by the employer, which authorizes the agent to act on the 
employer's behalf and which states that the employer assumes full 
responsibility for the accuracy of the application, for all 
representations made by the agent on the employer's behalf, and for the 
fulfillment of all legal requirements arising under this subpart.
    (3) If an association of employers files the application, the 
association shall identify and submit documents to verify whether, in 
accordance with the definitions at Sec.  655.200, it is: (i) The 
employer, (ii) a joint employer with its member employers, or (iii) the 
agent of its employer members.
    (b) Every temporary labor certification application shall include:
    (1) A copy of the job offer which will be used by the employer (or 
each employer) for the recruitment of both U.S. and foreign workers. 
The job offer for each employer shall state the number of workers 
needed by the employer, and shall be signed by the employer. The job 
offer shall comply with the requirements of Sec. Sec.  655.202 and 
653.108 of this chapter;
    (2) The assurances required by Sec.  655.203; and
    (3) The specific estimated date of need of workers.
    (c) The entire temporary labor certification application shall be 
filed with the SWA in duplicate and in sufficient time to allow the 
State agency to attempt to recruit U.S. workers locally and through the 
Employment Service intrastate and interstate clearance system for 60 
calendar days prior to the estimated date of need. Section 655.206 
requires the OFLC Administrator to grant or deny the temporary labor 
certification application by the end of the 60 calendar days, or 20 
days from the estimated date of need, whichever is later. That section 
also requires the OFLC Administrator to offer employers an expedited 
administrative-judicial review in cases of denials of the temporary 
labor certification applications. Following an administrative-judicial 
review, the employer has a right to contest any denial before the DHS 
pursuant to 8 CFR 214.2(h)(3)(i). Finally, employers need time, after 
the temporary labor certification determination, to complete the 
process for bringing foreign workers into the United States, or to 
bring an appeal of a denial of an application for the labor 
certification. Therefore, employers should file their temporary labor 
certification applications at least 80 days before the estimated date 
of need specified in the application.
    (d) Applications may be amended at any time prior to OFLC 
Administrator determination to increase the number of workers requested 
in the original application for labor certification by not more than 15 
percent without requiring an additional recruitment period for U.S. 
workers. Requests for increases beyond 15 percent may be approved only 
when it is determined that, based on past experience, the need for 
additional workers could not be foreseen and that a critical need for 
the workers would exist prior to the expiration of an additional 
recruitment period.
    (e) If a temporary labor certification application, or any part 
thereof, does not satisfy the time requirements specified in paragraph 
(c) of this section, and if the exception in paragraph (d) of this 
section does not apply, the SWA shall immediately send both copies 
directly to the appropriate OFLC Administrator. The OFLC Administrator 
may then advise the employer and the DHS in writing that the temporary 
labor certification cannot be granted because, pursuant to the 
regulations at paragraph (c) of this section, there is not sufficient 
time to test the availability of U.S. workers. The notice of denial to 
the employer shall inform the employer of the right to administrative-
judicial review and to ultimately petition DHS for the admission of the 
aliens. In emergency situations, however, the OFLC Administrator may 
waive the time period specified in this section on behalf of employers 
who have not made use of temporary alien workers for the prior year's 
harvest or for other good and substantial cause, provided the OFLC 
Administrator has sufficient labor market information to make the labor 
certification determinations required by 8 CFR 214.2(h)(3)(i).
    (Approved by the Office of Management and Budget under control 
number 1205-0015)


Sec.  655.202  Contents of job offers.

    (a) So that the employment of aliens will not adversely affect the 
wages and working conditions of similarly employed U.S. workers, each

[[Page 26004]]

employer's job offer to U.S. workers must offer U.S. workers at least 
the same benefits which the employer is offering, intends to offer, or 
will afford, to temporary foreign workers. Conversely, no job offer may 
impose on U.S. workers any restrictions or obligations which will not 
be imposed on the employer's foreign workers. For example, if the 
employer intends to advance transportation costs to foreign workers 
either directly or indirectly (by having them paid by the foreign 
government involved), the employer must offer to advance the 
transportation costs of U.S. workers.
    (b) Except when higher benefits, wages or working conditions are 
required by the provisions of paragraph (a) of this section, the OFLC 
Administrator has determined that, in order to protect similarly 
employed U.S. workers from adverse effect with respect to wages and 
working conditions, every job offer for U.S. workers must always 
include the following minimal benefit, wage, and working condition 
provisions:
    (1) The employer will provide the worker with housing without 
charge to the worker. The housing will meet the full set of standards 
set forth at 29 CFR 1910.142 or the full set of standards set forth at 
part 654, subpart E of this chapter, whichever is applicable under the 
criteria of 20 CFR 654.401; except that, for mobile range housing for 
sheepherders, the housing shall meet existing Departmental guidelines. 
When it is the prevailing practice in the area of intended employment 
to provide family housing, the employer will provide such housing to 
such workers.
    (2)(i) If the job opportunity is covered by the State workers' 
compensation law, the worker will be eligible for workers' compensation 
for injury and disease arising out of and in the course of worker's 
employment; or
    (ii) If the job opportunity is not covered by the State workers' 
compensation law, the employer will provide at no cost to the worker, 
insurance covering injury and disease arising out of and in the course 
of the worker's employment which will provide benefits at least equal 
to those provided under the State workers' compensation law for 
comparable employment;
    (3) The employer will provide without cost to the worker all tools, 
supplies and equipment required to perform the duties assigned and, if 
any of these items are provided by the worker, the employer will 
reimburse the worker for the cost of those so provided;
    (4) The employer will provide the worker with three meals a day, 
except that where under prevailing practice or longstanding arrangement 
at the establishment workers prepare their meals, employers need 
furnish only free and convenient cooking and kitchen facilities. Where 
the employer provides the meals, the job offer shall state the cost to 
the worker for such meals. Until a new amount is set pursuant to this 
paragraph (b)(4), the cost shall not be more than $4.94 per day unless 
the OFLC Administrator has approved a higher cost pursuant to Sec.  
655.211 of this part. Each year the charge allowed by this paragraph 
(b)(4) will be changed by the 12-month percent change for the Consumer 
Price Index for All Urban Consumers for Food between December of the 
year just concluded and December of the year prior to that. The annual 
adjustments shall be effective on their publication by the OFLC 
Administrator in the Federal Register.
    (5)(i) The employer will provide or pay for the worker's 
transportation and daily subsistence from the place, from which the 
worker, without intervening employment, will come to work for the 
employer, to the place of employment, subject to the deductions allowed 
by paragraph (b)(13) of this section. The amount of the daily 
subsistence payment shall be at least as much as the amount the 
employer will charge the worker for providing the worker with three 
meals a day during employment;
    (ii) If the worker completes the work contract period, the employer 
will provide or pay for the worker's transportation and daily 
subsistence from the place of employment to the place, from which the 
worker, without intervening employment, came to work for the employer, 
unless the worker has contracted for employment with a subsequent 
employer who, in that contract, has agreed to pay for the worker's 
transportation and daily subsistence expenses from the employer's 
worksite to such subsequent employer's worksite; and
    (iii) The employer will provide transportation between the worker's 
living quarters and the employer's worksite without cost to the worker, 
and such transportation will be in accordance with applicable laws and 
regulations;
    (6)(i) The employer guarantees to offer the worker employment for 
at least three-fourths of the workdays of the total period during which 
the work contract and all extensions thereof are in effect, beginning 
with the first workday after the arrival of the worker at the place of 
employment and ending on the termination date specified in the work 
contract, or in its extensions if any. For purposes of this paragraph, 
a workday shall mean any period consisting of 8 hours of work time. An 
employer shall not be considered to have met the work guarantee if the 
employer has merely offered work on three-fourths of the workdays. The 
work must be offered for at least three-fourths of the 8 hour workdays. 
(That is, \3/4\ x (number of days x 8 hours.)) Therefore, if, for 
example, the contract contains 20 workdays, the worker must be offered 
employment for 120 hours during the 20 workdays. A worker may be 
offered more than 8 hours of work on a single workday. For purposes of 
meeting the guarantee, however, the worker may not be required to work 
for more than 8 hours per workday, or on the worker's Sabbath or 
Federal holidays;
    (ii) If the worker will be paid on a piece rate basis, the employer 
will use the worker's average hourly earnings to calculate the amount 
due under the guarantee; and
    (iii) Any hours which the worker fails to work when the worker has 
been offered an opportunity to do so pursuant to paragraph (b)(6)(i) of 
this section, and all hours of work actually performed (including 
voluntary work over 8 hours in a workday, or on the worker's Sabbath or 
Federal holidays) may be counted by the employer in calculating whether 
the period of guaranteed employment has been met;
    (7)(i) The employer will keep accurate and adequate records with 
respect to the workers' earnings, including field tally records, 
supporting summary payroll records, and records showing: The nature and 
amount of the work performed; the number of hours of work offered each 
day by the employer (broken out by hours offered both in accordance 
with, and over and above, the guarantee); the hours actually worked 
each day by the worker; the time the worker began and ended each 
workday; the rate of pay; the worker's earnings per pay period; and the 
amount of and reasons for any and all deductions made from the worker's 
wages;
    (ii) If the number of hours worked by the worker is less than the 
number offered in accordance with the guarantee, the records will state 
the reason or reasons therefor;
    (iii) The records, including field tally records and supporting 
summary payroll records, will be made available for inspection and 
copying by representatives of the Secretary of Labor, and by the worker 
and the worker's representatives; and
    (iv) The employer will retain the records for not less than three 
years after the completion of the contract;

