63750 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Parts 651, 653, 655, and 658 

Wage and Hour Division 

29 CFR Part 501 

[DOL Docket No. ETA–2023–0003] 

RIN 1205–AC12 

Improving Protections for Workers in 

Temporary Agricultural Employment in 

the United States 

AGENCY: Employment and Training 

Administration and Wage and Hour 

Division, Department of Labor. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Labor 

(Department or DOL) proposes to amend 

its regulations governing the 

certification of temporary employment 

of nonimmigrant workers employed in 

temporary or seasonal agricultural 

employment and the enforcement of the 

contractual obligations applicable to 

employers of these nonimmigrant 

workers. The revisions proposed in this 

notice of proposed rulemaking (NPRM 

or proposed rule) focus on strengthening 

protections for temporary agricultural 

workers and enhancing the 

Department’s capabilities to monitor 

program compliance and take necessary 

enforcement actions against program 

violators. 

DATES: Interested persons are invited to 

submit written comments on the 

proposed rule on or before November 

14, 2023. 

ADDRESSES: You may submit comments 

electronically by the following method: 

Federal eRulemaking Portal: https://

www.regulations.gov. Follow the 

instructions on the website for 

submitting comments. 

Instructions: Include the agency’s 

name and docket number ETA–2023– 

0003 in your comments. All comments 

received will become a matter of public 

record and will be posted without 

change to https://www.regulations.gov. 

Please do not include any personally 

identifiable or confidential business 

information you do not want publicly 

disclosed. 

FOR FURTHER INFORMATION CONTACT: For 

further information regarding 20 CFR 

parts 651, 653, and 658, contact 

Kimberly Vitelli, Administrator, Office 

of Workforce Investment, Employment 

and Training Administration, 

Department of Labor, Room C–4526, 200 

Constitution Avenue NW, Washington, 

DC 20210, telephone: (202) 693–3980 

(this is not a toll-free number). For 

further information regarding 20 CFR 

part 655, contact Brian Pasternak, 

Administrator, Office of Foreign Labor 

Certification, Employment and Training 

Administration, Department of Labor, 

200 Constitution Avenue NW, Room N– 

5311, Washington, DC 20210, telephone: 

(202) 693–8200 (this is not a toll-free 

number). For further information 

regarding 29 CFR part 501, contact Amy 

DeBisschop, Director of the Division of 

Regulations, Legislation, and 

Interpretation, Wage and Hour Division, 

Department of Labor, Room S–3502, 200 

Constitution Avenue NW, Washington, 

DC 20210, telephone: (202) 693–0406 

(this is not a toll-free number). 

Individuals with hearing or speech 

impairments may access the telephone 

number above via TTY by calling the 

toll-free Federal Information Relay 

Service at 1–800–877–5627. 

SUPPLEMENTARY INFORMATION: 

Preamble Table of Contents 

I. Acronyms and Abbreviations 

II. Background and Overview 

A. Legal Authority 

B. Current Regulatory Framework 

C. Need for Rulemaking 

D. Summary of Major Provisions of This 

Proposed Rule 

III. Discussion of Proposed Revisions to 

Employment Service Regulations 

A. Introduction 

B. Discussion of Proposed Revisions to 20 

CFR Part 651 

C. Discussion of Proposed Revisions to 20 

CFR Part 653 

D. Discussion of Proposed Revisions to 20 

CFR Part 658, Subpart F 

IV. Discussion of Proposed Revisions to 20 

CFR Part 655, Subpart B 

A. Introductory Sections 

B. Prefiling Procedures 

C. Application for Temporary Employment 

Certification Filing Procedures 

D. Labor Certification Determinations 

E. Post-Certification 

F. Integrity Measures 

V. Discussion of Proposed Revisions to 29 

CFR Part 501 

A. Section 501.3 Definitions 

B. Section 501.4 Discrimination Prohibited 

C. Section 501.10 Severability 

D. Sections 501.20, 501.33, 501.42 

Debarment and Revocation 

E. Section 501.33 Request for Hearing 

VI. Administrative Information 

A. Executive Order 12866: Regulatory 

Planning and Review; Executive Order 

14094: Modernizing Regulatory Review; 

and Executive Order 13563: Improving 

Regulation and Regulatory Review 

B. Regulatory Flexibility Analysis and 

Small Business Regulatory Enforcement 

Fairness Act and Executive Order 13272: 

Proper Consideration of Small Entities in 

Agency Rulemaking 

C. Paperwork Reduction Act 

D. Unfunded Mandates Reform Act of 1995 

E. Executive Order 13132 (Federalism) 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

I. Acronyms and Abbreviations 

AEWR Adverse effect wage rate 

AIE Area(s) of intended employment 

ALJ Administrative Law Judge 

AOWL Agricultural Online Wage Library 

ARB Administrative Review Board 

ARIMA Autoregressive integrated moving 

average 

BALCA Board of Alien Labor Certification 

Appeals 

BLS Bureau of Labor Statistics 

CBA Collective bargaining agreement 

CDC Centers for Disease Control and 

Prevention 

CFR Code of Federal Regulations 

CO Certifying Officer 

CY Calendar year 

DBA Doing Business As 

DHS Department of Homeland Security 

DOJ Department of Justice 

DOL Department of Labor 

DOT Department of Transportation 

EEOC Equal Employment Opportunity 

Commission 

E.O. Executive Order 

ES Employment Service 

ES system Employment Service system 

ETA Employment and Training 

Administration 

FEIN Federal Employer Identification 

Number 

FLS Farm Labor Survey 

FLSA Fair Labor Standards Act 

FR Federal Register 

FY Fiscal year 

GAO Government Accountability Office 

GHSA Governors Highway Safety 

Association 

GVWR Gross vehicle weight rating 

H–2ALC H–2A labor contractor 

HR Human resources 

ICR Information Collection Request 

INA Immigration and Nationality Act 

IRCA Immigration Reform and Control Act 

of 1986 

MSFW Migrant or seasonal farmworker 

MSPA Migrant and Seasonal Agricultural 

Worker Protection Act 

NAICS North American Industry 

Classification System 

NGO Nongovernmental organization 

NHTSA National Highway Traffic Safety 

Administration 

NLRA National Labor Relations Act 

NLRB National Labor Relations Board 

NMA National Monitor Advocate 

NOD Notice of Deficiency 

NPC National Processing Center 

NPRM Notice of proposed rulemaking 

OALJ Office of Administrative Law Judges 

OEWS Occupational Employment and 

Wage Statistics 

OFLC Office of Foreign Labor Certification 

OIG Office of Inspector General 

OIRA Office of Information and Regulatory 

Affairs 

OMB Office of Management and Budget 

OSHA Occupational Safety and Health 

Administration 

PRA Paperwork Reduction Act 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63751 

1For ease of reference, sections of the INA are 

referred to by their corresponding section in the 

United States Code. 

2Following certification by DOL, the employer 

must file an H–2A petition (defined at 20 CFR 

655.103(b) as the U.S. Citizenship and Immigration 

Services (USCIS) Form I–129, Petition for a 

Nonimmigrant Worker, with H Supplement or 

successor form and/or supplement, and 

accompanying documentation required by DHS for 

employers seeking to employ foreign persons as H– 

2A nonimmigrant workers) with USCIS, requesting 

one or more workers not to exceed the total listed 

on the temporary labor certification. Generally, 

USCIS must approve this petition before the 

worker(s) can be considered eligible for an H–2A 

visa or for H–2A nonimmigrant status. 

3Final Rule, Temporary Agricultural Employment 

of H–2A Aliens in the United States, 75 FR 6884 

(Feb. 12, 2010) (2010 H–2A Final Rule); Final Rule, 

Temporary Agricultural Employment of H–2A 

Nonimmigrants in the United States, 87 FR 61660 

(Oct. 12, 2022) (2022 H–2A Final Rule). 

4Final Rule, Temporary Agricultural Employment 

of H–2A Foreign Workers in the Herding or 

Production of Livestock on the Range in the United 

States, 80 FR 62958 (Oct. 16, 2015) (2015 H–2A 

Herder Final Rule). 

5Consistent with a court-approved settlement 

agreement in Hispanic Affairs Project, et al. v. 

Scalia et al., No. 15–cv–1562 (D.D.C.), the 

Department recently rescinded 20 CFR 

655.215(b)(2). Final Rule, Adjudication of 

Temporary and Seasonal Need for Herding and 

Production of Livestock on the Range Applications 

Under the H–2A Program, 86 FR 71373 (Dec. 16, 

2021). 

6 2022 H–2A Final Rule; Final Rule, Adverse 

Effect Wage Rate Methodology for the Temporary 

Employment of H–2A Nonimmigrants in Non-Range 

Occupations in the United States, 88 FR 12760 

(Feb. 28, 2023) (2023 AEWR Final Rule). 

Pub.L. Public Law 

PY Program year 

RFA Regulatory Flexibility Act 

RIN Regulation Identifier Number 

SBA Small Business Administration 

Sec. Section of a Public Law 

Secretary Secretary of Labor 

SOC Standard Occupational Classification 

Stat. U.S. Statutes at Large 

SWA State workforce agency 

TVPA Victims of Trafficking and Violence 

Protection Act of 2000 

UMRA Unfunded Mandates Reform Act of 

1995 

U.S. United States 

U.S.C. United States Code 

USDA U.S. Department of Agriculture 

VSL Value of a statistical life 

WHD Wage and Hour Division 

II. Background and Overview 

A. Legal Authority 

The Immigration and Nationality Act 

(INA), as amended by the Immigration 

Reform and Control Act of 1986 (IRCA), 

establishes an ‘‘H–2A’’ nonimmigrant 

visa classification for a worker ‘‘having 

a residence in a foreign country which 

he has no intention of abandoning who 

is coming temporarily to the United 

States to perform agricultural labor or 

services . . . of a temporary or seasonal 

nature.’’ 8 U.S.C. 1101(a)(15)(H)(ii)(a); 

see also 8 U.S.C. 1184(c)(1) and 1188.1

Permanent, year-round job 

opportunities cannot be classified as 

temporary or seasonal. 2022 H–2A Final 

Rule, 87 FR 61660, 61684 (Oct. 12, 

2022); see also 8 U.S.C. 

1101(a)(15)(H)(ii)(a) (the INA permits 

only ‘‘agricultural labor or services . . . 

of a temporary or seasonal nature’’ to be 

performed under the H–2A visa 

category). 

The H–2A nonimmigrant worker visa 

program enables U.S. agricultural 

employers to employ foreign workers on 

a temporary basis to perform temporary 

or seasonal agricultural labor or services 

only where the Secretary of Labor 

(Secretary) certifies that (1) there are not 

sufficient workers who are able, willing, 

and qualified, and who will be available 

at the time and place needed, to perform 

the labor or services involved in the 

petition, and (2) the employment of the 

foreign worker in such labor or services 

will not adversely affect the wages and 

working conditions of workers in the 

United States similarly employed. 8 

U.S.C. 1188(a)(1).2 The INA prohibits 

the Secretary from issuing this 

certification—known as a ‘‘temporary 

agricultural labor certification’’—unless 

both of the above-referenced conditions 

are met. The INA further prohibits the 

Secretary from issuing a temporary 

agricultural labor certification if any of 

the conditions in 8 U.S.C. 1188(b) apply 

concerning strikes or lock-outs, labor 

certification program debarments, 

workers’ compensation assurances, and 

positive recruitment. 

The Secretary has delegated the 

authority to issue temporary agricultural 

labor certifications to the Assistant 

Secretary for Employment and Training, 

who in turn has delegated that authority 

to the Employment and Training 

Administration’s (ETA) Office of 

Foreign Labor Certification (OFLC). See 

Secretary’s Order 06–2010 (Oct. 20, 

2010), 75 FR 66268 (Oct. 27, 2010). In 

addition, the Secretary has delegated to 

WHD the responsibility under 8 U.S.C. 

1188(g)(2) to assure employer 

compliance with the terms and 

conditions of employment under the H– 

2A program. See Secretary’s Order 01– 

2014 (Dec. 19, 2014), 79 FR 77527 (Dec. 

24, 2014). Pursuant to the INA and 

implementing regulations promulgated 

by DOL and the Department of 

Homeland Security (DHS), DOL 

evaluates an employer’s need for 

agricultural labor or services to 

determine whether it is seasonal or 

temporary during the review of an H–2A 

Application. 20 CFR 655.161(a); 8 CFR 

214.2(h)(5)(i)(A) and (h)(5)(iv). 

B. Current Regulatory Framework 

Since 1987, the Department has 

operated the H–2A temporary labor 

certification program under regulations 

promulgated pursuant to the INA. The 

standards and procedures applicable to 

the certification and employment of 

workers under the H–2A program are 

found in 20 CFR part 655, subpart B, 

and 29 CFR part 501. The majority of 

the Department’s current regulations 

governing the H–2A program were 

published in 2010 and many were 

strengthened in a final rule the 

Department published in October 2022.3

The Department incorporated the 

provisions for employment of workers 

in the herding and production of 

livestock on the range into the H–2A 

regulations, with modifications, in 

2015.4 The provisions governing the 

employment of workers in the herding 

and production of livestock on the range 

are codified at 20 CFR 655.200 through 

655.235.5

The Department protects against 

adverse effect on the wages of workers 

in the United States similarly employed, 

in part, by requiring at § 655.120(a) that 

an employer offer, advertise in its 

recruitment, and pay a wage that is the 

highest of the adverse effect wage rate 

(AEWR), the prevailing wage, the 

agreed-upon collective bargaining wage, 

the Federal minimum wage, or the State 

minimum wage. If an updated AEWR 

for the occupational classification and 

geographic area is published during the 

work contract and becomes the highest 

applicable wage rate, the employer must 

pay at least the updated AEWR upon the 

effective date of the updated AEWR, as 

published in the Federal Register. 

Section 655.120(b)(3). In accordance 

with § 655.120(b)(2) and (3), the 

Department publishes the updated 

AEWR at least once annually in the 

Federal Register. One Federal Register 

notice provides annual adjustments to 

the AEWRs for the field and livestock 

workers (combined) occupational 

grouping based on the U.S. Department 

of Agriculture’s (USDA) publication of 

the Farm Labor Reports (better known as 

the Farm Labor Survey, or FLS), 

effective on or about January 1, and a 

second Federal Register notice will 

provide annual adjustments to the 

AEWRs for all other non-range 

occupations based on the Department’s 

Bureau of Labor Statistics’ (BLS) 

publication of the Occupational 

Employment and Wage Statistics 

(OEWS) survey, effective on or about 

July 1.6 Each notice specifies the 

effective date of the new AEWRs, 

which, in recent notices, has been not 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63752 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

more than 14 calendar days after 

publication. 

OFLC currently requires disclosure of 

information about the identity of 

employers, agents, and attorneys, the 

places where work will be performed, 

and the employer’s use of a foreign labor 

recruiter through the provision of 

agreements with recruiters when 

requested by the certifying officer (CO), 

which is necessary for the Department 

to assess the nature of the employer’s 

job opportunity, monitor program 

compliance, and protect program 

integrity. See § 655.135(k); Form ETA– 

9142A; Form ETA–790A; Form ETA– 

790A, Addendum B. For example, 

employers must identify in the H–2A 

Application and job order all places of 

employment, provide the Department a 

copy of agreements with foreign labor 

recruiters that expressly prohibit 

unlawful fees (upon request by the CO), 

and provide identifying information like 

the Federal Employer Identification 

Number (FEIN) and Doing Business As 

(DBA) name on the Form ETA–9142A, 

Form ETA–790A, and Form ETA–790A, 

Addendum B. OFLC may provide any 

information received while processing 

H–2A applications, or in the course of 

conducting program integrity measures 

to WHD and to any other Federal agency 

with authority to enforce compliance 

with program requirements and combat 

fraud and abuse. Section 655.130(f); 29 

CFR 501.2 (providing that WHD and 

OFLC may share information with each 

other and with other agencies as 

appropriate for investigative or 

enforcement purposes). For example, 

the Department may refer certain 

discrimination complaints to the 

Department of Justice (DOJ) Civil Rights 

Division, Immigrant and Employee 

Rights Section, under § 655.185, or refer 

information related to debarred 

employers or to employers’ fraudulent 

or willful misrepresentations to DHS 

under §§ 655.182 and 655.184. 

Under § 655.145, an employer may 

request to amend its application to 

increase the number of workers or to 

make minor changes to the period of 

employment. In addition, an employer 

may request modifications to its job 

order under § 655.121(e)(2) before 

submitting its H–2A Application. 

Current § 655.145(b) permits the 

employer to submit a request to the CO 

to delay the start date of need when the 

delay is due to unforeseen 

circumstances and the employer’s crops 

or commodities will be in jeopardy prior 

to expiration of an additional 

recruitment period. The employer’s 

request to the CO must explain the 

circumstances necessitating the request 

and the employer must include with the 

request a written assurance that all 

workers who are already traveling to the 

place of employment will be provided 

housing and subsistence, without cost to 

the workers, until work commences. 

The regulations do not permit 

amendments to an application after the 

CO issues a Final Determination. An 

employer that experiences changed 

circumstances after certification is 

required to submit a new and 

substantially similar application and job 

order. 

The regulations implementing the 

Wagner-Peyser Act establish the 

Agricultural Recruitment System (ARS), 

through which employers can recruit 

U.S. workers for agricultural 

employment opportunities, and which 

prospective H–2A employers must use 

to recruit U.S. workers as a condition of 

receiving a temporary labor 

certification. Among other things, these 

regulations require employers to 

provide notice of delayed start dates and 

provide protections for workers in cases 

where the employer’s start date is 

delayed. The ARS uses the term 

‘‘anticipated’’ in relation to start dates 

and provides a process close to the start 

date the employer identified in the job 

order through which the employer, the 

State workforce agency (SWA), and 

referred farmworkers communicate 

regarding the actual start date of work. 

See § 653.501(c)(1)(iv)(D), (c)(3)(i) and 

(iv), (c)(5), and (d)(4). These regulations 

currently require an employer to notify 

the SWA of start date changes at least 

10 business days before the originally 

anticipated start date and require the 

SWA to notify farmworkers that they 

should contact the SWA between 9 and 

5 business days before the anticipated 

start date to verify the actual start date 

of work. Section 653.501(c)(5) and 

(d)(4). If an employer fails to timely 

notify the SWA of a start date change 

(i.e., at least 10 business days before the 

anticipated first date identified in the 

job order), beginning on the first date of 

need, it must pay eligible workers the 

specified hourly rate of pay as stated on 

the clearance order, or if the pay is 

piece-rate, the higher of the Federal or 

State minimum wage for the first week 

or offer alternative work to each 

farmworker who followed the procedure 

to contact the SWA for updated start 

date information. See § 653.501(c)(3)(i) 

and (c)(5). Under the Department’s H– 

2A regulations at § 655.145(b), if an 

employer requests a start date delay 

after workers have departed for the 

place of employment, the employer 

must assure the CO that it will provide 

housing and subsistence to all workers 

who are already traveling to the place of 

employment, without cost to the 

workers, until work commences. If an 

employer fails to comply with its 

obligations, the SWA may notify WHD 

for possible enforcement as provided in 

§ 653.501(c)(5), the SWA may pursue 

discontinuation of services under part 

658, subpart F, or the Department may, 

either upon referral of the SWA or upon 

its own initiative, pursue revocation of 

the labor certification under the 

procedures at § 655.181, or debarment of 

the employer under the procedures at 

§ 655.182 or 29 CFR 501.20. 

The regulations also currently permit 

the Department to debar an employer, 

successor-in-interest to that employer, 

attorney, or agent from participating in 

any action under 8 U.S.C. 1188, 20 CFR 

part 655, subpart B, or 29 CFR part 501 

if the employer, agent, or attorney 

substantially violated a material term or 

condition of the temporary agricultural 

labor certification with respect to H–2A 

workers, workers in corresponding 

employment, or U.S. workers 

improperly rejected for employment, 

improperly laid off or displaced. 20 CFR 

655.182(a); 29 CFR 501.20(a). The 

Department provides the employer with 

a notice of debarment in these cases and 

also provides an opportunity to appeal 

these determinations using the 

procedures at 20 CFR 655.182(f) and 29 

CFR 501.20(e) and 501.33. Similarly, the 

Wagner-Peyser Act regulations at 20 

CFR parts 653 and 658 currently require 

the SWA to discontinue services if it 

determines an employer has committed 

one of several violations enumerated at 

20 CFR 658.501(a)(1) through (7), such 

as misrepresentation of the terms and 

conditions of employment specified on 

job orders or failure to comply fully 

with assurances made on job orders. 

As noted above, the Department 

recently published the 2022 H–2A Final 

Rule, which strengthened worker 

protections in the H–2A program, 

clarified the obligations of joint 

employers and the existing prohibitions 

on fees related to foreign labor 

recruitment, authorized debarment of 

agents and attorneys for their own 

misconduct, enhanced surety bond 

obligations and related enforcement 

authorization, modernized the 

prevailing wage determination process, 

enhanced regulation of H–2A labor 

contractors (H–2ALCs), and provided 

additional safeguards related to 

employer-provided housing and wage 

obligations. 87 FR 61660 (Oct. 12, 2022). 

In response to the NPRM published 

prior to the 2022 H–2A Final Rule, the 

Department received many comments 

suggesting changes that were beyond the 

scope of that rulemaking, such as 

suggestions relating to increased 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63753 

7See, e.g., Office of Foreign Labor Certification, 

Performance Data, https://www.dol.gov/agencies/ 

eta/foreign-labor/performance (providing 

disclosure data for the H–2A labor certification 

program since FY 2008). 

8The Department’s enforcement experience 

demonstrates that workers in agriculture, 

particularly H–2A workers, remain highly 

vulnerable to workplace abuses. In FY 2022, WHD 

conducted 420 investigations of employers using 

the H–2A program, resulting in more than $3.6 

million assessed in back wages and more than $6.3 

assessed in civil money penalties. Recent 

investigations have demonstrated that H–2A 

workers continue to be vulnerable to human 

trafficking; see, e.g., Press Release, U.S. Dep’t of 

Just., Owner of Farm Labor Contracting Company 

Pleads Guilty in Racketeering conspiracy Involving 

the Forced Labor of Mexican Workers (Sept. 27, 

2022), https://www.justice.gov/opa/pr/owner-farmlabor-contracting-company-pleads-guiltyracketeering-conspiracy-involving-forced; Jessica 

Looman, U.S. Dep’t of Lab. Blog: Exposing the 

Brutality of Human Trafficking (Jan. 13, 2022), 

https://blog.dol.gov/2022/01/13/exposing-thebrutality-of-human-trafficking. H–2A workers 

continue to be vulnerable to retaliation when 

asserting their rights or engaging in self advocacy; 

see, e.g., Press Release, U.S. Dep’t of Lab., Federal 

Court Orders Louisiana Farm, Owners to Stop 

Retaliation After Operator Denied Workers’ Request 

for Water, Screamed Obscenities, Fired Shots (Oct. 

28, 2021), https://www.dol.gov/newsroom/releases/ 

whd/whd20211028-0; Press Release, U.S. Dep’t of 

Lab., U.S. Labor Department Obtains Order 

Stopping Arizona Agricultural Employer from 

Abusing Workers, Exposing them to Workplace 

Dangers (Oct. 28, 2022), https://www.dol.gov/ 

newsroom/releases/whd/whd20221028-0. 

Additionally, recent vehicle crashes involving 

agricultural workers demonstrate the need for 

transportation reform; see, e.g., Press Release, U.S. 

Dep’t of Lab., U.S. Department of Labor Urges 

Greater Focus on Safety by Employers, Workers as 

Deaths, Injuries in Agricultural Transportation 

Incidents Rises Sharply (Sept. 20, 2022), https://

www.dol.gov/newsroom/releases/whd/ 

whd20220920-0. 

enforcement and transparency regarding 

the foreign labor recruitment process, 

increased worker protections, revisions 

to the definition of employer, stronger 

integrity provisions to account for 

complex business organizations and for 

methods used to circumvent the 

regulations, strengthening provisions 

related to piece rate pay, and 

suggestions to revise the Wagner-Peyser 

Act regulations to ensure stronger 

protections for workers in the event of 

harmful last-minute start date delays. 

C. Need for Rulemaking 

The Department proposes important 

provisions in this NPRM that will 

further strengthen protections for 

agricultural workers and enhance the 

Department’s enforcement capabilities, 

thereby permitting more effective 

enforcement against fraud and program 

violations. The Department has 

determined the proposed revisions will 

help prevent exploitation and abuse of 

agricultural workers and ensure that 

unscrupulous employers do not 

financially gain from their violations or 

contribute to economic and workforce 

instability by circumventing the law, 

both of which would adversely affect 

the wages and working conditions of 

workers in the United States similarly 

employed, and undermines the 

Department’s ability to determine 

whether there are, in fact, insufficient 

U.S. workers for proposed H–2A jobs. It 

is the policy of the Department to 

maintain robust protections for workers 

and vigorously enforce all laws within 

its jurisdiction governing the 

administration and enforcement of 

nonimmigrant visa programs. This 

includes the coordination of the 

administration and enforcement 

activities of ETA, WHD, and the 

Department’s Office of the Solicitor in 

the promotion of the hiring of U.S. 

workers and the safeguarding of wages 

and working conditions for workers in 

the United States. In addition, these 

agencies make criminal referrals to the 

Department’s Office of Inspector 

General (OIG) in appropriate 

circumstances, such as when the 

agencies encounter visa-related fraud. 

The Department has determined 

through program experience, recent 

litigation, challenges in enforcement, 

comments on prior rulemaking, and 

reports from various stakeholders that 

the proposals in this NPRM are 

necessary to strengthen protections for 

agricultural workers, ensure that 

employers, agents, attorneys, and labor 

recruiters comply with the law, and 

enhance program integrity by improving 

the Department’s ability to monitor 

compliance and investigate and pursue 

remedies from program violators. The 

recent surge in use of the H–2A program 

further underscores the need to 

strengthen protections for this 

vulnerable population.7

The proposed rule aims to address 

some of the comments that were beyond 

the scope of the 2022 H–2A Final Rule 

and concerns expressed by various 

stakeholders during that rulemaking. It 

also seeks to respond to recent court 

decisions and program experience 

indicating a need to enhance the 

Department’s ability to enforce 

regulations related to foreign labor 

recruitment, and to improve 

accountability for successors-in-interest 

and employers who use various 

methods to attempt to evade the law and 

regulatory requirements, and to enhance 

worker protections for a vulnerable 

workforce, as explained further in the 

sections that follow.8

Section D below provides an overview 

of major proposed changes, followed by 

an in-depth section-by-section 

discussion of all proposed changes. The 

Department is soliciting public 

comment on all aspects of this proposed 

rule but has suggested in each section 

the types of comments that would be 

most useful to the Department when 

considering which provisions to 

include, exclude, or revise in the final 

rule. Generally, the Department is most 

interested in comments that cite 

evidence of the need to remedy through 

this rulemaking ongoing violations, 

worker abuse or exploitation, coercion, 

employer or agent subterfuge to avoid 

the law or other ways the Department’s 

enforcement of the law may be hindered 

to the detriment of H–2A workers and 

workers in the United States impacted 

by the program and the Department’s 

ability to fulfill its statutory 

responsibilities. The Department is 

particularly interested in comments that 

suggest ways the Department can use 

this rulemaking to better protect the 

rights and liberties, health and safety, 

and wages and working conditions of 

agricultural workers and best safeguard 

the integrity of the H–2A program, 

while continuing to ensure that 

responsible employers have access to 

willing and available agricultural 

workers and are not unfairly 

disadvantaged by employers that exploit 

workers and attempt to evade the law. 

D. Summary of Major Provisions of This 

Proposed Rule 

1. Protections for Workers Who 

Advocate for Better Working Conditions 

and Labor Organizing Activities 

The Department proposes revisions to 

§ 655.135 that will provide stronger 

protections for workers protected by the 

H–2A program to advocate for better 

working conditions on behalf of 

themselves and their coworkers and 

prevent employers from suppressing 

this activity. As detailed in Section IV, 

the Department believes that these 

proposed protections are necessary to 

prevent an adverse effect on the working 

conditions of workers in the United 

States similarly employed. 8 U.S.C. 

1188(a)(1). These protections will 

significantly bolster the Department’s 

efforts to prevent such adverse effect 

because when H–2A workers and other 

workers protected under the H–2A 

program cannot advocate and negotiate 

with employers on their own behalf, 

employers are able to impose 

exploitative working conditions that 

also leave H–2A workers vulnerable to 

other abuses, and this unfairly deprives 

similarly employed agricultural workers 

of jobs with better working conditions. 

Specifically, the Department proposes to 

broaden § 655.135(h), which prohibits 

unfair treatment, by expanding and 

explicitly protecting certain activities 

workers must be able to engage in 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63754 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

without fear of intimidation, threats, 

and other forms of retaliation. For those 

workers engaged in agriculture as 

defined and applied in 29 U.S.C. 203(f), 

who are exempt from the protections of 

the National Labor Relations Act 

(NLRA), 29 U.S.C. 151 et seq., the 

Department also proposes in 

§ 655.135(h) to include some protections 

that the Department believes will 

safeguard collective action. The 

Department also proposes to add new 

provisions at § 655.135(m) to ensure 

employers do not interfere with efforts 

by vulnerable workers under the H–2A 

program to advocate for better working 

conditions by including a number of 

requirements that would advance 

worker voice and empowerment and 

further protect the rights proposed 

under § 655.135(h), and at § 655.135(n) 

to permit workers to invite or accept 

guests to worker housing and provide 

labor organizations a narrow right of 

access to worker housing, as explained 

in detail below. 

2. Clarification of Justifiable 

Termination for Cause 

The Department proposes to define 

‘‘termination for cause’’ at § 655.122(n) 

by proposing six criteria that must be 

satisfied to ensure that disciplinary and/ 

or termination processes are justified 

and reasonable, which are intended to 

promote the integrity and regularity of 

any such processes. These proposed 

changes will help to ensure employers 

do not arbitrarily and unjustly terminate 

workers, thereby stripping them of 

essential rights to which they would 

otherwise be entitled, and will assist the 

Department in determining whether an 

individual worker was terminated for 

pretextual reasons. 

3. Immediate Effective Date for Updated 

AEWRs 

The Department proposes to revise 

§ 655.120(b)(2) to designate the effective 

date of updated AEWRs as the date of 

publication in the Federal Register, and 

to revise paragraph (b)(3) to state that 

the employer is obligated to pay the 

updated AEWR immediately upon 

publication of the new AEWR in the 

Federal Register. This change is 

intended to help ensure workers are 

paid at least the updated AEWR, as soon 

as it is published, for all work they 

perform, and thereby help to ensure the 

employment of H–2A workers will not 

adversely affect the wages and working 

conditions of workers in the United 

States similarly employed. 

4. Enhanced Transparency for Job 

Opportunity and Foreign Labor 

Recruitment 

The Department proposes new 

disclosure requirements to enhance 

transparency in the foreign worker 

recruitment chain and bolster the 

Department’s capacity to protect 

vulnerable agricultural workers from 

exploitation and abuse, as explained 

more fully below. The Department 

proposes a new § 655.137, Disclosure of 

foreign worker recruitment, and a new 

§ 655.135(p), Foreign worker 

recruitment, that are similar to the 

regulations governing disclosure of 

foreign worker recruitment in the H–2B 

program. The proposed provisions 

would require an employer and its 

attorney or agent, as applicable, to 

provide a copy of all agreements with 

any agent or recruiter that the employer 

engages or plans to engage in the 

recruitment of prospective H–2A 

workers, regardless of whether the agent 

or recruiter is located in the United 

States or abroad. The proposed 

provisions also would require the 

employer to disclose the identity (i.e., 

name and, if applicable, identification 

number) and geographic location of 

persons and entities hired by or working 

for the foreign labor recruiter and any of 

the agents or employees of those 

persons and entities who will recruit or 

solicit prospective H–2A workers. As 

explained more fully below, the 

Department proposes to gather the 

additional recruitment chain 

information when the employer files its 

H–2A Application and will require the 

employer to submit a proposed Form 

ETA–9142A, Appendix D, that mirrors 

the Form ETA–9142B, Appendix C. 

Consistent with current practice in the 

H–2B program, proposed § 655.137(d) 

provides for the Department’s public 

disclosure of the names of the agents 

and foreign labor recruiters used by 

employers. These additional disclosures 

of information about the recruitment 

chain are necessary for the Department 

to carry out its enforcement obligations, 

protect vulnerable agricultural workers 

and program integrity, and ensure 

equitable administration of the H–2A 

program for law abiding employers. 

The Department also proposes to 

require the employer to provide the full 

name, date of birth, address, telephone 

number, and email address for the 

owner(s) of each employer, any person 

or entity who is an operator of the 

place(s) of employment (including the 

fixed-site agricultural business that 

contracts with the H–2ALC), and any 

person who manages or supervises the 

H–2A workers and workers in 

corresponding employment under the 

H–2A Application. The Department 

proposes to revise the Form ETA–9142A 

to require, where applicable, additional 

information about prior trade or DBA 

names the employer has used in the 

most recent 3-year period preceding its 

filing of the H–2A Application. The 

Department proposes conforming 

changes to §§ 655.130 and 655.167 to 

clarify that the employer would be 

required to continue to update the 

information required by the above 

paragraphs until the end of the work 

contract period, including extensions 

thereto, and retain this information 

post-certification and produce it upon 

request by the Department. The 

Department believes the proposed 

disclosure requirements will increase 

transparency in the international 

recruitment chain, aid the Department 

in assessing the nature of the job 

opportunity and the employer’s need, 

enhance the Department’s ability to 

enforce the prohibition against 

recruitment-related fees and to pursue 

remedies from program violators, assist 

the Department in identifying potential 

successors in interest to debarred 

employers, and better protect 

agricultural workers from abuse and 

exploitation in the United States and 

abroad. 

5. Enhanced Transparency and 

Protections for Agricultural Workers 

a. Disclosure of Minimum Productivity 

Standards, Applicable Wage Rates, and 

Overtime Opportunities 

The Department proposes to revise 

§ 655.122(l) to require employers to 

disclose any minimum productivity 

standards they will impose as a 

condition of job retention, regardless of 

whether the employer pays on a piece 

rate or hourly basis. This proposal is 

intended to help ensure that agricultural 

workers are fully apprised of the 

material terms and conditions of 

employment, including any 

productivity standards that may serve as 

a basis for termination for cause. 

Proposed changes at § 655.122(n) would 

prohibit the employer from terminating 

a worker for failure to meet a minimum 

productivity standard if the employer 

did not disclose the standard in 

accordance with § 655.122(l). An 

existing regulatory provision, 

§ 655.122(b), would require that any 

such minimum productivity standard be 

bona fide and normal and accepted 

among non-H–2A employers in the 

same or comparable similar occupations 

and crops. 

The Department also proposes to 

revise §§ 655.120(a) and 655.122(l) to 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63755 

require employers to offer and advertise 

on the job order any applicable 

prevailing piece rate, the highest 

applicable hourly wage rate, and any 

other rate the employer intends to pay, 

and to pay workers the highest of these 

wage rates, as calculated at the time 

work is performed. A new proposed 

§ 655.122(l)(4) would explicitly require 

the employer to specify in the job order 

any applicable overtime premium wage 

rate(s) for overtime hours worked and 

the circumstances under which the 

wage rate(s) for such overtime hours 

will be paid. These proposals are 

intended to help ensure that agricultural 

workers are fully apprised of the 

material terms and conditions of 

employment, including any 

productivity standards that may serve as 

a basis for termination for cause, and to 

aid the Department in its administration 

and enforcement of the H–2A program. 

b. Enhanced Protections for Workers 

Through the Employment Service 

System (ES System) 

The Department proposes revisions to 

the Wagner-Peyser Act implementing 

regulations at 20 CFR 653.501 to clarify 

an employer’s obligations in the event of 

a delayed start date and to make 

conforming revisions to the H–2A 

regulations at 20 CFR 655.145 and a 

new § 655.175 to clarify pre-certification 

H–2A Application amendments and 

employer obligations in the event of 

post-certification changes to the start 

date. As noted above, the current 

regulations require an employer to 

provide notice to the ES Office holding 

the job order of delayed start dates and 

impose obligations on employers that 

fail to provide the requisite notice, but 

do not require employers to notify 

workers directly of any such delay. 

The Department proposes revisions to 

part 658, subpart F, and related 

definitions at § 651.10, regarding the 

discontinuation of Wagner-Peyser Act 

Employment Service (ES) services to 

employers. The Department proposes to 

clarify and expand the scope of entities 

whose ES services can be discontinued 

to also include agents, farm labor 

contractors, joint employers, and 

successors in interest. The Department 

also proposes revisions to clarify the 

bases for discontinuation at § 658.501, 

and to clarify and streamline the 

discontinuation procedures at 

§§ 658.502 through 658.504, including 

the notice requirements for SWAs, 

evidentiary requirements for employers, 

when and how employers may request 

a hearing, and procedures for requesting 

reinstatement. These changes are 

designed to increase the reach and 

utility of the discontinuation of services 

regulations, which SWAs have 

underutilized in recent years. These 

proposed changes are described in more 

detail below. 

c. Enhanced Transportation Safety 

Requirements 

The Department proposes to revise 

§ 655.122(h)(4) to require the provision, 

maintenance, and wearing of seat belts 

in most employer-provided 

transportation, which would reduce the 

hazards associated with agricultural 

worker transportation, thus making 

these jobs more attractive to workers in 

the United States. Specifically, as 

explained in detail below, the 

Department proposes to revise 

§ 655.122(h)(4) to prohibit an employer 

from operating any employer-provided 

transportation that is required by the 

U.S. Department of Transportation 

(DOT) highway safety regulations to be 

manufactured with seat belts unless all 

passengers and the driver are properly 

restrained by seat belts meeting 

standards established by DOT. 

Essentially, if the vehicle is 

manufactured with seat belts, the 

proposed rule would require the 

employer to retain and maintain those 

seat belts in good working order and 

ensure that each worker is wearing a 

seat belt before the vehicle is operated. 

d. Protection Against Passport and 

Other Immigration Document 

Withholding 

The Department proposes a new 

§ 655.135(o) that would directly prohibit 

an employer from holding or 

confiscating a worker’s passport, visa, or 

other immigration or government 

identification documents, independent 

of the employer’s compliance with the 

Victims of Trafficking and Violence 

Protection Act of 2000 (TVPA), Public 

Law 106–386 (2000), 18 U.S.C. 1592(a), 

which is required under the current H– 

2A regulations. The proposal is 

intended to better protect workers from 

potential labor trafficking, as explained 

below. 

e. Protections in the Event of a Minor 

Delay in the Start of Work 

The Department proposes a new 

§ 655.175 that addresses postcertification changes currently 

addressed at § 655.145(b) and proposes 

new obligations and procedures in the 

event an employer must briefly delay 

the start of work due to unforeseen 

circumstances that jeopardize crops or 

commodities prior to the expiration of 

an additional recruitment period. 

Proposed § 655.175 limits minor delays 

to 14 calendar days or less and would 

require an employer to notify each 

worker and the SWA of any delay in the 

start date of work. Consistent with 

§ 653.501(c), proposed § 655.175 

includes new compensation obligations 

that would require the employer to pay 

workers the applicable wage rate for 

each day work is delayed, for a period 

of up to 14 calendar days, starting with 

the certified start date, if the employer 

fails to provide adequate notice of the 

delay. 

6. Enhanced Integrity and Enforcement 

Capabilities 

a. Reduced Submission Periods for 

Appeal Requests for Debarment Matters 

and Submittal of Rebuttal Evidence to 

OFLC 

To help protect and uphold program 

integrity, and to further protect workers 

in the United States, the Department 

proposes to increase the speed with 

which debarments become effective by 

decreasing the time for parties to submit 

rebuttal evidence to OFLC, the time for 

parties to appeal Notices of Debarment 

to the Office of Administrative Law 

Judges (OALJ), and the time for parties 

to appeal debarment decisions to the 

ARB from the OALJ. This would lead to 

faster final agency adjudications and 

thereby better protect and uphold 

program integrity and agricultural 

workers by more efficiently and 

effectively preventing H–2A program 

violators from accessing the program. As 

explained more fully below, the 

Department proposes to amend 

§ 655.182(f)(1) and (2) by reducing the 

period to file rebuttal evidence from 30 

calendar days to 14 calendar days, 

unless the employer requests an 

extension of the allowable rebuttal 

period, in writing, and demonstrates 

good and substantial cause necessitating 

an extension. For the same reasons, the 

Department also proposes to shorten the 

time to appeal the OFLC 

Administrator’s Notice of Debarment, in 

lieu of submitting rebuttal evidence; to 

shorten the time to appeal the OFLC 

Administrator’s final determination, 

after review of rebuttal evidence; to 

shorten the time for all parties to request 

review of OFLC debarments by the ARB 

from 30 days to 14 calendar days; to 

shorten the time to request a hearing 

with the OALJ on any WHD 

determination involving debarment 

from 30 calendar days to 14 calendar 

days; and also to shorten the time for all 

parties to request review by the ARB of 

an OALJ determination involving 

debarment from 30 days to 14 calendar 

days. Determinations by the WHD 

Administrator that do not include 

debarment, but only include, for 

example, an assessment of civil money 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63756 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

penalties or the payment of back wages, 

would retain a 30-calendar-day 

timeframe for appeal to the OALJ and to 

the ARB. 

b. Enhancements to the Department’s 

Ability To Apply Orders of Debarment 

Against Successors-in-Interest 

The Department proposes a new 

§ 655.104 regarding successors in 

interest, that would clarify the liability 

of successors in interest for debarment 

purposes and streamline the 

Department’s procedures to deny labor 

certifications filed by or on behalf of 

successors in interest to debarred 

employers, agents, and attorneys. The 

Department proposes conforming 

revisions to §§ 655.103(b), 655.181, and 

655.182 and 29 CFR 501.20. These 

proposed revisions are intended to 

better reflect the liability of successors 

in interest under the well-established 

successorship doctrine, and to better 

ensure that debarred entities do not 

circumvent the effects of debarment. 

c. Defining the Single Employer Test for 

Assessing Temporary Need, or for 

Enforcement of Contractual Obligations 

The Department proposes to define 

the term single employer at a new 

§ 655.103(e) and proposes factors to 

determine if multiple nominally 

separate employers are acting as one. 

Defining the term would codify the 

Department’s long-standing practice of 

using the single employer test 

(sometimes referred to as an ‘‘integrated 

employer’’ test), or similar analysis, to 

determine if separate employers are a 

single employer for purposes of 

assessing seasonal or temporary need, or 

for enforcement of contractual 

obligations. In relation to seasonal or 

temporary need, the Department has 

received applications for temporary 

labor certification that purport to be for 

job opportunities with different 

employers when, in reality, the workers 

hired under these certifications are 

employed by companies so intertwined 

that they are operating as a de facto 

single employer in one area of intended 

employment for a period of need that is 

not truly temporary or seasonal. In its 

enforcement experience, the Department 

has increasingly encountered H–2A 

employers that employ H–2A workers 

under one corporate entity and domestic 

workers under another, creating the 

appearance that the H–2A employer has 

no non-H–2A workers in corresponding 

employment when actually, the 

corporate entities are so intertwined that 

all the H–2A workers are employed by 

a single H–2A employer, and the nonH–2A workers are engaged in 

corresponding employment. Some 

employers have attempted to use these 

arrangements to avoid the obligation to 

offer workers in corresponding 

employment the terms and conditions 

offered to H–2A workers, including the 

required wage rate. Codifying the 

definition of single employer will 

prevent employers from using their 

corporate structures to circumvent 

statutory and regulatory requirements. 

III. Discussion of Proposed Revisions to 

Employment Service Regulations 

A. Introduction 

In this proposed rule, the Department 

proposes to revise the ES regulations (20 

CFR parts 651 through 654 and 658 and 

29 CFR part 75) that implement the 

Wagner-Peyser Act of 1933. These 

regulations include the provision of ES 

services with a particular emphasis on 

migrant or seasonal farmworkers 

(MSFWs), as well as provisions 

governing the discontinuation of ES 

services to employers. The proposed 

rule will update the language and 

content of the regulations to, among 

other things, improve and strengthen 

the regulations governing 

discontinuation of ES services to 

employers, including the applicable 

bases and procedures. In some areas, 

these proposals establish entirely new 

responsibilities and procedures; in other 

areas, the proposals clarify and update 

requirements already established. The 

proposed revisions make important 

changes to the following components of 

the ES system: definitions, requirements 

for processing clearance orders, and the 

discontinuation of ES services provided 

to employers. 

The Wagner-Peyser Act of 1933 

provided the Department the authority 

to establish a national ES system to 

improve the functioning of the nation’s 

labor markets by bringing together 

individuals seeking employment with 

employers seeking workers. Section 3(a) 

of the Act sets forth the basic 

responsibilities of the Department, 

which include assisting in coordinating 

the State public employment service 

offices throughout the country and in 

increasing their usefulness by 

prescribing standards for efficiency, 

promoting uniformity in procedures, 

and maintaining a system of clearing 

labor between the States. 

To that end, the ES system provides 

labor exchange services to its 

participants and has undergone 

numerous changes to align its activities 

with broader national workforce 

development policies and statutory 

requirements. The Workforce 

Innovation and Opportunity Act, passed 

in 2014, expanded upon the previous 

workforce reforms in the Workforce 

Investment Act of 1998 and, among 

other things, identified the ES system as 

a core program in the One-Stop local 

delivery system, also called the 

American Job Center network. 

In 1974, the case National Ass’n for 

the Advancement of Colored People 

(NAACP), Western Region, et al. v. 

Brennan et al., No. 2010–72, 1974 WL 

229 (D.D.C. Aug. 13, 1974) resulted in 

a detailed court order mandating 

various Federal and State actions 

consistent with applicable law (referred 

to as the Judge Richey Court Order, or 

Richey Order). The Richey Order 

required the Department to implement 

and maintain a Federal and State 

monitoring and advocacy system and set 

forth requirements to ensure the 

delivery of ES services, benefits, and 

protections to MSFWs on a nondiscriminatory basis, and to provide 

such services in a manner that is 

qualitatively equivalent and 

quantitatively proportionate to those 

provided to non-farmworkers. In 1977 

and 1980, consistent with its authority 

under the Wagner-Peyser Act, the 

Department published regulations at 20 

CFR parts 651, 653, and 658 to 

implement the requirements of the 

Richey Order. Part 653 sets forth 

standards and procedures for providing 

services to MSFWs and provides 

regulations governing the ARS, a system 

for interstate and intrastate agricultural 

job recruitment. Part 658 sets forth 

standards and procedures for the 

administrative handling of complaints 

alleging violations of ES regulations and 

of employment-related laws, the 

discontinuation of services provided by 

the ES system to employers, the review 

and assessment of State agency 

compliance with ES regulations, and the 

Federal application of remedial action 

to State agencies. 

Note that on April 20, 2022, the 

Department issued an NPRM regarding 

Wagner-Peyser Act staffing (Staffing 

NPRM). 87 FR 23700 (Apr. 20, 2022). 

The Staffing NPRM included proposed 

changes to several sections in 20 CFR 

parts 653 and 658 that govern the 

provision of ES services to MSFWs. As 

relevant here, in the Staffing NPRM, the 

Department proposed changes to 20 CFR 

653.501(b)(4) and (c)(3) (ES office and 

SWA requirements for processing 

clearance orders); § 658.501(a)(4), (b), 

and (c); § 658.502(a) and (b) (notification 

requirements for discontinuation of ES 

services); and § 658.504(a) and (b) 

(procedures for reinstatement of ES 

services). 87 FR 23717, 23722, 23736, 

23740–23741. In this proposed rule, the 

Department has proposed further 

changes to these provisions, which in 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63757 

some instances conflict with changes 

proposed in the Staffing NPRM. Because 

the Department has not issued a final 

Staffing Rule, the Department 

recognizes that the proposed changes in 

this rulemaking may generate questions 

within the regulated community about 

how the Department ultimately 

proposes to revise these provisions, 

including how the proposed changes in 

this rulemaking affect the proposed 

changes in the Staffing NPRM, and what 

the Department might do in finalizing 

the changes proposed in the Staffing 

NPRM. Where this NPRM proposes 

changes that conflict or intersect with 

changes proposed in the Staffing NPRM, 

the Department will be using this 

proposed rule as the operative 

rulemaking proceeding to provide 

notice and an opportunity to comment 

on the proposed changes to the 

provisions referenced above. Consistent 

with this approach, the Department 

does not intend to finalize changes to 

the above referenced provisions in the 

Staffing NPRM as part of that 

rulemaking proceeding. Any changes to 

the above referenced provisions will be 

made through this rulemaking. The 

Department has concluded that the 

proposed changes to these provisions 

are better suited for this rulemaking 

because they are meant to strengthen 

protections for agricultural workers and, 

therefore, better align with the overall 

purpose of this rulemaking. Further, the 

Department has concluded that this is 

the most transparent approach to 

address the overlap, and is the approach 

that best minimizes confusion within 

the regulated community while 

ensuring the public the full opportunity 

to receive notice and provide comments 

on the proposed changes. 

B. Discussion of Proposed Revisions to 

20 CFR Part 651 

Part 651 (§ 651.10) sets forth 

definitions for parts 652, 653, 654, and 

658. The Department proposes to add or 

revise the following definitions 

primarily to clarify aspects of its 

discontinuation of Wagner-Peyser Act 

ES regulation at 20 CFR part 658, 

including new provisions that it 

proposes to add in this rulemaking. 

Where appropriate, as discussed below, 

the Department has sought to align these 

new definitions with the same or similar 

definitions at 20 CFR 655.103. 

The Department proposes to add a 

definition to § 651.10 for agent as an 

entity authorized to act on behalf of 

employers with respect to ES clearance 

system activities. The Department has 

observed that individuals and entities 

meeting the proposed definition of 

agent often engage the ES clearance 

system by submitting clearance orders 

on behalf of employers, as defined in 

part 651, and control many aspects of 

employers’ recruitment activities 

relating to clearance orders. Adding this 

proposed definition clarifies that agents 

(which include attorneys) are among the 

entities subject to discontinuation of 

services as a result of the proposed 

changes to part 658. Additionally, 

because an employer’s agent for 

purposes of the ES clearance system is 

often the same agent that an employer 

uses for purposes of the H–2A labor 

certification process, the Department 

proposes a definition of agent at 

§ 651.10 that aligns with the definition 

of agent in § 655.103. 

The Department proposes to add 

definitions to § 651.10 for criteria 

clearance order and non-criteria 

clearance order because they are terms 

that are currently used in the ES 

regulations but were previously 

undefined. Adding the definitions 

clarifies that criteria clearance orders 

are those placed in connection with an 

H–2A Application filed pursuant to part 

655, subpart B, while non-criteria 

clearance orders are those not placed in 

connection with an H–2A Application. 

By defining these terms, it will be 

clearer which orders must comply with 

the requirements at part 653, subpart F, 

and part 655, subpart B, and which 

orders do not have to comply with the 

requirements at part 655, subpart B. 

The Department proposes to add to 

§ 651.10 a definition for discontinuation 

of services because it is referenced 

throughout the ES regulations and is the 

subject of part 658, subpart F, but was 

previously undefined. The proposed 

definition explains what services would 

be unavailable pursuant to the process 

described in part 658, subpart F, and the 

entities subject to discontinuation. 

Under the proposed discontinuation of 

services, the scope of services to which 

discontinuation applies includes any 

Wagner-Peyser Act ES service provided 

by the ES to employers pursuant to parts 

652 and 653. The scope of individuals 

and entities to whom discontinuation 

applies includes employers, as defined 

in part 651, and agents, farm labor 

contractors, joint employers, and 

successors in interest, as proposed to be 

defined in part 651. 

The Department proposes to revise 

the definition of employment-related 

laws to clarify that the term also 

includes the regulations that implement 

employment-related laws in addition to 

the laws themselves. Revising the 

definition clarifies its meaning and 

scope for ES staff who observe or 

process complaints relating to violations 

of employment-related laws, such as 

outreach workers, complaint system 

representatives, and those who conduct 

field checks. 

The Department proposes to add to 

§ 651.10 a definition for farm labor 

contractor as an entity, excluding 

agricultural employers, agricultural 

associations, or employees of 

agricultural employers or agricultural 

associations, that agrees to recruit, 

solicit, hire, employ, furnish, or 

transport an MSFW. The Department 

proposes to add this definition to 

§ 651.10 because the term is used 

throughout the ES regulations, most 

notably in part 653, subpart F, which 

recognizes that farm labor contractors 

use the ES clearance system, but it has 

never been defined. Adding this 

proposed definition also clarifies the 

entities subject to discontinuation of 

services as a result of the proposed 

changes to part 658. As with the term 

agent, because many farm labor 

contractors that use the ES clearance 

system also seek temporary labor 

certifications from OFLC as H–2ALCs 

under part 655, subpart B, the 

Department proposes a definition of 

farm labor contractor that both aligns 

with the definition of H–2A labor 

contractor found at 20 CFR 655.103 and 

with the definition of farm labor 

contractor and farm labor contracting 

activity found at 29 U.S.C. 1802 and 29 

CFR 500.20 to maintain consistency 

between Departmental program areas. 

The Department recognizes that joint 

employment relationships are common 

in agriculture, and that joint employers 

are required to comply with the 

requirements in part 653, subpart F, 

while filing a joint application for 

temporary labor certification under 20 

CFR part 655, subpart B. See § 655.131. 

The Department therefore proposes to 

add a definition for joint employer to 

§ 651.10 to clarify how the concept will 

be applied in the ES system and to 

clarify the entities subject to 

discontinuation of services as a result of 

the proposed changes to part 658. The 

proposed definition is also intended to 

ensure consistency with recent changes 

to the Department’s H–2A regulation, 87 

FR 61660, 61793–61794 (Oct. 12, 2022), 

and as with the definitions of agent and 

farm labor contractor, the proposed 

definition is modeled on the definition 

of joint employment at 20 CFR 655.103 

because of the connection between the 

ES system and H–2A labor certification 

program. 

The Department proposes to add to 

§ 651.10 a definition for successor in 

interest that describes the inexhaustive 

factors that SWAs should use to 

determine if an entity is a successor in 

interest to another entity. The proposed 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63758 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

definition allows SWAs and 

stakeholders to better understand which 

entities may be subject to 

discontinuation as a result of the 

proposed changes to part 658. To 

maintain consistency between the 

regulations governing the ES system and 

the regulations governing the H–2A 

labor certification program, the 

Department proposes to adapt the 

definition of successor in interest as 

proposed in § 655.104. 

The Department proposes to add a 

definition for week to clarify that a 

week, as used in parts 652, 653, 654, 

and 658, means 7 consecutive calendar 

days. Adding the definition allows for 

SWAs and employers to calculate time 

periods used in the ES regulations 

uniformly, including for wage 

calculations and other time-related 

procedures. 

C. Discussion of Proposed Revisions to 

20 CFR Part 653 

Part 653 sets forth the principal 

regulations of the ES concerning the 

provision of services for MSFWs 

consistent with the requirement that all 

services of the workforce development 

system be available to all job seekers in 

an equitable fashion and in a way ‘‘that 

meets their unique needs.’’ 20 CFR 

653.100(a). Part 653 also describes 

requirements for participation in the 

ARS. Subpart F provides the 

requirements SWAs and employers 

must follow when employers seek 

access to the ARS by submitting 

clearance orders for temporary or 

seasonal farmwork. Section 653.501 

provides the responsibilities of ES 

Offices and SWAs when they review 

clearance orders submitted by 

employers, and the process by which 

they place approved clearance orders 

into intra- and interstate clearance. 

Once the order is approved and placed 

into clearance, ES Offices and SWAs 

recruit and refer workers for the 

position described on the clearance 

order. 

The Department proposes to add a 

fourth paragraph to § 653.501(b), at 

§ 653.501(b)(4), which would require ES 

staff to consult the OFLC and WHD H– 

2A and H–2B debarment lists, and an 

ETA Office of Workforce Investment 

discontinuation of services list, before 

placing a job order into intrastate or 

interstate clearance. The Department 

further proposes a new paragraph 

(b)(4)(i), which states that SWAs must 

initiate discontinuation of ES services if 

the employer seeking placement of a 

clearance order is on a debarment list, 

and new paragraph (b)(4)(ii), which 

states that SWAs must not approve 

clearance orders from employers whose 

ES services have been discontinued by 

any State. Finally, the Department 

proposes a new paragraph (b)(4)(iii) to 

make clear that the provisions in 

paragraph (b)(4) would apply to all 

entities subject to discontinuation under 

part 658, subpart F, and not just to 

employers as defined in § 651.10. 

The Department’s mission is to 

promote the welfare of workers. 

Regarding consultation with the H–2A 

and H–2B debarment lists, the proposed 

additions are intended to further that 

mission by ensuring that ES offices do 

not place U.S. workers with employers 

who are presently barred from 

employing nonimmigrant workers via 

the H–2A and H–2B visa programs. This 

requirement, and the proposed addition 

to § 658.501(a)(4), would protect 

workers by ensuring that the ES system 

is not used to place a worker with an 

employer that has failed to comply with 

its obligation(s) as an employer of 

foreign workers. As with the H–2A 

program, employers participating in the 

H–2B program must first file job orders 

through the SWA’s labor exchange and 

therefore must comply with ES 

requirements. As discussed more fully 

below in the discussion of the proposed 

changes to § 658.501(a)(4), the proposed 

inclusion of H–2B programs also 

recognizes that employers seeking 

nonimmigrant workers may improperly 

misclassify H–2A agricultural work as 

H–2B non-agricultural work. The 

proposed addition seeks to protect 

workers who use the ES system from 

employers who engage in improper 

misclassification, and to maintain a fair 

labor system for employers who seek 

temporary labor certification via the 

proper channels. Additionally, the H– 

2A regulations at 20 CFR 655.182 and 

29 CFR 501.20, and the H–2B 

regulations at 20 CFR 655.73 and 29 

CFR 503.24, describe the violations that 

may result in an employer’s debarment 

from receiving future labor certifications 

under those programs. The potential 

reasons for debarment include serious 

violations that could affect worker 

safety, for example ‘‘[a] single heinous 

act showing such flagrant disregard for 

the law’’ that future compliance with 

program requirements cannot 

reasonably be expected 

(§ 655.182(d)(1)(x)). Such reasons also 

include an employer’s substantial 

failure to comply with regulatory 

requirements, including an employer’s 

failure to pay or provide the required 

wages or working conditions, an 

employer’s failure to comply with its 

obligations to recruit U.S. workers, or an 

employer’s failure to cooperate with 

required audits or investigations. In the 

Department’s view, the employer 

subject to debarment should also be 

excluded from participation in the ES 

system. The Department does not want 

the ES system to facilitate placement of 

U.S. workers with employers whom the 

Department has determined should not 

be permitted to employ nonimmigrant 

workers through its H–2A and H–2B 

programs, particularly where the U.S. 

workers may perform similar work and, 

thus, be subject to the same or similar 

violations giving rise to the employer’s 

debarment. 

Regarding consultation with the 

proposed Office of Workforce 

Investment discontinuation of services 

list, as discussed below, the effect of a 

final decision to discontinue services to 

an employer would be to prohibit that 

employer from receiving any services 

from the ES system, not just from offices 

in the State that discontinued services. 

The Department recognizes that SWAs 

need a mechanism to ensure that they 

are not providing services, including the 

processing and placement of clearance 

orders, to entities whose services have 

been discontinued, and that any such 

mechanism should be straightforward 

for the SWAs to use for it to be effective. 

The Department believes that 

maintaining a list of discontinued 

entities—like the debarment lists 

maintained by OFLC and WHD—that 

SWAs could access when reviewing 

clearance orders is the most 

straightforward approach to effectuate 

this goal. In order to avoid unnecessary 

burden, SWAs and ES offices would 

consult the Office of Workforce 

Investment discontinuation of services 

list and would not provide ES services 

to any employers on the list, without 

having to go through the steps described 

in part 658, subpart F, to discontinue 

services to the same employer in their 

specific State. The Department also 

notes that the proposed changes in part 

658, subpart F, discussed below, 

address the entities subject to 

discontinuation. Proposed § 658.503(e) 

would mandate that if the SWA 

discontinues services to an employer, 

the employer, which includes 

successors in interest, cannot participate 

in or receive Wagner-Peyser Act ES 

services provided by the ES to 

employers pursuant to parts 652 and 

653; therefore, no SWA would be able 

to process any future job orders from the 

employer or a successor in interest, 

unless services are reinstated under 

§ 658.504. 

Section 653.501(c)(3) lists the 

assurances that each clearance order 

must include before it can be placed 

into clearance. Paragraph (c)(3)(i) 

currently requires that the clearance 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63759 

order include an assurance that the 

employer will provide workers referred 

through the clearance system the 

number of hours of work, as indicated 

on the clearance order, for the week 

beginning with the anticipated date of 

need unless the employer notifies the 

order-holding office of a change to the 

anticipated start date at least 10 

business days prior to the original start 

date, and states that the SWA must 

make a record of the notification and 

must attempt to inform referred workers 

of the change. Section 653.501(c)(3)(iv) 

currently requires that the clearance 

order include an assurance that the 

employer filing the order will promptly 

notify the order-holding office or SWA 

that crops are maturing faster or slower 

than expected or of other events that 

change the terms of employment. 

Section 653.501(c)(5) currently provides 

that if the employer fails to provide the 

required notice, the employer is 

obligated to provide eligible (pursuant 

to paragraph (d)(4) of this section) 

workers referred through the clearance 

system the first week’s pay at the rate 

stated on the clearance order or find 

alternative work, if such alternative 

work is included in the clearance order. 

For criteria clearance orders, any 

alternative work provided to U.S. 

workers referred through the ARS will 

be agricultural work, in order to comply 

with the H–2A program requirements 

for work offered on such orders. For 

non-criteria orders, because the order is 

placed through the ARS, it is 

anticipated that alternative work 

provided in these situations also will be 

agricultural work. 

The Department has determined these 

requirements do not provide adequate 

notice to workers placed on the 

clearance order when the terms of their 

employment change and do not 

adequately protect workers from the 

potential consequences of those 

changes. The current notification 

requirement, which inadvertently 

incorporates a requirement on the SWA 

into the employer assurances, is not 

sufficient to prevent unnecessary delay 

because it requires that notification 

occur in two steps—first from the 

employer to the SWA, and then from the 

SWA to the workers. Additionally, 

given the transient nature of temporary 

and seasonal farmwork, coupled with 

increased housing, transportation, and 

food costs in recent years, the 

requirement that employers provide 1 

week’s pay if they fail to satisfy the 

notification requirement does not 

sufficiently protect workers from 

resulting financial hardship. The 

Department proposes several changes to 

address these concerns by improving 

notice and wage protections for workers 

hired under ARS clearance orders. 

Specifically, the Department proposes 

to revise § 653.501(c) to require that, in 

the event the employer’s date of need 

changes from the date the employer 

indicated on the clearance order, the 

employer must notify the SWA and all 

workers placed on the clearance order of 

the change at least 10 business days 

before the original start date. The 

proposed revisions clarify that 

notification is only to workers placed on 

the clearance order, and not to workers 

who were referred but not hired. The 

proposed revisions recognize that 

employers, rather than the SWA or the 

order holding office, are in the best 

position to contact and notify workers 

placed on the order of changes to the 

date of need because the employer has 

already contracted to employ the 

workers and should have up-to-date 

contact information for each worker. 

The requirement to document this 

outreach is a minimally burdensome 

means to allow the SWA to assess 

compliance with this assurance. This 

proposed change will increase the 

likelihood that workers will receive 

timely notification of any change to the 

start date and that employers maintain 

accurate records of notices they provide. 

To ensure consistent protections for 

workers in the United States who apply 

to the employer directly, as well as to 

H–2A workers and workers in 

corresponding employment who may be 

impacted by a delayed start date of 

work, the Department proposes 

conforming protections at a new 

§ 655.175 of the H–2A program 

regulations. 

The Department further proposes that 

employers that fail to comply with these 

notice requirements must provide 

housing and subsistence to all workers 

placed on the clearance order who are 

already traveling to the place of 

employment, without cost to the 

workers, until work commences, and 

must pay all workers placed on the 

clearance order the applicable wages for 

each day work is delayed for a period 

of up to 2 weeks, starting with the 

originally anticipated date of need. The 

Department’s proposal to require the 

provision of housing and subsistence 

would align the protections U.S. 

workers placed on non-criteria 

clearance orders receive with 

protections workers on criteria 

clearance orders receive under current 

§ 655.145(b) and proposed § 655.175(b). 

The Department does not anticipate that 

requiring the provision of housing will 

burden employers as they are required 

to have their housing ready and 

inspected prior to the start date. 

The Department’s proposal to expand 

the period during which employers 

must pay the applicable wage to 2 

weeks, from the current 1-week period, 

will better protect agricultural workers 

from financial hardship they are likely 

to experience should they travel or 

otherwise rely on the job opportunity 

articulated on the clearance order and 

find that work is not available to them. 

Providing up to 2 weeks of wages 

provides a safety net for workers to 

support themselves when work is not 

available. The Department believes 1 

week of wages is insufficient to protect 

workers from the financial hardships 

associated with a delayed starting date 

when such delays were not 

communicated, particularly if a worker 

traveled for the job. In lieu of paying the 

2 weeks’ worth of wages, if the 

employer fails to comply with the notice 

requirements, employers can provide 

such workers alternative work if such 

alternative work is listed on the 

clearance order. The Department has 

determined that this alternative 

effectively addresses the hardship 

concern by providing the worker a 

source of income while continuing to 

allow the employer flexibility to adjust 

their anticipated start date. 

To accomplish these changes, the 

Department proposes several specific 

revisions. The Department proposes to 

revise § 653.501(c)(3)(i) to remove the 

requirement that the SWA must make a 

record of the notification and attempt to 

inform referred workers of the change in 

the date of need. The current language 

improperly incorporates a SWA 

requirement into the employer 

assurances, and, as discussed below, the 

Department proposes to shift these 

responsibilities to the employer which, 

as discussed below, the Department has 

determined is better situated to make 

timely contact with workers. The 

Department also proposes to move 

language in this paragraph regarding the 

employer’s notice to the order-holding 

office to § 653.501(c)(3)(iv), which 

contains other instructions the employer 

must follow when giving notice of 

changed terms and conditions of the 

opportunity. The proposed regulation at 

§ 653.501(c)(3)(i) would maintain that 

the employer’s notice must comply with 

paragraph (c)(3)(iv), which would more 

clearly explain the employer’s assurance 

to comply with the full notice 

requirements. 

The Department proposes to make 

additional revisions to paragraph 

(c)(3)(iv). First, the Department proposes 

to remove a redundancy in the first 

sentence, which currently states that the 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63760 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

9For requirements on costs for workers traveling 

from abroad, including in the event of a minor 

delay, see § 655.122 and the discussion of proposed 

§ 655.175 in section IV.E. 

employer must expeditiously notify the 

order-holding office or SWA 

immediately. Because immediate notice 

is expeditious, the use of the word 

‘‘expeditiously’’ is not necessary. 

Second, the Department proposes that 

the assurance on the clearance order 

require that when there is a change to 

the start date of need, the employer, 

rather than the order-holding office or 

SWA, notify the office or SWA and each 

worker placed on the order. When there 

is a change in the date of need it is 

imperative that workers placed on the 

order be notified as quickly as possible 

to allow the worker to change any travel 

arrangements and otherwise remain 

informed about the opportunity. As 

noted above, the Department has 

determined that the employer, which 

has already contracted or communicated 

with the worker, is better positioned to 

make timely contact with workers and 

therefore proposes that the employer 

agree to do so as a condition of the 

participation in the ARS. Third, the 

Department, in this assurance and in 

paragraph (c)(5), proposes to require 

notification to workers placed on the 

order rather than eligible workers 

referred from the order. The Department 

proposes this change because the 

obligation to provide housing and 

subsistence to workers who are already 

traveling to the place of employment, 

and to pay wages for up to 2 weeks or 

provide alternative work is relevant 

only to workers who were actually 

placed with the employer rather than to 

workers referred to the employer 

through the ARS. Additionally, under 

current paragraph (c)(5), the obligation 

to pay or provide alternative work is for 

eligible workers, meaning those referred 

workers who contact the ES Office to 

verify the date of need pursuant to 

paragraph (d)(4). As discussed below, 

the Department proposes to remove 

paragraph (d)(4), which includes this 

verification requirement. With the 

proposed change to have employers 

notify workers of any change in their 

start date, the requirement that referred 

workers verify their start date with the 

ES Office is no longer necessary. 

Finally, the Department proposes to 

include the requirement to provide 

housing and subsistence to all workers 

who are already traveling to the place of 

employment, without cost to the 

workers, until work commences and to 

pay up to 2 weeks of wages or find 

alternative work from paragraph (c)(5), 

as the Department proposes to amend it, 

in the assurance. This change will make 

this obligation clear to the employer at 

the time they complete and sign the 

clearance order. 

The Department also proposes several 

changes to paragraph (c)(5). First, the 

Department proposes to specify that the 

employer must provide notice to the 

worker placed under the clearance 

order, which will align this paragraph 

with paragraph (c)(3)(iv) and the 

proposed changes to the assurance 

described therein. For the same reason, 

the Department proposes to remove 

language stating employers must pay 

only workers who are eligible pursuant 

to paragraph (d)(4). 

The Department proposes to further 

revise paragraph (c)(5) to clarify that the 

employer would be required to provide 

housing and subsistence to all workers 

who are already traveling to the place of 

employment, without cost to the 

workers, until work commences and to 

pay the specified hourly rate of pay on 

the clearance order, or if the pay listed 

on the clearance order is a piece-rate, 

the higher of the Federal or State 

minimum wage, or if applicable, any 

prevailing wage.9 If the order is a 

criteria clearance order the employer 

would be required to pay the rate of pay 

under part 655, subpart B. These 

proposed edits would align the wage 

requirement in this paragraph with 

proposed wage requirements in part 

655, subpart B, as applicable. The 

Department further proposes to require 

that employers, if they fail to provide 

the required notice at least 10 business 

days before the original date of need, 

must pay the required wage for up to 2 

weeks instead of the 1 week currently 

required. The Department proposes this 

change because, as discussed above, the 

Department believes 1 week of wages is 

not sufficient to ensure workers do not 

experience the financial hardship that 

would come with being unable to start 

work on time, particularly if these 

workers have traveled for the job. 

The Department proposes to revise 

paragraph (c)(5) to clarify that any 

alternative work must be in the 

approved clearance order to help ensure 

employers do not require workers to 

perform work at sites not approved by 

the SWA and, for criteria clearance 

orders, the Department. The Department 

proposes to add language to clearly 

instruct the SWA to process violations 

of these requirements as apparent 

violations, which § 658.419 describes as 

violations that SWAs, ES office staff, or 

outreach staff observe or of which they 

have information, and which staff must 

document and refer for further action. 

The Department proposes these changes 

because SWAs have identified many 

apparent violations where employers 

caused workers to work at worksites 

that were not approved in their 

clearance orders. In some recent cases, 

the workers were not properly trained 

and were caused to perform dangerous 

tasks, which presented serious health 

and safety risks. It is critically important 

that all worksites are known and 

approved by the SWA and, as 

appropriate, the Department, to avoid 

workplace injuries, improper wage 

payments related to performance of nonagricultural work, and potential human 

trafficking. 

Finally, the Department proposes to 

remove paragraphs (d)(4), (7), and (8) in 

their entirety because, with the 

proposed change to have employers 

notify workers of any change in the start 

date, the requirement that the applicant 

holding office notify workers of any 

changes is no longer relevant or 

necessary. 

D. Discussion of Proposed Revisions to 

20 CFR Part 658, Subpart F 

This subpart sets forth the regulations 

governing the discontinuation of 

Wagner-Peyser Act ES services to 

employers. In 1977, the Department 

published regulations at 20 CFR part 

658 governing the monitoring of all ES 

activities and enforcement of ES 

regulations. Subpart F provided 

procedures for discontinuation of 

services where a State agency, through 

its director, determined that an 

employer violated ES regulations. Under 

subpart F, where a complaint alleging 

an employer violated ES regulations 

could not be resolved or, in the absence 

of a complaint, where the State had 

reason to believe an employer violated 

ES regulations and could not informally 

resolve the matter, the State would refer 

it to the State director for formal 

investigation. Where the director issued 

a formal, written determination that an 

employer violated ES regulations, the 

determination would include a 

notification that the State would initiate 

discontinuation procedures in 30 days 

unless the employer provided sufficient 

evidence that it did not violate the ES 

regulations or had corrected the 

violation. If the matter was not resolved 

in 30 days, the State would then notify 

the employer in writing that it would 

terminate ES services in 15 days unless 

the employer requested a hearing or 

provided sufficient evidence that it did 

not violate ES regulations. Where the 

employer did neither, the State would 

discontinue ES services to the employer 

until the employer provided sufficient 

evidence that it did not violate ES 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63761 

regulations or that it corrected the 

violation. 

In 1980, the Department published 

regulations to clarify and streamline the 

discontinuation provisions. In addition 

to violations of ES regulations, the 

Department set forth several, specific 

bases for discontinuation (e.g., where 

the employer is found to have 

misrepresented the terms and 

conditions of a job order, or found by an 

enforcement agency to have violated an 

employment-related law). The 

Department also revised the 

discontinuation procedures to include 

(1) a notice of intent to discontinue 

services, (2) an opportunity for 

employer to respond and/or request a 

hearing, (3) a final determination, and 

(4) an opportunity to request 

reinstatement or a hearing. 

The Department proposes revisions 

throughout this subpart to further clarify 

the bases and process for discontinuing 

services because the Department has 

observed a need for greater clarity 

among SWAs about the circumstances 

under which they must discontinue 

services to employers and the specific 

requirements they must follow to do so. 

As discussed below, in the Department’s 

view, SWAs do not utilize the 

discontinuation process to the fullest 

extent because of uncertainty regarding 

the process and requirements to 

discontinue services. 

In this subpart, the Department also 

proposes to reorganize regulations to 

more accurately group subjects and to 

more logically arrange procedural steps, 

including when and how employers 

may request a hearing. Finally, the 

Department proposes to clarify what ES 

services would be unavailable after 

discontinuation and the entities subject 

to discontinuation. 