[[Page 26005]]

    (8) The employer will furnish to the worker at or before each 
payday, in one or more written statements:
    (i) The worker's total earnings for the pay period;
    (ii) The worker's hourly rate or piece rate of pay;
    (iii) The hours of employment which have been offered to the worker 
(broken out by offers in accordance with, and over and above, the 
guarantee);
    (iv) The hours actually worked by the worker;
    (v) An itemization of all deductions made from the worker's wages; 
and
    (vi) If piece rates are used, the units produced daily;
    (9)(i) If the worker will be paid by the hour, the employer will 
pay the worker at least the adverse effect rate; or
    (ii)(A) If the worker will be paid on a piece rate basis, and the 
piece rate does not result at the end of the pay period in average 
hourly earnings during the pay period at least equal to the amount the 
worker would have earned had the worker been paid at the adverse effect 
rate, the worker's pay will be supplemented at that time so that the 
worker's earnings are at least as much as the worker would have earned 
during the pay period if the worker had been paid at the adverse effect 
rate.
    (B) If the employer who pays on a piece rate basis requires one or 
more minimum productivity standards of workers as a condition of job 
retention,
    (1) Such standards shall be no more than those applied by the 
employer in 1977, unless the OFLC Administrator approves a higher 
minimum; or
    (2) If the employer first applied for temporary labor certification 
after 1977, such standards shall be no more than those normally 
required (at the time of that first application) by other employers for 
the activity in the area of intended employment, unless the OFLC 
Administrator approves a higher minimum.
    (10) The frequency with which the worker will be paid (in 
accordance with the prevailing practice in the area of intended 
employment, or at least biweekly whichever is more frequent);
    (11) If the worker voluntarily abandons employment before the end 
of the contract period, or is terminated for cause, the employer will 
not be responsible for providing or paying for the subsequent 
transportation and subsistence expenses of any worker for whom the 
employer would have otherwise been required to pay such expenses under 
paragraph (b)(5)(ii) of this section;
    (12) If, before the expiration date specified in the work contract, 
the services of the worker are no longer required for reasons beyond 
the control of the employer due to fire or other Act of God which makes 
the fulfillment of the contract impossible, and the OFLC Administrator 
so certifies, the employer may terminate the work contract. In such 
cases the employer will make efforts to transfer the worker to other 
comparable employment acceptable to the worker. If such transfer is not 
effected, the worker
    (i) Will be returned to the place from which the worker, without 
intervening employment, came to work for the employer at the employer's 
expense; and
    (ii) Will be reimbursed the full amount of any deductions made from 
the worker's pay by the employer for transportation and subsistence 
expenses to the place of employment borne directly or indirectly by the 
employer;
    (13) The employer will make those deductions from the worker's 
paycheck which are required by law. The job offer shall specify all 
deductions, not required by law, which the employer will make from the 
worker's paycheck. All deductions shall be reasonable. The employer may 
deduct the cost of the worker's transportation and daily subsistence 
expenses to the place of employment which were borne directly by the 
employer; in such cases, however, the job offer shall state that the 
worker will be reimbursed the full amount of such deductions upon the 
worker's completion of 50 percent of the worker's contract period; and
    (14) The employer will provide the worker a copy of the work 
contract between the employer and the worker. The work contract shall 
contain all of the provisions required by paragraphs (a) and (b) of 
this section.


Sec.  655.203  Assurances.

    As part of the temporary labor certification application, the 
employer shall include assurances, signed by the employer, that:
    (a) The job opportunity is not:
    (1) Vacant because the former occupant is on strike or being locked 
out in the course of a labor dispute; or
    (2) At issue in a labor dispute involving a work stoppage;
    (b) During the period for which the temporary labor certification 
is granted, the employer will comply with applicable Federal, State and 
local employment-related laws, including employment related health and 
safety laws;
    (c) The job opportunity is open to all qualified U.S. workers 
without regard to race, color, national origin, sex, or religion, and 
is open to U.S. workers with handicaps who are qualified to perform the 
work. No U.S. worker will be rejected for employment for other than a 
lawful job related reason;
    (d) The employer will cooperate with the employment service system 
in the active recruitment of U.S. workers until the foreign workers 
have departed for the employer's place of employment by;
    (1) Allowing the employment service system to prepare local, 
intrastate and interstate job orders using the information supplied on 
the employer's job offer;
    (2) Placing at least two advertisements for the job opportunities 
in local newspapers of general circulation.
    (i) Each such advertisement shall describe the nature and 
anticipated duration of the job opportunity; offer at least the adverse 
effect wage rate; give the \3/4\ guarantee; state that work tools, 
supplies and equipment will be provided by the employer; state that 
housing will also be provided, and that transportation and subsistence 
expenses to the worksite will be provided or paid for by the employer;
    (ii) Each advertisement shall direct interested workers to apply 
for the job opportunity at the appropriate office of the State 
Workforce Agency in their area;
    (3) Cooperating with the employment service system in contacting 
farm labor contractors, migrant workers and other potential workers in 
other areas of the State and/or Nation by letter and/or telephone;
    (4) Cooperating with the employment service system in contacting 
schools, business and labor organizations, fraternal and veterans 
organizations, and non-profit organizations and public agencies such as 
sponsors of programs under the Comprehensive Employment and Training 
Act, throughout the area of intended employment, in order to enlist 
them in helping to find U.S. workers; and
    (5) If the employer, or an association of employers of which the 
employer is a member, intends to negotiate and/or contract with the 
Government of a foreign nation or any foreign association, corporation 
or organization in order to secure foreign workers, making the same 
kind and degree of efforts to secure U.S. workers;
    (e) From the time the foreign workers depart for the employer's 
place of employment, the employer will provide employment to any 
qualified U.S. worker who applies to the employer until fifty percent 
of the period of the work contract, under which the foreign worker who 
is in the job was hired, has elapsed. In addition, the employer will 
offer to provide housing, and the other benefits, wages, and working 
conditions

[[Page 26006]]

required by Sec.  655.202, to any such U.S. worker; and
    (f) Performing the other specific recruitment activities specified 
in the notice from the OFLC Administrator required by Sec.  655.205(a).


Sec.  655.204  Determinations based on temporary labor certification 
applications.

    (a) Within two working days after the temporary labor certification 
application has been filed with it, the SWA shall mail the duplicate 
application directly to the appropriate OFLC Administrator.
    (b) The SWA, using the job offer portion of its copy of the 
temporary labor certification application, shall promptly prepare a 
local job order and shall begin to recruit U.S. workers in the area of 
intended employment.
    (c) The OFLC Administrator, upon receipt of the duplicate temporary 
labor certification application, shall promptly review the application 
to determine whether it meets the requirements of Sec. Sec.  655.201-
655.203 in order to determine whether the employer's application is (1) 
timely, and (2) contains offers of wages, benefits, and working 
conditions required to ensure that similarly employed U.S. workers will 
not be adversely affected. If the OFLC Administrator determines that 
the temporary labor certification application is not timely in 
accordance with Sec.  655.201 of this subpart, the OFLC Administrator 
may promptly deny the temporary labor certification on the grounds 
that, in accordance with that regulation, there is not sufficient time 
to adequately test the availability of U.S. workers. If the OFLC 
Administrator determines that the application does not meet the 
requirements of Sec. Sec.  655.202-655.203 because the wages, working 
conditions, benefits, assurances, job offer, etc. are not as required, 
the OFLC Administrator shall deny the certification on the grounds that 
the availability of U.S. workers cannot be adequately tested because 
the wages or benefits, etc. do not meet the adverse effect criteria.
    (d) If the certification is denied, the OFLC Administrator shall 
notify the employer in writing of the determination, with a copy to the 
SWA. The notice shall:
    (1) State the reasons for the denial, citing the relevant 
regulations; and
    (2) Offer the employer an opportunity to request an expedited 
administrative-judicial review of the denial by an Administrative Law 
Judge. The notice shall state that in order to obtain such a review, 
the employer must, within five calendar days of the date of the notice, 
file by facsimile (fax), telegram, or other means normally assuring 
next day delivery a written request for such a review to the Chief 
Administrative Law Judge of the Department of Labor (giving the 
address) and simultaneously serve a copy on the OFLC Administrator. The 
notice shall also state that the employer's request for review should 
contain any legal arguments which the employer believes will rebut the 
basis of the OFLC Administrator's denial of certification; and
    (3) State that, if the employer does not request an expedited 
administrative-judicial review before an Administrative Law Judge 
within the five days:
    (i) The OFLC Administrator will advise the DHS that the 
certification cannot be granted, giving the reasons therefor, and that 
an administrative-judicial review of the denial was offered to the 
employer but not accepted, and enclosing, for DHS review, the entire 
temporary labor certification application file; and
    (ii) The employer has the opportunity to submit evidence to the DHS 
to rebut the bases of the OFLC Administrator's determination in 
accordance with the DHS regulation at 8 CFR 214.2(h)(3)(i) but that no 
further review of the employer's application for temporary labor 
certification may be made by any Department of Labor official.
    (e) If the employer timely requests an expedited administrative-
judicial review pursuant to paragraph (d)(2) of this section, the 
procedures of Sec.  655.212 shall be followed.