The existing regulations in this 

subpart require SWAs to discontinue 

services to employers who meet any of 

the bases for discontinuation detailed at 

§ 658.501(a), by utilizing the procedures 

outlined in §§ 658.501 through 658.504. 

However, the Department has observed 

hesitancy among SWAs to utilize the 

existing discontinuation provisions, and 

SWAs have shared information with the 

Department that they do not fully 

understand the requirements to 

discontinue services to employers and 

have sought instructions and 

Departmental review of notifications to 

employers. The Department’s data 

suggests that this lack of clarity is 

limiting the SWA’s use of 

discontinuation. For example, a SWA is 

required to discontinue services if an 

employer fails to fully comply with 

assurances made on clearance orders. 

These assurances include compliance 

with housing standards, wage payment, 

contract disclosure, recordkeeping, and 

other common areas of employer 

noncompliance. As reported in the 

National Monitor Advocate’s (NMA) 

Annual Report on Services to MSFWs 

for program year (PY) 2020, the most 

recent year for which data is available, 

Form ETA–5148 (Services to Migrant 

and Seasonal Farmworkers Reports) 

documents that SWAs processed 598 

ES-related complaints against employers 

involving non-MSFWs and 94 ESrelated complaints against employers 

involving MSFWs. Of the 2,581 total 

complaints received, which include ES 

and non-ES related complaints 

involving MSFWs and non-MSFWs, 

SWAs processed, 950 complaints 

related to wages, 270 complaints 

involved discrimination, 173 

complaints involved health and safety, 

and 88 complaints involved housing, in 

addition to other categories. Also, in PY 

2020, SWAs reported that they 

processed 453 apparent violations, as 

described at § 658.419, including 218 

wage-related issues, 175 health and 

safety related issues, and 51 housingrelated issues, in addition to other 

categories. Despite the number of 

complaints and apparent violations in 

these areas, SWAs reported that they 

discontinued services to only 17 

employers in PY 2020. While not every 

complaint or apparent violation will 

result in discontinuation of services, the 

low number of discontinuations relative 

to the number of complaints and 

violations may suggest that enhanced 

clarity in the bases and procedures for 

discontinuation is needed, and could 

aid SWAs in better utilizing the 

discontinuation provisions to hold 

employers accountable and protect 

workers from additional violations. 

Similarly, SWAs must initiate 

discontinuation of services when the 

Department or a SWA receives 

notification from an appropriate 

enforcement agency of a final 

determination that includes a violation 

of an employment-related law. 

Applicable enforcement agencies may 

include any State, Federal, or local 

agencies that enforce employmentrelated laws, for example the 

Department’s Occupational Safety and 

Health Administration (OSHA), WHD, 

the National Labor Relations Board 

(NLRB), the Equal Employment 

Opportunity Commission (EEOC), State 

or local departments of health, and 

other related agencies. WHD public 

enforcement data documents thousands 

of investigations between PY 2012 and 

PY 2019 that involve employers who 

used the ES to place criteria clearance 

orders and violated employment-related 

laws. However, between PY 2012 to 

2019, SWAs reported that they only 

discontinued services twice (once in PY 

2016 and once in PY 2019). Again, the 

glaring disparity between the number of 

violations found by WHD and the actual 

discontinuation of services by the SWAs 

during the same time period may 

suggest that the SWAs would benefit 

from clarifying revisions to the ES 

regulations governing the 

discontinuation process. 

The Department believes that the 

increase in discontinuation of services 

in PY 2020 is likely attributable to the 

NMA’s increased training of SWA staff 

in this area of the regulation and not 

due to an increase in the number of 

employers meeting the conditions for 

discontinuation of services. While this 

training provided needed clarity to the 

SWAs, and therefore produced results, 

the Department sees the need for 

additional clarity and support for SWAs 

to discontinue services and mitigate the 

possibility of misunderstanding or 

incorrectly utilizing the discontinuation 

provisions. As noted above, in recent 

years, SWAs have shared information 

with the Department that they do not 

fully understand the requirements to 

discontinue services to employers and 

have sought instructions and 

Departmental review of notifications to 

employers. In the Department’s review, 

the Department identified that SWAs 

have made errors regarding citing 

applicable bases to discontinue services 

under § 658.501(a), describing necessary 

facts to justify the discontinuation, and 

notifying employers of their right to a 

hearing. These issues contributed to 

several instances where SWA were not 

successful in discontinuing services to 

employers even though the SWAs 

believed they had a sufficient basis to 

discontinue services. The Department 

believes that revising the regulations, as 

described below, provides SWAs the 

needed additional clarity to better 

implement the discontinuation 

provisions and would allow ETA, 

including its regional offices, to better 

monitor and support SWAs to ensure 

they initiate discontinuation of services 

as required by the regulations. This 

would improve worker protection by 

preventing noncompliant employers 

from using the ES service to obtain 

workers (including H–2A workers, as 

employers seeking to use the H–2A visa 

program must first file a clearance order 

through the ES) which, in turn, aids the 

Department in ensuring a fair labor 

exchange system for compliant 

employers, and meeting its statutory 

obligations to maintain and increase the 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63762 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

usefulness of the ES system. 

Additionally, the proposed 

clarifications and improvements to the 

discontinuation procedures provide 

greater certainty to employers seeking to 

provide information to SWAs in 

response to a notice of intent to 

discontinue, or seeking to reinstate 

services, and protect employers’ 

interests by ensuring that they receive 

informative and timely determinations 

from SWAs. Specific proposed changes 

are discussed below. 

The Department proposes to revise 

§ 658.500, which describes the scope 

and purpose of subpart F, to add 

language consistent with proposed 

revisions to § 658.503 that discontinued 

services include services otherwise 

available under parts 652 and 653. This 

revision clarifies the scope of services 

discontinued to include the labor 

exchange services—such as recruitment, 

career, and labor market information 

services—available to employers under 

part 652. 

The Department also proposes to add 

paragraph (b) to § 658.500, which would 

explain that for purposes of this subpart, 

employer refers to employers, as defined 

at § 651.10, and agents, farm labor 

contractors, joint employers, and 

successors in interest, as proposed to be 

defined at § 651.10. Proposed paragraph 

(b) would therefore describe which 

entities may experience discontinuation 

of services. Each of these entities may 

engage in the ES clearance system by 

creating or submitting clearance orders, 

or by managing or utilizing workers 

placed on ES clearance orders. Agents 

and farm labor contractors often engage 

the ES clearance system by submitting 

clearance orders and controlling many 

aspects of recruitment activities relating 

to clearance orders. Joint employers may 

utilize workers placed on clearance 

orders in the same or similar manner as 

the employer, defined at § 651.10, with 

whom they jointly employ those 

workers. A successor in interest may 

have reincorporated itself from an 

employer whose ES services have been 

discontinued into another business 

entity that maintains the same 

operations or interests, allowing that 

entity to undermine the effect of the 

discontinuation of the original entity in 

contravention of the purpose of the 

discontinuation regulation. The 

proposed revisions are meant to clarify 

and expand the entities who engage the 

ES clearance system and are, thus, 

subject to discontinuation. Specifically, 

this change makes it clear that agents, 

farm labor contractors, joint employers, 

and any successor in interest to an 

agent, farm labor contractor, or joint 

employer, are subject to discontinuation 

of services. This proposed change 

addresses a limitation of the current 

regulation, allowing SWAs to take 

action that will better protect workers. 

Finally, as the proposed agents, farm 

labor contractors, joint employers, and 

successors in interest also seek 

temporary labor certifications from 

OFLC under part 655, subpart B, adding 

these entities here brings the 

discontinuation regulation in line with 

the existing H–2A regulations, which 

permit the debarment of agents, farm 

labor contractors, joint employers, and 

successors in interest, as well as fixedsite H–2A employers, and agricultural 

associations. 

Section 658.501 describes eight bases 

for which SWA officials must initiate 

discontinuation of services to 

employers. The Department proposes 

several edits to paragraphs (a)(1) 

through (7), except paragraph (a)(3), 

including a substantive revision to 

paragraph (a)(4). 

In paragraph (a)(1), the Department 

proposes to state that SWA officials 

must discontinue services to employers 

who submit and refuse to correct or 

withdraw job orders containing terms 

and conditions contrary to employmentrelated laws. The existing regulation 

contains the terms alter and 

specifications. The Department 

proposes to change ‘‘alter’’ to ‘‘correct’’ 

to more clearly articulate that the 

employer must specifically correct the 

noncompliant condition rather than 

simply changing the condition, which 

might not result in correction of the 

noncompliance. This change would also 

clarify which action will lead to the 

initiation of the discontinuation 

process. The Department proposes to 

change ‘‘specifications’’ to ‘‘terms and 

conditions’’ to align the language in 

paragraph (a)(1) with the language used 

in § 653.501, and proposes to change 

this term in the corresponding provision 

at § 658.502(a)(1) to conform to this 

proposed change to § 658.501(a)(1). 

The Department proposes to 

reorganize paragraph (a)(2) for clarity by 

moving the language regarding 

withdrawal of job orders that do not 

contain required assurances to earlier in 

the sentence. The Department also 

proposes to remove language in 

paragraph (a)(2) that currently limits 

this basis for discontinuation to only 

those assurances involving employmentrelated laws. The Department proposes 

to remove this language because 

employers must provide all assurances 

described at § 653.501(c)(3), which 

include more than the assurance to 

comply with employment-related laws. 

The Department has determined that a 

failure to provide any required 

assurance should be grounds for 

discontinuation because each assurance 

is necessary to ensure workers referred 

on clearance orders are fully apprised of 

and protected by the assurances if 

placed on the order. 

The Department proposes to amend 

paragraph (a)(4) to add that SWA 

officials must initiate procedures for 

discontinuation of services for 

employers who are currently debarred 

from participating in the Department’s 

H–2A or H–2B foreign labor certification 

programs. The Department recognizes 

that many employers who use the ARS 

also seek temporary labor certifications 

from OFLC under part 655, subpart B. 

These employers may attempt to recruit 

workers through non-criteria orders in 

the ARS if they are prohibited from 

using the H–2A program as a result of 

their debarment. In its experience OFLC 

has seen many instances where 

employers who should file H–2B 

applications because they are seeking to 

employ workers in non-agricultural 

occupations instead inappropriately file 

H–2A applications. Similarly, in its 

enforcement experience WHD has seen 

employers that have mischaracterized 

the nature of their labor needs on their 

applications for labor certification to 

obtain labor certification to hire workers 

from one program to work in job 

opportunities that are appropriately 

classified in the other program. Failure 

to utilize the appropriate H–2 program 

results in the posting of inaccurate job 

orders, thereby undermining the labor 

market test. It also deprives workers of 

the specific protections available to 

them under each of the respective 

programs, such as the right to housing 

free of cost under the H–2A program. 

Likewise, it harms law-abiding 

employers as their competitors gain an 

unfair advantage by offering fewer 

benefits to their workforce or by 

avoiding the H–2B visa cap to which 

other employers must adhere. In light of 

these experiences, the Department has 

determined that it is appropriate for 

SWAs to initiate discontinuation 

proceedings against entities debarred 

from participation in the H–2A or H–2B 

temporary labor certification programs 

to protect workers seeking employment 

through the ES system and to maintain 

a fair system for law-abiding employers. 

The Department notes that § 655.73 

currently prohibits employers debarred 

from the H–2B program from 

participating in any of the Department’s 

other foreign labor programs, including 

the H–2A program; this proposal 

reinforces that prohibition. 

The Department proposes this 

requirement to protect workers who use 

the ARS by ensuring that ES offices do 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63763 

not place U.S. workers with employers 

during any such period of debarment. 

Debarment is a serious sanction that 

results from substantial violations of a 

material term or condition of the 

employer’s temporary labor 

certification, and that is imposed only 

after an employer has exhausted or 

forfeited an opportunity to respond to 

the proposed action as well as 

substantial appeals procedures. These 

may include violations related to worker 

safety, failure to provide required wages 

or working conditions, failure to comply 

with recruitment requirements or 

participate in required investigations or 

audits, or failure to pay required fees. 

Entities that have committed such 

violations should be excluded from 

participation in the ES, and the 

Department’s proposal will better 

protect U.S. workers by ensuring that 

they will not be placed with debarred 

employers that have substantially 

violated a material term or condition of 

their temporary labor certification. The 

proposed changes would also ensure 

that law-abiding employers have greater 

access to ES services and are better able 

to recruit available U.S. workers for jobs 

because SWAs would spend less time 

and resources serving noncompliant 

employers, and law-abiding employers 

would receive referrals of qualified U.S. 

workers that might otherwise go to 

noncompliant employers. 

The Department invites comments on 

this proposed basis for discontinuation 

and the inclusion of employers debarred 

from participation in the H–2B program. 

In addition, the Department is 

considering whether to expand this 

provision to require SWAs to initiate 

discontinuation proceedings against 

employers that have been debarred from 

any of the Department’s other foreign 

labor certification programs—the H–1B, 

CW–1, and PERM programs. The 

Department invites comments on 

whether to expand this provision to all 

of the foreign labor certification 

programs, or to some but not all of the 

other foreign labor certification 

programs, the scope of employers to 

whom this may apply, and the effect(s) 

of expanding this provision. 

The Department proposes to amend 

§ 658.501(a)(5) by adding that this basis 

for discontinuing services includes 

employers who are found to have 

violated ES regulations pursuant to 

§ 658.411 or § 658.419. This edit is 

intended to clarify that ES violations 

may be found as a result of apparent 

violations, which are described at 

§ 658.419. 

The requirement to accept qualified 

workers referred through the clearance 

system applies only to criteria clearance 

orders filed pursuant to § 655.121; 

therefore, the Department proposes to 

amend paragraph (a)(6) by clarifying 

that discontinuation on the basis of 

failure to accept qualified workers 

would be appropriate only for 

employers placing criteria clearance 

orders. For non-criteria clearance 

orders, the regulations at part 653, 

subpart F, do not require employers to 

hire all qualified workers referred 

through the ES, so this basis for 

discontinuation would not apply. 

In paragraph (a)(7), the Department 

proposes to remove the words in the 

conduct of, which are currently present 

but do not add meaning and are 

therefore extraneous and unnecessary. 

Current § 658.501(b) explains the 

circumstances and procedures for 

immediate discontinuation of services. 

The Department proposes to move 

paragraph (b) to §§ 658.502 and 658.503 

to clarify that existing paragraph (b) is 

not an independent basis for 

discontinuation and to better align it 

with the discontinuation procedures in 

§§ 658.502 and 658.503. Additional 

proposed changes are discussed below. 

The Department is redesignating 

current § 658.501(c), which recognizes 

the unique interplay between the ES 

and H visa programs, to § 658.501(b), 

with revisions. The proposed new 

§ 658.501(b) explains what a SWA must 

do when it has learned that an employer 

participating in the ES system may not 

have complied with the terms of its 

temporary labor certification under, for 

example, the H–2A and H–2B programs. 

The current regulation states that SWA 

officials must engage in the procedures 

for discontinuation of services to 

employers pursuant to paragraphs (a)(1) 

through (8) of § 658.501. The 

Department proposes to clarify that 

SWA officials must determine whether 

the SWA must initiate discontinuation 

of services pursuant to § 658.501(a). The 

proposed change clarifies that SWAs 

cannot proceed with discontinuation 

procedures based solely on information 

that an employer may have violated the 

terms of its temporary labor 

certification. Rather, SWAs must take 

that information and look to paragraph 

(a) to determine whether one of the 

bases for discontinuation applies. Once 

a SWA determines that one of the bases 

for discontinuation under paragraph (a) 

does apply, then the SWA must initiate 

discontinuation of services. Finally, as 

the proposed paragraph (b) would apply 

to both currently active and previous 

labor certifications, the Department 

invites comments on whether it would 

be appropriate to limit the scope of 

previous labor certifications or potential 

violations of a labor certification to a 

particular time period. 

Section 658.502 describes the 

notification and procedural 

requirements a SWA must follow when 

it intends to discontinue services to an 

employer. The Department proposes 

several changes throughout § 658.502 to 

clarify and streamline these 

requirements. First, the Department 

proposes to revise the section heading to 

state that it relates to notification to 

employers of the SWA’s intent to 

discontinue services. This change 

clarifies that this section relates only to 

initial notices proposing 

discontinuation and not to the final 

notices described in § 658.503. The 

Department also proposes to add 

introductory language to the beginning 

of paragraph (a) to clarify that these 

procedures apply where the SWA 

determines that there is an applicable 

basis for discontinuation of services 

under § 658.501(a). The Department 

proposes additional revisions to 

paragraph (a) to clarify that the initial 

notices must provide the reasons for 

proposing discontinuation and must 

state that the SWA intends to 

discontinue services in accordance with 

this section. The proposed language 

removes the reference to part 654, to 

which discontinuation of services does 

not apply. These proposed revisions are 

intended to address issues SWAs 

encountered in PY 2020 and 2021 in 

initiating discontinuation of services, 

including insufficient notification to 

employers of the applicable bases for 

discontinuation and insufficient factual 

detail in the notices to support the 

applicable bases. The Department notes 

that if more than one basis under 

paragraph (a) applies, the SWA must 

initiate discontinuation under all 

applicable bases. 

Paragraphs (a)(1) through (7) of 

§ 658.502 provide specific notification 

requirements for each of the 

corresponding bases for discontinuation 

outlined in § 658.501(a)(1) through (7). 

The Department proposes to remove 

language in § 658.502(a)(1) through (7) 

that describes the applicable bases for 

discontinuation and instead crossreference the applicable citations for 

clarity. For example, the Department 

proposes to revise § 658.502(a)(1) to 

state that the paragraph applies where 

the proposed discontinuation is based 

on § 658.501(a)(1). This would replace 

current language that describes 

§ 658.501(a)(1) and more clearly and 

succinctly direct the SWA to 

§ 658.501(a)(1) as the applicable basis. 

The Department also proposes to 

remove language in § 658.502(a)(1) 

through (7) that provides employers the 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63764 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

opportunity for a pre-discontinuation 

hearing. In response to a SWA’s notice 

of intent to discontinue services, the 

existing language provides an employer 

the opportunity to submit evidence 

contesting the proposed discontinuation 

and/or to request a hearing pursuant to 

§ 658.417. The proposed revisions will 

better align the hearing procedures for 

discontinuation of services at part 658, 

subpart F, with the hearing procedures 

for the ES Complaint System at 

§§ 658.411(d) and 658.417, which allow 

for a hearing by a State hearing official 

only after the SWA issues a final 

decision on a complaint. As currently 

written, the discontinuation 

proceedings at § 658.502(a)(1) through 

(3) and (5) through (7) allow for a 

hearing under § 658.417 without the 

SWA ever issuing a final determination 

under § 658.503. This prevents SWAs 

from uniformly issuing final 

determinations in all discontinuation 

proceedings. Additionally, it 

inadvertently allows employers to 

bypass a formal decision from the SWA 

anytime they request a hearing and, 

because State administrative hearings 

may take several months to complete, 

inadvertently prolongs any formal 

determinations. The Department 

believes that removing the opportunity 

for a pre-discontinuation hearing— 

while maintaining the opportunity for 

employers to submit evidence 

contesting the proposed discontinuation 

under § 658.502 and the opportunity for 

a post-discontinuation hearing in 

§ 658.504—allows SWAs to 

expeditiously and fairly resolve 

discontinuation proceedings while 

providing sufficient due process to 

employers. The proposed change allows 

for a more complete record than would 

result from an immediate appeal of a 

notice from the SWA proposing 

discontinuation. This proposed change 

also better aligns with the ES Complaint 

System regulations which do not 

contemplate pre-determination 

hearings. Moreover, as discussed above, 

the 1977 discontinuation regulations 

only allowed for pre-discontinuation 

hearings and, in an effort to clarify and 

streamline the discontinuation 

provisions, the 1980 regulations allowed 

for both a pre- and post-discontinuation 

hearing pursuant to § 658.417. In doing 

so, the pre-discontinuation hearing 

currently available under § 658.502 is 

no different than the postdiscontinuation hearing available under 

§ 658.504. Removing the identical prediscontinuation hearing allows for a 

more efficient process without removing 

due process protections for employers 

and ensures that post-discontinuation 

hearings are decided on a more 

complete record. 

Finally, in § 658.502(a)(1) through (7), 

the Department proposes changing the 

language that SWAs must notify 

employers that all employment services 

will be terminated to state that all ES 

services will be terminated. The 

proposed language clarifies that the 

services at issue are specific to the ES. 

In addition to the changes described 

above, the Department proposes 

revisions to paragraphs (a)(1) through 

(7) to provide greater detail and 

specificity regarding the type of 

information that SWAs must provide to 

employers when proposing to 

discontinue services. The proposed 

changes ensure that SWAs adequately 

explain their reasons for proposing 

discontinuation, and that employers 

have sufficient factual detail to respond 

to the proposed discontinuation. In 

these paragraphs, the Department also 

proposes small changes for clarity, 

including rewording sentences so they 

use the active voice. 

In paragraph (a)(2), the Department 

proposes to add language explaining 

that SWAs must specify the assurances 

involved and must explain how the 

employer refused to provide the 

assurances. The proposed edits ensure 

that SWAs describe the basic facts that 

led them to initiate discontinuation of 

services so employers understand the 

scope of the alleged violation and have 

sufficient information to respond. The 

Department also proposes a revision to 

paragraph (a)(2)(ii) to align this 

paragraph with the proposed changes to 

§ 658.501(a)(2), discussed above, 

regarding the scope of the required 

assurances. 

In paragraph (a)(3), to provide clearer 

direction to SWAs and better notice to 

entities receiving a notice, the 

Department proposes to add language 

stating that SWAs must specify the 

terms and conditions the employer 

misrepresented or the assurances with 

which the employer did not fully 

comply, and explain how the employer 

misrepresented the terms or conditions 

or failed to comply with assurances on 

the job order. In paragraph (a)(3)(iii), the 

Department proposes removing the 

requirement that employers provide 

resolution of a complaint which is 

satisfactory to a complainant referred by 

the ES, replacing it with the 

requirement that an employer provide 

adequate evidence that it has resolved 

the misrepresentation of terms and 

conditions of employment or 

noncompliance with assurance. 

Evidence is adequate if the SWA could 

reasonably conclude that the employer 

has resolved the misrepresentation or 

noncompliance. The proposed change 

removes unnecessary and out-of-place 

language regarding ES complaints, 

which are addressed in paragraph (a)(5), 

and better aligns § 658.502(a)(3) with 

proposed § 658.501(a)(3). The 

Department also proposes combining 

paragraphs (a)(3)(iii) and (iv) to make 

clear that employers need to provide the 

information in paragraphs (a)(3)(iii) and 

(iv) together. 

In paragraph (a)(4), the Department 

proposes to add language that SWAs 

must provide evidence of the final 

determination by an enforcement 

agency of a violation of an employmentrelated law or debarment with the 

notice of intent to discontinue services. 

For purposes of discontinuation, a final 

determination is a decision by an 

enforcement agency, such as WHD, 

OSHA, or other Federal, State, or local 

agency responsible for enforcing 

employment-related laws, that has 

become operative under applicable law. 

For final determinations, the 

Department proposes adding language 

clarifying that the SWA must specify— 

as discussed in the final determination 

or debarment—the enforcement 

agency’s findings of facts and 

conclusions of law as to the 

employment-related law violation(s). 

For final debarment orders, the 

Department proposes adding language 

requiring the SWA to specify the time 

period for which the employer is 

debarred from participating in one of 

the Department’s foreign labor 

certification programs. These proposed 

revisions ensure the SWA has 

confirmed that a final determination or 

debarment exists and that the employer 

has sufficient information regarding the 

final determination at issue to respond. 

The Department proposes revisions to 

§ 658.502(a)(4)(i) through (iii) to clarify 

and explain the evidence and 

assurances that employer may provide 

to avoid discontinuation of services. In 

paragraph (a)(4)(i), the Department 

proposes to remove existing language 

stating that the employer may provide 

evidence that the enforcement agency 

reversed its ruling and that the 

employer did not violate employmentrelated laws; and to replace it with 

language stating that the employer may 

provide evidence that the determination 

at issue is not final because, for 

example, it has been stayed pending 

appeal, overturned, or reversed. The 

proposed change clarifies that 

employers may contest the finality of 

the determination under paragraph 

(a)(4) and clarifies that SWAs may not 

discontinue services where a 

determination is not, in fact, final. The 

Department proposes a new paragraph 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63765 

(a)(4)(ii) which requires employers to 

submit evidence that their period of 

debarment is no longer in effect and that 

they have taken all actions required by 

the enforcement agency as a 

consequence of the violation. If the 

proposed discontinuation is based only 

on a final determination of a violation 

of an employment related law, then 

evidence that the debarment is no 

longer in effect is not needed; similarly, 

if the proposed discontinuation is based 

on a debarment then evidence that the 

employer has taken necessary remedial 

actions is not necessary. The proposed 

addition in paragraph (a)(4)(ii)(A) is 

necessary to address employer 

responses to debarment or 

disqualification. The proposed 

paragraph (a)(4)(ii)(B) incorporates 

existing language and is meant to more 

clearly encompass any and all actions 

required by final determination but does 

not substantively change what an 

employer has to show under current 

§ 658.502(a)(4)(ii). 

In paragraph (a)(5), the Department 

proposes additional language to clarify 

that the SWA must specify which ES 

regulation the employer has violated 

and must provide basic facts to explain 

the violation. The proposed language 

ensures that SWAs provide sufficient 

factual detail regarding the ES violation 

at issue so the employer can respond. 

The Department proposes to revise 

§ 658.502(a)(6) to explain that SWAs 

must state that the job order at issue was 

filed pursuant to § 655.121 and specify 

the name of each worker who was 

referred and not accepted. The proposed 

revision is consistent with the proposed 

change to § 658.501(a)(6) and ensures 

that SWAs provide sufficient factual 

detail regarding the workers at issue so 

the employer can respond. In paragraph 

(a)(6)(iii), the Department proposes 

changing and to or to decouple 

paragraph (a)(6)(iii) from the assurances 

required in existing paragraph (a)(6)(iv), 

as it is not necessary for employers that 

did not violate the requirement to 

provide assurances of future 

compliance. The Department proposes a 

new paragraph (a)(6)(iv), to add an 

option for the employer to show that it 

was not required to accept the referred 

workers, because the time period under 

20 CFR 655.135(d) had lapsed, and a 

new paragraph (a)(6)(v), to add an 

option for the employer to show that, 

after initial refusal, it subsequently 

accepted and offered the job to the 

referred workers or to show that it has 

provided all appropriate relief imposed 

as a result of the refusal. It is necessary 

to update this paragraph because the 

current regulation does not provide for 

the scenario where an employer 

subsequently offers employment to 

qualified workers after first refusing, as 

the current paragraph (a)(6)(i) is 

intended to capture scenarios where an 

employer accepted qualified workers 

and did not refuse them as found by the 

SWA. It is also possible that SWAs may 

attempt to resolve apparent violations 

involving failure to hire qualified U.S. 

workers referred through the ES, 

resulting in employers hiring those 

individuals. Finally, the Department 

proposes to move existing paragraph 

(a)(6)(iv) to paragraph (a)(6)(vi) to 

maintain the requirement that the 

employer provide assurances that 

qualified workers referred in the future 

will be accepted; and adds new 

language to clarify the assurance that is 

required depending on whether the 

period described in 20 CFR 655.135(d) 

has lapsed, as after the end of the period 

the employer would no longer be 

required to accept referred workers on 

the particular clearance order involved. 

This change provides a means of 

ensuring future compliance with the 

requirement that the employer 

submitting criteria clearance orders 

hires all qualified workers referred to 

the order. 

In paragraph (a)(7), the Department 

proposes clarifying edits that provide 

clearer direction to the SWA but that do 

not change the regulation’s meaning, 

including rephrasing sentences and 

changing the pronoun used for 

employers to it instead of he/she. 

The Department proposes to add a 

new paragraph (a)(8) to explain 

information the SWA must include in 

its notice to an employer proposing to 

discontinue services where the decision 

is based on § 658.501(a)(8) (repeatedly 

causes the initiation of discontinuation 

of services). The Department proposes 

that the SWA must list and provide 

basic facts explaining the prior 

instances where the employer has 

repeatedly caused initiation of 

discontinuation proceedings to provide 

notice of the basis for the SWA’s action 

to facilitate their response. The SWA 

must notify the employer that all ES 

services will be terminated unless the 

employer within that time provides 

adequate evidence that the SWA’s 

initiation of discontinuation in prior 

proceedings was unfounded. The 

proposed paragraph (a)(8) replaces 

existing paragraph (c), which discusses 

discontinuation based on § 658.501(a)(8) 

but does not include clear direction to 

the SWA and does not provide 

sufficient notice to employers to allow 

them to respond. 

The Department proposes to remove 

existing § 658.502(b) and (d) because 

these paragraphs pertain to the 

employer’s pre-determination 

opportunity to request a hearing. As 

described above, the Department 

proposes to eliminate the opportunity 

for an employer to request a hearing 

until after the SWA has provided its 

final notice on discontinuation of 

services to the employer. 

The Department proposes a new 

§ 658.502(b) to explain the 

circumstances that warrant immediate 

discontinuation of services. The 

proposed addition replaces existing 

§ 658.501(b), in part, and states that 

SWA officials must discontinue services 

immediately, in accordance with 

§ 658.503, without providing the notice 

of intent and opportunity to respond 

described in this section, if an employer 

has met any of the bases for 

discontinuation of services under 

§ 658.501(a) and, in the judgment of the 

State Administrator, exhaustion of the 

administrative procedures set forth in 

this section would cause substantial 

harm to workers. The existing 

§ 658.501(b) states that SWA officials 

may discontinue services immediately 

in these circumstances, whereas the 

proposed new § 658.502(b) states that 

SWAs must discontinue services 

immediately. Additionally, existing 

§ 658.501(b) allows for discontinuation 

when there would be substantial harm 

to a significant number of workers, 

whereas proposed new § 658.502(b) 

requires immediate discontinuation 

when there would be substantial harm 

to workers. The proposed changes 

recognize that immediate 

discontinuation is warranted where the 

harm at issue would involve only one or 

a small number of workers, and that 

where such harm would occur SWAs 

must be required to initiate 

discontinuation to prevent the harm 

from actually occurring to workers. 

Finally, this proposed paragraph 

clarifies that immediate discontinuation 

is appropriate only when a basis under 

proposed § 658.501 exists and the SWA 

determines that substantial harm would 

occur; risk of substantial harm alone is 

not enough for a SWA to immediately 

discontinue services. 

Section 658.503 describes the 

procedural requirements a SWA must 

follow when issuing a final 

determination regarding discontinuation 

of services to an employer. The 

Department proposes to revise 

paragraph (a) to require that within 20 

working days of receipt of the 

employer’s response to the SWA’s 

notification under § 658.502, or at least 

20 working days after the SWA’s 

notification is received by the employer 

if the SWA does not receive a response, 

the SWA must notify the employer of its 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63766 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

10See Appendix IV LEARS 5148 Report Part 1 

National Data for PY 2020, https://www.dol.gov/

sites/dolgov/files/ETA/mas/pdfs/APPENDIX%20IV

%20LEARS%205148%20REPORT%20PART%201

%20NATIONAL%20DATA.xlsx. 

final determination. When the SWA 

sends its notification, it must do so in 

a manner that allows the SWA to track 

receipt of the notification, such as 

certified mail. If the SWA determines 

that the employer did not provide a 

satisfactory response in accordance with 

§ 658.502 the SWA’s notification must 

specify the reasons for its 

determination, state that the 

discontinuation of services is effective 

20 working days from the date of the 

notification, state that the employer may 

request reinstatement or a hearing 

pursuant to § 658.504, and state that a 

request for a hearing stays the 

discontinuation pending the outcome of 

the hearing. The Department is 

proposing this stay pending appeal and 

the 20-working-day period to ensure 

that employers are provided an 

opportunity to challenge the SWA’s 

determination before losing access to all 

ES services. Staying the effect of 

discontinuation during the pendency of 

an appeal is appropriate to allow for full 

adjudication and resolution of any 

issues related to the SWA’s findings 

before they become final and binding on 

the employer and the ES system, 

mitigating the risk that an employer is 

erroneously deprived of access to 

services, similar to the procedures in 

§ 658.502. Additionally, placing the 

effective date at the end of the 20-day 

period, rather than at the issuance of the 

notification, avoids depriving appealing 

employers of ES services for a short 

period of time prior to their request for 

hearing. This also makes for a more 

efficient process for SWAs and ETA, as 

these agencies would otherwise expend 

time and resources to effectuate a 

discontinuation that may be 

premature—if the employer requests a 

hearing a short time later, agencies 

would need to use additional resources 

to then stay the discontinuation they 

just effectuated. To facilitate 

implementation and maintenance of the 

proposed Office of Workforce 

Investment discontinuation of services 

list, discussed above, the SWA must 

also notify the ETA Office of Workforce 

Investment of any final determination to 

discontinue ES services, including any 

decision on appeal upholding a SWA’s 

determination to discontinue services. 

The proposed § 658.503(a) removes 

language regarding pre-discontinuation 

hearings to correspond with proposed 

changes to § 658.502. The Department 

believes that this timeline for SWAs is 

appropriate because an expeditious 

resolution of the matter both minimizes 

the uncertainty an employer faces when 

a SWA has proposed to discontinue 

services, and it allows the SWA to deny 

services to employers that have engaged 

in impermissible conduct. The effect of 

an adverse final determination would 

be, among other things, to protect 

workers from being placed with those 

employers and would prevent the 

employer from seeking a temporary 

labor certification under part 655, 

subpart B, of the title. Because of the 

potential consequences to both 

employers and workers, the Department 

has determined that an expeditious 

process would be necessary. 

The Department proposes to add a 

new § 658.503(b) to explain the 

procedures for immediate 

discontinuation of services and to 

incorporate them into the general 

discontinuation procedures at § 658.503. 

The proposed new paragraph (b) 

replaces existing § 658.501(b), in part, 

and states that the SWA must notify the 

employer in writing that its services are 

discontinued as of the date of the notice. 

The notification must also state that the 

employer may request reinstatement or 

a hearing pursuant to § 658.504, and 

that a request for a hearing relating to 

immediate discontinuation does not 

stay the discontinuation pending the 

outcome of the hearing. The proposed 

new § 658.503(b) adds that SWA must 

specify the facts supporting the 

applicable basis for discontinuation 

under § 658.501(a) and the reasons that 

exhaustion of the administrative 

procedures would cause substantial 

harm to workers. The proposed addition 

ensures that employers have sufficient 

information regarding the SWA’s 

rationale for immediate discontinuation, 

and makes clear that employers have 

recourse to the State administrative 

hearing process or reinstatement process 

if a SWA immediately discontinues 

services. While discontinuation under a 

determination issued under § 658.503(a) 

is delayed until the employer’s time to 

appeal the determination has ended, the 

Department thinks that the 

circumstances justifying a notice of 

immediate discontinuation also justify 

that the discontinuation be effective 

immediately, irrespective of the 

employer’s opportunity to appeal, and 

that it remain in effect unless the 

employer is reinstated or the 

determination is overturned. Immediate 

discontinuation is reserved for those 

situations where the State Administrator 

determines that substantial harm to 

workers will occur if action is not 

immediately taken. For example, State 

Administrators may determine that 

immediate discontinuation is justified 

when they receive information 

evidencing that employers have made 

threats or have perpetrated violence 

against workers, or that involve other 

substantial harm like human trafficking 

and other significant health and safety 

issues. SWA quarterly ETA Form-5148 

reports evidence that SWAs processed 

36 complaints and four apparent 

violations involving sexual harassment, 

coercion, or assault, as well as two 

complaints and six apparent violations 

involving trafficking in PY 2020.10

Additionally, over the last several years, 

the Department has received 

information evidencing that employers 

have made threats of physical violence 

against workers. In two cases, employers 

were recorded on video threatening 

workers with firearms. Delaying the 

effective date of the discontinuation 

would undermine the protection that 

the immediate discontinuation 

procedure is designed to provide. While 

the Department recognizes the burden 

that employers may face if they do not 

have access to any ES services pending 

an appeal of an immediate 

discontinuation, the Department thinks 

that this burden is outweighed by the 

interest in protecting workers from 

harmful, potentially dangerous 

situations. The Department notes that in 

lieu of an appeal, an employer subject 

to immediate discontinuation of 

services can request reinstatement from 

the SWA, and that the proposed 20-day 

timeframe for the SWA to respond to 

such a request may provide for timely 

and efficient resolution of an immediate 

discontinuation. Finally, as with 

proposed § 658.503(a), to facilitate 

implementation and maintenance of the 

proposed Office of Workforce 

Investment discontinuation of services 

list, discussed above, the SWA must 

also notify the ETA Office of Workforce 

Investment of any final determination to 

discontinue ES services. 

The Department proposes to move 

current § 658.503(b), which requires the 

SWA to notify the relevant ETA regional 

office if services are discontinued to an 

employer subject to Federal Contractor 

Job Listing Requirements, to proposed 

new paragraph (c) and to make minor 

edits to use active voice and to improve 

clarity, which do not change the 

meaning of the requirement. The 

Department proposes to add paragraph 

(d) to require SWAs to notify the 

complainant of the employer’s 

discontinuation of services, if the 

discontinuation of services is based on 

a complaint filed pursuant to § 658.411. 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63767 

This requirement would align with 

section § 658.411(b)(2) and (d). 

The Department proposes to add a 

new paragraph (e) to explain the effect 

discontinuation of services has on 

employers. The proposed new 

paragraph explains that employers that 

experience discontinuation of services 

may not use any ES activities described 

in parts 652 and 653, and that SWAs 

must remove the employer’s active job 

orders from the clearance system and 

must not process any future job orders 

from the employer for as long as 

services are discontinued. An 

employer’s loss of access to ES services 

applies in all locations throughout the 

country where such services may be 

available. If the effect of the 

discontinuation were limited to just the 

State that discontinued services, it 

would frustrate the purpose of 

discontinuation. 

This proposed new paragraph 

responds to common questions the 

Department receives regarding the effect 

of discontinuation of services on current 

and future job orders and, as with 

proposed revisions to § 658.500, 

clarifies that the scope of services 

discontinued to include those ES 

services available to employers under 

part 652. Proposed § 658.501(b) would 

require SWA officials to notify the 

OFLC National Processing Center (NPC) 

when an ES office or SWA has 

information that an employer may not 

have complied with the terms of its 

temporary labor certification, under, for 

example the H–2A and H–2B programs. 

Therefore, in addition to closing the 

employer’s active clearance orders so 

that the employer will not receive 

additional U.S. worker referrals, the 

NPC would be aware of the alleged 

noncompliance so that it may 

investigate and apply appropriate 

actions to the foreign labor certification. 

The Department is interested in 

comments on the effect on both workers 

and employers of removing active job 

orders, particularly criteria orders. The 

Department proposes new paragraph (f) 

to explain that SWAs must continue to 

provide the full range of ES and other 

appropriate services to workers whose 

employers’ services have been 

discontinued. The proposed new 

paragraph makes it clear that 

discontinuation of services to employers 

does not, and should not, negatively 

affect workers. SWAs must continue to 

provide necessary support to workers, 

including outreach to MSFWs, access to 

the ES and Employment-Related Law 

Complaint System, and all available ES 

services. 

Section 658.504 describes the 

procedural requirements for seeking 

reinstatement of ES services, which can 

be done either by requesting that the 

SWA reconsider its decision or by 

requesting a hearing. The Department 

proposes to restructure this section to 

more clearly explain how services may 

be reinstated, the timeframes in which 

the employers and SWA must act, and 

the circumstances under which services 

must be reinstated. 

The Department proposes to revise 

paragraph (a) to make clear that 

employers have two avenues with 

which to seek reinstatement of 

services—via a hearing within 20 

working days of the discontinuation or 

a written request to the SWA at any time 

following the discontinuation. An 

employer cannot, however, 

simultaneously appeal a 

discontinuation and submit a written 

request to the SWA for reinstatement. 

The revised paragraph (a) adds the new 

requirement that an employer who 

requests a hearing following 

discontinuation do so within 20 

working days of the date of 

discontinuation. These avenues are 

available under the current regulation, 

but the Department has added a 

requirement that the employer file an 

appeal within 20 working days of the 

SWA’s final determination because both 

the employer and the State have an 

interest in timely and efficient 

adjudication of disputes. 

The Department proposes to revise 

§ 658.504(b) to explain the 

circumstances and procedures under 

which SWAs must reinstate services 

when an employer submits a written 

request for reinstatement. The 

Department proposes new paragraph 

(b)(1), which retains the current 20-day 

timeline in existing paragraph (b) within 

which the SWA must notify the 

employer whether it grants or denies the 

employer’s reinstatement request. The 

proposed paragraph (b)(1) also requires 

that if the SWA denies the request, the 

SWA must specify the reasons for the 

denial and must notify the employer 

that it may request a hearing, in 

accordance with proposed paragraph 

(c), within 20 working days. 

The Department proposes to move 

current paragraph (a)(2), which 

describes the evidence necessary for 

reinstatement, to proposed paragraph 

(b)(2) to align with the overall 

restructuring of the section. The 

Department also proposes to remove the 

word any to require that the employer 

show evidence that all applicable 

specific policies, procedures, or 

conditions responsible for the previous 

discontinuation are corrected, instead of 

any policies, procedures, or conditions 

responsible for the previous 

discontinuation. The Department is 

concerned that the current language 

could permit reinstatement despite an 

employer not correcting all relevant 

policies, procedures, or conditions, 

which would be inconsistent with the 

purpose of discontinuation. Finally, the 

Department also proposes to change the 

pronoun used for employers to it 

instead of his/her. 

The Department proposes to revise 

§ 658.504(c) to explain the 

circumstances and procedures under 

which SWAs must reinstate services 

when an employer submits a timely, 

written request for a hearing. The 

proposed revisions maintain the 

procedures in existing paragraphs (a)(1), 

(c), and (d), but have reorganized them 

into the same paragraph for clarity. 

Finally, the Department proposes to 

replace the abbreviated term ‘‘Federal 

ALJ’’ in the existing regulation with 

‘‘Federal Administrative Law Judge,’’ 

commonly abbreviated as ALJ. 

The Department proposes a new 

paragraph (d) to require that SWAs 

notify the ETA Office of Workforce 

Investment of any determination to 

reinstate ES services, or any decision on 

appeal upholding a SWA’s 

determination to discontinue services, 

within 10 working days of the date of 

issuance of the determination. As 

discussed above, the Department 

believes that prompt notification to the 

Office of Workforce Investment will 

facilitate implementation and 

maintenance of the proposed Office of 

Workforce Investment discontinuation 

of services list and will ensure that 

employers whose services have been 

reinstated may promptly access ES 

services. 

IV. Discussion of Proposed Revisions to 

20 CFR Part 655, Subpart B 

A. Introductory Sections 

1. Section 655.103(e), Defining Single 

Employer Test 

The Department proposes to define a 

new term ‘‘single employer’’ to codify 

and clarify its long-standing approach to 

determining if multiple nominally 

separate employers are operating as one 

employer for the purposes of the H–2A 

program. The Department has 

encountered numerous instances over at 

least the last decade where it appears 

separate entities are using their 

corporate structure—intentionally or 

otherwise—to bypass statutory and 

regulatory requirements to receive a 

temporary labor certification, or to 

circumvent regulations aimed at 

protecting workers in the United States. 

See, e.g., Lancaster Truck Line, 2014– 

TLC–00004, at *3, *5 (BALCA Nov. 26, 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63768 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

11See also Travis Hollifield, Integrated Employer/ 

Enterprise Doctrine in Labor & Employment Cases, 

The Federal Lawyer, December 2017, at 56, 58, 

http://www.fedbar.org/wp-content/uploads/2017/ 

12/Labor-and-Empl-pdf-1.pdf. 

2013) (employer was ‘‘frank about 

separating the legal entities of his 

operation’’ from his father’s operation to 

‘‘comply with the H–2A program’s 

seasonal permitting restrictions’’ and 

the ALJ held the attempt to divide work 

did not demonstrate temporary need). 

OFLC regularly receives and reviews 

applications for temporary labor 

certification that appear to be for job 

opportunities with different employers 

when in reality the workers hired under 

these certifications are employed by 

companies so intertwined that they are 

operating as a single employer in one 

area of intended employment for a 

period of need that is not temporary or 

seasonal. The Department has also 

increasingly encountered H–2A 

employers that employ H–2A workers 

under one corporate entity and non-H– 

2A workers under another, creating the 

appearance that the H–2A employer has 

no workers in corresponding 

employment when actually, the 

corporate entities are intertwined and 

all the H–2A workers are employed by 

a single H–2A employer, and the nonH–2A workers are engaged in 

corresponding employment. Employers 

may attempt to use these schemes to 

evade requirements of the H–2A 

program, such as paying workers in 

corresponding employment the required 

wage rate or abiding by the housing and 

transportation requirements of the H–2A 

program. 

OFLC currently uses, and has used for 

more than a decade, some form of a 

‘‘single employer’’ test to determine if 

nominally separate employers should be 

considered as one entity for purposes of 

assessing temporary or seasonal need 

(discussed further below under 

Temporary or Seasonal Need). However, 

because this test is not incorporated into 

the Department’s regulations, it has 

been criticized and inconsistently 

applied by the Board of Alien Labor 

Certification Appeals (BALCA). 

Compare Mid-State Farms, LLC, 2021– 

TLC–00115, at *16, *25–27 (BALCA 

Apr. 16, 2021) (noting that the ‘‘single 

employer test’’ has not been subject to 

public comment, and thus using the 

‘‘joint employer test’’ instead) (more 

discussion below) with K.S. Datthyn 

Farms, LLC, 2019–TLC–00086, at *4–6 

(BALCA Oct. 7, 2019) (applying the 

single employer test to determine that 

two H–2A applicants for temporary 

labor certification were one single 

employer with a single labor need). 

Relying on Federal and BALCA case 

law, WHD currently also applies the 

‘‘single employer’’ test to determine the 

H–2A employer’s compliance with 

program requirements. 

The Department’s proposal to add a 

definition of ‘‘single employer,’’ which 

would explicitly permit the use of the 

single employer test when reviewing 

applications for temporary labor 

certification and for purposes of 

enforcement, is meant to codify the 

Department’s long-standing practice. 

Doing so would prevent employers from 

using their corporate structures to 

circumvent regulatory requirements and 

would provide notice and clarity to the 

stakeholder community regarding the 

Department’s single employer analysis. 

A clearly articulated definition also 

could serve to deter employers from 

utilizing practices that appear to 

circumvent the obligations of H–2A 

employers by making explicit the 

obligations of the single employer. This 

section discusses (1) the single 

employer definition the Department 

proposes to add to a new subordinate 

paragraph (e) within § 655.103, 

including the factors the Department 

will consider when determining 

whether two or more entities satisfy this 

definition; (2) the use of the single 

employer test by OFLC when analyzing 

whether an employer has a temporary or 

seasonal need; and (3) the use of the 

single employer test in enforcement of 

contractual obligations. 

a. Definition 

As noted, the Department already 

applies a ‘‘single employer’’ test 

(sometimes referred to as an ‘‘integrated 

employer’’ test) under the H–2A 

program in certain contexts. OFLC 

currently uses this test to determine if 

multiple nominally separate employers 

should be considered as one entity for 

the purposes of determining whether an 

applicant for labor certification has a 

temporary or seasonal need, and WHD 

uses this test to determine whether H– 

2A employers complied with program 

requirements. This test originated with 

the NLRB and has been adopted by 

courts and Federal agencies under a 

wide variety of statutes. See S. Prairie 

Const. Co. v. Local No. 627, Int’l Union 

of Operating Eng’rs, AFL–CIO, 425 U.S. 

800, 802–803 (1975). As the Second 

Circuit has explained, the single 

employer test may be used to determine 

liability for employment-related 

violations, as well as to determine 

employer coverage, and the policy 

underlying the doctrine is ‘‘fairness . . . 

where two nominally independent 

entities do not act under an arm’s length 

relationship.’’ Murray v. Miner, 74 F.3d 

402, 404 n.1, 405 (2d Cir. 1996). 

Consistent with judicial and 

administrative precedent, the 

Department has typically looked to four 

factors to determine whether the entities 

at issue should be considered a single 

employer for purposes of temporary 

need and compliance: (1) common 

management, (2) interrelation between 

operations, (3) centralized control of 

labor relations, and (4) degree of 

common ownership/financial control. 

See, e.g., Sugar Loaf Cattle Co., 2016– 

TLC–00033, at *6 (BALCA Apr. 6, 2016) 

(citing to Spurlino Materials, LLC v. 

NLRB, 805 F.3d 1131, 1141 (D.C. Cir. 

2015)). The proposed definition would 

incorporate the four factors noted above 

and, as under current practice, the 

Department would consider the totality 

of the circumstances surrounding the 

relationship among the entities, and no 

one factor would be determinative in 

the analysis.11

The Department’s main concern in 

determining whether two or more 

entities are operating as one is 

preventing employers from utilizing 

their corporate structure(s) to 

circumvent the program’s statutory and 

regulatory requirements. As such, the 

Department’s focus when examining 

whether two or more entities are a 

single employer is both the relationship 

between the entities themselves and 

each entity’s use of the H–2A program. 

See Knitter v. Corvias Military Living, 

LLC, 758 F.3d 1214, 1227 (10th Cir. 

2014) (in a Title VII case, the court 

noted that ‘‘the single employer test 

focuses on the relationship between the 

potential employers themselves’’). The 

Department emphasizes again that no 

one factor is determinative as to 

whether entities are acting as one. 

Regarding the ‘‘common 

management’’ factor, the ‘‘relevant 

inquiry is whether there is ‘overall 

control of critical matters at the policy 

level.’ ’’ K.S. Datthyn Farms, LLC, 2019– 

TLC–00086, at *6 (citations omitted) 

(quoting Spurlino Materials, 805 F.3d at 

1142). Shared day-to-day management 

may also indicate common 

management. Spurlino Materials, 805 

F.3d at 1142. For example, where the 

same president, treasurer, and chief 

operating officer oversee the actions of 

multiple entities and resolve disputes, 

this suggests a common management 

between entities. Pepperco-USA, Inc., 

2015–TLC–00015, at *30–31 (BALCA 

Feb. 23, 2015). 

Regarding the ‘‘interrelation between 

operations’’ factor, the Department may 

look to whether the entities operate at 

arm’s length. Id. It may examine 

whether companies share products or 

services, costs, worksites, worker 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63769 

housing, insurance, software, or if they 

share a website, supplies, or equipment. 

See, e.g., id.; Sugar Loaf Cattle Co., 

2016–TLC–00033, at *6–7 (finding an 

interrelation of operations in part 

because the work locations were 

‘‘fundamentally at the same place’’); 

David J. Woestehoff, 2021–TLC–00112, 

at *11 (BALCA Apr. 2, 2021) (comparing 

employers’ housing locations and 

worksites to analyze their relationship). 

Regarding the ‘‘centralized control of 

labor relations’’ factor, for example, the 

Department may look to whether the 

persons who have the authority to set 

employment terms and ensure 

compliance with the H–2A program are 

the same. K.S. Datthyn Farms, 2019– 

TLC–00086, at *5 (noting that the same 

manager signed different H–2A 

applications and this was a 

‘‘fundamental labor practice [ ], at the 

core of employer-employee relations for 

any business’’). 

Finally, regarding ‘‘common 

ownership and financial control,’’ the 

Department may look to the corporate 

structure and who owns the entities, 

whether it be, for example, a parent 

company or individuals. See PeppercoUSA, Inc., 2015–TLC–00015, at *30–31 

(two nominally distinct entities were 

owned by one parent company). It may 

also explore whether the owners of the 

entities at issue are related in some way. 

See, e.g., JSF Enters., 2015–TLC–00009, 

at *13 (BALCA Jan. 22, 2015) (entities 

owned in varying degrees by members 

of the same family); Larry Ulmer, 2015– 

TLC–00003, at *3 (BALCA Nov. 4, 2014) 

(two companies with similar names 

were owned by father and son); 

Lancaster Truck Line, 2014–TLC–00004, 

at *2–3 (father and son sought to 

separate a business in an attempt to 

meet seasonal need requirements); see 

also Overlook Harvesting Co., 2021– 

TLC–00205, at *13 (BALCA Sept. 9, 

2021) (the marital relationships between 

two companies’ owners suggested 

shared control). 

These examples of analysis and lines 

of inquiry related to each of the factors 

are not exhaustive. 

b. Temporary or Seasonal Need 

OFLC’s COs will use the single 

employer test to determine if an 

employer’s need is truly temporary or 

seasonal. Section 101(a)(15)(H)(ii)(a) of 

the INA permits only ‘‘agricultural labor 

or services . . . of a temporary or 

seasonal nature’’ to be performed under 

the H–2A visa category. 8 U.S.C. 

1101(a)(15)(H)(ii)(a). Thus, as part of the 

Department’s adjudication of 

applications for temporary agricultural 

labor certification, the Department 

assesses on a case-by-case basis whether 

the employer has established a 

temporary or seasonal need for the 

agricultural work to be performed. See 

20 CFR 655.103(d), 655.161(a). 

As noted above, some nominally 

distinct employers have intertwined 

agricultural operations such that when 

they apply for H–2A workers it appears 

that two or more separate entities are 

each requesting a different temporary 

labor certification. However, in reality, 

the workers on these certifications are 

employed by a single enterprise in the 

same area of intended employment and 

in the same job opportunity for longer 

than the attested period of need on any 

one application. For example, if 

Employer A has a need for two 

Agricultural Equipment Operators from 

February to December, and Employer B 

has a need for two Agricultural 

Equipment Operators from December to 

February at the same worksite, this may 

reflect a single year-round need for 

Agricultural Equipment Operators. See, 

e.g., Katie Heger, 2014–TLC–00001, at 

*6 (BALCA Nov. 12, 2013) 

(‘‘Considering that the [two entities] 

appear to function as a single business 

entity and have identified sequential 

dates of need for the same work, their 

‘temporary’ needs merge into a single 

year-round need for equipment 

operators.’’). In these situations, the two 

nominally separate employers may be 

applying for certification for, and 

advertising for, one continuous, 

sometimes permanent, job opportunity, 

which calls into question whether either 

employer has a temporary or seasonal 

need. 

This situation arises only when 

employers are filing multiple 

applications for the same or similar job 

opportunities in the same area of 

intended employment, such that the 

combined period of need is continuous 

or permanent. Applications for job 

opportunities in different occupations, 

involving different duties and 

requirements, or opportunities in 

different areas of intended employment 

may not demonstrate one singular 

continuous need for workers, regardless 

of whether the two employers would 

satisfy the single employer test. 

Furthermore, if the periods of need of 

two or more entities reflect the same, or 

similar, need for labor, this is also not 

necessarily problematic because the 

need is not continuous. For example, 

Employer A has a need from January to 

April, and Employer B has a need from 

February to April—the two employers 

may be a single employer, but the need 

for workers, assuming the required labor 

levels are far above necessary for 

ongoing operations, may still be 

seasonal. 

Even if employers have genuine 

business needs for dividing their 

business and then separately applying 

for H–2A workers, this approach to 

filing labor certification applications is 

still problematic. It undermines the 

statutorily required labor market test 

and the Department’s ability to protect 

workers in the United States as each 

application, standing alone, does not 

fully convey the potential job 

opportunity to any applicant—for 

example, the job opportunity could be 

for 12 total months rather than 6 months 

with one employer, and 6 months with 

only a nominally separate entity. It is 

possible that a U.S. worker would be 

interested in a job that could last a year, 

or even permanently, rather than only 6 

months. More importantly, it is a 

statutory requirement that the H–2A 

work be of a temporary or seasonal 

nature, and therefore employers 

submitting an application for temporary 

labor certification are required to 

establish that they have a temporary or 

seasonal need for agricultural labor. 8 

U.S.C. 1101(a)(15)(H)(ii)(a), 20 CFR 

655.103(d), 655.161. Permitting 

employers with a permanent need to 

simply divide their business so that 

multiple entities can establish a 

temporary or seasonal need, and thereby 

obtain a labor certification, would 

violate the statute. See, e.g., Intergrow 

East, Inc., 2019–TLC–00073, at *5 

(BALCA Sept. 11, 2019) (‘‘An employer 

may not circumvent the temporary need 

requirement by using a closely related 

business entity to file an overlapping 

application . . . .’’) (citations omitted). 

An employer need not be willful in its 

attempt to circumvent program 

requirements to nevertheless engage in 

a business practice that inhibits the 

Department’s ability to protect workers 

and carry out its statutory mandate. 

To address these situations, for years 

OFLC has used an informal, fact-focused 

method of inquiry, involving a 

comparison of case information (e.g., 

owner and manager names, locations, 

recruitment information, and other 

operational similarities across 

applications). In approximately 2015, 

OFLC began to frame its single employer 

analysis using the NLRB’s single 

employer test (see above under 

Definition) to improve consistency and 

transparency and to address more 

complex business structures (e.g., 

corporate organizations) filing H–2A 

applications through nominally 

different employers. See Pepperco-USA, 

Inc., 2015–TLC–00015, at *4–5. 

Historically, BALCA has affirmed many 

OFLC denials that either explicitly used 

the single employer test or used a 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63770 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

similar analysis. See, e.g., K.S. Datthyn 

Farms, LLC, 2019–TLC–00086, at *4–6 

(affirming the CO and applying the fourpart NLRA and Title VII integrated 

employer test to determine that two H– 

2A applicants for temporary labor 

certification were one integrated 

employer with a single labor need); JSF 

Enters., 2015–TLC–00009, at *12 

(affirming the CO and finding that ‘‘[t]he 

four entities . . . fill the same need on 

a year round basis because of the 

interlocking nature of the businesses 

and regardless of the distinction in 

crops each harvests [sic]’’); Altendorf 

Transp., Inc., 2013–TLC–00026, at *8 

(BALCA Mar. 28, 2013) (affirming the 

CO and noting that Employer’s 

argument ‘‘does not overcome the 

interlocking nature of the business 

organizations . . . . The Employer has 

the burden of persuasion to demonstrate 

it and [the other entity] are truly 

independent entities.’’); D & G Frey 

Crawfish, LLC, 2012–TLC–00099, at *2, 

*4 (BALCA Oct. 19, 2012) (affirming the 

CO and stating that ‘‘[Employer’s] 

ability to separate her operation into 

two entities does not enable her to hire 

temporary H–2A workers to fulfill her 

permanent need . . .’’). 

However, in more recent decisions, 

BALCA has sometimes rejected the 

single employer test, noting that it had 

not been promulgated through notice 

and comment rulemaking. See MidState Farms, LLC, 2021–TLC–00115, at 

*16 (‘‘This court can find no published 

instance where the ‘Single Employer 

Test’ has been debated openly, 

subjected to public comment or 

accepted as official Department 

policy.’’); Crop Transp., LLC, 2018– 

TLC–00027, at *6 n.6 (BALCA Oct. 19, 

2018) (noting that the single employer 

test ‘‘is lamentable’’ because of its 

‘‘awkward fit to immigration practice 

and its ambiguity. . . . It would be 

helpful . . . if meaningful regulatory 

criteria were promulgated through 

notice and comment procedures as to 

when ETA will consider two nominally 

separate entities as a single applicant for 

purposes of temporary labor 

certifications under the Act.’’). 

In response to these concerns some 

ALJs have applied the ‘‘joint employer’’ 

test to analyze temporary need because 

a definition of ‘‘joint employment’’ is 

included in the regulations. See, e.g., 

Mid-State Farms, LLC, 2021–TLC– 

00115, at *26; Overlook Harvesting Co., 

2021–TLC–00205, at *10. Joint 

employment generally is ‘‘where two or 

more employers each have sufficient 

definitional indicia of being a joint 

employer of a worker under the 

common law of agency.’’ 20 CFR 

655.103(b). Joint employment thus takes 

into consideration the relationship 

between the employer and the 

employees, while the single employer 

test focuses on the relationship between 

the nominally distinct employers. See 

Knitter, 758 F.3d at 1227 (‘‘Unlike the 

joint employer test, which focuses on 

the relationship between an employee 

and its two potential employers, the 

single employer test focuses on the 

relationship between the potential 

employers themselves.’’). Finally, joint 

employment assumes that the entities 

are separate while the single employer 

test asks whether ‘‘two nominally 

separate entities should in fact be 

treated as an integrated enterprise.’’ Id. 

at 1226–27 (quoting Bristol v. Bd. of 

Cnty. Comm’rs, 312 F.3d 1213, 1218 

(10th Cir. 2002) (en banc)). 

Determining whether two entities are 

joint employers, contrary to BALCA’s 

assertion in Mid-State Farms, LLC, is 

unhelpful when assessing temporary or 

seasonal need where, for example, an 

employer splits their business between 

two seemingly separate entities to 

circumvent the requirement to establish 

a temporary or seasonal need. See 

Overlook Harvesting Co., 2021–TLC– 

00205, at *10 (noting modified ‘‘joint 

employer’’ test to analyze temporary or 

seasonal need was problematic because 

two related companies could 

‘‘manipulate [their] seasonal need’’ 

under this test by splitting one, 

potentially year-long, season into two 

seasons with one company working one 

season, and the other working the 

other). In those situations, employees 

are generally not employed by both 

nominally distinct employers at the 

same time, though there may be overlap 

between the periods of need, making the 

analysis of joint employment largely 

inapplicable. In assessing temporary or 

seasonal need, the focus of the 

Department’s analysis is not on the 

relationship between the employer and 

the employees, but rather between the 

employers themselves. 

In light of the conflicting BALCA case 

law, and to codify its long-standing 

practice, the Department proposes to 

incorporate the single employer 

definition into the regulations and also 

notes that COs will use the definition to 

analyze the temporary or seasonal need 

of nominally separate entities. 

The Department emphasizes that joint 

employment can still be useful in 

analyzing temporary or seasonal need in 

the H–2A program, and this proposal is 

not meant to eliminate or undermine 

appropriate use of the joint employment 

test. For example, there may be a 

situation where an employer applies for 

workers from January to April and then 

hires an H–2ALC or subcontractor for 

the months of May to December. It is 

possible that this subcontracting (or 

even a parent and subsidiary) 

relationship could be joint employment 

as defined in the regulations. If such an 

employer-applicant hires workers from 

January to April, and then jointly 

employs workers in the same 

occupation in the same area of intended 

employment from May to December, 

this employer-applicant would have a 

year-round need and would therefore be 

unable to establish the required 

temporary need for the H–2A program. 

The use of the single employer test in 

temporary or seasonal need analysis 

will cover situations where employees 

are not jointly employed. 

Should a CO suspect that an 

employer-applicant has a true need that 

stretches longer than their stated need 

because it is a single employer together 

with another entity, the COs may issue 

a Notice of Deficiency (NOD) to clarify 

the status of said entities. To analyze 

whether two entities are a single 

employer, COs may request, via NOD, 

information necessary for this 

determination, including, but not 

limited to: (1) documents describing the 

corporate and/or management structure 

for the entities at issue; (2) the names of 

directors, officers and/or managers and 

their job descriptions; (3) incorporation 

documents; or (4) documents 

identifying whether the same 

individual(s) have ownership interest or 

control. The COs may additionally ask 

for explanation as to: (1) why the 

businesses may authorize the same 

person or persons to act on their behalf 

when signing contracts, or applications, 

etc.; (2) whether the businesses 

intermingle money or share resources; 

(3) whether workspaces are shared; and 

(4) whether the companies produce 

similar products or provide similar 

services. These lists of documentation 

or evidence are not exclusive, and the 

COs may request other information or 

documentation as necessary. 

c. Enforcement 

The proposed definition of single 

employer also would explicitly provide 

that the Department may apply this test 

for purposes of enforcing an H–2A 

employer’s contractual obligations. The 

Department has increasingly 

encountered H–2A employers that 

employ H–2A workers under one 

corporate entity and non-H–2A workers 

under another, such that it appears that 

the H–2A employer has no non-H–2A 

workers in corresponding employment 

when in reality, the companies are so 

intertwined that all the workers are 

employed by a single employer, and the 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63771 

non-H–2A workers are employed in 

corresponding employment. 

As noted above, and consistent with 

BALCA and Federal case law, WHD 

already applies the single employer test 

in certain circumstances to determine 

whether an H–2A employer has 

complied with its program obligations. 

Over the past several years, WHD has 

increasingly encountered employers 

employing temporary nonimmigrant 

workers that utilize multiple, seemingly 

distinct corporate entities under 

common ownership. In the H–2A 

context, these employers have divided 

their H–2A and non-H–2A workforces 

onto separate payrolls, such that it 

appears that the employer has no 

workers in corresponding employment, 

and paying the non-H–2A workers less 

than the H–2A workers. However, the 

H–2A and non-H–2A workers generally 

work alongside one another, performing 

the same work, under the same common 

group of managers, subject to the same 

personnel policies and operations. In 

these circumstances, to determine 

whether the H–2A employer listed on 

the H–2A Application employed the 

non-H–2A workers in corresponding 

employment, the common law test for 

joint employment may not be a useful 

inquiry because the interrelation of 

operations makes it difficult to 

determine the relationship between 

each distinct corporate entity and the 

workers. The single employer test is a 

more useful inquiry because it focuses 

on the relationship between the 

corporate entities to determine whether 

they are so intertwined as to constitute 

a single, integrated employer, such that 

it is appropriate and ‘‘fair’’ to treat them 

as one for enforcement purposes. Absent 

application of the single employer test, 

this burgeoning business practice might 

be used—whether intentionally or not— 

to deprive domestic workers of the 

protections of the H–2A program by 

superficially circumventing an 

employment relationship with the H–2A 

employer as described herein, contrary 

to the statute’s requirements. 8 U.S.C. 

1188(a)(1). 

While WHD already utilizes the single 

employer test, the Department believes 

that explicitly noting in the regulations 

the potential applicability of this test for 

purposes of enforcement, and the factors 

the Department will consider in 

applying this test, will provide clarity 

for internal and external stakeholders 

and also could deter employers from 

intentionally seeking to circumvent the 

H–2A program’s requirements in this 

manner. Just as the single employer test 

is not meant to displace the joint 

employer test when analyzing 

temporary or seasonal need, the 

Department does not propose to replace 

or supersede the definition of ‘‘joint 

employment’’ under the existing 

regulations for purposes of enforcement. 

Rather, depending upon the facts and 

circumstances of a given case, the 

Department may apply the single 

employer test, the joint employment 

test, or both in the alternative, to 

determine an H–2A employer’s 

compliance with program requirements. 

d. Conclusion 

In conclusion, the Department 

proposes a new paragraph (e) to 

§ 655.103 that grants the Department 

explicit authority to use the definition 

of ‘‘single employer’’ to determine if 

nominally separate employers should be 

considered one single employer for the 

purpose of determining the applicant’s 

temporary or seasonal need, or for 

purposes of enforcement. The 

Department believes that incorporating 

this single employer test into the 

regulations would allow for more 

consistent application of the temporary 

or seasonal need requirement and 

improve compliance with program 

obligations. 

The Department recognizes that the 

adoption of the single employer 

definition as it relates to temporary need 

assessments may impact some 

businesses more than others. Regardless 

of the impact on certain employers, the 

Department believes proposing this 

regulatory text is necessary to ensure 

compliance with statutory and 

regulatory requirements and clarify the 

appropriate standard to assess the 

nature of the relationship between two 

or more entities. The Department 

welcomes comments on these proposed 

revisions, especially comments relating 

to the impact this may have on specific 

industries or types of employers. 

2. Section 655.104, Successors in 

Interest 

The Department proposes several 

revisions to its current regulations to 

clarify the liability of successors in 

interest and revise the procedures for 

applying debarment to successors in 

interest to a debarred employer, agent, 

or attorney. Since 2008, the 

Department’s H–2A regulations have 

made explicit that successors in interest 

to employers, agents, and attorneys may 

be held liable for the responsibilities 

and obligations of their predecessors, 

including debarment. As the 

Department explained in the preamble 

to the H–2A final rule issued in 2008, 

holding successors liable, particularly in 

the context of debarment, is necessary 

‘‘to ensure that violators are not able to 

reincorporate to circumvent the effect of 

the debarment provisions,’’ and ‘‘to 

prevent persons or firms who were 

complicit in the cause of debarment 

from reconstituting themselves as a new 

entity to take over the debarred 

employer’s business.’’ 73 FR 77110, 

77116, 77188 (Dec. 18, 2008) (2008 H– 

2A Final Rule). Despite these intentions, 

the Department’s current regulations 

governing debarment, as interpreted by 

the ARB and the BALCA, are 

insufficient to effectively prevent 

program violators from 

‘‘circumvent[ing] the effect of the 

debarment’’ as the Department 

originally intended. Id. at 77110. 

Specifically, under the Department’s 

current regulations and controlling 

administrative precedent, before OFLC 

may deny an H–2A Application filed by 

or on behalf of a successor in interest to 

a debarred employer, agent, or attorney, 

the Department must first debar the 

successor in interest pursuant to the full 

procedures for debarring the original 

violating employer, agent, or attorney. 

See Admin. v. Fernandez Farms, ARB 

No. 2016–0097, 2019 WL 5089592, at 

*2–4 (ARB Sept. 16, 2019) (holding that 

29 CFR 501.31 requires WHD to issue a 

new notice of debarment to a successor 

before subjecting the successor to the 

original employer’s WHD order of 

debarment); Gons Go, Inc., BALCA Nos. 

2013–TLC–00051, –00055, –00063 

(BALCA Sept. 25, 2013) (holding 20 

CFR 655.182 requires OFLC to first 

debar a successor of a debarred 

employer, by completing the full 

debarment procedures in § 655.182, 

before it may deny the successor’s 

application for labor certification). 

These requirements are unnecessary 

under the principles of the 

successorship doctrine, and unduly 

burden the Department’s ability to apply 

debarment to successors in interest, thus 

allowing those known to have 

committed substantial H–2A violations 

to continue to participate in the H–2A 

program. 

Under the successorship doctrine, a 

putative successor in interest to a 

debarred employer, agent, or attorney is 

entitled to notice and an opportunity for 

hearing prior to denial of a future 

application only on the question of its 

status as a successor in interest. See 

Golden State Bottling Co., Inc. v. NLRB, 

414 U.S. 168, 180 (1973) (discussing due 

process rights of successors). The 

Department need not obtain a new order 

of debarment against the successor 

directly; that is the ‘‘whole point’’ of the 

successorship doctrine, that the 

liabilities of the predecessor attach to 

the successor. Criswell v. Delta Air 

Lines, 868 F.2d 1093, 1095 (9th Cir. 

1989). 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63772 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

Accordingly, the Department 

proposes several revisions to its 

regulations to streamline the procedures 

by which it may apply a debarment of 

an employer, agent, or attorney to a 

successor in interest while affording 

putative successors due process. First, 

the Department proposes a new 

§ 655.104, Successors in interest. 

Proposed paragraphs (a) and (b) are 

similar to the longstanding definition of 

‘‘successors in interest,’’ currently in 

§ 655.103(b), Definitions. However, 

proposed paragraph (a) omits language 

in the current regulation stating that 

liability of successors in interest arises 

where an employer, agent, or attorney 

‘‘has ceased doing business or cannot be 

located for purposes of enforcement.’’ 

Instead, the Department proposes 

adding to proposed paragraph (b) a 

similar—but broader—definition of 

successors in interest. The new language 

in proposed paragraph (b) would specify 

that ‘‘[a] successor in interest includes 

an entity that is controlling and carrying 

on the business of a previous employer, 

agent, or farm labor contractor, 

regardless of whether such successor in 

interest has succeeded to all the rights 

and liabilities of the predecessor 

entity.’’ This proposed revision 

recognizes that successorship law does 

not typically limit successor liability to 

scenarios where an entity has ceased 

doing business or cannot be located. 

The Department believes these revisions 

will more accurately capture 

successorship scenarios that may arise 

in the H–2A context. In the same vein, 

in proposed § 655.104(b) the 

Department proposes minor revisions to 

the current definition in § 655.103(b), 

regarding the nonexhaustive factors that 

the Department would use in 

determining successor status. The 

proposed revisions to the factors would 

provide that the personal involvement 

of the successor firm’s supervisors and 

management in the violations 

underlying the debarment is one of 

several factors, rather than the 

‘‘primary’’ factor, to be considered in 

cases of debarment. In its experience, 

the Department has found the current 

regulation’s reliance on this factor as the 

‘‘primary’’ factor to be unduly limiting, 

and in tension with the general 

principle in paragraph (i) of the 

definition of successor in interest that 

no one factor should be dispositive in 

determining successor status. 20 CFR 

655.103(b) (paragraph (i) of the 

definition of ‘‘successor in interest’’). 

The Department also proposes a 

corresponding revision to delete the 

definition of ‘‘successor in interest’’ 

from the Definitions at § 655.103(b). 

Proposed § 655.104(c) explains that 

when an employer, agent, or attorney is 

debarred, any successor in interest to 

the debarred employer, agent, or 

attorney is also debarred. Accordingly, 

applications filed by or on behalf of a 

putative successor in interest to a 

debarred employer, agent, or attorney 

would be treated like applications filed 

by the debarred employer, attorney, or 

agent. Specifically, under this proposal, 

if the CO determines that such an 

application was filed during the 

debarment period, the CO would issue 

a NOD under § 655.142 or deny the 

application under § 655.164, depending 

upon the procedural status of the 

application. The NOD or denial would 

be based solely on the basis of the 

applying entity’s successor status and 

would not address (nor would it waive) 

any other potential deficiencies in the 

application. If the CO determines that 

the entity is not a successor, the CO 

would resume with processing of the 

application under § 655.140. However, 

if the CO determines that the entity is 

a successor, the CO would deny the 

application without further review 

pursuant to § 655.164. As with any other 

certification denial, the putative 

successor could appeal the CO’s 

determination under the appeal 

procedures at § 655.171; specifically 

here, the question of whether the entity 

is, in fact, a successor in interest to a 

debarred employer, agent, or attorney. 

However, such appeal would be limited 

to the entity’s status as a successor given 

the narrow scope of the CO’s 

determination under these provisions. 

Accordingly, should a reviewing ALJ 

conclude that the entity is not a 

successor, the application would require 

further consideration and thus the ALJ 

would remand the application to OFLC 

for further processing. 