Sec.  655.205  Recruitment period.

    (a) If the OFLC Administrator determines that the temporary labor 
certification application meets the requirements of Sec. Sec.  655.201 
through 655.203, the OFLC Administrator shall promptly notify the 
employer in writing, with copies to the SWA. The notice shall inform 
the employer and the SWA of the specific efforts which will be expected 
from them during the following weeks to carry out the assurances 
contained in Sec.  655.203 with respect to the recruitment of U.S. 
workers. The notice shall require that the job order be placed both 
into intrastate clearance and into interstate clearance to such States 
as the OFLC Administrator shall determine to be potential sources of 
U.S. workers.
    (b) Thereafter, OFLC Administrator, shall provide overall direction 
to the employer and the SWA with respect to the recruitment of U.S. 
workers.
    (c) By the 60th day of the recruitment period, or 20 days before 
the date of need specified in the application, whichever is later, the 
OFLC Administrator, when making a determination of the availability of 
U.S. workers, shall also make a determination as to whether the 
employer has satisfied the recruitment assurances in Sec.  655.203. If 
the OFLC Administrator concludes that the employer has not satisfied 
the requirement for recruitment of U.S. workers, the OFLC Administrator 
shall deny the temporary labor certification, and shall immediately 
notify the employer in writing with a copy to the State agency. The 
notice shall contain the statements specified in Sec.  655.204(d).
    (d) If the employer timely requests an expedited administrative-
judicial review before an Administrative Law Judge, the procedures in 
Sec.  655.212 shall be followed.


Sec.  655.206  Determinations of U.S. worker availability and adverse 
effect on U.S. workers.

    (a) If the OFLC Administrator, in accordance with Sec.  655.205 has 
determined that the employer has complied with the recruitment 
assurances, the OFLC Administrator, by 60th day of the recruitment 
period, or 20 days before the date of need specified in the 
application, whichever is later, shall grant the temporary labor 
certification for enough aliens to fill the employer's job 
opportunities for which U.S. workers are not available. In making this 
determination the OFLC Administrator shall consider as available for a 
job opportunity any U.S. worker who has made a firm commitment to work 
for the employer, including those workers committed by other authorized 
persons such as farm labor contractors and family heads; such a firm 
commitment shall be considered to have been made not only by workers 
who have signed work contracts with the employer, but also by those 
whom the OFLC Administrator determines are very likely to sign such a 
work contract. The OFLC Administrator shall also count as available any 
U.S. worker who has applied to the employer (or on whose behalf an 
application has been made), but who was rejected by the employer for 
other than lawful job-related related reasons unless the OFLC 
Administrator determines that:
    (1) Enough qualified U.S. workers have been found to fill all the 
employer's job opportunities; or
    (2) The employer, since the time of the initial determination under 
Sec.  655.204, has adversely affected U.S. workers by offering to, or 
agreeing to provide to, alien workers better wages, working conditions, 
or benefits (or by offering or agreeing to impose on alien workers less 
obligations and restrictions) than that offered to U.S. workers.

[[Page 26007]]

    (b)(1) Temporary labor certifications shall be considered subject 
to the conditions and assurances made during the application process. 
Temporary labor certifications shall be for a limited duration such as 
for ``the 1978 apple harvest season'' or ``until November 1, 1978'', 
and they shall never be for more than eleven months. They shall be 
limited to the employer's specific job opportunities; therefore, they 
may not be transferred from one employer to another.
    (2) If an association of employers is itself the employer, as 
defined in Sec.  655.200, certifications shall be made to the 
association and may be used for any of the job opportunities of its 
employer members and workers may be transferred among employer members.
    (3) If an association of employers is a joint employer with its 
employer members, as defined in Sec.  655.200, the certification shall 
be made jointly to the association and the employer members. In such 
cases workers may be transferred among the employer members provided 
the employer members and the association agree in writing to be jointly 
and severally liable for compliance with the temporary labor 
certification obligations set forth in this subpart.
    (c) If the OFLC Administrator denies the temporary labor 
certification in whole or part, the OFLC Administrator shall notify the 
employer in writing by means normally assuring next-day delivery. The 
notice shall contain all of the statements required in Sec.  
655.204(d). If a timely request is made for an administrative-judicial 
review by an Administrative Law Judge, the procedures of Sec.  655.212 
shall be followed.
    (d)(1) After a temporary labor certification has been granted, the 
employer shall continue its efforts to actively recruit U.S. workers 
until the foreign workers have departed for the employer's place of 
employment. The employer, however, must keep an active job order on 
file until the assurance at Sec.  655.203(e) is met.
    (2) The State Workforce Agency (SWA) system shall continue to 
actively recruit and refer U.S. workers as long as there is an active 
job order on file.


Sec.  655.207  Adverse effect rates.

    (a) Except as otherwise provided in this section, the adverse 
effect rates for all agricultural and logging employment shall be the 
prevailing wage rates in the area of intended employment.
    (b)(1) For agricultural employment (except sheepherding) in the 
States listed in paragraph (b)(2) of this section, and for Florida 
sugarcane work, the adverse effect rate for each year shall be computed 
by adjusting the prior year's adverse effect rate by the percentage 
change (from the second year previous to the prior year) in the U.S. 
Department of Agriculture's (USDA's) average hourly wage rates for 
field and livestock workers (combined) based on the USDA Quarterly Wage 
Survey. The OFLC Administrator shall publish, at least once in each 
calendar year, on a date or dates he shall determine, adverse effect 
rates calculated pursuant to this paragraph (b) as a notice or notices 
in the Federal Register.
    (2) List of States. Arizona, Colorado, Connecticut, Florida (other 
than sugar cane work), Maine, Maryland, Massachusetts, New Hamsphire, 
New York, Rhode Island, Texas, Vermont, Virginia, and West Virginia. 
Other States may be added as appropriate.
    (3) Transition. Notwithstanding paragraphs (b)(1) and (2) of this 
section, the 1986 adverse effect rate for agricultural employment 
(except sheepherding) in the following States, and for Florida 
sugarcane work, shall be computed by adjusting the 1981 adverse effect 
rate (computed pursuant to 20 CFR 655.207(b)(1), 43 FR 10317; March 10, 
1978) by the percentage change between 1980 and 1985 in the U.S. 
Department of Agriculture annual average hourly wage rates for field 
and livestock workers (combined) based on the USDA Quarterly survey: 
The States listed at 20 CFR 655.207(b)(2) (1985).
    (c) In no event shall an adverse effect rate for any year be lower 
than the hourly wage rate published in 29 U.S.C. 206(a)(1) and 
currently in effect.


Sec.  655.208  Temporary labor certification applications involving 
fraud or willful misrepresentation.

    (a) If possible fraud or willful misrepresentation involving a 
temporary labor certification application is discovered prior to a 
final temporary labor certification determination, or if it is learned 
that the employer or agent (with respect to an application) is the 
subject of a criminal indictment or information filed in a court, the 
OFLC Administrator shall refer the matter to the DHS for investigation 
and shall notify the employer or agent in writing of this referral. The 
OFLC Administrator shall continue to process the application and may 
issue a qualified temporary labor certification.
    (b) If a court finds an employer or agent innocent of fraud or 
willful misrepresentation, or if the Department of Justice decides not 
to prosecute an employer or agent, the OFLC Administrator shall not 
deny the temporary labor certification application on the grounds of 
fraud or willful misrepresentation. The application, of course, may be 
denied for other reasons pursuant to this subpart.
    (c) If a court or the DHS determines that there was fraud or 
willful misrepresentation involving a temporary labor certification 
application, the application shall be deemed invalidated, processing 
shall be terminated, and the application shall be returned to the 
employer or agent with the reasons therefor stated in writing.


Sec.  655.209  Invalidation of temporary labor certifications.

    After issuance, temporary labor certifications are subject to 
invalidation by the DHS upon a determination, made in accordance with 
that agency's procedures or by a Court, of fraud or willful 
misrepresentation of a material fact involving the temporary labor 
certification application. If evidence of such fraud or willful 
misrepresentation becomes known to the OFLC Administrator, the OFLC 
Administrator shall notify the DHS in writing.


Sec.  655.210  Failure of employers to comply with the terms of a 
temporary labor certification.

    (a) If, after the granting of a temporary labor certification, the 
OFLC Administrator has probable cause to believe that an employer has 
not lived up to the terms of the temporary labor certification, the 
OFLC Administrator shall investigate the matter. If the OFLC 
Administrator concludes that the employer has not complied with the 
terms of the labor certification, the OFLC Administrator may notify the 
employer that it will not be eligible to apply for a temporary labor 
certification in the coming year. The notice shall be in writing, shall 
state the reasons for the determination, and shall offer the employer 
an opportunity to request a hearing within 30 days of the date of the 
notice. If the employer requests a hearing within the 30-day period, 
the OFLC Administrator shall follow the procedures set forth at Sec.  
658.421(i)(1), (2) and (3) of this chapter. The procedures contained in 
Sec. Sec.  658.421(j), 658.422 and 658.423 of this chapter shall apply 
to such hearings.
    (b) No other penalty shall be imposed by the employment service on 
such an employer other than as set forth in paragraph (a) of this 
section.