The Department proposes 

corresponding revisions to § 655.182, 

governing debarment, to state clearly 

that debarment of an employer, agent, or 

attorney applies to any successor in 

interest to that debarred employer, 

agent, or attorney. These proposed 

revisions would remove references to 

successors in interest from current 

paragraphs (a) and (b), would 

redesignate current paragraph (b) to 

paragraph (b)(1), and would include a 

new paragraph (b)(2) that reiterates the 

procedures for determining successor 

status as outlined in proposed 

§ 655.104(c). 

Similarly, proposed § 655.104(c) also 

would explain that the OFLC 

Administrator may revoke a certification 

that was issued, in error, to a successor 

in interest to a debarred employer, 

pursuant to § 655.181(a). The entity may 

appeal its successor status pursuant to 

§ 655.171. The Department notes that it 

may revoke a certification issued, in 

error, to a debarred employer or to a 

successor of a debarred employer under 

its current revocation authorities, but 

the Department proposes revisions to 

the bases for revocation at 

§ 655.181(a)(1), to clarify that fraud or 

misrepresentation in the application 

includes an application filed by a 

debarred employer (and, by extension, 

an application filed by a successor to a 

debarred employer). These proposed 

changes would simply clarify this 

existing authority. However, given the 

impact of revocation on both employers 

and workers, proposed §§ 655.104(c) 

and 655.181(a)(1) would not explicitly 

contemplate revocation of a certification 

issued, in error, based on an application 

filed by a debarred agent or attorney, or 

by successors to a debarred agent or 

attorney, as distinct from a debarred 

employer or successor in interest to a 

debarred employer. The Department 

invites comment on whether revocation 

may be warranted in such 

circumstances. 

Finally, the Department proposes 

corresponding revisions to the 

procedures governing WHD debarments 

under 29 CFR 501.20, including a new 

proposed paragraph (j) that explicitly 

addresses successors in interest. Under 

the successorship doctrine, as discussed 

above, and under this proposed rule, 

WHD would not be required to issue a 

notice of debarment to a successor in 

interest to a debarred employer, agent, 

or attorney; rather, debarment of the 

predecessor would apply equally to any 

successor in interest. However, as 

provided in proposed paragraph (j), as a 

matter of expediency WHD could, but 

would not be required to, name any 

known successors to an employer, 

agent, or attorney in a notice of 

debarment issued under § 501.20(a). 

The Department has determined that 

these proposed revisions would better 

effectuate the intent of the Department’s 

current successor in interest regulations, 

which are critically important to 

ensuring that program violators cannot 

circumvent a debarment. The proposed 

procedures would allow OFLC to apply 

a final order of debarment of an 

employer, agent, or attorney to any 

successor in interest to the debarred 

entity. The proposed procedures also 

would provide for sufficient due process 

to putative successors, as the proposed 

procedures would require OFLC to 

provide notice to the successor of the 

basis for the deficiency under § 655.141 

or denial under § 655.164 (i.e., its status 

as a successor), and an opportunity for 

hearing on its successor status under 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63773 

12Under 44 U.S.C. 1507, publication in the 

Federal Register provides legal notice of the new 

wage rates. 

13See, e.g., 1987 H–2A interim final rule (IFR), 52 

FR 20496, 20521; Labor Certification Process for the 

Temporary Employment of Aliens in Agriculture in 

the United States; H–2A Program Handbook, 53 FR 

22076, 22095 (June 13, 1988) (‘‘Certified H–2A 

employers must agree, as a condition for receiving 

certification, to pay a higher AEWR than the one 

in effect at the time an application is submitted in 

the event publication of the [higher] AEWR 

coincides with the period of employment.’’). 

14See, e.g., 88 FR 12760, 12766 (the Department’s 

program estimates indicate that 98 percent of H–2A 

job opportunities are classified within the six SOC 

titles and codes of the field and livestock workers 

(combined) occupational grouping). 

15USDA’s National Agricultural Statistics Service 

publishes the Farm Labor report on its website at 

https://www.nass.usda.gov/Surveys/Guide_to_

NASS_Surveys/Farm_Labor/. OEWS wages for each 

SOC code and geographic area are available using 

the Department’s search tool or searchable 

spreadsheet that may be accessed at https://

flag.dol.gov. BLS publishes OEWS data on its 

website at https://www.bls.gov/oes/dataoverview.htm. An overview of the OEWS survey 

methodology may be accessed at https://

www.bls.gov/oes/current/oes_tec.htm. An 

explanation of the survey standards and estimation 

procedures can be found at https://www.bls.gov/ 

opub/hom/oews/pdf/oews.pdf. 

§ 655.171. The Department welcomes 

comments on these proposed revisions. 

3. Section 655.190, Severability 

The Department proposes to add a 

severability clause to 20 CFR part 655, 

subpart B. This clause would explain 

that if any provision is held to be 

invalid or unenforceable by its terms, or 

as applied to any person or 

circumstance, or stayed pending further 

agency action, the provision shall be 

construed so as to continue to give the 

maximum effect to the provision 

permitted by law, unless such holding 

is one of total invalidity or 

unenforceability, in which event the 

provision or sub-provision shall be 

severable from the corresponding 

subpart or part and shall not affect the 

remainder thereof. The Department 

proposes to add this severability clause 

because generally, each provision 

within the H–2A regulations is capable 

of operating independently from one 

another, including where the 

Department has proposed multiple 

methods to strengthen worker 

protections and to enhance the 

Department’s capabilities to conduct 

enforcement and monitor compliance. 

Further, the severability clause 

demonstrates the Department’s intent 

that the remaining provisions of the 

regulations should continue in effect if 

any provision or provisions are held to 

be invalid or unenforceable. It is the 

Department’s intent that the remaining 

provisions of the regulations should 

continue in effect if any provision or 

provisions are held to be invalid or 

unenforceable. It is of great importance 

to the Department and the regulated 

community that even if a portion of the 

H–2A regulations were held to be 

invalid or unenforceable that the larger 

program could operate consistent with 

the expectations of employers and 

workers. 

The Department seeks comments both 

on the substance and scope of this 

proposed severability clause and 

requests the public’s views on any other 

issues related to severability, such as 

whether the rule in general includes 

provisions amenable to severability; 

whether specific parts of the rule could 

operate independently; whether the 

benefits of the rule would continue to 

justify the costs should particular 

provisions be severed; or whether 

individual provisions are essential to 

the entire rule’s workability. 

B. Prefiling Procedures 

1. Section 655.120(b), Offered Wage 

Rate 

Currently, § 655.120(b)(2) provides 

that the Department will update each 

AEWR at least annually by publication 

in the Federal Register.

12 In addition, 

paragraph (b)(3) requires employers to 

adjust workers’ pay, if necessary, so that 

the employer pays workers at least the 

updated AEWR upon the effective date 

of the updated AEWRs in the Federal 

Register. However, the present 

regulatory text does not address when 

the AEWR published in a Federal 

Register notice becomes effective. The 

Department therefore proposes to revise 

paragraph (b)(2) and (3) to designate the 

effective date of updated AEWRs as the 

date of publication in the Federal 

Register. 

The duty to pay an updated AEWR 

where it is higher than the other wage 

sources is not a new requirement, nor is 

the requirement to pay an increased 

AEWR immediately upon publication in 

the Federal Register. Between 1987 and 

January 2018, the Department required 

employers participating in the H–2A 

program to offer and pay the highest of 

the AEWR, the prevailing wage, any 

agreed-upon collective bargaining wage, 

or the Federal or State minimum wage 

at the time the work is performed 

effective upon the date of publication in 

the Federal Register.13 Under more 

recent practice, however, when 

publishing the Federal Register notice 

containing updated AEWRs, the 

Department has stated the effective date 

of the new AEWRs in the notice and 

generally set the effective date of the 

new AEWRs at no later than 14 calendar 

days from the publication of that notice. 

In this rule, the Department proposes 

to revise paragraph (b)(2) to designate 

the effective date of updated AEWRs as 

the date of publication in the Federal 

Register. For further clarity, the 

Department also proposes to revise 

paragraph (b)(3) to state that the 

employer is obligated to pay the 

updated AEWR immediately upon the 

date of publication of the new AEWR in 

the Federal Register. As noted above, 

the proposal to remove an effective date 

which differs from the publication date 

of the AEWRs represents a return to 

longstanding prior practice. This change 

will also ensure that agricultural 

workers are paid at least the most 

current AEWR when work is performed, 

which better aligns with the 

Department’s mandate to prevent 

adverse effect on the wages of workers 

in the U.S. similarly employed. To 

eliminate any potential confusion 

among either employers or workers as to 

when the new AEWR will need to be 

paid, the NPRM also proposes to update 

the regulatory text, which is currently 

silent on this issue, to clearly state when 

the obligation to pay the new AEWRs 

begins. 

While the Department recognizes that 

this proposal is a departure from more 

recent practice that allowed a wage 

adjustment period, the vast majority of 

employers will still have the 

opportunity to view and assess the 

impact of the new AEWR rates prior to 

their publication by the OFLC 

Administrator in the Federal Register 

on or around January 1.14 Prior to that 

publication, USDA publishes its FLS in 

late November 15 showing the wage data 

findings that become the new AEWRs 

for the field and livestock workers 

(combined) occupational grouping. 

Similarly, BLS publishes its OEWS data 

in March, which contains the wage data 

that become the new AEWRs on or 

around July 1 for the small percentage 

of job opportunities that cannot be 

encompassed within the six Standard 

Occupational Classification (SOC) codes 

and titles in the FLS field and livestock 

workers (combined) reporting category. 

The Department will post a notice on 

the OFLC website when USDA 

publishes the FLS and when BLS 

publishes the OEWS data that will 

direct employers to the publicly 

available information. The Department 

recognizes that the employers of the 

small number of field and livestock 

workers (combined) job opportunities in 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63774 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

States or regions, or equivalent districts 

or territories, for which the FLS does 

not report a wage (e.g., Alaska and 

Puerto Rico) will not have similar direct 

access to information enabling them to 

predict the applicable AEWR for 

planning purposes. However, as the 

Department noted in the 2010 H–2A 

Final Rule, ‘‘[as] . . . these wage 

adjustments may alter employer budgets 

for the season,’’ employers are 

encouraged ‘‘to include into their 

contingency planning certain flexibility 

to account for any possible wage 

adjustments.’’ 75 FR 6884, 6901 (Feb. 

12, 2010). The Department believes 

these proposed revisions will clarify 

employer wage obligations and ensure 

that agricultural workers are paid at 

least the AEWR in effect at the time the 

work is performed, without new or 

additional impact to most employers’ 

ability to budget and plan. The 

Department seeks comments on all 

aspects of this proposal. 

2. Sections 655.120(a) and 655.122(l), 

Requirement To Offer, Advertise, and 

Pay the Highest Applicable Wage Rate 

The Department proposes revisions to 

§§ 655.120(a) and 655.122(l) to clarify 

that where there is an applicable 

prevailing piece rate, or where an 

employer intends to pay a piece rate or 

other non-hourly wage rate, the 

employer must include the non-hourly 

wage rate on the job order along with 

the highest hourly rate. All potential 

wage rates must be listed on the job 

order notwithstanding the fact that it 

may not be possible to determine in 

advance which of these rates is the 

highest. Once work has been performed, 

the employer must then calculate and 

pay workers’ wages using the wage rate 

that will result in the highest wages for 

each worker in each pay period. 

The Department’s current regulations 

at 20 CFR 655.120(a) and 655.122(l) 

require an employer to ‘‘offer, advertise 

in its recruitment, and pay’’ the highest 

of the AEWR, prevailing wage rate, 

collective bargaining agreement (CBA) 

rate, or Federal or State minimum wage. 

While seemingly straightforward, this 

requirement has been difficult to apply 

in practice. For instance, where there is 

an applicable prevailing piece rate, it is 

usually not possible to determine until 

the time work is performed whether the 

prevailing piece rate will be higher than 

the highest of the applicable hourly 

wage rates as this will depend on 

worker productivity. 

In such instances, OFLC currently 

only requires H–2A employers to list a 

wage offer that is at least equal to the 

highest applicable hourly wage— 

usually the AEWR—on job orders, 

consistent with BALCA decisions dating 

from 2009 to 2011, which concluded 

that, under the regulations, OFLC 

cannot require employers to include an 

applicable prevailing piece rate on the 

job order where OFLC does not know at 

the certification stage whether the 

prevailing piece rate will be higher than 

the highest hourly wage. See, e.g., 

Golden Harvest Farm, 2011–TLC– 

00442, at *3 (BALCA Aug. 17, 2011); 

Dellamano & Assocs., 2010–TLC–00028, 

at *5–7 (BALCA May 21, 2010); Twin 

Star Farm, 2009–TLC–00051, at *4–5 

(BALCA May 28, 2009). While this has 

been the Department’s longstanding 

practice, the Department is concerned 

with the uncertainty this practice can 

generate as to which rate or rates an 

employer must include as the required 

wage in a job order and pay to H–2A 

workers and workers in corresponding 

employment. Moreover, because the 

prevailing piece rate is not included on 

the job order, in most such instances, 

WHD is not able to enforce the 

prevailing piece rate. 

In other instances, such as when there 

is not a prevailing wage, employers may 

voluntarily elect to pay a piece rate or 

other non-hourly wage rate but fail to 

include such rates on the job order, 

potentially mispresenting the offered 

wage rate and failing to meet their 

recruitment obligations. 

The Department proposes several 

changes to the existing regulations to 

address these issues. First, the 

Department proposes to retain the 

current list of wage rates in § 655.120(a), 

redesignated as § 655.120(a)(1)(i) 

through (v), and to add to this list, at 

paragraph (a)(1)(vi), ‘‘[a]ny other wage 

rate the employer intends to pay.’’ This 

proposed addition will clarify an 

employer’s obligation to include on the 

job order any wage rate it intends to pay 

that could end up being the highest 

applicable wage rate for some workers, 

in some pay periods. The Department 

also proposes to add at § 655.120(a)(2) 

an explicit requirement that, where the 

wage rates in paragraph (a)(1) are 

expressed in different units of pay, the 

employer must list the highest 

applicable wage rate for each unit of pay 

in its job order and must advertise all of 

these wage rates in its recruitment. 

Under this proposal, where one of the 

wage rates in paragraph (a)(1) is 

expressed as a piece rate and the others 

are expressed as hourly wage rates, the 

employer must list both the piece rate 

and the highest hourly wage rate on the 

job order. Where more than one of the 

wage rates in paragraph (a)(1) are 

expressed as non-hourly wage rates the 

employer would be required to list the 

highest applicable wage rate for each 

potential unit of pay on the job order. 

Next, the Department proposes 

corresponding changes at § 655.122(l), 

including replacing the list of wage rates 

with a cross-reference to § 655.120(a)(1), 

removing the current language in 

§ 655.122(l)(1) which would be made 

redundant by the changes to 

§ 655.120(a), and making other technical 

edits. In addition, the Department 

proposes to remove the current language 

at § 655.122(l)(2)(i) and (ii), which 

requires an employer to supplement 

workers’ pay where a worker is paid by 

the piece and does not earn enough to 

meet the required hourly wage rate for 

each hour worked, but does not include 

an analogous requirement that an 

employer supplement workers’ pay 

when a worker who is paid by the hour 

does not earn enough to meet the 

applicable prevailing piece rate. The 

Department proposes to replace this 

language with a new provision at 

paragraph (l)(1) explaining that the 

employer must always calculate and pay 

workers’ wages using the wage rate that 

will result in the highest wages for each 

worker, in each pay period. Because 

employers would be required to pay 

whichever wage rate will result in the 

highest wages in a particular pay period, 

supplementing workers’ pay to ensure 

that the required hourly wage is met 

will no longer be necessary. Proposed 

new paragraph (l)(2) explains that, 

where the wage rates set forth in 

§ 655.120(a)(1) include both hourly and 

non-hourly wage rates, the employer 

must calculate each worker’s wages in 

each pay period using the highest wage 

rate for each unit of pay and must pay 

the worker the highest of these wages 

for that pay period. Under this proposal, 

the employer is responsible for 

evaluating the different wage rates 

applicable in each pay period of the 

growing season, including any midseason increases in wage rate(s) that 

might not be reflected in the job order. 

Proposed paragraphs (l)(1) and (2) also 

make clear that the wages actually paid 

cannot be lower than the wages that 

would result from the wage rate(s) 

guaranteed in the job order, so that, if 

there is a mid-season decrease in wage 

rate(s), the workers are still entitled to 

the higher wage rate(s) listed on the job 

order. 

Under this proposal, where an 

employer includes multiple activities or 

tasks, each of which have different 

applicable wage rates, in a single job 

order, the employer must engage in the 

analysis set forth above with respect to 

each activity or task. For example, if a 

job order includes harvesting several 

varieties of apples, each with a different 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63775 

16See Nat’l Highway Traffic Safety Admin., Dep’t 

of Transp., DOT HS–812–069, Lives Saved By 

Vehicle Safety Technologies and Associated Federal 

Motor Vehicle Safety Standards, 1960 to 2012— 

Passenger Cars and LTVs—With Reviews of 26 

FMVSS and the Effectiveness of Their Associated 

Safety Technologies in Reducing Fatalities, Injuries, 

and Crashes 89 (2015) (2015 NHTSA Report), 

https://crashstats.nhtsa.dot.gov/Api/Public/ 

ViewPublication/812069. 

17 Id. at 107–11. See also Seat Belts, Nat’l 

Highway Traffic Safety Admin., https://

www.nhtsa.gov/risky-driving/seat-belts#resources 

(‘‘Seat Belts’’). 

18 2015 NHTSA Report at 107–11. 

prevailing wage rate, the employer must 

list on the job order, for each variety, 

both the highest applicable hourly wage 

rate and the highest applicable wage 

rate for any other unit of pay, including 

any piece rates. The employer would 

then be responsible for evaluating, with 

respect to each activity or task 

performed in the pay period, which of 

the applicable wage rates would result 

in the highest wage for the worker for 

the work performed and to pay the 

worker the highest wage with respect to 

each activity or task performed. 

The Department believes that these 

proposed changes would help ensure 

that employers’ recruitment efforts 

reflect the correct applicable wage rates 

so as to more accurately determine 

whether there are U.S. workers who 

would be available and willing to accept 

the employment. They also would help 

ensure that H–2A workers and workers 

in corresponding employment are paid 

the wages to which they are entitled 

(i.e., the highest of the AEWR, 

prevailing hourly wage or piece rate, 

CBA rate, Federal minimum wage, State 

minimum wage, or any other wage rate 

the employer intends to pay). Because 

H–2A employers are already required to 

accurately track and record both hours 

worked and field tallies pursuant to 

§ 655.122(j), the Department believes 

that employers should already have 

processes in place to accurately record 

information needed for compliance with 

the proposed changes to §§ 655.120(a) 

and 655.122(l), minimizing any 

additional administrative burden these 

proposed changes would place on 

employers. 

The Department welcomes comments 

on this proposal. In particular, the 

Department is interested in examples of 

how this proposal would work in 

practice, whether there are 

circumstances, such as when an 

employer includes multiple activities or 

tasks in a single job order, where further 

clarification is needed on which wage 

rates must be listed in the job order and 

how to calculate the worker’s wages, 

and whether corresponding changes to 

the recordkeeping requirements at 

§ 655.122(j) and (k) or to the 

requirements for SWAs’ review of job 

orders at part 653, subpart F, are 

needed. In addition, the Department 

seeks comments on whether the 

requirement to list the highest 

applicable wage rate for each unit of pay 

on job orders placed in connection with 

an H–2A application renders 

unnecessary the requirement at 20 CFR 

653.501(c)(2)(i) that an employer that 

pays by the piece or other non-hourly 

unit calculate and submit an estimated 

hourly wage rate with the job order. 

Under the proposed rule, the job order 

in such cases should guarantee payment 

of the highest of the applicable hourly 

or non-hourly wage rates. The 

Department welcomes comment on 

whether the calculation of an estimated 

hourly wage would still be necessary to 

prevent adverse effect on similarly 

employed workers in the United States 

and/or on agricultural workers 

generally. 

The Department is considering 

making similar revisions to the 

regulations at §§ 655.210(g) and 

655.211, governing the rates of pay and 

contents of job orders for herding and 

range livestock production occupations, 

to require an employer to disclose all 

potentially applicable rates of pay in the 

job order. Under such a proposal, for 

example, an employer would be 

required to disclose on the job order 

both the monthly AEWR and a State 

minimum hourly wage rate applicable 

to the job opportunity that could 

potentially result in higher earnings 

based on hours worked. As explained 

above, the Department believes that 

such disclosure would likely benefit 

potential applicants to better 

understand the potential earnings for a 

job opportunity, and would assist the 

Department with more efficient program 

administration and enforcement. The 

Department welcomes comment on 

whether it should include these similar 

revisions in any final rule. 

The Department is also considering 

making similar revisions to the 

regulations at 20 CFR 653.501(c), 

governing the requirements for SWAs’ 

review of clearance orders, to require an 

employer to disclose all potentially 

applicable rates of pay in a non-H–2A 

(or non-criteria) clearance order. Under 

such a proposal, an employer would be 

required to disclose on the clearance 

order the highest applicable hourly 

wage rate, if any (i.e., the highest of any 

applicable prevailing hourly wage rate, 

the Federal or State minimum wage, or 

an hourly wage rate the employer 

intends to pay), as well as any piece rate 

or other non-hourly wage rate 

applicable to the job opportunity that 

could potentially result in higher 

earnings, and to pay workers the highest 

of these rates. The Department believes 

that such disclosure would likely 

benefit potential applicants to better 

understand the potential earnings for a 

job opportunity, and that it would 

minimize confusion to require similar 

information for both criteria and noncriteria clearance orders. The 

Department welcomes comment on 

whether it should include these similar 

revisions in any final rule. 

3. Section 655.122, Contents of Job 

Offers 

a. Paragraph (h)(4) Employer Provided 

Transportation 

The Department proposes to revise 

§ 655.122(h)(4) to require the provision, 

maintenance, and wearing of seat belts 

in most employer-provided 

transportation. The Department believes 

that existing vehicle safety standards 

provide important safeguards for 

workers, but that they are insufficient to 

adequately address transportation safety 

challenges. The inclusion of regulations 

related to seat belts would reduce the 

hazards associated with agricultural 

work, thus making these H–2A jobs 

more attractive to workers in the United 

States. 

Studies have shown that seat belt use 

dramatically decreases occupant 

fatalities and injuries in the event of a 

vehicle crash. Seat belts reduce fatalities 

and serious injuries by keeping 

occupants inside the vehicle and close 

to their original seating position, 

gradually decelerating the occupant as 

the vehicle deforms, and prevents 

occupants from hitting the vehicle 

interior or other passengers.16 DOT’s 

National Highway Traffic Safety 

Administration (NHTSA), which 

regulates vehicle manufacturing 

standards and studies the efficacy of 

safety enhancements, began to require 

seat belts in at least some vehicles 

beginning in 1968, and identifies seat 

belt technology and usage as one of the 

most significant safety enhancements of 

the past 60 years. NHTSA estimates that 

using a seat belt in the front seat of a 

passenger car can reduce fatal injury by 

45 percent and reduce moderate to 

critical injury by 50 percent.17 The 

safety effect increases in a light truck, 

where seat belts reduce fatal injury by 

60 percent and reduce moderate to 

critical injury by 65 percent.18 Between 

1960 and 2012, NHTSA estimates that 

seat belts have saved 329,715 lives, 

which constitutes more than half of the 

estimated lives saved by safety 

improvements in this time period 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63776 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

19 Id. at xxxi–xxxii. 

20See Nat’l Highway Traffic Safety 

Administration, U.S. Dep’t of Transp., DOT HS 

813–072, Traffic Safety Facts Research Note: Seat 

Belt Use in 2020—Overall Results (2021) (2021 

NHTSA Report), https://crashstats.nhtsa.dot.gov/ 

Api/Public/ViewPublication/813072. 

21Nat’l Highway Traffic Safety Administration, 

U.S. Dep’t of Transp., DOT HS 813–266, Overview 

of Motor Vehicle Crashes in 2020 11, 13 (2022), 

https://crashstats.nhtsa.dot.gov/Api/Public/ 

ViewPublication/813266. NHTSA appears to 

estimate overall fatality rates of unrestrained 

passengers compared only to other fatalities where 

seat belt use was known and estimates that 51% of 

vehicle occupants who are killed were not wearing 

seat belts. See id. at 13. On the other hand, the 

Governors Highway Safety Association (GHSA) 

cites the same data, but computes instead that 46% 

of occupants killed were unrestrained, which likely 

reflects that GHSA compared unrestrained fatalities 

with total fatalities, including where seat belt use 

was unknown. See Seat Belts, Governors’ Highway 

Safety Ass’n, https://www.ghsa.org/issues/seatbelts. 

22See 2015 NHTSA Report at 103–105. 

23See Nell Henderson, N.Y. Is First State to Get 

Seat Belt Law, Wash. Post (July 13, 1984), https:// 

www.washingtonpost.com/archive/business/1984/ 

07/13/ny-is-first-state-to-get-seat-belt-law/b86fd522- 

bb32-4286-980a-caefdb3edfa5. This law, however, 

only required the use of seat belts in the front seat. 

24See 2015 NHTSA Report at 105. 

25See Seat Belts. 

26See 2015 NHTSA Report at 105; 2021 NHTSA 

Report at 1. 

27Laure F. Beck, et al., Ctrs. for Disease Control 

& Prevention, Rural and Urban Differences in 

Passenger-Vehicle-Occupant Deaths and Seat Belt 

Use Among Adults, CDC Morbidity and Mortality 

Weekly Report, Sept. 22, 2017, at 4, 6 https://

www.cdc.gov/mmwr/volumes/66/ss/ss6617a1.htm. 

28See Table A–1, Fatal Occupational Injuries by 

Industry and Event or Exposure, All United States, 

2021, Bureau of Lab. Stats. (Dec. 16, 2022), https:// 

www.bls.gov/iif/fatal-injuries-tables/fataloccupational-injuries-table-a-1-2021.html. 

However, this category includes tractor rollovers, 

which may not qualify as employer-provided 

transportation as it is being discussed in this 

section. 

29Out of 334,606 injury events recorded, 42.527 

of those injury events (12.7 percent) were related to 

transportation. See Table AI–11, National Estimates 

of Agricultural Work-Related Injuries to Adults (20 

Years and Older) on US Farms By Injury Event, 

Nat’l Inst. for Occupational Safety & Health, Ctrs. 

for Disease Control & Prevention (Apr. 10, 2018), 

https://www.cdc.gov/niosh/topics/aginjury/oispa/ 

pdfs/AI-15-508.pdf. 

30See 29 CFR 500.104 and 500.105. See also 48 

FR 15800 (Apr. 12, 1983); 48 FR 36736 (Aug. 12, 

1983). 

31See, e.g., Ga. Code Ann. 40–8–76.1 (only 

requiring the use of seat belts in the front seat). 

32See, e.g., N.C. Gen. Stat. 20–135.2A (exempting 

any vehicle registered and licensed as a propertycarrying vehicle in accordance with North Carolina 

General Statutes section 20–88, while being used 

for agricultural purposes in intrastate commerce, 

from seat belt requirements). 

33See Cal. Veh. Code sec. 31405 (applying only 

to farm labor vehicles); Fla. Stat. sec. 316.622 

(613,501).19 In 2020, estimated average 

passenger vehicle seat belt use in the 

United States was 90.3 percent,20 but 

between 46 and 51 percent of those 

killed in passenger vehicle crashes were 

not wearing seat belts.21

Individual State laws have 

significantly contributed to increased 

seat belt usage in the United States.22

New York passed the first law requiring 

the use of seat belts in 1984.23 Between 

1984 and 1987, State legislatures passed 

seat belt laws in 29 States.24 Today, all 

States except New Hampshire require 

seat belt usage in the front seats, and 40 

of these States, as well as the District of 

Columbia and two territories, also 

require seat belt usage in the rear seat.25

These laws, in conjunction with 

sustained national campaigns to 

encourage seat belt use (e.g., ‘‘Click It or 

Ticket’’), have increased seat belt usage 

dramatically; estimated seat belt use in 

1990 was 49 percent, but, as mentioned, 

the estimated seat belt use in 2020 was 

90.3 percent.26

However, seat belt use in rural areas 

lags behind other parts of the United 

States, and rural vehicle crashes are 

disproportionately deadly. An analysis 

completed by the Centers for Disease 

Control and Prevention (CDC) revealed 

that in 2014, age-adjusted passenger 

vehicle occupant death rates per 

100,000 population increased with 

increasing rurality. For example, in the 

southern United States, the age-adjusted 

death rate in vehicle crashes per 

100,000 population in rural counties 

was more than four times as high as 

those in urban counties (6.8 deaths per 

100,000 population in the most urban 

counties as compared to 29.2 deaths per 

100,000 population in the most rural 

counties); this same study showed that 

self-reported seat belt use in 2014 for 

the most rural counties was only 74.7 

percent, compared to 88.8 percent in the 

most urban counties.27 As most 

agriculture is in rural areas, agricultural 

workers are more likely to be exposed 

to dangers inherent in rural 

transportation. The CDC also 

acknowledges that agriculture itself is 

one of the most hazardous industries in 

the United States. In 2021, workers in 

the agriculture, forestry, fishing and 

hunting industry experienced one of the 

highest fatal injury rates at 20 deaths per 

100,000 full-timeworkers—and nearly 

half of those deaths resulted from 

transportation incidents.28 The 

Occupational Injury Surveillance of 

Production Agriculture survey 

demonstrated that, in surveyed years 

between 2001 and 2014, transportation 

related accidents (including tractor 

rollovers) constituted approximately 

12.7 percent of all agricultural workrelated injuries to adults 20 years and 

older.29

The Department’s enforcement 

experience is consistent with the 

statistics described above. Of the 

agriculture-related injuries and fatalities 

that the Department has investigated in 

the last 5 years, more than 60 percent 

related to farmworker transportation. 

Additionally, some of the most 

significant injuries and fatalities 

resulted when workers were not 

wearing seat belts. For example, in 

calendar year (CY) 2022 alone, WHD 

investigated eight incidents involving 

serious injury or death of farmworkers. 

Of these incidents, seven involved 

agriculture-related vehicle crashes and 

only one involved other safety issues. Of 

the crashes investigated in 2022, all 

involved at least some workers who 

were not restrained by seat belts, 

sometimes with fatal or serious 

consequences. For example, on May 31, 

2022, in Indiana, a vehicle being driven 

by one H–2A worker and carrying 

another H–2A worker collided with a 

semi-truck. The two workers were 

ejected from the vehicle, as neither was 

wearing a seat belt. The driver died and 

the passenger was air-lifted to the 

hospital with life-threatening injuries. 

In another example, on April 15, 2022, 

a vehicle carrying eight farmworkers in 

California ran a stop sign and collided 

with an SUV. One occupant was not 

wearing a seat belt and was ejected. The 

ejected passenger died, and seven other 

workers suffered minor to moderate 

injuries. 

Despite the statistics showing the 

dangers related to rural transportation, 

agricultural transportation, and the 

failure to use seat belts, as well as its 

own enforcement experience, the 

Department has limited tools to address 

seat belt use in employer-provided 

transportation. Current § 655.122(h)(4) 

requires employers to comply with all 

applicable local, State, or Federal laws 

and regulations and, at a minimum, the 

same transportation safety standards, 

driver’s licensure, and vehicle insurance 

required under the Migrant and 

Seasonal Agricultural Worker Protection 

Act (MSPA). However, MSPA vehicle 

safety regulations were promulgated in 

1983 when seat belt use was less 

common, and they do not mandate that 

seat belts be provided or worn.30 When 

State law requires the wearing of seat 

belts, the Department may enforce the 

provision and wearing of seat belts 

through State law under current 

§ 655.122(h)(4). However, not all States 

require the provision and wearing of 

seat belts in all seats,31 and other States 

exclude certain vehicles from seat belt 

provisions.32 Even where States have 

farmworker-specific laws requiring seat 

belts, such as in Florida, California, and 

Maine, these laws often do not cover all 

vehicles used to transport 

farmworkers.33 Finally, many State seat 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63777 

(same); Me. Rev. Stat. tit. 26, sec. 643, tit. 29, sec. 

2088. Both California and Florida law define a 

‘‘farm labor vehicle’’ as a vehicle used for the 

transportation of nine or more farmworkers, in 

addition to the driver. See Cal. Veh. Code sec. 322; 

Fla. Stat. sec. 316.003(26). 

34See, e.g., Cal. Veh. Code sec. 31405(d) (stating 

that ‘‘no person shall operate a farm labor vehicle 

on a highway’’) (emphasis added); Cal Veh. Code 

sec. 360 (defining highway as ‘‘a way or place of 

whatever nature, publicly maintained and open to 

the use of the public for purposes of vehicular 

travel’’). See also, e.g., N.C. Gen. Stat. sec. 20– 

125.2A(a) (stating that ‘‘each occupant of a motor 

vehicle . . . shall have a seat belt properly fastened 

about his or her body at all times when the vehicle 

is in forward motion on a street or highway in this 

State’’) (emphasis added); N.C. Gen. Stat. sec. 

20.4.01(13) (providing that a highway is ‘‘[t]he 

entire width between property or right-of-way lines 

of every way or place of whatever nature, when any 

part thereof is open to the use of the public as a 

matter of right for the purposes of vehicular traffic’’ 

and that ‘‘[t]he terms ‘highway’ and ‘street’ and 

their cognates are synonymous’’). 

35 29 U.S.C. 1841(2)(B) explicitly requires the 

Department to consider the extent to which a 

proposed transportation standard under MSPA 

would cause an undue burden on agricultural 

employers, agricultural associations, or farm labor 

contractors, a standard not included in the H–2A 

provisions of the INA. Also, unlike the H–2A 

program, MSPA does not require employers to 

provide transportation between living quarters and 

the worksite, or inbound or outbound 

transportation (unless disclosed that such 

transportation would be provided). Additionally, 

the Department reached this conclusion nearly four 

decades ago, when seat belts were less commonly 

used. 

36Compare 2021 NHTSA Report at 1 (estimating 

that seat belt use by adult front-seat passengers was 

about 90.3 percent in 2020), with Transp. Research 

Bd. of the Nat’l Acads. Buckling Up: Technologies 

to Increase Seat Belt Use 5 (2003) (estimating that 

seat belt use was about 14 percent in 1984). 

37NHTSA defines a passenger car as a motor 

vehicle with motive power, except a low-speed 

vehicle, multipurpose passenger vehicle, 

motorcycle, or trailer, designed for carrying 10 

persons or less. 49 CFR 571.3(c). 

38A 15-passenger van would constitute a bus as 

defined by NHTSA. NHTSA defines a bus as a 

motor vehicle with motive power, except a trailer, 

designed for carrying more than 10 persons. 49 CFR 

571.3(c). 

39NHTSA defines a school bus as a bus that is 

sold, or introduced in interstate commerce, for 

purposes that include carrying students to and from 

school or related events, but does not include a bus 

designed and sold for operation as a common 

carrier in urban transportation. 49 CFR 571.3(c). 

40NHTSA defines an over-the-road bus as a bus 

characterized by an elevated passenger deck located 

over a baggage compartment, except a school bus. 

49 CFR 571.136, S4. 

41See 49 CFR 571.208, S4.4.3. 

42See 49 CFR 571.208, S4.4.4. 

43See 78 FR 70416, 70422–23 (Nov. 25, 2013) 

(discussing over-the-road buses between 10,000 

pounds and 26,000 pounds GVWR); 73 FR 62744 

(Oct. 21, 2008) (upgrading school bus passenger 

crash protection requirements). See also Nat’l 

Highway Traffic Safety Admin., School Bus Safety: 

Continued 

belt laws apply only on public roads 

and highways,34 but some vehicle 

crashes involving H–2A or 

corresponding workers occur on private 

property. Therefore, the Department is 

regularly unable to cite a violation for 

an H–2A employer’s failure to provide 

seat belts to workers. 

The Department has periodically 

considered the inclusion of seat belt 

requirements in farmworker 

transportation safety regulations. In 

1983, the Department promulgated 

MSPA transportation safety regulations 

pursuant to its authority under MSPA 

(29 U.S.C. 1801–1872) establishing 

vehicle safety, drivers’ licensure, and 

insurance standards for vehicles 

transporting MSFWs, a category that 

excludes H–2A workers but may 

include workers in corresponding 

employment (see 29 CFR 500.20). See 48 

FR 15800 (Apr. 12, 1983); 48 FR 36736 

(Aug. 12, 1983). In these regulations, the 

Department declined to require seat 

belts, stating that requiring seat belts 

could place an unreasonable economic 

burden on employers and lead them to 

discontinue transporting migrant 

workers at short distances.35 See 48 FR 

36736, 36738. Beginning in 2010, the 

Department required all employerprovided transportation in the H–2A 

program to comply with MSPA 

standards for vehicle safety, drivers’ 

licensure, and insurance. See 20 CFR 

655.122(h)(4); 75 FR 6884, 6965 (Feb. 

12, 2010). Seat belts were not discussed 

in the 2010 rulemaking. Prior to the 

2010 H–2A Final Rule, H–2A 

regulations required only that all 

employer-provided transportation 

comply with all applicable laws and 

regulations. In an NPRM published in 

2019, the Department solicited 

comments on additional transportationrelated provisions to help protect 

workers against driver fatigue and other 

unsafe driving conditions. See 84 FR 

36168, 36195 (Jul. 26, 2019). In the 

corresponding final rule, the 

Department declined to include any 

additional vehicle safety standards at 

the time, including seat belts, but noted 

that employers must comply with State 

laws, many of which required seat belts. 

See 87 FR 61660, 61719 (Oct. 12, 2022). 

Much has changed with respect to 

seat belts since the MSPA vehicle safety 

standards were first developed in 1983. 

Many of the regulations requiring the 

inclusion of seat belts when 

manufacturing vehicles and 

incorporating new technologies to 

increase safety have been published 

since 1983. Additionally, since 1983, 

seat belt use has become significantly 

more common, increasing from 14 

percent to 90.3 percent in 2020.36

Research completed since 1983 has 

emphasized the importance of seat belts 

as a lifesaving and injury-reducing 

essential technology, and every State 

except one has passed seat belt laws 

since the MSPA vehicle safety 

regulations were promulgated. Although 

the Department does not propose to 

amend the MSPA regulations at this 

time, it seeks to apply the knowledge 

gained regarding the importance of seat 

belts to the rapidly growing H–2A 

program. 

Therefore, pursuant to its authority to 

determine the minimum terms and 

conditions of employment acceptable 

under the H–2A program, 8 U.S.C. 

1188(a)(1), the Department proposes to 

revise § 655.122(h)(4) to prohibit an 

employer from operating any employerprovided transportation that is required 

by DOT NHTSA regulations at 49 CFR 

571.208 to be manufactured with seat 

belts unless all passengers and the 

driver are properly restrained by seat 

belts meeting standards established by 

49 CFR 571.209 and 571.210. 

Essentially, if the vehicle is 

manufactured with seat belts, the 

employer would be required to retain 

and maintain those seat belts in good 

working order and ensure that each 

worker is wearing a seat belt before the 

vehicle is operated. 

By relying on DOT’s regulations to 

determine which vehicles pose an 

unreasonable risk of death or injury in 

a vehicle crash without seat belts, the 

Department intends to depend on DOT’s 

considerable research and expertise to 

identify which types of vehicles require 

seat belts for sufficient occupant 

protection and which types of vehicles 

have sufficient occupant protection 

even without seat belts. The most 

common vehicles that the Department 

encounters in its enforcement are 

passenger cars,37 15-passenger vans 

(which would constitute a bus per the 

NHTSA definition),38 and buses (both 

school buses 39 and over-the-road 

buses 40). Currently, 49 CFR 571.208 

requires that all passenger cars and 

buses with a gross vehicle weight rating 

(GVWR) of 10,000 pounds or fewer 

(such as most 15-passenger vans), be 

manufactured with seat belts.41

Therefore, the Department would 

require that these vehicles maintain seat 

belts in good working order when 

transporting workers (e.g., replace the 

seat belt when it is cut or broken). 

However, 49 CFR 571.208 does not 

currently require that school buses with 

a GVWR of 10,000 pounds or more, or 

an over-the-road bus with a GVWR 

between 10,000 pounds and 26,000 

pounds GVWR, be manufactured with 

seat belts for passengers.42 Currently, 

NHTSA does not consider these 

vehicles to constitute an unreasonable 

safety risk to the public without seat 

belts.43 Therefore, at this time the 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63778 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

Crashworthiness Research (April 2002) (discussing 

school bus occupant safety), https://www.nhtsa.gov/ 

sites/nhtsa.gov/files/sbreportfinal.pdf. 

44NHTSA has provided guidance for retrofitting 

school buses with seat belts. See Guideline for the 

Safe Transportation of Pre-school Age Children in 

School Buses, Nat’l Highway Traffic Safety Admin. 

(February 1999). Cost estimates for retrofitting a 

school bus with seat belts vary, but are generally 

around $15,000 per bus, with one estimate as high 

as $36,000 per bus. See Stephen Satterly, School 

Bus Seat Belts: Opening a Dialogue, Safe Havens 

Int’l (Dec. 5, 2016), https://

safehavensinternational.org/school-bus-seat-beltsopening-dialogue, Matthew Simon, Report: Adding 

Seatbelts Could Cost $15k per school bus, WSAW– 

TV (Sept. 1, 2016), https://www.wsaw.com/content/ 

news/NewsChannel-7-Investigates--Report-Addingseat-belts-could-cost-15K-per-school-bus392104851.html; Mike Chouinard, Island District 

Holds Off School Bus Seatbelt Retrofits, N. Island 

Gazette (Oct. 7, 2020), https://

www.northislandgazette.com/news/island-districtholds-off-school-bus-seatbelt-retrofits-1407935. 

45See 29 CFR 1915.93(b) (seat belt standards in 

shipyard work); 29 CFR 1926.601(b)(9) (seat belt 

standards for construction work); Occupational 

Safety & Health Admin., Standard Interpretation 

No. 1926.601(b)(9) on Seat Belts (Jan. 19, 1994) 

(explaining that seat belt standards in construction 

work refer to DOT regulations). 

46See 29 CFR 500.102; 29 CFR 500.104(l). See 

also Wage & Hour Div., Dep’t of Lab., Fact Sheet 

#50, Transportation Under the Migrant and 

Seasonal Agricultural Worker Protection Act (2016), 

https://www.dol.gov/agencies/whd/fact-sheets/50- 

mspa-transportation. 

Department would not require that 

school buses exceeding 10,000 pounds 

GVWR and over-the-road buses between 

10,000 pounds and 26,000 pounds 

GVWR install and maintain seat belts. 

However, if, at a later date, NHTSA 

were to amend 49 CFR 571.208 to 

require these vehicles to be 

manufactured with seat belts, the 

Department’s proposed regulation 

would automatically, without further 

revision, similarly require the employer 

to require occupants of those vehicles to 

wear seat belts. The Department 

believes that reliance on NHTSA’s 

standards for vehicle manufacturing 

strikes a reasonable balance between 

safety measures intended to protect 

vulnerable workers and significant costs 

associated with retrofitting relatively 

safe vehicles with seat belts when such 

vehicles were not engineered for seat 

belt installation.44 Additionally, these 

regulations would be consistent with 

those issued by OSHA for motor 

vehicles used in the construction 

industry and in shipyard employment, 

which include similar exemptions from 

providing seat belts for vehicles not 

manufactured with seat belts.45

The Department welcomes comments 

on this proposal, including if there are 

any other factors or types of vehicles 

that it should consider in promulgating 

these regulations. The Department also 

seeks comments as to whether 

employers ever retrofit vehicles with 

additional seats (or any seats, if the 

vehicle was manufactured without 

passenger seats) in such a way that 

complies with existing vehicle safety 

standards under 20 CFR 655.122(h)(4), 

and how these vehicles should comply 

with proposed seat belt standards. 

The Department further proposes that 

the seat belts must comply with NHTSA 

regulations for seat belt assembly and 

anchorages at 49 CFR 571.209 and 

571.210. The Department believes that 

referencing these standards in 

regulations would ensure that seat belts 

meet existing standards for manufacture 

and clarify to the regulated community 

that makeshift or jerry-rigged restraints 

would not constitute a seat belt. 

The proposed regulation also would 

prohibit the employer from operating 

any employer-provided transportation 

unless all passengers and the driver are 

properly restrained by a seat belt. The 

Department often finds that workers do 

not use seat belts even when they are 

provided. As demonstrated by NHTSA’s 

research referenced above, the provision 

of seat belts is often insufficient to 

increase seat belt usage without 

enforcement and public awareness 

campaigns. Therefore, the Department 

believes this regulation would be most 

effective if the employer requires 

workers to wear seat belts. Additionally, 

while the proposed regulation refers 

specifically to the employer not 

operating the transportation, the 

Department understands that driving 

vehicles is often delegated to 

supervisors or workers. An employer 

would be responsible for ensuring that 

all drivers, including employees or 

agents of the employer, do not operate 

the vehicle until all occupants are 

properly restrained. The Department 

seeks comment as to whether, and how, 

it should require employers to enforce 

the wearing of seat belts, or whether it 

should require employers only to 

provide seat belts. 

Finally, the Department seeks 

comment as to how this requirement for 

seat belts should interact with vehicles 

subject to the limited exemption from 

seat requirements found in MSPA 

regulations at 29 CFR 500.104(l), which 

is also applicable to some H–2A 

employer-provided transportation. 

Transportation subject to this exemption 

is limited to those vehicles that are 

subject to the vehicle safety standards in 

29 CFR 500.104 when those vehicles are 

primarily operated on private farm 

roads when the total distance traveled 

does not exceed 10 miles, so long as the 

trip begins and ends on a farm owned 

or operated by the same employer.46 As 

a vehicle without seats cannot be 

equipped with seat belts, the 

Department is considering whether 

vehicles subject to this limited 

exemption also should be exempted 

from seat belt requirements during these 

same trips, or, alternatively, whether 

this exemption should be inapplicable 

to H–2A employers. The Department 

seeks comment on this issue, including 

the circumstances in which employers 

use the limited exemption from seats 

found in 29 CFR 500.104(l) and the 

import of this limited exemption to 

business practices. The Department also 

seeks comment on known vehicle 

crashes or other safety hazards that have 

resulted or been exacerbated due to the 

use of this limited exemption and any 

anticipated hazards. 

The Department also proposes nonsubstantive changes to § 655.122(h)(4) to 

divide this paragraph into separate 

paragraphs (h)(1)(i) through (iv). 

b. Paragraphs (i)(1)(i) and (ii) Shortened 

Work Contract Period 

The Department proposes to remove 

the language at § 655.122(i)(1)(i) and (ii) 

that explains the work contract period 

can be shortened by agreement of the 

parties with the approval of the CO. 

These minor conforming changes will 

ensure these paragraphs are consistent 

with proposed changes to delayed start 

of work requirements at proposed 

§ 655.175(b), which permits only minor 

delays to the start date of work and 

requires notice to workers and the SWA, 

but not CO approval, as discussed in the 

preamble explaining changes in 

proposed § 655.175. 

c. Paragraph (l)(3) Productivity 

Standards as a Condition of Job 

Retention 

The Department proposes revisions to 

the regulations governing productivity 

standards at § 655.122(l). Current 

§ 655.122(l)(2)(iii) requires the employer 

to disclose productivity standards in the 

job offer only when the employer pays 

on a piece rate basis and requires one or 

more productivity standards as a 

condition of job retention. The 

Department proposes to redesignate 

§ 655.122(l)(2)(iii) as § 655.122(l)(3) and 

require all employers with minimum 

productivity standards as a condition of 

job retention to disclose such standards 

in the job offer, regardless of whether 

the employer pays on a piece rate or 

hourly basis. 

The Department believes that this 

revision is necessary so that workers 

fully understand the material terms and 

conditions of employment, including 

any productivity standards that may 

serve as a basis for termination for 

cause, at the time the offer of 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63779 

47See OFLC, Frequently Asked Questions, H–2A 

Temporary Agricultural Foreign Labor Certification 

Program, 2010 Final Rule, Round 9 (October 30, 

2015), https://www.dol.gov/sites/dolgov/files/ETA/ 

oflc/pdfs/H-2A_FAQ_Round9.pdf. 

48See Farmworker Justice, No Way to Treat a 

Guest: Why The H–2A Visa Program Fails U.S. and 

Foreign Workers 21, 25 (2012) (Farmworker Justice 

Report). 

49See, e.g., Cal. Lab. Code secs. 500–556, 558.1; 

Cal. Indus. Welfare Comm’n Order No. 14–2001. 

employment is made. The revisions 

proposed in this section conform with 

those proposed in § 655.122(n)(2)(i), 

where the Department proposes that 

termination for cause for failure to 

comply with a productivity standard 

would only be permissible when such 

productivity standard is included in the 

job offer (among other conditions). 

As explained further in the preamble 

section addressing proposed 

§ 655.122(n), the Department proposes 

that, among other conditions, 

termination for cause for failure to meet 

a productivity standard may only be 

invoked by an employer when workers 

were informed of, or reasonably should 

have known, the productivity standard; 

the productivity standard is listed in the 

job offer; and the productivity standard 

is reasonable and applied consistently. 

The disclosure in the job offer of any 

productivity standards required as a 

condition of job retention helps to 

achieve these other requirements. 

Specifically, it ensures that workers are 

aware of the productivity standard, and 

that all workers are held to the same 

productivity standard. The disclosure in 

the job offer also ensures that 

productivity standards do not change 

after the employer communicates those 

standards to the worker. Different 

productivity standards for different 

crops, grades of crops, or job duties are 

permissible so long as all are disclosed 

in the job offer. Consistent with current 

guidance, productivity standards must 

be static, objective, and specifically 

quantify the expected output per worker 

required for job retention in the specific 

crop or agricultural activity. Vague 

standards, such as requiring workers to 

‘‘perform work in a timely and 

proficient manner,’’ ‘‘perform work at a 

sustained, vigorous pace,’’ or ‘‘keep up 

with the crew,’’ are not acceptable 

productivity standards as they lack 

objectivity, quantification, and clarity. 

Failure to meet such vague standards 

will not be accepted by the Department 

as termination for cause. See preamble 

section corresponding with proposed 

§ 655.122(n) for further discussion.47

Current § 655.122(l)(2)(iii) also 

requires that productivity standards 

listed in the job offer be no more than 

those required by the employer in 1977, 

unless the OFLC Administrator 

approves a higher minimum, or if the 

employer first applied for temporary 

agricultural labor certification after 

1977, productivity standards listed in 

the job order must be no more than 

those normally required (at the time of 

the first H–2A Application) by other 

employers for the activity in the area of 

intended employment. In other words, 

without OFLC’s approval, an employer 

cannot increase productivity standards 

beyond those normally required by 

other employers when it first used the 

H–2A program, unless the employer 

first used the H–2A program in 1977 or 

earlier, in which case the employer 

cannot increase productivity standards 

beyond those it required in 1977. 

Proposed § 655.122(l)(3) would mandate 

that all productivity standards required 

as a condition of job retention be 

disclosed in the job offer regardless if 

the worker is paid a piece rate or an 

hourly wage. The proposal would 

broaden this requirement to workers 

paid on an hourly basis, not only those 

paid on a piece rate basis. 

The Department believes this revision 

is appropriate because pressure for 

increased worker productivity exists 

regardless of how workers are paid. As 

stated in the preamble to the 2010 H– 

2A Final Rule, the regulations have 

reflected concerns about productivity 

standards for more than 30 years. Initial 

concerns focused on employers paying 

piece rates; the Department found that, 

when faced with an increased hourly 

guarantee, some employers simply 

required workers to work faster instead 

of increasing piece rates, which may 

have adversely affected the wages of 

similarly employed workers in the 

United States. See 43 FR 10306, 10309 

(Mar. 10, 1978). Therefore, H–2A 

regulations published in 1987 froze 

productivity standards at the 1977 level 

(unless a higher rate was approved) or, 

if the employer began using the program 

after 1977, to those normally required 

by other employers for the activity in 

the area of intended employment at the 

time the employer first used the 

program (unless a higher rate was 

approved). See 52 FR 20496–01, 20515 

(June 1, 1987). The 2010 H–2A Final 

Rule instituted the same standards as 

the 1987 rule, and these standards 

remained unchanged in the 2022 rule. 

See 75 FR 6884, 6913–6914 (Feb 12, 

2010); 87 FR 61660–01, 61801 (Oct. 12, 

2022). 

Although the Department has 

historically recognized this issue as 

affecting workers paid on a piece rate 

basis, workers paid on an hourly basis 

may also be subject to productivity 

standards as a condition of job 

retention, which may adversely affect 

the working conditions of similarly 

employed workers in the United States 

and inhibit the ability to determine if 

there are sufficient workers who are 

able, willing, qualified, and available to 

perform the work. Advocacy 

organizations have identified that some 

employers may set productivity 

standards so high that workers in the 

United States are reluctant to accept or 

keep these jobs without a pay 

increase.48 Without a ceiling on 

excessively high productivity standards 

for hourly employees, working 

conditions for both H–2A and domestic 

workers may be adversely affected as 

productivity demands rise, and 

domestic workers may leave the 

agricultural workforce. To prevent this 

adverse effect, this proposed rule would 

require all employers establishing 

productivity standards as a condition of 

job retention to refrain from setting such 

productivity standards above the 

permitted levels, which were previously 

required only if the employer was 

paying on a piece rate basis. 

d. Paragraph (l)(4); 655.210(g)(3) 

Disclosure of Available Overtime Pay 

The Department proposes a new 

§ 655.122(l)(4) that would explicitly 

clarify that the employer must specify in 

the job offer any applicable overtime 

premium wage rate(s) for overtime 

hours worked and the circumstances 

under which the wage rate(s) for such 

overtime hours will be paid. The H–2A 

program does not mandate the payment 

of an overtime premium wage rate for 

hours worked exceeding a certain 

number in the day, week, or pay period. 

However, the Fair Labor Standards Act’s 

(FLSA) overtime requirements, as well 

as various State and local laws that 

require overtime pay, apply 

independently of the H–2A program’s 

wage requirements. Some H–2A workers 

and workers in corresponding 

employment may be entitled to overtime 

pay under one or more of these laws. 

Under the Department’s longstanding 

regulations, an H–2A employer must 

assure that it will comply with all 

applicable Federal, State, and local 

laws, including any applicable overtime 

laws, during the work contract period. 

See § 655.135(e).49 In addition, an H–2A 

employer must accurately disclose the 

actual, material terms and conditions of 

employment, including those related to 

wages, in the job order. See 

§§ 655.103(b), 655.121(a)(3), and 

655.122(l); see also § 655.210. Pursuant 

to these authorities, an H–2A employer 

already must disclose in the job order 

any available overtime pay, whether 

required under Federal, State, or local 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63780 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

50https://www.dol.gov/sites/dolgov/files/WHD/ 

legacy/files/fab_2021_3.pdf. 

law, or otherwise voluntarily offered by 

the employer. Despite these existing 

authorities, OFLC and WHD frequently 

encounter job orders filed in connection 

with H–2A applications that either omit 

disclosure of or fail to accurately 

describe applicable overtime pay. 

Failure to clearly and fully disclose any 

available overtime pay in the job order 

harms prospective workers, who may be 

more interested in the job opportunity if 

aware of the availability of overtime. 

Incomplete or nonexistent disclosures 

also hamper the Department’s 

administration and enforcement of the 

H–2A program requirements. 

Therefore, the Department proposes to 

revise the current wage disclosure 

requirements found at § 655.122(l) to 

expressly clarify in a new paragraph 

(l)(4) that an employer must disclose in 

the job order any applicable overtime 

pay. Specifically, under proposed 

§ 655.122(l)(4), whenever overtime pay 

is required by law or otherwise 

voluntarily offered by an employer, an 

employer would be required to disclose 

in the job order: the availability of 

overtime hours; the wage rate to be paid 

for any overtime hours; and the 

circumstances under which overtime 

will be paid; and, where the overtime is 

required by law (rather than voluntarily 

offered by the employer), the applicable 

Federal, State, or local law governing 

the overtime pay. The proposed 

subordinate paragraph (l)(4)(iii) 

provides examples of circumstances that 

might apply, such as after how many 

hours in a day, week, or pay period the 

overtime premium wage rate will be 

paid, or if overtime premium wage rates 

will vary between places of 

employment. This proposed list is 

intended to be illustrative only; an 

employer must accurately disclose the 

actual circumstances under which 

overtime would be paid. The 

disclosures required under proposed 

§ 655.122(l)(4) are similar to the 

overtime disclosure requirement under 

the H–2B program regulations at 

§ 655.18(b)(6). See also U.S. Dep’t of 

Lab., Wage & Hour Div., Field 

Assistance Bulletin No. 2021–3, 

Overtime Obligations Pursuant to the 

H–2B Visa Program (Dec. 7, 2021).50

Where multiple overtime laws apply, 

the employer must comply with the law 

that provides the greatest benefit to the 

employee. For example, if an employer 

is required by Federal law to pay time 

and a half after 40 hours in a week, but 

is required by State law to pay overtime 

at time and a half after 46 hours in a 

week, the employer must comply with 

the Federal law as it is more beneficial 

to the employee. The Department has 

also proposed corresponding 

amendments to the Forms ETA–790A 

and ETA–9142A to include dedicated 

spaces for disclosure of any applicable 

overtime pay. The Department believes 

these proposed revisions would 

improve the frequency and accuracy of 

disclosures of available overtime pay, 

thereby improving notice to prospective 

workers of the actual terms and 

conditions of the job opportunity and 

improving the Department’s 

enforcement of any applicable overtime 

pay requirements. 

Similarly, the Department proposes to 

amend the pay disclosure requirements 

at § 655.210(g), governing the contents 

of job orders for herding and range 

livestock production occupations, to 

include a new paragraph (g)(3) that 

would require employers to disclose any 

available overtime pay, whether 

voluntarily offered by the employer or 

required by State or Federal law, and 

the details regarding such pay. 

The Department welcomes comment 

on this proposal. 

e. Paragraph (n) Termination for Cause 

or Abandonment of Employment 

The Department proposes revisions to 

§ 655.122(n), regulating employer 

obligations when an employer 

terminates an employee for cause or an 

employee has abandoned employment, 

to define termination for cause. By 

proposing a definition of termination for 

cause, the Department seeks to ensure 

that disciplinary and/or termination 

processes be justified and reasonable. 

The Department believes it is necessary 

to clarify the definition of termination 

for cause because workers terminated 

for cause under the H–2A program are 

stripped of essential rights to which 

they would otherwise be entitled. This 

proposed definition is also necessary 

because the termination without cause 

of one or more workers may constitute 

a layoff for lawful, job-related reasons, 

and particular employer obligations 

apply to layoffs of U.S. workers. See 

§ 655.135(g). 

The current regulations specify when 

job abandonment occurs, outline 

procedures for notifying the NPC and 

DHS, and require the maintenance of 

records of this notification, but they do 

not define termination for cause. A 

worker who abandons employment or is 

terminated for cause is not entitled to 

payment for outbound transportation 

under § 655.122(h)(2) or the threefourths guarantee under § 655.122(i), 

and a U.S. worker who abandons 

employment or is terminated for cause 

need not be contacted for employment 

in the subsequent year as required by 

§ 655.153. On the other hand, a worker 

who is terminated without cause is 

entitled to outbound transportation 

(§ 655.122(h)(2)), the three-fourths 

guarantee (including meals and housing 

until the worker departs for other H–2A 

employment or to the place outside the 

United States from which the worker 

came) (§ 655.122(i)), and, if a U.S. 

worker, to be contacted for work in the 

next year (§ 655.153), with one limited 

exception. An employer is not liable for 

the payment of the three-fourths 

guarantee to an H–2A worker whom the 

CO certifies is displaced because of the 

employer’s fulfillment of its obligation 

to hire U.S. workers in compliance with 

the 50-percent rule described in 

§ 655.135(d). See § 655.122(i)(4). 

Therefore, such H–2A worker would be 

terminated without cause but would not 

be entitled to the three-fourths 

guarantee. However, this displaced H– 

2A worker remains entitled to payment 

for outbound transportation pursuant to 

§ 655.122(h)(2). 

The Department has long 

acknowledged that employers need not 

cover some obligations for workers 

terminated for cause. See, e.g., 43 FR 

10306, 10315 (Mar. 10, 1978) (employer 

need not pay outbound transportation 

for H–2 workers terminated for cause); 

52 FR 20496–01, 20501, 20515 (June 1, 

1987) (where an H–2A worker is 

terminated for cause, the worker is not 

entitled to the three-fourths guarantee 

and the employer need not pay 

outbound transportation). But the 

Department has also recognized that 

some employers may abuse this 

provision in order to avoid those 

obligations. See, e.g., 73 FR 77110–01, 

77135 (Dec. 18, 2008) (requiring 

employers to contact former U.S. 

workers except for those dismissed for 

cause and noting that if employers were 

‘‘allowed . . . to reject former workers 

who completed their previous term on 

the alleged ground that the workers 

were actually poor performers, it would 

open the door to bad actor employers to 

reject former workers on the basis of 

essentially pretextual excuses’’). 

Given the serious consequences 

associated with a designation of 

termination for cause, and the potential 

for misuse, the Department believes that 

a clear, regulatory definition of 

termination for cause would benefit 

employers, associations, agents, 

workers, advocates, and the public in 

general and therefore proposes to insert 

one. Providing a clear definition of 

termination for cause would not only 

provide structure and clarity to both 

workers and employers, but also make 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63781 

51https://www.dol.gov/sites/dolgov/files/WHD/ 

legacy/files/FieldAssistanceBulletin2009_2.pdf. 

it easier for the Department to identify 

pretextual terminations. 

The Department’s enforcement 

experience also supports the need for a 

specific and clear definition of 

termination for cause. Some employers, 

in seeking to evade responsibilities 

under § 655.122(h)(2), § 655.122(i), 

§ 655.153, or all three, have terminated 

workers ostensibly ‘‘for cause.’’ For 

example, one employer terminated 114 

H–2A workers, out of a total of 240 H– 

2A workers employed, and an 

additional 20 workers in corresponding 

employment, for failing to meet 

production quotas. The employer 

alleged that workers were not eligible 

for the three-fourths guarantee because 

they were terminated for cause. 

However, the Department’s 

investigation revealed that the employer 

had employed, in some weeks, more 

than 100 more workers than it employed 

the previous year without a proportional 

increase in acres planted. With the 

surplus in employees, worker 

productivity decreased significantly. An 

analysis of one crew showed that 

workers, who were paid a consistent 

piece rate, earned an average of $12.32 

per hour when the crew consisted of 39 

employees, but earned only $6.72 per 

hour on average when the crew 

consisted of 123 employees. Once crew 

sizes were again proportional to prior 

years, worker productivity increased. A 

different crew, also paid a consistent 

piece rate, earned an average of $8.14 

per hour when the crew consisted of 

121 workers, but, following 

terminations, earned an average of 

$12.43 per hour when the crew 

consisted of 91 workers. The employer 

terminated workers assigned to the less 

productive fields, even when their 

production rates matched those of their 

coworkers working the same fields. The 

terminations were unequally applied to 

workers and were for conditions outside 

the workers’ control. The three-fourths 

guarantee is intended to safeguard 

against this very situation—employers 

overstating their labor needs—but the 

employer attempted to evade its threefourths guarantee obligations by 

terminating employees without cause. 

In light of this enforcement 

experience, the Department believes it 

needs stronger regulatory requirements 

to more easily prevent or detect 

attempts to evade these important 

worker protections. This is necessary in 

order for the Department to fulfill its 

statutory mandate to ensure that H–2A 

workers are employed only when there 

are not sufficient workers who are able, 

willing, qualified, and available to 

perform the labor or services involved 

in the petition and when the 

employment of H–2A workers will not 

adversely affect the wages and working 

conditions of similarly employed 

workers in the United States. See 8 

U.S.C. 1188(a)(1). The proposed 

regulations would achieve this goal by 

protecting worker access to the threefourths guarantee (including meals and 

housing until the worker departs for 

other H–2A employment or to the place 

outside the United States from which 

the worker came) (§ 655.122(h)(2)), 

outbound transportation (§ 655.122(i)), 

and/or, if a U.S. worker, to be contacted 

for work in the next year (§ 655.153), 

unless a reasonable and justified 

disciplinary process results in a 

termination for cause and thus nullifies 

the worker’s entitlement to these rights. 

An unreasonable or unjustified 

termination that an employer ostensibly 

describes as being ‘‘for cause’’ 

undoubtedly has an adverse effect on 

similarly employed workers in the 

United States and interferes with the 

Department’s ability to determine that 

there are not sufficient workers to 

perform the labor or services. For 

example, where an employer denies an 

H–2A worker payment for outbound 

transportation under § 655.122(h)(2) on 

the grounds that the worker was 

terminated, ostensibly ‘‘for cause,’’ but 

for unjustified and unreasonable 

reasons, the worker would be required 

to pay for their own transportation to 

return to their country of origin. The 

Department has long recognized that 

inbound and outbound transportation 

expenses for H–2 workers are an 

inescapable consequence of using the 

H–2 programs and are primarily for the 

benefit of the employer under the FLSA. 

H–2A regulations (and, prior to 1987, 

H–2 regulations) have reflected this 

reality by requiring these expenses to be 

borne by employers. See 43 FR 10306 

(Mar. 10, 1978); 52 FR 20496–01 (June 

1, 1987); 73 FR 77110–01 (Dec. 18, 

2008); 75 FR 6884 (Feb. 12, 2010); 87 FR 

61660 (Oct. 12, 2022); U.S. Dep’t of Lab., 

Wage & Hour Div., Field Assistance 

Bulletin No. 2009–2, Travel and Visa 

Expenses of H–2B Workers Under the 

FLSA (Aug. 21, 2009); 51 Arriaga v. 

Florida Pacific Farms, L.L.C., 305 F.3d 

1228 (11th Cir. 2002). An employer who 

unreasonably and unjustifiably requires 

a worker to pay for their own outbound 

transportation has artificially reduced 

its cost to use the H–2A program by 

shifting outbound transportation costs 

to the workers themselves, which may 

reduce the worker’s earnings below the 

amount required by § 655.122(l) in the 

worker’s last workweek. As the wage 

required by § 655.122(l) is the minimum 

amount required to prevent adverse 

effect, any cost-shifting that reduces 

wages below this amount may adversely 

affect wages and working conditions of 

similarly employed workers in the 

United States. Clarifying that workers 

are terminated for cause only where the 

termination is reasonable and justified 

would minimize such adverse effect. 

Similarly, adverse effects on similarly 

employed workers in the United States 

may result when an employer denies the 

three-fourths guarantee required by 

§ 655.122(i) to a worker who is unjustly 

and unreasonably terminated, ostensibly 

‘‘for cause.’’ The three-fourths guarantee 

is an essential protection that requires 

employers to provide an accurate 

description of the amount of work 

available and the periods in which work 

is available, which gives workers an 

opportunity to evaluate the desirability 

of the offered job. An employer that fails 

to provide the work promised during 

recruitment must pay workers for work 

hours equivalent to three-fourths of the 

workdays offered, which disincentivizes 

employers from hiring workers without 

sufficient work. The Department has 

long held that the three-fourths 

guarantee is an essential protection to 

prevent adverse effect on similarly 

employed workers in the United States. 

See 43 FR 10306, 10308 (Mar. 10, 1978); 

73 FR 77110–01, 77152 (Dec. 18, 2008). 

A job with insufficient work creates 

undesirable conditions because the 

workers may not earn sufficient wages 

to pay bills and support their families. 

In this situation, both H–2A and U.S. 

workers may be induced to seek work 

elsewhere if the promised work does not 

materialize. The employer has therefore 

failed to determine if there are sufficient 

U.S. workers able, willing, and qualified 

to perform the work, and the wages and 

working conditions of similarly 

employed workers in the United States 

may be adversely affected if H–2A 

workers seek work outside the terms of 

their H–2A nonimmigrant status 

because the job they were promised 

does not actually exist. See 80 FR 

24042–01, 24066 (Apr. 29, 2015). 

Finally, where an employer declines 

to rehire a U.S. worker under § 655.153 

on the grounds that the worker was 

terminated, ostensibly ‘‘for cause,’’ but 

the termination was unreasonable and 

unjustified, the employer fails to 

adequately test the labor market for able, 

willing, and qualified workers because 

it has unreasonably and unjustly 

removed this worker from the labor 

pool. 

In addition, the proposed definition of 

termination for cause will assist the 

Department in identifying terminations 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63782 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

52https://www.dol.gov/sites/dolgov/files/WHD/ 

legacy/files/fab2012_1.pdf. 

53See, e.g., N.Y.C. Admin. Code sec. 20–1272, 

https://codelibrary.amlegal.com/codes/ 

newyorkcity/latest/NYCadmin/0-0-0-131240; Phila. 

Code sec. 9–4703, https://codelibrary.amlegal.com/ 

codes/philadelphia/latest/philadelphia_pa/0-0-0- 

280911#JD_Chapter9-4700; H.B. 3530, 102nd Gen. 

Assemb. (Ill. 2021 & 2022), https://www.ilga.gov/ 

legislation/102/HB/PDF/10200HB3530lv.pdf. 

for pretextual reasons. These pretextual 

reasons may attempt to mask violations 

of other provisions, such as the 

prohibitions on layoffs of U.S. workers 

(§ 655.135(g)) and retaliatory 

termination (§ 655.135(h)), for which the 

appropriate remedy may be 

reinstatement or make-whole relief. See 

29 CFR 501.16. Workers also would be 

protected from terminations for 

pretextual reasons for actions that may 

not be otherwise protected by the 

current H–2A regulations. Even if the 

underlying activity is not protected by 

the H–2A protections, the Department 

retains an interest in ensuring that 

reasonable activities and 

communications are not misused or 

mischaracterized as a basis for 

termination for cause. This ensures that 

a worker may advocate on their own 

behalf without fear of being terminated, 

ostensibly ‘‘for cause.’’ This additional 

safeguard on the ability to engage in 

self-advocacy would prevent adverse 

impact on working conditions for 

similarly employed workers in the 

United States by ensuring that 

employers cannot evade their 

obligations with respect to workers 

engaged in self-advocacy. 

Finally, the Department believes that 

its proposed definition of termination 

for cause will also benefit employers by 

providing regulatory certainty and 

increasing the quality and desirability of 

agricultural jobs. Employers will have 

clear guidelines as to how the 

Department will define termination for 

cause. Where there are farm labor 

shortages, employers may experience 

improved ability to recruit agricultural 

workers where workers are assured that 

they will be entitled to the three-fourths 

guarantee and outbound transportation 

costs unless they are terminated for 

cause or they abandon their 

employment. 

For these reasons, the Department 

proposes to clarify in the regulations 

that a worker is terminated for cause 

only when the employer terminates the 

worker for failure to meet productivity 

standards or failure to comply with 

employer policies or rules. This 

definition is substantively similar to 

current enforcement guidance that 

appears in U.S. Department of Labor, 

Wage and Hour Division, Field 

Assistance Bulletin No. 2012–1, H–2A 

‘‘Abandonment or Termination for 

Cause’’ Enforcement of 20 CFR 

655.122(n) (Feb. 28, 2012).52 There, 

WHD stated that termination for cause 

refers to termination based on a specific 

act of omission or commission by the 

employee, and that, for example, 

insubordination, deliberately violating 

company policies or rules, lying, 

stealing, breaching the employment 

contract, and other job-related 

misconduct are all possible bases for 

termination for cause. Id. at 6. 

Further, the Department proposes that 

an employer may terminate a worker for 

cause only if six conditions listed in 

proposed § 655.122(n)(2)(i) are met. 

Importantly, the employer must comply 

with all six conditions for the 

employer’s actions to qualify as 

termination for cause. These proposed 

conditions, explained in the following 

paragraphs, clarify that termination for 

cause exists only where disciplinary 

and/or termination processes are 

justified and reasonable; it does not 

exist where rules, policies, and/or 

standards are arbitrary, unknown, or 

selectively enforced. These conditions 

serve to promote the integrity and 

fairness of any disciplinary and/or 

termination process, and help to reduce 

the possibility that an employer may, 

purposefully or subconsciously, 

discriminate against a worker for 

reasons that are unrelated to work. 

These proposed conditions reflect 

common-sense personnel practices, and 

some of these conditions may also be 

found in State and local laws or bills 

prohibiting wrongful discharge.53 The 

Department believes that many 

agricultural employers already follow 

similar standards when terminating a 

worker for cause, as records of these 

types are often essential in responding 

to discrimination complaints 

investigated by the EEOC or DOJ’s 

Immigrant and Employee Rights 

Section, claims filed pursuant to State 

unemployment insurance programs, or 

the Department when investigating 

retaliatory termination under the laws 

that it enforces (including the H–2A 

program). These requirements would 

apply to H–2A workers and workers in 

corresponding employment. 

Accordingly, these proposed conditions 

would preserve worker access to 

outbound transportation 

(§ 655.122(h)(2)), the three-fourths 

guarantee (§ 655.122(i)), and/or, if a U.S. 

worker, to be contacted for work in the 

next year (§ 655.153) unless a reasonable 

and justified disciplinary process has 

resulted in termination for cause, which 

prevents adverse effect on similarly 

employed workers in the United States 

and ensures that jobs are available to 

workers in the United States who are 

able, willing, and qualified to perform 

the work. 

First, proposed § 655.122(n)(2)(i)(A) 

would require that the employees were 

informed (in a language understood by 

the employee) of, or reasonably should 

have known of, the policy, rule, or 

productivity standard that is the basis 

for the termination for cause. Basic 

concepts of fairness preclude the 

termination of a worker for cause if that 

worker was not informed, or had no 

reasonable basis for knowing, that the 

infraction or performance issue 

constituted grounds for termination. 

Policies and rules are not required to be 

listed in the job offer but must be clearly 

communicated to and understood by the 

workers. Ways in which the employer 

may communicate policies and rules to 

workers include employee handbooks, 

posters, trainings, staff meetings, and 

verbal instruction. If the policy or rule 

is not explicitly communicated, the 

Department will review whether a 

reasonable person would know that the 

policy or rule exists. For example, a 

reasonable person would know that 

conduct that is obviously illegal, such as 

unlawful sexual harassment or assault, 

can be a basis for discipline or 

termination. Similarly, a reasonable 

person would know that purposefully 

damaging the crop would be a basis for 

discipline or termination. 