Sec.  655.211  Petition for higher meal charges.

    (a) Until a new amount is set pursuant to this paragraph (a), the 
OFLC Administrator may permit an employer to charge workers up to $6.17 
for providing them with three meals per day, if the employer justifies 
the charge

[[Page 26008]]

and submits to the OFLC Administrator the documentary evidence required 
by paragraph (b) of this section. A denial in whole or in part shall be 
reviewable as provided in Sec.  655.212 of this part. Each year the 
maximum charge allowed by this paragraph (a) will be changed by the 12-
month percent change for the Consumer Price Index for All Urban 
Consumers for Food between December of the year just concluded and 
December of the year prior to that. The annual adjustments shall be 
effective on their publication by the OFLC Administrator in the Federal 
Register.
    (b) Evidence submitted shall include the cost of goods and services 
directly related to the preparation and serving of meals, the number of 
workers fed, the number of meals served and the number of days meals 
were provided. The cost of the following items may be included: Food; 
kitchen supplies other than food, such as lunch bags and soap; labor 
costs which have a direct relation to food service operations, such as 
wages of cooks and restaurant supervisors; fuel, water, electricity, 
and other utilities used for the food service operations; other costs 
directly related to the food service operation. Charges for 
transportation, depreciation, overhead, and similar charges may not be 
included. Receipts and other cost records for a representative pay 
period shall be available for inspection by the Secretary's 
representatives for a period of one year.


Sec.  655.212  Administrative-judicial reviews.

    (a) Whenever an employer has requested an administrative-judicial 
review of a denial of an application or a petition in accordance with 
Sec. Sec.  655.204(d), 655.205(d), 655.206(c), or 655.211, the Chief 
Administrative Law Judge shall immediately assign an Administrative Law 
Judge to review the record for legal sufficiency, and the OFLC 
Administrator shall send a certified copy of the case file to the Chief 
Administrative Law Judge by means normally assuring next day delivery. 
The Administrative Law Judge shall not have authority to remand the 
case and shall not receive additional evidence. Any countervailing 
evidence advanced after decision by the OFLC Administrator shall be 
subject to provisions of 8 CFR 214.2(h)(3)(i).
    (b) The Administrative Law Judge, within five working days after 
receipt of the case file shall, on the basis of the written record and 
due consideration of any written memorandums of law submitted, either 
affirm, reverse or modify the OFLC Administrator's denial by written 
decision. The decision of the Administrative Law Judge shall specify 
the reasons for the action taken and shall be immediately provided to 
the employer, OFLC Administrator, and DHS by means normally assuring 
next-day delivery. The Administrative Law Judge's decision shall be the 
final decision of the Department of Labor and no further review shall 
be given to the temporary labor certification determination by any 
Department of Labor official.


Sec.  655.215  Territory of Guam.

    Subpart C of this part does not apply to temporary employment in 
the Territory of Guam, and the Department of Labor does not certify to 
the United States Citizenship and Immigration Services of the 
Department of Homeland Security (DHS) the temporary employment of 
nonimmigrant aliens under H-2B visas in the Territory of Guam. Pursuant 
to DHS regulations, that function is performed by the Governor of Guam, 
or the Governor's designated representative within the Territorial 
Government.

Title 29--Labor

0
8. Redesignate part 501 as part 502 and suspend newly designated Part 
502.

0
9. Add part 501 to read as follows:

PART 501--ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY 
ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 216 OF THE 
IMMIGRATION AND NATIONALITY ACT

Subpart A--General Provisions
Sec.
501.0 Introduction.
501.1 Purpose and scope.
501.2 Coordination of intake between DOL agencies.
501.3 Discrimination prohibited.
501.4 Waiver of rights prohibited.
501.5 Investigation authority of Secretary.
501.6 Prohibition on interference with Department of Labor 
officials.
501.7 Accuracy of information, statements, data.
501.10 Definitions.
Subpart B--Enforcement of Work Contracts
501.15 Enforcement.
501.16 General.
501.17 Concurrent actions.
501.18 Representation of the Secretary.
501.19 Civil money penalty assessment.
501.20 Enforcement of Wage and Hour investigative authority.
501.21 Referral of findings to ETA.
501.22 Civil money penalties--payment and collection.
Subpart C--Administrative Proceedings
501.30 Applicability of procedures and rules.

Procedures Relating to Hearing

501.31 Written notice of determination required.
501.32 Contents of notice.
501.33 Request for hearing.

Rules of Practice

501.34 General.
501.35 Commencement of proceeding.
501.36 Caption of proceeding.

Referral for Hearing

501.37 Referral to Administrative Law Judge.
501.38 Notice of docketing.
501.39 Service upon attorneys for the Department of Labor--number of 
copies.

Procedures Before Administrative Law Judge

501.40 Consent findings and order.

Post-Hearing Procedures

501.41 Decision and order of Administrative Law Judge.

Review of Administrative Law Judge's Decision

501.42 Procedures for initiating and undertaking review.
501.43 Responsibility of the Office of Administrative Law Judges.
501.44 Additional information, if required.
501.45 Final decision of the Secretary.

Record

501.46 Retention of official record.
501.47 Certification.

    Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188.

Subpart A--General Provisions


Sec.  501.0  Introduction.

    These regulations cover the enforcement of all contractual 
obligations provisions applicable to the employment of H-2A workers 
under section 216 of the Immigration and Nationality Act (INA), as 
amended by the Immigration Reform and Control Act of 1986 (IRCA). These 
regulations are also applicable to the employment of other workers 
hired by employers of H-2A workers in the occupations and for the 
period of time set forth in the job order approved by ETA as a 
condition for granting H-2A certification, including any extension 
thereof. Such other workers hired by H-2A employers are hereafter 
referred to as engaged in corresponding employment.


Sec.  501.1  Purpose and scope.

    (a) Statutory standard. Section 216(a) of the INA provides that--

    (1) A petition to import an alien as an H-2A worker (as defined 
in subsection (i)(2) may not be approved by the Attorney General 
unless the petitioner has applied to the Secretary of Labor for a 
certification that--
    (A) There are not sufficient workers who are able, willing, and 
qualified, and who will be available at the time and place needed, 
to

[[Page 26009]]

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

    (b) Role of the ETA, USES. The issuance and denial of labor 
certification under section 216 of the INA has been delegated by the 
Secretary of Labor to the Employment and Training Administration (ETA). 
In general, matters concerning the obligations of an employer of H-2A 
workers related to the labor certification process are administered and 
enforced by ETA. Included within ETA's jurisdiction are such issues as 
whether U.S. workers were available, whether positive recruitment was 
conducted, whether there was a strike or lockout, the methodology for 
establishing adverse effect wage rates, whether workers' compensation 
insurance was provided, whether employment was offered to U.S. workers 
for up to 50 percent of the contract period and other similar matters. 
The regulations pertaining to the issuance and denial of labor 
certification for temporary alien workers by the Employment and 
Training Administration are found in title 20 CFR part 655.
    (c) Role of ESA, Wage and Hour Division. Section 216(g)(2) of the 
INA provides that--

    [T]he Secretary of Labor is authorized to take such actions 
including imposing appropriate penalties and seeking appropriate 
injunctive relief and specific performance of contractual 
obligations, as may be necessary to assure employer compliance with 
terms and conditions of employment under this section.


Certain investigation, inspection and law enforcement functions to 
carry out the provisions of section 216 of the INA have been delegated 
by the Secretary of Labor to the Employment Standards Administration 
(ESA), Wage and Hour Division. In general, matters concerning the 
obligations of the work contract between an employer of H-2A workers 
and the H-2A workers and other workers in corresponding employment 
hired by H-2A employers are enforced by ESA. Included within the 
enforcement responsibility of ESA, Wage and Hour Division are such 
matters as the payment of required wages, transportation, meals and 
housing provided during the employment. The Wage and Hour Division has 
the responsibility to carry out investigations, inspections and law 
enforcement functions and in appropriate instances impose penalties, 
seek injunctive relief and specific performance of contractual 
obligations, including recovery of unpaid wages.
    (d) Effect of regulations. The amendments to the INA made by title 
III of the IRCA apply to petitions and applications filed on and after 
June 1, 1987. Accordingly, the enforcement functions carried out by the 
Wage and Hour Division under the INA and these regulations apply to the 
employment of any H-2A worker and any other workers hired by H-2A 
employers in corresponding employment as the result of any petition or 
application filed with the Department on and after June 1, 1987.


Sec.  501.2  Coordination of intake between DOL agencies.

    Complaints received by ETA, or any State Employment Service Agency 
regarding contractual H-2A labor standards between the employer and the 
employee will be immediately forwarded to the appropriate Wage and Hour 
office for appropriate action under these regulations.


Sec.  501.3  Discrimination prohibited.