Second, the Department proposes in 

§ 655.122(n)(2)(i)(B) that, if the 

termination is for failure to meet a 

productivity standard, such standard 

must be disclosed in the job offer. The 

Department has long held that if an 

employer pays a piece rate and requires 

a productivity standard, such 

productivity standard must be disclosed 

in the job offer. See current 

§ 655.122(l)(2)(iii). In this proposed rule, 

the Department proposes that any 

productivity standard must be disclosed 

in the job offer regardless of whether the 

worker is paid on a piece rate or hourly 

basis. See proposed § 655.122(l)(3). The 

job offer communicates the material 

terms and conditions of employment to 

H–2A workers and workers in 

corresponding employment, and 

therefore any productivity standard 

which may serve as a basis for 

termination should be disclosed to the 

worker in the job offer. This disclosure 

in the job offer ensures that the 

employer informs the workers of the 

productivity standard, and that the 

productivity standard is consistent for 

all workers, both of which are essential 

elements of any just disciplinary 

process. Consistent with current 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63783 

54See OFLC, Frequently Asked Questions, H–2A 

Temporary Agricultural Foreign Labor Certification 

Program, 2010 Final Rule, Round 9 (October 30, 

2015), https://www.dol.gov/sites/dolgov/files/ETA/ 

oflc/pdfs/H-2A_FAQ_Round9.pdf. 

guidance, and discussed in the 

preamble corresponding with proposed 

§ 655.122(l)(3), any productivity 

standard that serves as a basis for 

termination for cause must be static, 

quantified, and objective.54 Vague 

standards (i.e., those that are not 

quantified and depend on the 

employer’s subjective judgement) do not 

constitute productivity standards, and 

failure to comply with such vague 

standards will not be accepted by the 

Department as a valid reason for 

termination for cause. 

Third, proposed § 655.122(n)(2)(i)(C) 

would allow termination for cause only 

if compliance with the policy, rule, or 

productivity standard is within the 

employee’s control. For example, 

termination for cause would not apply 

if a worker were unable to meet 

productivity standards if working in a 

field where compliance with the 

productivity standard is impossible for 

any worker (e.g., in a field where most 

fruit to be picked remains unripe, or 

where the employer has hired 

significantly more employees than 

required to complete available work). 

Similarly, termination for cause would 

not apply where a worker is regularly 

tardy but arrives using employerprovided transportation that habitually 

arrives late through no fault of the 

worker. Reasonable disciplinary 

processes should not penalize workers 

for infractions outside of their control. 

Fourth, proposed § 655.122(n)(2)(i)(D) 

would clarify that termination for cause 

would apply only where the policy, 

rule, or productivity standard is 

reasonable and applied consistently. A 

just and equitable discipline system 

requires equal treatment under the rules 

for all H–2A and corresponding 

workers. Termination for cause would 

not apply where one worker is 

terminated for noncompliance with a 

policy with which another worker 

performing a similar job is not required 

to comply. Similarly, termination for 

cause would not apply where a worker 

is terminated pretextually for 

noncompliance with a policy or rule 

that the employer infrequently or 

sporadically enforces. 

Fifth, proposed § 655.122(n)(2)(i)(E) 

would outline that termination for cause 

would apply only where the employer 

undertakes a fair and objective 

investigation into the job performance 

or misconduct. Termination for cause 

would not apply where an employer 

merely assumes that the worker has 

failed to comply with a policy, rule, or 

productivity standard, or relies on a 

dubious third-party account as the basis 

for the termination. 

Sixth, proposed § 655.122(n)(2)(i)(F) 

would require the employer to engage in 

progressive discipline to correct the 

worker’s performance or behavior before 

terminating that worker for cause. 

Proposed § 655.122(n)(2)(ii) would 

define progressive discipline as a 

system of graduated and reasonable 

responses to an employee’s failure to 

meet productivity standards or failure to 

comply with employer policies or rules. 

Examples of disciplinary measures may 

include counseling, verbal warnings, 

written warnings, and, when 

appropriate, termination for cause. 

Disciplinary measures are proportional 

to the failure but may increase in 

severity if the failure is repeated. For 

example, a worker who blatantly and 

willfully ignores known safety 

procedures when operating heavy 

machinery, putting their safety and/or 

the safety of others at risk, should 

encounter different disciplinary 

consequences than a worker who is 15 

minutes tardy for the first time that 

season. Additionally, a worker who is 

tardy for the first time may experience 

different disciplinary consequences 

than a worker who is tardy for the fifth 

time in 2 weeks. Progressive discipline 

ensures that workers are not harshly 

punished for minor, first-time 

infractions and reinforces the conditions 

for termination for cause in proposed 

§ 655.122(n)(2)(i), specifically that rules, 

policies, and productivity standards are 

communicated to the workers and are 

reasonable. This furthers the 

Department’s objective of ensuring that 

disciplinary procedures resulting in 

termination for cause are reasonable and 

justified, thus avoiding adverse impact 

on similarly employed workers in the 

United States by protecting access to 

outbound transportation 

(§ 655.122(h)(2)), the three-fourths 

guarantee (including meals and housing 

until the worker departs for other H–2A 

employment or to the place outside the 

United States from which the worker 

came) (§ 655.122(i)), and, if a U.S. 

worker, to be contacted for work in the 

next year (§ 655.153). 

The Department recognizes that in 

rare circumstances, termination for 

cause may be an appropriate 

disciplinary consequence for a first-time 

offense of egregious misconduct even in 

a progressive discipline system. 

Egregious misconduct means behavior 

that is plainly illegal or that a 

reasonable person would understand as 

being offensive, such as violence, drug 

or alcohol use on the job, or unlawful 

assault, as opposed to failure to meet 

performance expectations or 

productivity standards. The Department 

also emphasizes that all other 

conditions outlined in proposed 

§ 655.122(n)(2)(i) must be met in cases 

of termination for cause involving 

egregious misconduct. Specifically, the 

worker must be informed, or reasonably 

should have known, about the policy or 

rule; compliance with the policy or rule 

must be within the worker’s control; the 

policy or rule must be reasonable and 

applied consistently; and the employer 

must undertake a fair and objective 

investigation into the purported 

misconduct. Egregious misconduct need 

not be explicitly prohibited verbally or 

in writing—workers are generally 

expected to understand that the 

behavior is prohibited—but the 

Department encourages employers to 

clearly communicate to workers that 

activities like unlawful harassment, 

substance abuse, and illegal or violent 

conduct will not be tolerated. 

Prior to each disciplinary measure, 

the employer must notify the worker of 

the infraction and allow the worker an 

opportunity to present evidence in their 

defense to dispute the accuracy of the 

employer’s description of the infraction 

or failure to meet the productivity 

standards. Fair and just disciplinary 

policies should ensure that the 

employer undertakes reasonable steps to 

determine whether the worker 

committed an infraction that was within 

their control or failed to meet 

productivity standards. Such policies 

also should ensure that the employer 

considers any mitigating circumstances 

that may provide context to any 

infraction or failure to meet productivity 

standards. 

The Department also proposes that, 

after imposing any disciplinary measure 

prior to termination, the employer must 

provide relevant and adequate 

instruction to the worker, and the 

worker must be afforded reasonable 

time to correct the behavior or meet the 

productivity standard following 

instruction. The type of instruction and 

the amount of time afforded to fix the 

issue may vary depending on the 

misconduct or performance issue. For 

example, if the worker is not meeting 

productivity standards, the worker 

should be provided training on 

harvesting techniques and a reasonable 

amount of time to develop those 

techniques to meet the productivity 

standard. In another example, if a 

worker arrives late to work one morning 

and is verbally counseled, the employer 

should make clear the time the worker 

is expected to arrive at work. In this 

second example, the employer can 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63784 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

55 ‘‘Sex’’ includes sexual orientation and gender 

identity because differential treatment on those 

bases necessarily involves discrimination because 

of sex. See Bostock v. Clayton Cnty., 140 S. Ct. 

1731, 1741 (2020) (‘‘it is impossible to discriminate 

against a person’’ under Title VII because of their 

sexual orientation or gender identity ‘‘without 

discriminating against that individual based on 

sex’’). 

56Termination for cause provides employers with 

an exception from certain provisions of the H–2A 

program. Where a party seeks an exemption from 

prescribed terms or from a generally applicable 

provision, it is generally appropriate to assign to 

that party the burden of demonstrating the 

conditions for such an exemption. See, e.g., 

Meacham v. Knolls Atomic Power Lab’y, 554 U.S. 

84, 91–94 (2008) (employers bear burden of proving 

certain exemptions to Age Discrimination in 

Employment Act); Karawia v. U.S. Dep’t of Lab., 

627 F. Supp. 2d 137, 146 (S.D.N.Y. 2009) (under 29 

CFR 4.188, a contractor found by the Secretary to 

have violated the Service Contract Act bears the 

burden of establishing unusual circumstances to 

warrant relief from the debarment sanction that 

generally applies to violators); 29 CFR 525.21(c) 

(where an employer that has obtained a special 

certificate under FLSA section 14(c) allowing the 

employer to pay special minimum wage rates to 

certain workers with disabilities, and the employer 

seeks to obtain authority to lower the wage rate of 

a worker with a disability below the rate specified 

in the certificate, the employer has the burden of 

establishing the necessity of lowering the wage of 

that worker); 29 CFR 779.101 (stating that ‘‘[a]n 

employer who claims an exemption under the 

[FLSA] has the burden of showing that it applies’’) 

(citing Walling v. Gen. Indus. Co., 330 U.S. 545 

(1947) and A.H. Phillips, Inc. v. Walling, 324 U.S. 

490 (1945)). 

reasonably expect the worker to correct 

the behavior by the next shift. Of course, 

there may be extenuating circumstances 

for the tardiness and the employer 

should take those into account as part 

of any counseling. 

In the proposed regulation, the 

employer must also document, in 

writing, each disciplinary measure, 

evidence the worker presented in their 

defense, and resulting instruction, and 

the employer must clearly communicate 

to the worker, either verbally or in 

writing, in a language the worker 

understands, that a disciplinary action 

occurred, so as to create a record of the 

discipline and minimize the potential 

misunderstanding as to whether a 

disciplinary action occurred. The 

employer must also document any 

explanation that the employee provided 

in response to any purported infraction. 

These requirements—instruction, a 

reasonable period to fix issues, 

employee explanation, and 

documentation—are intended to ensure 

a worker is not prematurely terminated 

and deprived of their rights to the threefourths guarantee (including meals and 

housing until the worker departs for 

other H–2A employment or to the place 

outside the United States from which 

the worker came) (§ 655.122(h)(2)), 

outbound transportation (§ 655.122(i)), 

and/or, if a U.S. worker, to be contacted 

for work in the next year (§ 655.153), for 

misconduct or performance issues that 

are unknown to the worker and/or are 

easily remedied. 

Proposed § 655.122(n)(2)(iii) would 

outline specific reasons for which 

workers may not be terminated for 

cause. This proposed language makes 

clear that an employee continues to be 

entitled to outbound transportation 

(§ 655.122(h)(2)), the three-fourths 

guarantee (including meals and housing 

until the worker departs for other H–2A 

employment or to the place outside the 

United States from which the worker 

came) (§ 655.122(i)), and, if a U.S. 

worker, to be contacted for work in the 

next year (§ 655.15) if the employer has 

broken the law in terminating the 

worker, or if the worker is reasonably 

exercising their rights to a safe 

workplace. Specifically, termination for 

cause would not apply where the 

termination is contrary to a Federal, 

State, or local law; for an employee’s 

refusal to work under conditions that 

the employee reasonably believes will 

expose them or other employees to an 

unreasonable health or safety risk; for 

discrimination on the basis of race, 

color, national origin, age, sex 

(including sexual orientation and 

gender identity),55 religion, disability, 

or citizenship; or, where applicable, 

where the employer fails to comply with 

its obligation under § 655.135(m)(4) in a 

meeting that contributed to the 

employee’s termination. The 

Department seeks comment on these 

reasons for termination excluded from 

termination for cause, and whether any 

other reasons should explicitly be 

included in this list. 

The Department does not propose 

changes to the prohibition on 

preferential treatment of H–2A workers 

(§ 655.122(a) or layoffs of U.S. workers 

(§ 655.135(g)), but reminds employers 

that they are prohibited from offering 

preferential treatment to H–2A workers 

over U.S. workers. See § 655.122(a). 

Similarly, employers are prohibited 

from laying off similarly employed U.S. 

workers in the occupation that is the 

subject of the H–2A Application in the 

area of intended employment in the 

period beginning 60 days before the first 

date of need and continuing throughout 

the period certified on the H–2A 

Application, except on the basis of 

lawful, job-related reasons. While U.S. 

workers in corresponding employment 

may be laid off for lawful, job-related 

reasons such as lack of work or the end 

of the growing season, such a layoff is 

permissible only after all H–2A workers 

have been laid off. See § 655.135(g). As 

noted above, a worker in corresponding 

employment may only be terminated for 

cause using the same procedures, found 

in proposed § 655.122(n)(2), as those 

used to terminate an H–2A worker for 

cause. However, such processes must be 

applied fairly and consistently (and in 

compliance with the conditions set forth 

in § 655.122(n)(2)(ii)). In addition, to 

comply with the prohibitions on 

preferential treatment (§ 655.122(a)) and 

layoffs of U.S. workers (§ 655.135(g)), 

U.S. workers in corresponding 

employment may not be terminated 

without cause, or laid off, before all H– 

2A workers are terminated without 

cause. Of course, any worker terminated 

without cause, or laid off, is entitled to 

outbound transportation 

(§ 655.122(h)(2)), the three-fourths 

guarantee (including meals and housing 

until the worker departs for other H–2A 

employment or to the place outside the 

United States from which the worker 

came) (§ 655.122(i)), and, if a U.S. 

worker, to be contacted for work in the 

next year (§ 655.153). Where the 

employer terminates an H–2A or worker 

in corresponding employment without 

cause, Department will, as appropriate, 

cite violations, assess civil money 

penalties, compute back wages, and/or 

pursue debarment for (1) failure to pay 

outbound transportation, (2) failure to 

comply with the three-fourths 

guarantee, and/or (3) failure to contact 

a U.S. worker for employment in the 

following season. When computing back 

wages owed under the three-fourths 

guarantee, the Department will compute 

for the hours not offered pursuant to 

§ 655.122(i)(1) as well as any housing 

and meals not provided when required 

pursuant to § 655.122(i)(5). 

Proposed § 655.122(n)(2)(iv) would 

require the employer to bear the burden 

of demonstrating to the Department that 

any termination for cause meets the 

requirements of proposed 

§ 655.122(n)(2). The employer would be 

required to prove that the termination 

was justified and proper progressive 

discipline procedures were followed. 

The Department believes that it is 

reasonable to require employers, as the 

entities seeking an exemption from 

outbound transportation, the threefourths guarantee (including meals and 

housing until the worker departs for 

other H–2A employment or to the place 

outside the United States from which 

the worker came), and notification 

requirements found in §§ 655.122(h)(2) 

and (i) and 655.153, to demonstrate why 

termination for cause was warranted.56

Consistent with current policy, where 

an employer constructively discharges a 

worker, the Department will consider 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63785 

57https://www.dol.gov/sites/dolgov/files/WHD/ 

legacy/files/fab2012_1.pdf. 

that worker to be terminated without 

cause. Constructive discharge occurs 

when a worker departs employment 

because working conditions have 

become so difficult that a reasonable 

person would have felt compelled to 

leave the job. Constructive discharge 

may occur in a wide variety of 

situations, such as where a worker 

departs employment because of unsafe 

or intolerable housing conditions (such 

as grossly inadequate heating during the 

winter, lack of running water, or 

exposure of bare electrical wires), 

because the employer requires the 

worker to work in an unsafe workplace 

(for example, where an employer 

requires a worker to work in a field that 

was recently sprayed with pesticides 

before the required re-entry interval has 

elapsed), or because the worker has not 

received work assignments for an 

extended period of time, despite being 

available and willing to take on new 

work. Along the same lines, where a 

worker involuntarily leaves 

employment prior to the end of the 

contract period, the employee’s 

departure may be deemed constructive 

discharge rather than abandonment 

under § 655.122(n)(1). Consistent with 

current practice, in assessing whether 

alleged abandonment is voluntary, the 

Department will consider, for example, 

whether the employer sought to 

influence workers to leave a job prior to 

the end of the contract period or 

whether the employer took other steps 

to render working conditions so 

intolerable that a reasonable person in 

the worker’s position would not stay. 

See U.S. Dep’t of Lab., Wage & Hour 

Div., Field Assistance Bulletin No. 

2012–1, H–2A ‘‘Abandonment or 

Termination for Cause’’ Enforcement of 

20 CFR 655.122(n) (Feb. 28, 2012).57

The Department also proposes 

additional recordkeeping obligations in 

§ 655.122(n)(4). The regulations at 

current § 655.122(n) require employers 

to maintain records of notification to the 

NPC, and to DHS in the case of an H– 

2A worker. Proposed § 655.122(n)(4)(i) 

would make a minor clarification that 

such records of notification must be 

maintained with respect to both 

abandonment and termination for cause, 

which is consistent with DOL’s 

established interpretation of the current 

regulations. Further, proposed 

§ 655.122(n)(4)(ii) would require the 

employer to maintain disciplinary 

records, including each step of 

progressive discipline, any evidence the 

worker presented in their defense, any 

investigation related to the termination, 

and any subsequent instruction afforded 

the worker. Finally, proposed 

§ 655.122(n)(4)(iii) would require that 

the employer maintain records 

indicating the reason(s) for termination 

of any employee, including disciplinary 

records as described in 

§§ 655.122(n)(4)(ii) and 655.167. These 

records are necessary to show that an 

employer complied with the regulations 

throughout the process leading to the 

termination for cause. An employer that 

does not maintain these records may not 

meet the burden of demonstrating to the 

Department that any termination for 

cause meets the requirements of 

proposed § 655.122(n)(2), as required by 

proposed § 655.122(n)(2)(iv). The 

Department also proposes conforming 

edits to § 655.167, specifically by adding 

paragraphs (c)(10) and (11), requiring 

employers to retain records indicating 

the reason(s) for termination of any 

employee, including records of each 

step of progressive discipline, any 

subsequent instruction afforded the 

worker, and any investigation, including 

any evidence or information that the 

worker presented in their defense, 

relating to the termination as set forth in 

§ 655.122(n). The maintenance of 

disciplinary records for all employees, 

not simply those who were terminated, 

will assist employers in meeting their 

burden to demonstrate that discipline 

leading to termination was not 

pretextual and was consistent with 

company policies and procedures. The 

Department seeks comments as to 

whether it should require any other 

records in support of these proposed 

requirements. 

Finally, the Department proposes 

minor edits to § 655.122(n) to improve 

readability and clarity. Specifically, the 

Department proposes to number 

paragraphs within this section and to 

reorder the mentions of termination for 

cause and abandonment of employment. 

Additionally, the Department proposes 

to clarify that the employer must notify 

the NPC and, in the case of an H–2A 

worker, DHS, not later than 2 working 

days after any termination for cause or 

abandonment occurs. This edit would 

be consistent with DOL’s established 

interpretation of the current regulations 

at § 655.122(n) and would clarify 

ambiguous language to specify that the 

notice procedures apply both to 

termination for cause and to 

abandonment. 

C. Application for Temporary 

Employment Certification Filing 

Procedures 

1. Section 655.130, Application Filing 

Requirements 

a. The Department Proposes To Require 

Enhanced Disclosure of Information 

About Employers: Owners, Operators, 

Managers, and Supervisors 

The Department proposes to expand 

its collection of information about 

employers and the managers and 

supervisors of workers at places of 

employment by collecting additional 

information about the owner(s) of 

agricultural businesses that employ 

workers under the H–2A Application, 

the operators of the place(s) of 

employment identified in the job order, 

and the managers and supervisors of the 

workers when performing labor or 

services at those place(s) of 

employment. Specifically, the 

Department proposes to require that 

each prospective H–2A employer, as 

defined at 20 CFR 655.103(b), provide 

the following information in relation to 

the owner(s) of each employer, any 

person or entity (if different than the 

employer(s)) who is an operator of the 

place(s) of employment, including an 

H–2ALC’s fixed-site agricultural 

business client(s), and any person who 

manages or supervises the H–2A 

workers and workers in corresponding 

employment under the H–2A 

Application: full name, date of birth, 

address, telephone number, and email 

address. The Department also proposes 

to revise the Form ETA–9142A to 

require the employer provide additional 

information about prior trade or DBA 

names the employer has used in the 3 

years preceding its filing of the H–2A 

Application, if any, rather than 

collecting only the DBA name the 

employer currently uses. Accordingly, 

the Department proposes to revise and 

restructure § 655.130 by adding four 

new paragraphs, (a)(1) through (4), to 

specify the information employers must 

provide at the time of filing an H–2A 

Application. 

In a new paragraph (a)(1), the 

Department proposes to retain the 

language currently in § 655.130(a) that 

addresses the H–2A Application and 

supporting documentation the employer 

must submit. The remainder of 

§ 655.130(a), which contains language 

regarding collection of the employer’s 

information—i.e., FEIN, valid physical 

location in the United States, and means 

of contact for recruitment—would be 

moved to proposed paragraph (a)(2). 

Also, in paragraph (a)(2), the 

Department proposes to explicitly 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63786 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

require disclosure of the employer’s 

name and the additional employer 

information collection the Department 

proposes to require (i.e., the identity, 

location, and means of contact for each 

owner). Proposed paragraph (a)(3) 

would require the employer to provide 

the identity, location, and contact 

information of all persons or entities 

who are operators of the place(s) of 

employment listed in the job order, if 

different from the employer(s) identified 

under paragraph (a)(2), including an H– 

2ALC’s fixed-site agricultural business 

client(s) who operate the place(s) of 

employment where the workers 

employed under the H–2A Application 

will perform labor or services. In 

addition, paragraph (a)(3) would require 

the employer to provide the identity, 

location, and contact information of all 

persons who will manage or supervise 

H–2A workers and workers in 

corresponding employment under the 

H–2A Application at each place of 

employment. Proposed paragraph (a)(4) 

would require the employer to continue 

to update the information required by 

the above paragraphs until the end of 

the work contract period, including 

extensions thereto, and retain this 

information post-certification and 

produce it upon request by the 

Department. To effectuate proposed 

§ 655.130(a)(4), the Department 

proposes a new record retention 

paragraph at § 655.167(c)(9) that would 

require the employer to retain the 

information specified in paragraphs 

(a)(2) and (3) of § 655.130 for the 3-year 

period specified in § 655.167(b). 

The additional information the 

Department proposes to collect is 

necessary to improve program 

administration and better protect 

vulnerable agricultural workers. The 

new collections would allow the 

Department to gain a more accurate and 

detailed understanding of the scope and 

structure of the employer’s agricultural 

operation, which is essential to the 

Department’s fulfillment of various 

obligations in the administration and 

enforcement of the H–2A program. 

During the application process, this 

information would assist the 

Department in determining whether the 

employer has demonstrated a bona fide 

temporary or seasonal need, or, 

conversely, whether an employer has, 

through multiple related entities, sought 

to obtain year-round H–2A labor. The 

additional information would enhance 

the Department’s enforcement 

capabilities by helping the Department 

identify, investigate, and pursue 

remedies from program violators; ensure 

that sanctions, such as debarment or 

civil money penalties, are appropriately 

assessed and applied to responsible 

entities, including individuals and 

successors in interest when appropriate; 

and determine whether an H–2A 

employer subject to investigation has 

prior investigative history under a 

different name. For example, contact 

information for owners, operators, and 

supervisors may assist the Department 

in locating the employer and workers 

for the purposes of conducting an 

investigation, presenting findings (either 

verbally or in a written determination) 

and obtaining payment for back wages 

and civil money penalties following a 

final order of the Secretary. Similarly, 

this information provided at the 

application stage may assist the 

Department to identify whether an 

individual or successor in interest 

should be named on any determination 

and therefore subject to any sanctions or 

remedies assessed. As explained in the 

discussion of proposed § 655.104, in the 

experience of the Department, some H– 

2A employers have sought to avoid 

penalties and continue participating in 

the program despite having been 

debarred by reconstituting as a new 

legal entity while ultimately retaining 

the underlying business that was 

debarred from the H–2A program. In an 

audit or investigation of an employer, 

this information would allow the 

Department to better identify those 

persons with a financial stake in the 

certified H–2A employer who employ 

agricultural workers through nonpetitioning entities. In addition, and as 

set forth in the discussion of proposed 

§ 655.103(e), in the experience of the 

Department, some employers have 

established one entity that pays the 

firm’s H–2A workers and another entity 

that pays the firm’s other workers, while 

in fact the entire agricultural operation 

constitutes a single employer. This 

information will assist the Department 

in determining quickly whether the 

employees of the non-petitioning entity 

are in corresponding employment as 

employees of a single employer with an 

H–2A labor certification. 

OFLC may use this information in 

post-adjudication audit examinations 

and/or program integrity proceedings 

(e.g., revocation or debarment actions). 

The information will help OFLC verify 

that persons representing employers 

both in the labor certification process 

and in the process of recruiting, 

managing, or supervising workers are 

acting on behalf of the employers within 

the scope of the terms and conditions of 

the labor certification and any contracts 

or agreements with employers, and in 

compliance with the revised regulations 

and all employment-related laws, such 

as laws prohibiting discrimination, 

retaliation, or the imposition of 

unlawful recruitment or visa-related 

fees. Collection of prior DBA names and 

identifying information for people other 

than the employer will make it easier for 

OFLC and WHD to search across 

applications within a filing system 

database to identify instances in which 

employers have changed names or roles 

to avoid complying with program 

regulations or avoid monetary penalties 

or serious sanctions such as program 

debarment. The proposed information 

collections also will facilitate 

interagency information sharing and 

permit OFLC and WHD to share relevant 

identifying information with other 

agencies when necessary to aid an 

investigation or enforcement action. 

The Department will collect this 

information primarily through the H–2A 

Application the employer must 

complete to obtain temporary labor 

certification, and the Department 

proposes revisions to these forms under 

the Paperwork Reduction Act (PRA) for 

this purpose. In particular, the 

Department proposes revisions to the 

Form ETA–790A, Addendum B, to 

collect more detailed information about 

employers and the places of 

employment at which workers will 

provide the agricultural labor or services 

described in the job order. In addition, 

the Department proposes a new Form 

ETA–9142A, Appendix C, to collect the 

additional identifying information for 

owners and operators of places where 

work is performed and the people who 

manage and supervise workers under 

the H–2A Application, discussed above. 

The Department will collect, store, and 

disseminate all information and records 

in accordance with the Department’s 

information sharing agreements and 

System of Records Notices, principles 

set forth by the Office of Management 

and Budget (OMB), and all applicable 

laws, including the Privacy Act of 1974 

(Pub. L. 93–579, sec. 7, Dec. 31, 1974, 

88 Stat. 1909), Federal Records Act of 

1950 (Pub. L. 81–754, 64 Stat. 585 

[codified as amended in chapters 21, 29, 

31, and 33 of 44 U.S.C.]), the PRA (44 

U.S.C. 3501 et seq.), and the EGovernment Act of 2002 (Pub. L. 107– 

347 (2002)). More information about the 

Department’s proposed changes to the 

H–2A information collection 

instruments and the Department’s 

collection and use of this information is 

available in supporting documentation 

in the PRA package the Department has 

prepared for this rulemaking. 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63787 

58According to USDA’s Economic Research 

Service, employment of farmworkers in the United 

States has remained stable since the 1990s, but the 

number of positions certified in the H–2A program 

has increased sixfold from 2005 to 2021. See Farm 

Labor, U.S. Dep’t of Agriculture, https://

www.ers.usda.gov/topics/farm-economy/farm-labor; 

H–2A Seasonal Worker Program Has Expanded 

Over Time, U.S. Dep’t of Agriculture, https://

www.ers.usda.gov/data-products/chart-gallery/ 

gallery/chart-detail/?chartId=104874. 

2. Section 655.135, Assurances and 

Obligations of H–2A Employers 

a. Section 655.135 Introductory 

Language, WHD Authority 

The Department proposes a minor, 

clarifying revision to the introductory 

language to § 655.135 to include explicit 

reference to 29 CFR part 501 as part of 

the obligations and assurances of an 

employer seeking to employ H–2A 

workers. The current introductory 

language specifies that an employer 

seeking to employ H–2A workers must 

agree as part of the job order and 

Application that it will comply with all 

requirements under 20 CFR part 655, 

subpart B. Those requirements currently 

include compliance with WHD’s 

investigative and enforcement authority 

under 29 CFR part 501. See, e.g., 20 CFR 

655.103(b), 655.101(b). The proposed 

revisions here would simply make these 

obligations more explicit in § 655.135 

and on the job order, to better ensure 

that both workers and employers are 

fully aware of WHD’s authorities. The 

Department welcomes comments on this 

proposed revision. 

b. Sections 655.135(h), (m), and (n), 

655.103(b), Protections for Workers Who 

Advocate for Better Working Conditions 

The Department proposes to revise 

the assurances and obligations of H–2A 

employers to include stronger 

protections for workers who advocate 

for better working conditions on behalf 

of themselves and their coworkers. The 

Department believes that these 

protections will significantly improve 

the Department’s efforts to prevent 

adverse effect on the working conditions 

of similarly employed agricultural 

workers in the United States because the 

hiring of H–2A workers may suppress 

the ability of domestic workers to 

negotiate with employers and advocate 

on their own behalf. Even if workers in 

the United States were to demand better 

conditions or pay, under the current H– 

2A regulatory framework, employers 

may turn to the H–2A program for an 

alternative, vulnerable workforce that 

faces significant barriers to pushing for 

better conditions or organizing, thus 

undermining advocacy efforts by or on 

behalf of workers in the United States. 

The proposals in this rule seek to 

correct this imbalance in bargaining 

power by protecting the rights of H–2A 

and other workers to advocate for better 

working conditions. In other words, the 

protections that the Department 

proposes would provide an important 

‘‘baseline’’ or minimum condition of 

employment under the H–2A program 

below which workers in the United 

States would be adversely affected, for 

the reasons set forth below. 

Specifically, the Department proposes 

to broaden the provision at § 655.135(h), 

which prohibits unfair treatment, by 

adding a number of protected activities 

that the Department has determined will 

play a significant role in safeguarding 

collective action, and that workers must 

be able to engage in without fear of 

intimidation, threats, and other forms of 

retaliation. The Department also 

proposes a new employer obligation at 

§ 655.135(m) that would ensure that H– 

2A employers do not interfere with 

efforts by their vulnerable workforce to 

advocate for better working conditions 

by including a number of requirements 

that would advance worker voice and 

empowerment and further protect the 

rights proposed under § 655.135(h). The 

Department also proposes a new 

employer obligation at § 655.135(n) that 

would explicitly allow H–2A workers 

and workers in corresponding 

employment the right to invite or accept 

guests to worker housing and also 

would provide a narrow right of access 

to worker housing to labor 

organizations. Some of these proposed 

protections would be limited to those 

workers who are engaged in agriculture 

as defined and applied in 29 U.S.C. 

203(f)—that is, those who are exempt 

from the protections of the NLRA. 

The Department believes that the 

proposed protections are necessary to 

prevent an adverse effect on the working 

conditions of workers in the United 

States similarly employed. 8 U.S.C. 

1188(a)(1). The Department has 

historically understood the INA’s 

adverse effect requirement both as 

requiring parity between the terms and 

conditions of employment provided to 

domestic and H–2A workers and as 

establishing a baseline ‘‘acceptable’’ 

standard for working conditions below 

which workers in the United States 

would be adversely affected. Courts 

have long recognized that Congress 

delegated to the Department broad 

authority to implement the prohibition 

on adverse effect. See, e.g., Overdevest 

Nurseries, L.P. v. Walsh, 2 F.4th 977, 

984 (D.C. Cir. 2021); AFL–CIO v. Dole, 

923 F.2d 182, 187 (D.C. Cir. 1991) 

(citing AFL–CIO v. Brock, 835 F.2d 912, 

915 n.5 (D.C. Cir. 1987)). 

In the 1978 H–2 regulations for 

agricultural employment, the 

Department characterized many of the 

longstanding terms and conditions of 

the program now found at 20 CFR 

655.122—including housing, workers’ 

compensation insurance, the provision 

of tools and equipment, the maximum 

meal charge, inbound and outbound and 

daily transportation, the three-fourths 

guarantee, and recordkeeping and 

earning statements—as ‘‘the minimum 

level’’ of working conditions ‘‘below 

which similarly employed’’ workers in 

the United States ‘‘would be adversely 

affected.’’ 20 CFR 655.0(d), 655.202(b) 

(1978), 43 FR 10306, 10312, 10314 (Mar. 

10, 1978). The 1978 rule further 

explained that ‘‘[i]f it is concluded that 

adverse effect would result,’’ the 

Department would not be able to 

separately determine whether U.S. 

workers are available because ‘‘U.S. 

workers cannot be expected to accept 

employment under conditions below 

the established minimum levels.’’ 43 FR 

10306, 10312 (Mar. 10, 1978). 

In IRCA, which bifurcated the H–2 

program and created the separate H–2A 

program, Congress explicitly adopted 

the adverse effect requirement, stating 

that the Secretary may not issue a 

temporary labor certification unless the 

petitioning employer has established, 

among other things, that the 

employment of H–2A workers ‘‘will not 

adversely affect the . . . working 

conditions of workers in the United 

States similarly employed.’’ 8 U.S.C. 

1188(a)(1). The Department retained the 

‘‘minimum’’ terms and conditions of 

employment required under the 

program, explicitly described in the 

regulations as intended to prevent 

adverse effect, in its 1987 rulemaking. 

52 FR 16770, 16779–80 (May 5, 1987); 

52 FR 20496, 20508, 20513 (June 1, 

1987); see also Garcia-Celestino v. Ruiz 

Harvesting, Inc., 843 F.3d 1276, 1285 

(11th Cir. 2016) (explaining that the 

regulations’ provision of minimum 

benefits to H–2A workers, including 

sound working conditions, ‘‘ensure[s] 

that foreign workers will not appear 

more attractive to the employer than 

domestic workers, thus avoiding any 

adverse effects for domestic workers’’) 

(citations omitted). 

Over the past decade, use of the H– 

2A program has grown dramatically 

while overall agricultural employment 

in the United States has remained 

stable, meaning that fewer domestic 

workers are employed as farmworkers.58

The Department believes that this is 

because the dangers and physical 

hardships inherent in agricultural 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63788 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

59Workplace Safety and Health Topics: 

Agricultural Safety, National Inst. for Occupational 

Safety & Health, Ctrs. for Disease Control & 

Prevention. 

60Centro de los Derechos del Migrante, Ripe for 

Reform: Abuses of Agricultural Workers in the H– 

2A Visa Program 4, 6 (CDM Report), https://

cdmigrante.org/ripe-for-reform; Farmworker Justice 

Report at 7, 11, 17, 31; Miriam Jordan, Black 

Farmworkers Say They Lost Jobs to Foreigners Who 

Were Paid More, N.Y. Times (Nov. 12, 2021), 

https://www.nytimes.com/2021/11/12/us/blackfarmworkers-mississippi-lawsuit.html; Polaris, 

Labor Trafficking on Specific Temporary Work 

Visas, a Data Analysis 2018–2020 13, 18 (May 2022) 

(Polaris 2018–2020 Report), https://

polarisproject.org/wp-content/uploads/2022/07/ 

Labor-Trafficking-on-Specific-Temporary-WorkVisas-by-Polaris.pdf. 

61CDM Report at 4–6, 9, 13, 18–19, 23, 27; 

Farmworker Justice Report at 17; Polaris 2018–2020 

Report at 13, 18–19, 26. 

62CDM Report at 5, 23, 27, 30; Farmworker 

Justice Report at 22, 33; Polaris 2018–2020 Report 

at 7, 8, 19, 26. 

63Farmworker Justice Report at 30–31; Polaris 

2018–2020 Report at 16–17, 26. 

64 Individuals associated with this employer also 

pleaded guilty to criminal charges for their role in 

forced labor racketeering conspiracy. See Press 

Release, U.S. Dep’t of Just., Owner of Farm Labor 

Contracting Company Pleads Guilty in Racketeering 

Conspiracy Involving the Forced Labor of Mexican 

Workers (Sept. 27, 2022), https://www.justice.gov/ 

opa/pr/owner-farm-labor-contracting-companypleads-guilty-racketeering-conspiracy-involvingforced; Press Release, U.S. Dep’t of Just., Three 

Defendants Sentenced in Multi-State Racketeering 

Conspiracy Involving Forced Labor of Mexican 

Agricultural H–2A Workers (Oct. 27, 2022), https:// 

www.justice.gov/opa/pr/three-defendantssentenced-multi-state-racketeering-conspiracyinvolving-forced-labor-mexican. 

65See Press Release, U.S. Dep’t of Lab., Federal 

Court Orders Louisiana Farm, Owners to Stop 

Retaliation After Operator Denied Workers’ Request 

for Water, Screamed Obscenities, Fired Shots (Oct. 

28, 2021), https://www.dol.gov/newsroom/releases/ 

whd/whd20211028-0. 