    No person shall intimidate, threaten, restrain, coerce, blacklist, 
discharge, or in any manner discriminate against any person who has:
    (a) Filed a complaint under or related to section 216 of the INA or 
these regulations;
    (b) Instituted or caused to be instituted any proceedings related 
to section 216 of the INA or these regulations;
    (c) Testified or is about to testify in any proceeding under or 
related to section 216 of the INA or these regulations;
    (d) Exercised or asserted on behalf of himself or others any right 
or protection afforded by section 216 of the INA or these regulations.
    (e) Consulted with an employee of a legal assistance program or an 
attorney on matters related to section 216 of the INA (8 U.S.C. 1186), 
or to this subpart or any other DOL regulation promulgated pursuant to 
section 216 of the INA.
    Allegations of discrimination in employment against any person will 
be investigated by Wage and Hour. Where Wage and Hour has determined 
through investigation that such allegations have been substantiated 
appropriate remedies may be sought. Wage and Hour may assess civil 
money penalties, seek injunctive relief, and/or seek additional 
remedies necessary to make the employee whole as a result of the 
discrimination, as appropriate, and may recommend to ETA that labor 
certification of any violator be denied in the future.


Sec.  501.4  Waiver of rights prohibited.

    No person shall seek to have an H-2A worker, or other worker 
employed in corresponding employment by an H-2A employer, waive rights 
conferred under section 216 of the INA or under these regulations. Such 
waiver is against public policy. Any agreement by an employee 
purporting to waive or modify any rights inuring to said person under 
the Act or these regulations shall be void as contrary to public 
policy, except that a waiver or modification of rights or obligations 
hereunder in favor of the Secretary shall be valid for purposes of 
enforcement of the provisions of the Act or these regulations. This 
does not prevent agreements to settle private litigation.


Sec.  501.5  Investigation authority of Secretary.

    (a) General. The Secretary, either pursuant to a complaint or 
otherwise, shall, as may be appropriate, investigate and, in connection 
therewith, enter and inspect such places and vehicles (including 
housing) and such records (and make transcriptions thereof), question 
such persons and gather such information as deemed necessary by the 
Secretary to determine compliance with contractual obligations under 
section 216 of the INA or these regulations.
    (b) Failure to permit investigation. Where any person using the 
services of an H-2A worker does not permit an investigation concerning 
the employment of his or her workers the Wage and Hour Division shall 
report such occurrence to ETA and may recommend denial of future labor 
certifications to such person. In addition, Wage and Hour may take such 
action as may be appropriate, including the seeking of an injunction or 
assessing civil money penalties, against any person who has failed to 
permit Wage and Hour to make an investigation.
    (c) Confidential investigation. The Secretary shall conduct 
investigations in a manner which protects the confidentiality of any 
complainant or other person who provides information to the Secretary 
in good faith.
    (d) Report of violations. Any person may report a violation of the 
work contract obligations of section 216 of the INA or these 
regulations to the Secretary by advising any local office of the 
Employment Service of the various States, any office of ETA, any office 
of the Wage and Hour Division, ESA, U.S. Department of Labor, or any 
other authorized representative of the Secretary. The office or person 
receiving such a report shall refer it to the appropriate office of the 
Wage and Hour Division, ESA, for the area in which the

[[Page 26010]]

reported violation is alleged to have occurred.


Sec.  501.6  Prohibition on interference with Department of Labor 
officials.

    No person shall interfere with any official of the Department of 
Labor assigned to perform an investigation, inspection or law 
enforcement function pursuant to the INA and these regulations during 
the performance of such duties. Wage and Hour will seek such action as 
it deems appropriate, including an injunction to bar any such 
interference with an investigation and/or assess a civil money penalty 
therefor. In addition Wage and Hour may refer a report of the matter to 
ETA with a recommendation that the person's labor certification be 
denied in the future. (Federal statutes which prohibit persons from 
interfering with a Federal officer in the course of official duties are 
found at 18 U.S.C. 111 and 18 U.S.C. 1114.)


Sec.  501.7  Accuracy of information, statements, data.

    Information, statements and data submitted in compliance with 
provisions of the Act or these regulations are subject to title 18, 
section 1001, of the U.S. Code, which provides:

    Section 1001. Statements or entries generally.
    Whoever, in any matter within the jurisdiction of any department 
or agency of the United States knowingly and willfully falsifies, 
conceals or covers up by any trick, scheme, or device a material 
fact, or makes any false, fictitious or fraudulent statements or 
representations, or makes or uses any false writing or document 
knowing the same to contain any false, fictitious or fraudulent 
statement or entry, shall be fined not more than $10,000 or 
imprisoned not more than five years, or both.


Sec.  501.10  Definitions.

    The definitions in paragraphs (a) through (d) are set forth for 
purposes of this part. In addition, the definitions in paragraphs (e) 
through (v) are promulgated at 20 CFR 655.100(b), are utilized herein, 
and are incorporated and set forth for information purposes.
    (a) Act and INA mean the Immigration and Nationality Act, as 
amended (8 U.S.C. 1101 et seq.), with reference particularly to section 
216.
    (b) Administrative Law Judge (ALJ) means a person within the 
Department of Labor Office of Administrative Law Judges appointed 
pursuant to 5 U.S.C. 3105.
    (c) Administrator means the Administrator of the Wage and Hour 
Division, Employment Standards Administration, U.S. Department of 
Labor, and such authorized representatives as may be designated to 
perform any of the functions of the Administrator under this part.
    (d) Work contract means all the material terms and conditions of 
employment relating to wages, hours, working conditions, and other 
benefits, including those terms and conditions required by the 
applicable regulations in subpart B of 20 CFR part 655, Labor 
Certification Process for Temporary Agricultural Employment in the 
United States, and those contained in the Application for Alien 
Employment Certification and job offer under that subpart, which 
contract between the employer and the worker may be in the form of a 
separate written document. In the absence of a separate written work 
contract incorporating the required terms and conditions of employment, 
entered into between the employer and the worker, the work contract at 
a minimum shall be the terms of the job order included in the 
application for temporary labor certification, and shall be enforced in 
accordance with these regulations.
    (e) Adverse effect wage rate (AEWR) means the wage rate which the 
Director has determined must be offered and paid, as a minimum, to 
every H-2A worker and every U.S. worker for a particular occupation 
and/or area in which an employer employs or seeks to employ an H-2A 
worker so that the wages of similarly employed U.S. workers will not be 
adversely affected.
    (f) Agricultural labor or services. Pursuant to section 
101(a)(15)(ii)(a) of the INA (8 U.S.C. 1101(a)(15)(H)(ii)(a)), 
``agricultural labor or services'' is defined for the purposes of this 
subpart as either ``agricultural labor'' as defined and applied in 
section 3121(g) of the Internal Revenue Code of 1954 (26 U.S.C. 
3121(g)) or ``agriculture'' as defined and applied in section 3(f) of 
the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)). An occupation 
included in either statutory definition shall be ``agricultural labor 
or services'', notwithstanding the exclusion of that occupation from 
the other statutory definition. For informational purposes, the 
statutory provisions are quoted below.
    (1) Agricultural labor. Section 3121(g) of the Internal Revenue 
Code of 1954 (26 U.S.C. 3121(g)) quoted as follows, defines the term 
``agricultural labor'' to include all service performed:

    (1) On a farm, in the employ of any person, in connection with 
cultivating the soil, or in connection with raising or harvesting 
any agricultural or horticultural commodity, including the raising, 
shearing, feeding, caring for, training, and management of 
livestock, bees, poultry, and furbearing animals and wildlife;
    (2) Services performed in the employ of the owner or tenant or 
other operator of a farm, in connection with the operation, or 
maintenance of such farm and its tools and equipment, or in 
salvaging timber or clearing land of brush and other debris left by 
a hurricane, if the major part of such service is performed on a 
farm;
    (3) In connection with the production or harvesting of any 
commodity defined as an agricultural commodity in section 15(g) of 
the Agricultural Marketing Act, as amended (12 U.S.C. 1141j), or in 
connection with the ginning of cotton, or in connection with the 
operation or maintenance of ditches, canals, reservoirs, or 
waterways, not owned or operated for profit, used exclusively for 
supplying and storing water for farming purposes;
    (4)(A) In the employ of the operator of a farm in handling, 
planting, drying, packing, packaging, processing, freezing, grading, 
storing, or delivering to storage or to market or to a carrier for 
transportation to market, in its unmanufactured state, any 
agricultural or horticultural commodity; but only if such operator 
produced more than one-half of the commodity with respect to which 
such service is performed;
    (B) In the employ of a group of operators of farms (other than a 
cooperative organization) in the performance of service described in 
subparagraph (A), but only if such operators produced all of the 
commodity with respect to which such service is performed. For 
purposes of this subparagraph, any unincorporated group of operators 
shall be deemed a cooperative organization if the number of 
operators comprising such group is more than 20 at any time during 
the calendar quarter in which such service is performed;
    (C) The provisions of subparagraphs (A) and (B) shall not be 
deemed to be applicable with respect to service performed in 
connection with commercial canning or commercial freezing or in 
connection with any agricultural or horticultural commodity after 
its delivery to a terminal market for distribution for consumption; 
or
    (5) On a farm operated for profit if such service is not in the 
course of the employer's trade or business or is domestic service in 
a private home of the employer.
    As used in this subsection, the term farm includes stock, dairy, 
poultry, fruit, fur-bearing animal, and truck farms, plantations, 
ranches, nurseries, ranges, greenhouses or other similar structures 
used primarily for the raising of agricultural or horticultural 
commodities, and orchards.

    (2) Agriculture. Section 203(f) of title 29, United States Code, 
(section 3(f) of the Fair Labor Standards Act of 1938), quoted as 
follows, defines agriculture to include:

    (f) * * * farming in all its branches and among other things 
includes the cultivation and tillage of the soil, dairying, the 
production, cultivation, growing, and harvesting of any agricultural 
or horticultural commodities (including commodities defined as 
agricultural commodities in section 15(g)

[[Page 26011]]

of the Agricultural Marketing Act, as amended), the raising of 
livestock, bees, fur bearing animals, or poultry, and any practices 
(including any forestry or lumbering operations) performed by a 
farmer or on a farm as an incident to or in conjunction with such 
farming operations, including preparation for market, delivery to 
storage or to market or to carriers for transportation to market.

    (3) Agricultural commodity. Section 1141j(g) of title 12, United 
States Code, (section 15(g) of the Agricultural Marketing Act, as 
amended) quoted as follows, defines agricultural commodity to include:

    (g) * * * in addition to other agricultural commodities, crude 
gum (oleoresin) from a living tree, and the following products as 
processed by the original producer of the crude gum (oleoresin) from 
which derived: Gum spirits of turpentine, and gum rosin, as defined 
in section 92 of title 7.

    (iv) Gum rosin. Section 92 of title 7, United States Code, quoted 
as follows, defines gum spirits of turpentine and gum rosin as--

    (c) Gum spirits of turpentine means spirits of turpentine made 
from gum (oleoresin) from a living tree.
    (g) Gum rosin means rosin remaining after the distillation of 
gum spirits of turpentine.

    (g) Of a temporary or seasonal nature--(1) On a seasonal or other 
temporary basis. For the purposes of this subpart of a temporary or 
seasonal nature means on a seasonal or other temporary basis, as 
defined in the Employment Standards Administration's Wage and Hour 
Division's regulation at 29 CFR 500.20 under the Migrant and Seasonal 
Agricultural Worker Protection Act (MSPA). For informational purposes 
Sec.  500.20 as it pertains to seasonal or temporary basis is quoted 
below.

    (2) MSPA definition. For information purposes, the definition of on 
a seasonal or other temporary basis, as set forth at Sec.  500.20 of 
this title, is provided below:
    On a seasonal or other temporary basis means:
    Labor is performed on a seasonal basis, where, ordinarily, the 
employment pertains to or is of the kind exclusively performed at 
certain seasons or periods of the year and which, from its nature, 
may not be continuous or carried on throughout the year. A worker 
who moves from one seasonal activity to another, while employed in 
agriculture or performing agricultural labor, is employed on a 
seasonal basis even though he may continue to be employed during a 
major portion of the year.
    A worker is employed on other temporary basis where he is 
employed for a limited time only or the performance is contemplated 
for a particular piece of work, usually of short duration. 
Generally, employment, which is contemplated to continue 
indefinitely, is not temporary.
    On a seasonal or other temporary basis does not include the 
employment of any foreman or other supervisory employee who is 
employed by a specific agricultural employer or agricultural 
association essentially on a year round basis.
    On a seasonal or other temporary basis does not include the 
employment of any worker who is living at his permanent place of 
residence, when that worker is employed by a specific agricultural 
employer or agricultural association on essentially a year round 
basis to perform a variety of tasks for his employer and is not 
primarily employed to do field work.

    (3) Temporary. For the purpose of this subpart, the definition of 
``temporary'' in paragraph (c)(2)(ii) of this section refers to any job 
opportunity covered by this subpart where the employer needs a worker 
for a position, either temporary or permanent, for a limited period of 
time, which shall be for less than one year, unless the original 
temporary alien agricultural labor certification is extended based on 
unforeseen circumstances, pursuant to Sec.  655.106(c)(3) of this 
title.
    (h) DOL means the U.S. Department of Labor.
    (i) Employer means a person, firm, corporation or other association 
or organization which suffers or permits a person to work and (1) which 
has a location within the United States to which U.S. workers may be 
referred for employment, and which proposes to employ workers at a 
place within the United States and (2) which has an employer 
relationship with respect to employees under this subpart as indicated 
by the fact that it may hire, pay, fire, supervise or otherwise control 
the work of any such employee. An association of employers shall be 
considered the sole employer if it alone has the indicia of an employer 
set forth in this definition. Such an association, however, shall be 
considered as a joint employer with an employer member if it shares 
with the employer member one or more of the definitional indicia.
    (j) Employment Service (ES) and Employment Service (ES) System 
mean, collectively, the USES, the State agencies, the local offices, 
and the ETA regional offices.
    (k) Employment Standards Administration means the agency within the 
Department of Labor (DOL), which includes the Wage and Hour Division, 
and which is charged with the carrying out certain functions of the 
Secretary under the INA.
    (l) Employment and Training Administration (ETA) means the agency 
within the Department of Labor (DOL) which includes the U.S. Employment 
Service (USES).
    (m) H-2A worker means any nonimmigrant alien admitted to the United 
States for agricultural labor or services of a temporary or seasonal 
nature under section 101(a)(15)(H)(ii)(a) of the INA (8 U.S.C. 
1101(a)(15)(H)(ii)(a)).
    (n) Immigration and Naturalization Service (INS) means the 
component of the U.S. Department of Justice which makes the 
determination under the INA on whether or not to grant visa petitions 
to employers seeking H-2A workers to perform temporary agricultural 
work in the United States.
    (o) Job offer means the offer made by an employer or potential 
employer of H-2A workers to both U.S. and H-2A workers describing all 
the material terms and conditions of employment, including those 
relating to wages, working conditions, and other benefits.
    (p) Secretary means the Secretary of Labor or the Secretary's 
designee.
    (q) State agency means the State employment service agency 
designated under section 4 of the Wagner-Peyser Act to cooperate with 
the USES in the operation of the ES System.
    (r) Solicitor of Labor means the Solicitor, U.S. Department of 
Labor, and includes employees of the Office of the Solicitor of Labor 
designated by the Solicitor to perform functions of the Solicitor under 
this subpart.
    (s) Temporary alien agricultural labor certification means the 
certification made by the Secretary of Labor with respect to an 
employer seeking to file with INS a visa petition to import an alien as 
an H-2A worker, pursuant to sections 101(a)(15)(H)(ii)(a), 214 (a) and 
(c), and 216 of the INA that (1) there are not sufficient workers who 
are able, willing, and qualified, and who will be available at the time 
and place needed, to perform the agricultural labor or services 
involved in the petition, and (2) the employment of the alien in such 
agricultural labor or services will not adversely affect the wages and 
working conditions of workers in the United States similarly employed 
(8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184 (a) and (c), and 1186).
    (t) United States Employment Service (USES) means the agency of the 
U.S. Department of Labor, established under the Wagner-Peyser Act, 
which is charged with administering the national system of public 
employment offices and carrying out certain functions of the Secretary 
under the INA.
    (u) United States (U.S.) worker means any worker who, whether a 
U.S. national, a U.S. citizen, or an alien, is legally permitted to 
work in the job opportunity within the United States (as

[[Page 26012]]

defined at section 101(a)(38) of the INA (8 U.S.C. 1101(a)(38)).
    (v) Wages means all forms of cash remuneration to a worker by an 
employer in payment for personal services.

Subpart B--Enforcement of Work Contracts


Sec.  501.15  Enforcement.

    The investigations, inspections and law enforcement functions to 
carry out the provisions of section 216 of the INA, as provided in 
these regulations for enforcement by the Wage and Hour Division, 
pertain to the employment of any H-2A worker and any other worker 
employed in corresponding employment by an H-2A employer. Such 
enforcement includes those work contract provisions as defined in Sec.  
501.10(d). The work contract enforced includes the employment benefits 
which must be stated in the job offer, as prescribed in 20 CFR 655.102.


Sec.  501.16  General.

    Whenever the Secretary believes that the H-2A provisions of the INA 
or these regulations have been violated such action shall be taken and 
such proceedings instituted as deemed appropriate, including (but not 
limited to) the following:
    (a) Impose denial of labor certification against any person for a 
violation of the H-2A obligations of the INA or the regulations. ETA 
shall make all determinations regarding the issuance or denial of labor 
certification. ESA shall make all determinations regarding the 
enforcement functions listed in paragraphs (b) through (d) of this 
section.
    (b) Institute appropriate administrative proceedings, including the 
recovery of unpaid wages, the enforcement of any other contractual 
obligations and the assessment of a civil money penalty against any 
person for a violation of the H-2A work contract obligations of the Act 
or these regulations.
    (c) Petition any appropriate District Court of the United States 
for temporary or permanent injunctive relief, including the withholding 
of unpaid wages, to restrain violation of the H-2A provisions of the 
Act or these regulations by any person.
    (d) Petition any appropriate District Court of the United States 
for specific performance of contractual obligations.


Sec.  501.17  Concurrent actions.

    The taking of any one of the actions referred to above shall not be 
a bar to the concurrent taking of any other action authorized by the H-
2A provisions of the Act and these regulations, or the regulations of 
20 CFR part 655.


Sec.  501.18  Representation of the Secretary.

    (a) Except as provided in section 518(a) of title 28, United States 
Code, relating to litigation before the Supreme Court, the Solicitor of 
Labor may appear for and represent the Secretary in any civil 
litigation brought under the Act.
    (b) The Solicitor of Labor, through the authorized representatives 
shall represent the Administrator and the Secretary in all 
administrative hearings under the H-2A provisions of the Act and these 
regulations.


Sec.  501.19  Civil money penalty assessment.

    (a) A civil money penalty may be assessed by the Administrator for 
each violation of the work contract or these regulations.
    (b) In determining the amount of penalty to be assessed for any 
violation of the work contract as provided in the H-2A provisions of 
the Act or these regulations the Administrator shall consider the type 
of violation committed and other relevant factors. The matters which 
may be considered include, but are not limited to, the following:
    (1) Previous history of violation, or violations of the H-2A 
provisions of the Act and these regulations;
    (2) The number of workers affected by the violation or violations;
    (3) The gravity of the violation or violations;
    (4) Efforts made in good faith to comply with the H-2A provisions 
of the Act and these regulations;
    (5) Explanation of person charged with the violation or violations;
    (6) Commitment to future compliance, taking into account the public 
health, interest or safety, and whether the person has previously 
violated the H-2A provisions of the Act;
    (7) The extent to which the violator achieved a financial gain due 
to the violation, or the potential financial loss or potential injury 
to the workers.
    (c) A civil money penalty for violation of the work contract will 
not exceed $1,000 for each violation committed against each worker. A 
civil money penalty for discrimination or interference with Wage and 
Hour investigative authority will not exceed $1,000 for each such act 
of discrimination or interference.


Sec.  501.20  Enforcement of Wage and Hour investigative authority.

    Sections 501.5 through 501.7 of this part prescribe the 
investigation authority conferred upon the Wage and Hour Division for 
the purpose of enforcing the contractual obligations. These sections 
indicate the actions which may be taken upon failure to permit or 
interference with an investigation. No person shall interfere with any 
employee of the Secretary who is exercising or attempting to exercise 
this investigative or enforcement authority. As stated in Sec. Sec.  
501.5, 501.6 and in 501.19 of this part, a civil money penalty may be 
assessed for each failure to permit an investigation or interference 
therewith, and other appropriate relief may be sought. In addition Wage 
and Hour shall report each such occurrence to ETA and may recommend to 
ETA denial of future labor certifications. The taking of any one action 
shall not bar the taking of any additional action.


Sec.  501.21  Referral of findings to ETA.

    Where Wage and Hour finds violations Wage and Hour shall so notify 
the appropriate representative of ETA and shall forward appropriate 
information, including investigative information to such representative 
for review and consideration.


Sec.  501.22  Civil money penalties--payment and collection.

    Where the assessment is directed in a final order by the 
Administrator, by an Administrative Law Judge, or by the Secretary, the 
amount of the penalty is immediately due and payable to the U.S. 
Department of Labor. The person assessed such penalty shall remit 
promptly the amount thereof as finally determined, to the Administrator 
by certified check or by money order, made payable to the order of 
``Wage and Hour Division, Labor.'' The remittance shall be delivered or 
mailed to the Wage and Hour Division Regional Office for the area in 
which the violations occurred.

Subpart C--Administrative Proceedings


Sec.  501.30  Applicability of procedures and rules.

    The procedures and rules contained herein prescribe the 
administrative process which will be applied with respect to a 
determination to impose an assessment of civil money penalties and 
which may be applied to the enforcement of contractual obligations, 
including the collection of unpaid wages due as a result of any 
violation of the H-2A provisions of the Act or of these regulations. 
Except with respect to the imposition of civil money penalties, the 
Secretary may, in his discretion, seek enforcement action in Federal

[[Page 26013]]

court without resort to any administrative proceedings.

Procedures Relating to Hearing


Sec.  501.31  Written notice of determination required.

    Whenever the Administrator determines to assess a civil money 
penalty or to proceed administratively to enforce contractual 
obligations, including the recovery of unpaid wages, the person against 
whom such action is taken shall be notified in writing of such 
determination.


Sec.  501.32  Contents of notice.

    The notice required by Sec.  501.31 shall:
    (a) Set forth the determination of the Administrator including the 
amount of any unpaid wages due or contractual obligations required and 
the amount of any civil money penalty assessment and the reason or 
reasons therefor.
    (b) Set forth the right to request a hearing on such determination.
    (c) Inform any affected person or persons that in the absence of a 
timely request for a hearing, the determination of the Administrator 
shall become final and unappealable.
    (d) Set forth the time and method for requesting a hearing, and the 
procedures relating thereto, as set forth in Sec.  501.33.


Sec.  501.33  Request for hearing.

    (a) Any person desiring to request an administrative hearing on a 
determination referred to in Sec.  501.32 shall make such request in 
writing to the official who issued the determination, at the Wage and 
Hour Division address appearing on the determination notice, no later 
than thirty (30) days after issuance of the notice referred to in Sec.  
501.32.
    (b) No particular form is prescribed for any request for hearing 
permitted by this part. However, any such request shall:
    (1) Be typewritten or legibly written;
    (2) Specify the issue or issues stated in the notice of 
determination giving rise to such request;
    (3) State the specific reason or reasons why the person requesting 
the hearing believes such determination is in error;
    (4) Be signed by the person making the request or by an authorized 
representative of such person; and
    (5) Include the address at which such person or authorized 
representative desires to receive further communications relating 
thereto.
    (c) The request for such hearing must be received by the official 
who issued the determination, at the Wage and Hour Division address 
appearing on the determination notice, within the time set forth in 
paragraph (a) of this section. For the affected person's protection, if 
the request is by mail, it should be by certified mail.

Rules of Practice


Sec.  501.34  General.

    Except as specifically provided in these regulations, the ``Rules 
of Practice and Procedure for Administrative Hearings Before the Office 
of Administrative Law Judges'' established by the Secretary at 29 CFR 
part 18 shall apply to administrative proceedings described in this 
part.


Sec.  501.35  Commencement of proceeding.

    Each administrative proceeding permitted under the Act and these 
regulations shall be commenced upon receipt of a timely request for 
hearing filed in accordance with Sec.  501.33.


Sec.  501.36  Caption of proceeding.

    (a) Each administrative proceeding instituted under the Act and 
these regulations shall be captioned in the name of the person 
requesting such hearing, and shall be styled as follows:


In the Matter of --, Respondent.

    (b) For the purposes of such administrative proceedings the 
Administrator shall be identified as plaintiff and the person 
requesting such hearing shall be named as respondent.

Referral for Hearing


Sec.  501.37  Referral to Administrative Law Judge.

    (a) Upon receipt of a timely request for a hearing filed pursuant 
to and in accordance with Sec.  501.33 the Administrator, by the 
Associate Solicitor for the Division of Fair Labor Standards or by the 
Regional Solicitor for the Region in which the action arose, shall, by 
Order of Reference, promptly refer a copy of the notice of 
administrative determination complained of, and the original or a 
duplicate copy of the request for hearing signed by the person 
requesting such hearing or by the authorized representative of such 
person, to the Chief Administrative Law Judge, for a determination in 
an administrative proceeding as provided herein. The notice of 
administrative determination and request for hearing shall be filed of 
record in the Office of the Chief Administrative Law Judge and shall, 
respectively, be given the effect of a complaint and answer thereto for 
purposes of the administrative proceeding, subject to any amendment 
that may be permitted under these regulations or 29 CFR part 18.
    (b) A copy of the Order of Reference, together with a copy of these 
regulations, shall be served by counsel for the Administrator upon the 
person requesting the hearing, in the manner provided in 29 CFR 18.3.


Sec.  501.38  Notice of docketing.

    Upon receipt of an Order of Reference, the Chief Administrative Law 
Judge shall appoint an Administrative Law Judge to hear the case. The 
Administrative Law Judge shall promptly notify all interested parties 
of the docketing of the matter and shall set the time and place of the 
hearing. The date of the hearing shall be not more than 60 days from 
the date on which the Order of Reference was filed.


Sec.  501.39  Service upon attorneys for the Department of Labor--
number of copies.

    Two copies of all pleadings and other documents required for any 
administrative proceeding provided herein shall be served on the 
attorneys for the Department of Labor. One copy shall be served on the 
Associate Solicitor, Division of Fair Labor Standards, Office of the 
Solicitor, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Washington, DC 20210, and one copy on the Attorney representing the 
Department in the proceeding.

Procedures Before Administrative Law Judge


Sec.  501.40  Consent findings and order.

    (a) General. At any time after the commencement of a proceeding 
under this part, but prior to the reception of evidence in any such 
proceeding, a party may move to defer the receipt of any evidence for a 
reasonable time to permit negotiation of an agreement containing 
consent findings and an order disposing of the whole or any part of the 
proceeding. The allowance of such deferment and the duration thereof 
shall be at the discretion of the Administrative Law Judge, after 
consideration of the nature of the proceeding, the requirements of the 
public interest, the representations of the parties, and the 
probability of an agreement being reached which will result in a just 
disposition of the issues involved.
    (b) Content. Any agreement containing consent findings and an order 
disposing of a proceeding or any part thereof shall also provide:
    (1) That the order shall have the same force and effect as an order 
made after full hearing;
    (2) That the entire record on which any order may be based shall 
consist solely of the notice of administrative determination (or 
amended notice, if one is filed), and the agreement;

[[Page 26014]]

    (3) A waiver of any further procedural steps before the 
Administrative Law Judge; and
    (4) A waiver of any right to challenge or contest the validity of 
the findings and order entered into in accordance with the agreement.
    (c) Submission. On or before the expiration of the time granted for 
negotiations, the parties or their authorized representatives or their 
counsel may:
    (1) Submit the proposed agreement for consideration by the 
Administrative Law Judge; or
    (2) Inform the Administrative Law Judge that agreement cannot be 
reached.
    (d) Disposition. In the event an agreement containing consent 
findings and an order is submitted within the time allowed therefor, 
the Administrative Law Judge, within thirty (30) days thereafter, 
shall, if satisfied with its form and substance, accept such agreement 
by issuing a decision based upon the agreed findings.

Post-Hearing Procedures


Sec.  501.41  Decision and order of Administrative Law Judge.

    (a) The Administrative Law Judge shall prepare, within 60 days 
after completion of the hearing and closing of the record, a decision 
on the issues referred by the Administrator.
    (b) The decision of the Administrative Law Judge shall include a 
statement of findings and conclusions, with reasons and basis therefor, 
upon each material issue presented on the record. The decision shall 
also include an appropriate order which may affirm, deny, reverse, or 
modify, in whole or in part, the determination of the Administrator. 
The reason or reasons for such order shall be stated in the decision.
    (c) The decision shall be served on all parties and the Secretary 
in person or by certified mail. The decision when served by the 
Administrative Law Judge shall constitute the final order of the 
Administrator unless the Secretary, as provided for in Sec.  501.42 
below determines to review the decision.

Review of Administrative Law Judge's Decision


Sec.  501.42  Procedures for initiating and undertaking review.

    (a) A respondent, the Administrator or any other party wishing 
review of the decision of an Administrative Law Judge shall, within 30 
days of the decision of the Administrative Law Judge, petition the 
Secretary to review the decision. Copies of the petition shall be 
served on all parties and on the Administrative Law Judge. If the 
Secretary does not issue a notice accepting a petition for review 
within 30 days after receipt of a timely filing of the petition, or 
within 30 days of the date of the decision if no petition has been 
received, the decision of the Administrative Law Judge shall be deemed 
the final agency action.
    (b) Whenever the Secretary either on the Secretary's own motion or 
by acceptance of a party's petition, determines to review the decision 
of an Administrative Law Judge, a notice of the same shall be served 
upon the Administrative Law Judge and upon all parties to the 
proceeding in person or by certified mail.


Sec.  501.43  Responsibility of the Office of Administrative Law 
Judges.

    Upon receipt of the Secretary's Notice pursuant to Sec.  501.42 of 
these regulations, the Office of Administrative Law Judges shall, 
promptly forward a copy of the complete hearing record to the 
Secretary.


Sec.  501.44  Additional information, if required.

    Where the Secretary has determined to review such decision and 
order, the Secretary shall notify each party of:
    (a) The issue or issues raised;
    (b) The form in which submission shall be made (i.e., briefs, oral 
argument, etc.); and the time within which such presentation shall be 
submitted.


Sec.  501.45  Final decision of the Secretary.

    The Secretary's final decision shall be issued within 90 days from 
the notice granting the petition and served upon all parties and the 
administrative law judge, in person or by certified mail.

Record


Sec.  501.46  Retention of official record.

    The official record of every completed administrative hearing 
provided by these regulations shall be maintained and filed under the 
custody and control of the Chief Administrative Law Judge.


Sec.  501.47  Certification.

    Upon receipt of a complaint seeking review of a decision issued 
pursuant to this part filed in a U.S. District Court, after the 
administrative remedies have been exhausted, the Chief Administrative 
Law Judge shall promptly index, certify and file with the appropriate 
U.S. District Court, a full, true, and correct copy of the entire 
record, including the transcript of proceedings.

PART 780--EXEMPTIONS APPLICABLE TO AGRICULTURE, PROCESSING OF 
AGRICULTURAL COMMODITIES, AND RELATED SUBJECTS UNDER THE FAIR LABOR 
STANDARDS ACT

0
10. The authority citation for part 780 is revised to read as follows:

    Authority: Secs. 1-19, 52 Stat. 1060, as amended; 75 Stat. 65; 
29 U.S.C. 201-219.


Sec.  780.115  [Redesignated as Sec.  780.159 and Suspended]

0
11. Redesignate Sec.  780.115 as Sec.  780.159 and suspend newly 
designated Sec.  780.159.

0
12. Add Sec.  780.115 to read as follows:


Sec.  780.115  Forest products.

    Trees grown in forests and the lumber derived therefrom are not 
``agricultural or horticultural commodities.'' Christmas trees, whether 
wild or planted, are also not so considered. It follows that employment 
in the production, cultivation, growing, and harvesting of such trees 
or timber products is not sufficient to bring an employee within 
section 3(f) unless the operation is performed by a farmer or on a farm 
as an incident to or in conjunction with his or its farming operations. 
On the latter point, see Sec. Sec.  780.160 through 780.164 which 
discuss the question of when forestry or lumbering operations are 
incident to or in conjunction with farming operations so as to 
constitute ``agriculture.'' For a discussion of the exemption in 
section 13(a)(13) of the Act for certain forestry and logging 
operations in which not more than eight employees are employed, see 
part 788 of this chapter.


Sec.  780.201  [Redesignated as Sec.  780.215 and Suspended]

0
13. Redesignate Sec.  780.201 as Sec.  780.215 and suspend newly 
designated Sec.  780.215.

0
14. Add Sec.  780.201 to read as follows:


Sec.  780.201  Meaning of ``forestry or lumbering operations.''

    The term ``forestry or lumbering operations'' refers to the 
cultivation and management of forests, the felling and trimming of 
timber, the cutting, hauling, and transportation of timber, logs, 
pulpwood, cordwood, lumber, and like products, the sawing of logs into 
lumber or the conversion of logs into ties, posts, and similar 
products, and similar operations. It also includes the piling, 
stacking, and storing of all such products. The gathering of wild 
plants and of wild or planted Christmas trees are included. (See the 
related discussion in Sec. Sec.  780.205 through 780.209 and in

[[Page 26015]]

part 788 of this chapter which considers the section 13(a)(13) 
exemption for forestry or logging operations in which not more than 
eight employees are employed.) ``Wood working'' as such is not included 
in ``forestry'' or ``lumbering'' operations. The manufacture of 
charcoal under modern methods is neither a ``forestry'' nor 
``lumbering'' operation and cannot be regarded as ``agriculture.''


Sec.  780.205  [Redesignated as Sec.  780.216 and Suspended]

0
15. Redesignate Sec.  780.205 as Sec.  780.216 and suspend newly 
designated Sec.  780.216.

0
16. Add Sec.  780.205 to read as follows:


Sec.  780.205  Nursery activities generally.

    The employees of a nursery who are engaged in the following 
activities are employed in ``agriculture'':
    (a) Sowing seeds and otherwise propagating fruit, nut, shade, 
vegetable, and ornamental plants or trees (but not Christmas trees), 
and shrubs, vines, and flowers;
    (b) Handling such plants from propagating frames to the field;
    (c) Planting, cultivating, watering, spraying, fertilizing, 
pruning, bracing, and feeding the growing crop.


Sec.  780.208  [Redesignated as Sec.  780.217 and Suspended]

0
17. Redesignate Sec.  780.208 as Sec.  780.217 and suspend newly 
designated Sec.  780.217.

0
18a. Add Sec.  780.208 to read as follows:


Sec.  780.208  Forest and Christmas tree activities.

    Operations in a forest tree nursery such as seeding new beds and 
growing and transplanting forest seedlings are not farming operations. 
The planting, tending, and cutting of Christmas trees do not constitute 
farming operations. If such operations on forest products are within 
section 3(f), they must qualify under the second part of the definition 
dealing with incidental practices. (See Sec.  780.201.)

PART 788--FORESTRY OR LOGGING OPERATIONS IN WHICH NOT MORE THAN 
EIGHT EMPLOYEES ARE EMPLOYED

0
18b. The authority citation for part 788 continues to read as follows:

    Authority: Secs. 1-19, 52 Stat. 1060, as amended; 29 U.S.C. 201-
219.


Sec.  788.10  [Redesignated as Sec.  788.18 and Suspended]

0
19. Redesignate Sec.  788.10 as Sec.  788.18 and suspend newly 
designated Sec.  788.18.

0
20. Add Sec.  788.10 to read as follows:


Sec.  788.10   ``Preparing * * * other forestry products.''

    As used in the exemption, ``other forestry products'' mean plants 
of the forest and the natural properties or substances of such plants 
and trees. Included among these are decorative greens such as holly, 
ferns and Christmas trees, roots, stems, leaves, Spanish moss, wild 
fruit, and brush. Gathering and preparing such forestry products as 
well as transporting them to the mill, processing plant, railroad, or 
other transportation terminal are among the described operations. 
Preparing such forestry products does not include operations which 
change the natural physical or chemical condition of the products or 
which amount to extracting as distinguished from gathering, such as 
shelling nuts, or mashing berries to obtain juices.

    Signed in Washington, DC, this 20th day of May, 2009.
Douglas F. Small,
Deputy Assistant Secretary, Employment and Training Administration.
Shelby Hallmark,
Acting Assistant Secretary, Employment Standards Administration.
[FR Doc. E9-12436 Filed 5-28-09; 8:45 am]
BILLING CODE 4510-FP-P



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