66See Press Release, U.S. Dep’t of Lab., US 

Department of Labor Investigation Results in Judge 

Debarring North Carolina Farm Labor Contractor 

for Numerous Guest Worker Visa Program 

Violations. 

67According to BLS data, in 2021, union 

representation in agriculture was just 3.1 percent of 

total workers employed compared to the 11.6 

percent of workers employed overall represented by 

unions; in 2022, agricultural union representation 

was 4.3 percent of workers employed, compared to 

11.3 percent of workers employed overall. BLS 

News Release, Union Members—2022 tbls 1, 3, 

Bureau of Lab. Stats., https://www.bls.gov/ 

news.release/pdf/union2.pdf. See also Report for 

Congress, Farm Labor: The Adverse Effect Wage 

Rate (AEWR), Congressional Research Service 

(updated March 26, 2008) n.17; Farmworker Justice 

Report at 31. 

68See Farmworker Justice Report at 30–31; 2017 

Grievance Summary, Farm Lab. Org. Comm., 

https://floc.com/2017-grievance-summary. 

employment,59 combined with the lack 

of protections for worker organizing and 

bargaining power, have together 

contributed to worsening working 

conditions in agricultural 

employment—a lowering baseline— 

leading to a decreasing number of 

domestic workers willing to accept such 

work.60 Congress explicitly prohibited 

in the INA the granting of labor 

certifications in the event of a strike or 

lockout at the worksite, a prohibition 

that recognizes the potential for the 

hiring of H–2A workers to suppress 

domestic workers’ bargaining power and 

organizing efforts and, thus, have a 

negative impact on workers in the 

United States. 8 U.S.C. 1188(b)(1). 

Some of the characteristics of the H– 

2A program, including the temporary 

nature of the work, frequent geographic 

isolation of the workers, and 

dependency on a single employer, 

create a vulnerable population of 

workers for whom it is uniquely 

difficult to advocate or organize to seek 

better working conditions.61 In its 

enforcement experience, the Department 

has received reports of employers that 

have prohibited or effectively prevented 

H–2A workers from receiving assistance 

from certain service providers. For 

example, some employers have 

prevented H–2A workers from 

consulting with legal aid organizations 

regarding workers’ rights under the H– 

2A program. Others have refused to 

transport workers to a medical provider 

for care in the United States, and one 

employer required instead that workers 

return to Mexico to access medical care 

for an on-the-job injury. The Department 

has seen flyers prohibiting workers from 

talking to visitors at the housing site 

without supervisor permission and 

posters prohibiting visitors to 

agricultural establishments unless the 

visitors first check in with the employer. 

See also Rivero v. Montgomery Cnty., 

259 F. Supp. 3d 334, 337–40 (D. Md. 

2017) (employer unlawfully blocked 

legal aid workers from visiting H–2A 

workers in employer-provided housing). 

Nongovernmental organizations (NGOs) 

that work with H–2A workers report 

similar employer interference with 

workers’ rights to access services and 

information, including medical 

treatment and legal assistance.62

Workers in the H–2A program are also 

vulnerable to retaliation, which 

discourages workers from advocating for 

their own rights and the rights of their 

coworkers.63 For example, the 

Department debarred and assessed 

penalties against an H–2A employer that 

instructed workers to lie about their pay 

to investigators and threatened to kill 

workers who talked to authorities.64 The 

Department also recently obtained a 

temporary restraining order and 

preliminary injunction against an H–2A 

employer who, after workers requested 

more food and water, threatened 

workers with a gun, shooting twice near 

the workers.65 In another example, the 

Department recently debarred and 

assessed penalties against an employer 

who underpaid workers by more than 

$5.00 per hour and confiscated workers’ 

passports to keep them from leaving 

employment upon realizing they were 

being underpaid.66 These examples are 

just a few among the many instances of 

retaliation that the Department has 

witnessed, and that workers experience, 

that demonstrate that workers can face 

significant hurdles when advocating on 

their own behalf to assert even their 

basic rights under the current H–2A 

program regulations. 

As explained, the Department 

believes that the fear of retaliation, 

combined with the lack of clear 

protections for H–2A workers and 

corresponding workers to self-organize 

and advocate on their own behalf, has 

contributed to low union density in the 

agricultural workforce.67 In addition, 

based on its enforcement experience, 

the Department has determined that the 

H–2A program currently does not 

provide sufficient protections for such 

workers to safely and consistently assert 

their rights under the program and 

engage in self-advocacy. This lack of 

sufficient protections adversely affects 

the ability of domestic workers to 

advocate for acceptable working 

conditions, leading to reduced worker 

bargaining power and, ultimately, 

deterioration of working conditions in 

agricultural employment. However, 

when these workers have engaged in 

organizing, it has led to better working 

conditions for all workers. According to 

the Farm Labor Organizing Committee, 

AFL–CIO, union advocacy has 

improved conditions for the workers it 

represents (over 10,000 H–2A workers 

employed at North Carolina agricultural 

sites), including by helping H–2A 

workers to obtain remedies for likely 

violations of the H–2A program’s 

requirements relating to housing safety 

standards, travel reimbursements, 

wages, and other requirements.68

Therefore, the Department believes 

that changes proposed here, which 

would expand the H–2A anti-retaliation 

regulation and include employer 

obligations that would make advocacy 

and organizing more available to 

workers in the H–2A program, would 

help improve the working conditions of 

workers protected under the H–2A 

program, and thus prevent an adverse 

effect on similarly employed workers in 

the United States. The Department 

believes that the proposed protections 

also would increase U.S. worker 

response to H–2A employers’ 

recruitment efforts, both by improving 

working conditions under the H–2A 

program and by increasing U.S. workers’ 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63789 

interest in H–2A job opportunities that 

include protections for advocacy and 

organizing efforts that would not be 

undermined by the availability of an 

alternative, more vulnerable workforce. 

These proposals also would enhance 

worker bargaining power and 

meaningfully equip workers to prevent 

further deterioration of working 

conditions that adversely affect workers 

in the United States. 

The Department welcomes comments 

on whether, in fact, foreign workers 

employed under the H–2A program are 

more vulnerable to labor exploitation 

than similarly employed domestic 

workers, due to the temporary nature of 

the work; frequent geographic isolation 

of the workers; dependency on a single 

employer for work, housing, 

transportation, and necessities, 

including access to food and water; 

language barriers; possible lack of 

knowledge about their legal rights; or 

other factors. It also welcomes evidence 

or experience regarding, or refuting, the 

unique vulnerability of these workers, 

and whether existing worker protections 

are adequate to prevent violations of H– 

2A program requirements, dangerous 

working conditions, retaliation, and 

labor trafficking, or to promote H–2A 

workers’ ability to advocate or organize 

to seek better working conditions. The 

Department also seeks comments on 

whether domestic agricultural workers 

have greater voice and empowerment at 

work generally than foreign agricultural 

workers, despite the fact that they are 

not covered by the NLRA, due to their 

established presence in the United 

States, their domestic network of family 

and friends, their greater familiarity 

with services and supports available to 

workers in the United States, and their 

ability to find alternative employment. 

And more generally, the Department 

also seeks comment on how to increase, 

or increase awareness of existing, 

protections for workers advocating for 

better working conditions and to help 

prevent adverse effect on workers in the 

United States, without infringing on 

employers’ rights to manage their 

workplaces. It welcomes the views of 

employers, workers, worker advocates, 

labor organizations, and other 

stakeholders on these issues. In 

particular, the Department welcomes 

any evidence, research, and/or 

empirical data regarding these issues. 

The Department also welcomes 

comments on whether further 

protections for workers’ advocacy and 

organization, in addition to the 

protections contained within the 

following sections, are necessary to 

ensure that the employment of foreign 

workers under the H–2A program does 

not adversely affect the wages or 

working conditions of domestic 

workers. 

i. The Department’s Proposed 

Regulations Would Not Be Preempted 

by the NLRA 

Some of the provisions included in 

the Department’s proposed regulations 

would be limited to persons who are 

engaged in agriculture as defined and 

applied in 29 U.S.C. 203(f) (‘‘FLSA 

agriculture’’). For these workers, and 

these workers alone, the proposed 

regulations would protect some conduct 

and provide some rights necessary to 

safeguard collective action and protect 

against retaliation. The NLRA’s coverage 

extends only to workers who qualify as 

‘‘employee[s]’’ under section 2(3) of that 

Act, and the NLRA’s definition of 

employee expressly excludes ‘‘any 

individual employed as an agricultural 

worker.’’ 29 U.S.C. 152(3). Congress has 

provided that the definition of 

‘‘agricultural’’ in section 3(f) of the 

FLSA also applies to the NLRA. See, 

e.g., Holly Farms v. NLRB, 517 U.S. 392, 

397–98 (1996). Following the plain text 

of the statute, both Federal courts and 

the NLRB have long held that the NLRA 

does not apply to agricultural workers, 

worker organizing by agricultural 

workers, or unions ‘‘composed 

exclusively of agricultural laborers.’’ Di 

Giorgio Fruit Corp. v. NLRB, 191 F.2d 

642, 647 (D.C. Cir. 1951); see also, e.g., 

Villegas v. Princeton Farms, Inc., 893 

F.2d 919, 921 (7th Cir. 1990). Because 

portions of the Department’s proposed 

regulations would apply only to workers 

who fall within the NLRA and FLSA 

definitions of agricultural labor, those 

proposed provisions would apply 

exclusively to workers who are exempt 

from the NLRA. Thus, to the extent that 

one might argue that the proposed 

changes in this section safeguarding 

collective action would be preempted 

by Federal labor law, the NLRA’s 

exemption of agricultural labor shows 

that the proposal here is not preempted. 

As the Supreme Court explained in San 

Diego Building Trades Council v. 

Garmon, 359 U.S. 236 (1959), the NLRA 

preempts regulation of activities that 

either are or arguably are ‘‘protected by 

[section] 7 of the National Labor 

Relations Act, or . . . an unfair labor 

practice under [section] 8.’’ Id. at 244; 

see also UAW-Labor Emp. & Training 

Corp. v. Chao, 325 F.3d 360, 363 (D.C. 

Cir. 2003). Conduct may be ‘‘arguably’’ 

governed by section 7 or 8 of the NLRA 

when there is a plausible argument for 

preemption ‘‘that is not plainly contrary 

to [the Act’s] language and that has not 

been authoritatively rejected by the 

courts or the Board.’’ Int’l 

Longshoremen’s Ass’n v. Davis, 476 U.S. 

380, 395 (1986). Because agricultural 

workers are expressly excluded from the 

NLRA by the plain text of the statute, 

agricultural worker organizing is neither 

protected by section 7 of the Act nor 

subject to section 8’s limitations on 

unfair labor practices. See 29 U.S.C. 

152(3); see also Di Giorgio, 191 F.2d at 

647–49 (holding that section 8’s 

prohibition on secondary boycotts did 

not apply to a Farm Union, because an 

organization composed exclusively of 

agricultural workers is not governed by 

the NLRA). Moreover, because any 

argument that the NLRA governs 

agricultural workers would be ‘‘plainly 

contrary to [the NLRA’s] language,’’ the 

conduct that would be protected under 

the Department’s proposed rule is not 

even arguably governed by the NLRA. 

See Int’l Longshoremen’s Ass’n, 476 

U.S. at 395; see also Wilmar Poultry Co., 

Inc. v. Jones, 430 F. Supp. 573, 578 (D. 

Minn. 1977) (holding that Garmon 

preemption does not apply to State 

regulation of agricultural workers’ labor 

activity ‘‘because the NLRA’s 

protections and prohibitions do not 

apply to agricultural laborers.’’). 

The Supreme Court held in 

International Ass’n of Machinists & 

Aerospace Workers v. Wisconsin 

Employment Relations Commission, 427 

U.S. 132 (1976), that the NLRA also 

preempts regulation of employer or 

worker conduct that Congress intended 

to leave unregulated ‘‘to be controlled 

by the free play of economic forces.’’ Id. 

at 140 (quotations omitted). Machinists 

preemption applies to State or Federal 

regulation of ‘‘economic weapons’’ that 

would ‘‘frustrate effective 

implementation of the Act’s processes.’’ 

Id. at 147–48 (quotations omitted). The 

Department’s proposed rule could not 

frustrate effective implementation of the 

NLRA’s processes, because the relevant 

portions of the proposal would apply 

exclusively to a set of H–2A agricultural 

workers to whom the NLRA’s processes 

do not apply. Thus, the text and 

structure of the NLRA indicate that 

Machinists field preemption does not 

extend to agricultural worker 

organizing. See United Farm Workers v. 

Arizona Ag. Emp. Rels. Bd., 669 F.2d 

1249, 1257 (9th Cir. 1982) (explaining 

that when ‘‘Congress has chosen not to 

create a national labor policy in a 

particular field, the states remain free to 

legislate as they see fit’’ and Machinists 

preemption does not apply); Wilmar 

Poultry, 430 F. Supp. at 578 (holding 

that Machinists preemption does not 

apply to State regulation of agricultural 

laborers). Similarly, courts have held 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63790 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

69For example, the Coalition of Immokalee 

Workers is a worker-based human rights 

organization that focuses on fighting human 

trafficking and gender-based harassment and 

violence affecting farmworkers, and improving 

labor standards through a voluntary code of 

conduct called the Fair Food Program (‘‘FFP’’), a 

market-centered approach to the protection of 

human rights in corporate supply chains. ‘‘Key 

service providers’’ under the voluntary FFP might 

include worker educators who provide regular 

training at participating farms; investigators who 

conduct audits and accept, investigate, and resolve 

complaints; and representatives who work with 

participating buyers to enforce the voluntary FFP at 

participating farms. See Coalition of Immokalee 

Workers, Fair Food Program (2021), https://ciwonline.org/blog/2021/09/released-2021-fair-foodprogram-report. Similar worker centers serve farm 

workers in other States. See also Economic Policy 

Institute, Briefing Paper No. 159: Worker Centers: 

Organizing Communities at the Edge of the Dream 

(Dec. 31, 2005), https://www.epi.org/publication/ 

bp159. 

that Machinists preemption does not 

prevent State labor relations regulations 

that apply to other workers excluded 

from the NLRA. See, e.g., Davenport v. 

Wash. Educ. Ass’n, 551 U.S. 177, 181 

(2007) (public employees); Chamber of 

Commerce v. City of Seattle, 890 F.3d 

769, 792 (9th Cir. 2018) (independent 

contractors); Greene v. Dayton, 806 F.3d 

1146, 1149 (8th Cir. 2015) (domestic 

service workers). 

Furthermore, in these proposed 

regulations the Department would be 

exercising its authority under the INA to 

regulate the labor market to prevent 

adverse effect on the working conditions 

of agricultural workers in the United 

States. 8 U.S.C. 1188(a)(1). Congress 

could not have intended for the NLRA 

to ‘‘occupy the ‘field’ with respect to the 

regulation of all labor concerns,’’ as it 

delegated authority under the INA to the 

Department. See Nat’l Ass’n of Mfrs. v. 

Perez, 103 F. Supp. 3d 7, 25 (D.D.C. 

2015) (citing UAW-Lab. Emp. & 

Training Corp., 325 F.3d at 364) 

(holding that a DOL regulation was not 

preempted under Machinists because it 

was an exercise of the President’s 

procurement power, rather than an 

exercise of authority conferred by the 

NLRA, and because Congress did not 

intend for the NLRA to ‘‘foreclose all 

other’’ labor regulation). For these 

reasons, no part of the Department’s 

proposed regulation would be 

preempted by the NLRA. 

Because certain provisions of this 

proposed rule would be limited to 

workers engaged in FLSA agriculture, 

the Department notes that workers who 

are not engaged in FLSA agricultural 

labor (e.g., those workers engaged in 

logging occupations) would not be 

covered by those proposed provisions. 

The vast majority of workers excluded 

from those proposed provisions, 

however, are covered by the NLRA, and 

are thus already afforded the right to 

self-organization. Nothing in this 

proposed rule would alter or 

circumscribe the rights of workers 

already protected by the NLRA to 

engage in conduct and exercise rights 

afforded under that law. 

ii. Section 655.103(b), Definitions 

In support of the new employer 

obligations the Department is proposing, 

the Department proposes to add two 

new definitions to § 655.103(b). 

The Department proposes to define 

‘‘key service provider’’ to mean a healthcare provider; a community health 

worker; an education provider; an 

attorney; a legal advocate or other legal 

service provider; a government official, 

including a consular representative; a 

member of the clergy; and any other 

service provider to which an 

agricultural worker may need access. 

The Department has adapted this 

proposed definition from one used in 

the Colorado Agricultural Labor Rights 

and Responsibilities Act, Colo. Rev. 

Stat. 8–13.5–201, because it believes 

that a definition and examples of the 

types of service providers that workers 

should have access to would be useful 

for both workers and employers. The list 

of service providers included in the 

proposed definition is intended to be 

illustrative and not exhaustive. For 

example, the Department would 

consider a non-union worker center to 

be a key service provider under the 

proposed definition, as well as the 

representatives, directors, or other 

individual employees of a worker 

center. Worker centers are generally 

non-union, community-led 

organizations that provide or engage in 

services, advocacy, and organizing to 

support workers in low-wage industries 

and occupations, particularly in those 

industries and occupations excluded 

from Federal labor law, such as 

agriculture.69 The Department is 

soliciting comment on the scope of this 

proposed definition, in particular as to 

whether it is sufficient, whether other 

types of service providers should be 

included in the list of examples in the 

regulation, or whether this definition is 

too broad. 

The Department proposes to define 

‘‘labor organization’’ to mean an 

organization in which employees 

participate and that exists for the 

purpose, in whole or in part, of dealing 

with employers over grievances, labor 

disputes, or terms or conditions of 

employment. This definition is similar 

to the one used under the NLRA with 

key differences to reflect the nature of 

the H–2A program. While this definition 

would thus incorporate many NLRA 

principles regarding the meaning of the 

term ‘‘labor organization,’’ the 

Department intends the range of 

organizations that would be considered 

labor organizations under these 

proposed regulations to be broader than 

under the NLRA because the 

Department’s proposed definition 

would include organizations in which 

agricultural workers participate, 

whereas such organizations are 

excluded under the NLRA. The 

Department believes this broader 

definition is appropriate given the 

unique characteristics of the H–2A 

program. The Department seeks 

comment on the scope of this proposed 

definition. The Department also seeks 

comment on whether the definition 

should include additional criteria or 

protections in order to ensure that any 

such organization is not dominated, 

interfered with, or supported by 

employers, as would be prohibited by 

section 8(a)(2) of the NLRA, 29 U.S.C. 

158(a)(2). 

The Department also welcomes 

comments on whether other terms 

introduced by the proposed regulations 

should be defined in § 655.103(b), and 

on other definitions that the Department 

should consider. 

iii. Section 655.135(h) No Unfair 

Treatment 

The Department proposes to expand 

the scope of what constitutes prohibited 

unfair treatment under § 655.135(h) to 

better protect workers from intimidation 

or discrimination in response to worker 

advocacy. As detailed above, the 

Department believes that these 

protections are necessary to prevent an 

adverse effect on the working conditions 

of workers in the United States similarly 

employed. 8 U.S.C. 1188(a)(1). Workers’ 

rights cannot be secured unless they are 

protected from all forms of 

discrimination resulting from any 

worker’s attempt to advocate on behalf 

of themselves or their coworkers. The 

Department has long recognized that 

such protections are essential to the 

effective functioning of a complaintsbased enforcement regime. Mitchell v. 

Robert DeMario Jewelry, Inc., 361 U.S. 

288, 292 (1960) (agreeing with the 

Department’s interpretation of the 

FLSA’s anti-retaliation provision and 

explaining that Congress ‘‘chose to rely 

on information and complaints received 

from employees seeking to vindicate 

rights’’ and ‘‘effective enforcement 

could thus only be expected if 

employees felt free to approach officials 

with their grievances’’); see also U.S. 

Dep’t of Lab., Wage & Hour Div., Field 

Assistance Bulletin No. 2022–02, 

Protecting Workers From Retaliation 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63791 

70https://www.dol.gov/sites/dolgov/files/WHD/ 

fab/fab-2022-2.pdf. 

(Mar. 10, 2022).70 Stated differently, an 

employer who is free to intimidate 

workers to discourage them from raising 

or reporting legal violations, or to 

retaliate against those who do so, 

interferes with the Department’s ability 

to enforce the legal requirements of the 

H–2A statute and regulations. This is 

particularly true for workers in the H– 

2A program. Due to the temporary 

nature of their work; their geographic 

isolation and lack of independent 

transportation; their dependency on a 

single employer for work, housing, and 

other necessities, including access to 

food and water; language barriers; and, 

often, a lack of knowledge about their 

legal rights, H–2A workers are 

especially vulnerable to retaliation. This 

vulnerability makes H–2A workers less 

likely to assert their legal rights or to 

raise or report H–2A violations, 

including illegal or intolerable working 

conditions. See section IV.C.2.b of this 

preamble. And as set forth above, the 

availability of H–2A workers who are 

less likely to complain about such 

working conditions makes it less likely 

that H–2A workers will come together to 

seek better working conditions, and it is 

similarly less likely that workers in the 

United States will be able to organize 

with their fellow H–2A workers or 

otherwise seek improvements to their 

working conditions alongside H–2A 

workers. Thus, the Department has 

determined that strengthening and 

expanding the regulations’ existing 

protections against intimidation or 

discrimination in the H–2A program is 

necessary to prevent further adverse 

effect on the working conditions of 

workers in the United States. 

Currently, the prohibition on unfair 

treatment provides that an employer 

‘‘has not or will not intimidate, threaten, 

restrain, coerce, blacklist, or in any 

manner discriminate against, any 

person’’ who has engaged in certain 

enumerated protected activities 

pertaining to the H–2A program 

requirements, namely, filing a 

complaint, instituting a proceeding, 

testifying in a proceeding, or consulting 

with an attorney or legal assistance 

program regarding any H–2A violation, 

or exercising or asserting any right or 

protection under the H–2A program. 20 

CFR 655.135(h)(1) through (5). The 

Department proposes to redesignate and 

expand current paragraphs (h)(1) 

through (h)(5) into proposed (h)(1)(i) 

through (h)(1)(vii). The Department also 

proposes a new category of protected 

activity, limited to those workers 

engaged in FLSA agriculture, at 

proposed § 655.135(h)(2). Finally, to 

help inform workers of their rights 

under the H–2A program, the 

Department is proposing to include the 

protections that would be afforded 

under proposed § 655.135(h) in the 

disclosures required on the job order. 

iv. Section 655.135(h)(1)(v) Consulting 

With Key Service Providers 

Recognizing the barriers that H–2A 

workers frequently face in accessing 

certain services (see section IV.C.2.b of 

this preamble), the Department proposes 

to broaden the range of service 

providers and advocates with whom 

consultation regarding the terms and 

conditions of employment under the H– 

2A program is explicitly protected. 

Specifically, the Department proposes to 

add a new paragraph (v) to the list of 

protected activities at § 655.135(h)(1), 

consulting with a ‘‘key service 

provider,’’ as defined in proposed 

§ 655.103(b), regarding matters under 

the H–2A program. This proposal would 

not be limited to persons engaged in 

FLSA agriculture. The Department notes 

that workers are already entitled to 

access and meet with many different 

service providers to discuss or assert 

rights under the H–2A program, without 

fear of retaliation for doing so, under the 

Department’s current regulatory 

framework. See, e.g., 20 CFR 655.135(e) 

and (h)(5). For example, under the 

current regulations, an employer may 

not retaliate against a worker because 

the worker goes to see a doctor to care 

for an injury the worker incurred while 

on the job, or because the worker 

consults a worker advocacy organization 

regarding the employer’s failure to pay 

the wages promised in the job order. Id. 

The proposal here is intended to simply 

make these rights explicit. And because 

this explicit assurance would be 

included on the job order (Form ETA– 

790A), this clarification would help 

ensure that workers will be aware of this 

protection through the terms of the job 

order. The Department believes that 

clarifying protections for workers’ 

consultation with such providers would 

increase the likelihood that workers will 

receive necessary services and help 

prevent the frequent isolation that 

renders workers more vulnerable to H– 

2A violations and other forms of labor 

exploitation, including worsening 

working conditions. The Department 

seeks comment on this proposal. 

v. Section 655.135(h)(1)(vi) Exercising 

or Asserting Any Rights Under the 

H–2A Program 

The Department proposes to 

redesignate current paragraph (h)(5), 

which protects any person from 

discrimination for exercising or 

asserting any rights protected or 

afforded under the H–2A program, to 

(h)(1)(vi). The Department does not 

propose any substantive changes to this 

paragraph. However, the Department 

notes that this category of protected 

activity would protect any person from 

any form of discrimination for asserting 

any rights or protections afforded under 

the H–2A program, including those 

rights and protections afforded under 

the Department’s proposed paragraphs 

(m), (n), and (o) of this section. 

vi. Section 655.135(h)(1)(vii) Exercising 

Rights Under Federal, State, or Local 

Laws 

The Department also proposes to 

clarify existing regulations by adding 

§ 655.135(h)(1)(vii) to explicitly protect 

complaints, proceedings, and testimony 

under any applicable labor- or 

employment-related Federal, State, or 

local law or regulation, including those 

related to health and safety. This would 

explicitly prohibit employers from 

retaliating against any person who files 

a complaint, institutes or causes to be 

instituted any proceeding, or testifies or 

is about to testify in any proceeding 

under or related to any applicable 

Federal, State, or local labor- or 

employment-related law, rule, or 

regulation. The Department notes that 

these activities are already protected 

under the Department’s current 

regulatory framework because 

employers already must comply with all 

applicable Federal, State, and local laws 

as a requirement of the H–2A program. 

See 20 CFR 655.135(e) and (h)(1), (5). 

The proposal here is intended to make 

these rights explicit, in order to better 

inform workers and employers of the 

protected rights under the H–2A 

program. Moreover, because there are 

Federal, State, and local labor- or 

employment-related laws and 

regulations that may apply to workers 

protected under the H–2A program (e.g., 

the Occupational Safety and Health Act, 

29 U.S.C. ch. 15, or the FLSA, 29 U.S.C. 

201 et seq.), explicitly prohibiting 

retaliation against persons who share 

information with or assist those seeking 

to enforce these other laws would better 

protect workers advocating for better 

working conditions and would help 

prevent adverse effect on workers in the 

United States. 

The Department emphasizes that 

nothing in this proposed rule is 

intended to preempt more protective 

local, State, or Federal laws, including 

labor and employment laws and 

regulations at the State level that 

expressly protect agricultural workers, 

as well as those that protect workers 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63792 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

generally against discrimination, unsafe 

working conditions, or other adverse 

impacts, such as those referenced above. 

Moreover, the remedies provided for 

under this proposed regulation are not 

intended to be exclusive; if an 

agricultural worker has other remedies 

available under State or local law, the 

remedies contemplated under this 

proposal are not intended to displace 

them. The Department welcomes 

comments on how best to ensure that its 

proposals do not conflict with existing 

laws and regulations and how best to 

preserve available remedies under those 

laws, in particular State laws that 

provide for a system of collective 

bargaining for farmworkers and 

explicitly prohibit retaliation against 

farmworkers. 

The Department seeks comments on 

this proposal. 

vii. Prohibitions on Seeking To Alter or 

Waive the Terms and Conditions of 

Employment, Including the Right To 

Communicate With the Department 

The Department’s current regulations, 

including current § 655.135(h), have 

long protected a worker’s ability to 

communicate with the Department. In 

addition, the Department’s H–2A 

regulations have long required 

employers to fully disclose in the job 

order the material terms and conditions 

of employment under the job 

opportunity, and have long prohibited 

employers from seeking to later alter 

those terms and conditions. See 20 CFR 

655.103(b), 655.122(b) and (q); 29 CFR 

501.5. However, in recent years, the 

Department has observed a troubling 

trend of H–2A employers imposing 

‘‘side agreements’’ that purport to add or 

waive certain terms and conditions of 

employment as compared to those 

disclosed in the job order. For example, 

after terminating a group of workers 

without cause, one H–2A employer 

presented the workers with forms 

falsely asserting that the workers had 

left voluntarily, purporting to waive the 

workers’ rights to the three-fourths 

guarantee. WHD v. Sun Valley 

Orchards, LLC, ARB No. 2020–18, 2021 

WL 2407468, at *10–11 (ARB May 27, 

2021), aff’d, No. 1:21–cv–16625, 2023 

WL 4784204 (D.N.J July 27, 2023), 

appeal filed. Other H–2A employers 

have required workers to sign 

arbitration agreements after the workers 

have arrived at the place of 

employment, without having disclosed 

such a requirement in the job order. See, 

e.g., Martinez-Gonzalez v. Elkhorn 

Packing Co., LLC, 25 F.4th 613 (9th Cir. 

2022); Magana-Mun ̃ oz v. West Coast 

Berry Farms, LLC, No. 5:20–cv–02087, 

2020 WL 3869188, at *5 (N.D. Cal. July 

9, 2020). These practices violate the 

Department’s H–2A regulations and may 

mislead workers regarding their rights 

under the H–2A program, including 

their ability to communicate with the 

Department. Therefore, the Department 

takes this opportunity to reiterate its 

longstanding requirements relevant to 

these ‘‘side agreements.’’ 

First, the Department’s H–2A 

regulations include robust disclosure 

requirements. Specifically, employers 

must disclose in the job order all 

material terms and conditions of 

employment. See 20 CFR 655.103(b) 

(defining ‘‘job order’’ as ‘‘[t]he 

document containing the material terms 

and conditions of employment’’); 

655.121(a)(4) (requiring H–2A job orders 

to meet the requirements specified for 

agricultural clearance orders under 20 

CFR part 653, subpart F); 

653.501(c)(1)(iv) and (3)(viii) (requiring 

agricultural clearance orders to include 

material terms and conditions of 

employment). Each job qualification and 

requirement listed in the job order must 

be bona fide, as well as normal and 

accepted among non-H–2A employers 

in the same or similar occupations. 20 

CFR 655.122(b) (job qualifications and 

requirements). Finally, the employer 

must provide H–2A workers with a copy 

of the written work contract (at 

minimum, the terms of the job order) 

before the worker travels to the place of 

employment. 20 CFR 655.122(q) 

(disclosure of work contract). Such 

written disclosure must be made to 

workers in corresponding employment 

no later than the first day work 

commences. Id. 

These requirements ensure that 

employers seeking to employ H–2A 

workers are adequately testing the local 

labor market to determine the 

availability of U.S. workers for the 

actual job opportunity and are not 

imposing inappropriate requirements 

that discourage otherwise qualified U.S. 

workers from applying. See 75 FR at 

6901. These requirements also ensure 

that workers are apprised of the accurate 

terms and conditions of employment 

before accepting employment with the 

employer and, in the case of many 

workers, traveling great distances and at 

significant personal expense to do so. 

Adm’r v. Frank’s Nursery LLC, ARB 

Nos. 2020–0015 and 2020–0016, 2021 

WL 4155563, at *3–4 (ARB Aug. 25, 

2021) (describing the importance of 

disclosure to workers of all material 

terms and conditions of employment 

before the worker accepts the job offer), 

aff’d, No. 21–cv–3485, 2022 WL 

2757373 (S.D. Tex. July 14, 2022). 

Thus, pursuant to these requirements, 

an employer may not seek to add new 

material terms and conditions of 

employment after the worker arrives at 

the place of employment, even if such 

terms and conditions would otherwise 

be permissible if they had been 

disclosed in the job order. For example, 

even if a mandatory arbitration 

agreement would be a permissible term 

and condition of employment for a 

particular H–2A job opportunity if 

disclosed in the job order, it is a 

violation of the H–2A regulations for the 

employer to impose such a material 

term and condition of employment on 

the workers if it was not disclosed in the 

job order. See Frank’s Nursery, 2022 WL 

2757373, at *3–4 (affirming WHD 

Administrator’s determination of 

violation and assessment of a civil 

money penalty for employer’s failure to 

disclose in the job order a drug testing 

policy); see also Magana-Mun ̃ oz v. West 

Coast Berry Farms, LLC, No. 5:20–cv– 

02087, 2020 WL 3869188, at *5 (N.D. 

Cal. July 9, 2020) (discussing the 

Department’s regulatory requirements 

for H–2A job orders and concluding that 

an arbitration agreement is a material 

term or condition of employment that 

must be disclosed in the job order); cf. 

ETA v. DeEugenio & Sons #2, OALJ No. 

2011–TLC–00410, slip op. at 3–4 (OALJ 

June 13, 2011) (affirming CO’s denial of 

labor certification because employer 

failed to demonstrate that arbitration 

and grievance clauses listed in job order 

were normal and accepted requirements 

among non-H–2A employers in the 

occupation); ETA v. Bourne, et al., OALJ 

No. 2011–TLC–00399, slip op. at 9–11 

(OALJ June 6, 2011) (same); ETA v. 

Head Bros., OALJ No. 2011–TLC–00394 

(OALJ May 18, 2011) (same); but see 

ETA v. Frey Produce et al., OALJ No. 

2011–TLC–403, slip op. at 6 (OALJ June 

3, 2011) (concluding arbitration is a not 

a job ‘‘qualification or requirement’’). 

Second, and in addition to the 

disclosure requirements, the 

Department’s H–2A regulations prohibit 

any person from seeking to have a 

worker waive any right afforded under 

the H–2A program. 29 CFR 501.5. Thus, 

an employer may not—at any time— 

request that a worker waive or reduce 

any of the terms and conditions of 

employment disclosed in the job order 

or other rights under the H–2A program, 

such as the provision of meals as 

disclosed in the job order, the right to 

the three-fourths guarantee, the 

prohibition on the payment of fees, or 

the payment of the H–2A wage rate for 

hours spent engaged in corresponding 

employment. For example, through its 

enforcement experience, the Department 

has learned of H–2A employers 

presenting their entire workforces with 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63793 

71See, e.g., NLRB v. Sequoyah Mills, Inc., 409 

F.2d 606, 608 (10th Cir. 1969). 

72See, e.g., NLRB v. Washington Aluminum Co., 

370 U.S. 9, 15 (1962). 

73See, e.g., Richardson Paint Co. v. NLRB, 574 

F.2d 1195, 1206 (5th Cir. 1978). 

74See, e.g., Case Farms of North Carolina, Inc., 

353 NLRB 26 (2008), enforced, 2010 WL 1255941 

(D.C. Cir. Mar. 3, 2010). 

75See, e.g., Washington Aluminum, 370 U.S. at 

17; Brown & Root, Inc. v. NLRB, 634 F.2d 816, 817– 

18 (5th Cir. 1981). 

76See, e.g., Case Farms, 353 NLRB 26. 

77See, e.g., A.N. Elec. Corp., 276 NLRB 887, 889 

(1985); Squier Dist. Co. v. Int’l Bhd. of Teamsters, 

Local 7, 801 F.2d 238, 242 (6th Cir. 1986). 

side ‘‘opt-out’’ agreements under which 

the workers purport to waive their right 

to employer-provided meals on certain 

days, despite the employer’s disclosure 

in the job order that meals will be 

provided every day. The regulations 

prohibit such practices. In addition, an 

employer may never seek to prevent a 

worker from engaging in activity 

protected under the H–2A regulations, 

such as filing a complaint with, 

speaking with, or cooperating with the 

Department. See 20 CFR 655.135(h); 29 

CFR 501.4(a). 

The Department is concerned that 

‘‘side agreements’’ carry significant 

potential to mislead workers regarding 

their rights under the H–2A program, 

including the right to file complaints 

with and communicate with the 

Department. For example, an H–2A 

worker who is terminated without cause 

but is required to sign a form 

purportedly ‘‘resigning’’ the job may 

believe—incorrectly—that they may no 

longer file a complaint with the 

Department to enforce their right to the 

three-fourths guarantee or their right to 

the cost of return transportation and 

subsistence. Another worker may 

misunderstand a ‘‘side’’ arbitration 

agreement as preventing the worker 

from filing a complaint with the 

Department before first submitting the 

issue to the employer’s arbitration 

procedures, even though an employee 

who agrees to arbitrate a statutory claim 

is not waiving any substantive rights 

under the statute. Gilmer v. Interstate/ 

Johnson Lane Corp., 500 U.S. 20, 25 

(1991). Moreover, an H–2A worker’s 

agreement with their employer to 

arbitrate employment disputes does not 

limit the Department’s ability to enforce 

the H–2A program’s requirements. 

EEOC v. Waffle House, Inc., 122 S. Ct. 

754 (2002); Walsh v. Arizona Logistics, 

Inc., 998 F.3d 393, 396–97 (9th Cir. 

2021) (same). Accordingly, where an H– 

2A employer’s job order does include an 

arbitration clause that is otherwise 

permissible, the SWA and OFLC review 

the disclosure for actual or implied 

restrictions on workers’ access to 

complaint systems and may require 

employers to include language in the job 

order affirmatively stating that the 

worker may not be prevented from filing 

complaints with the Department. For 

efficiency and clarity, and consistent 

with the other proposals in this NPRM 

that would serve to protect worker voice 

and better inform workers of their rights 

under the H–2A program, the 

Department is proposing to add 

standard language to the job order 

affirmatively stating that a worker may 

not be prevented from communicating 

with the Department of Labor or any 

other Federal, State or local 

governmental agencies regarding the 

worker’s rights. The Department 

welcomes comments suggesting other 

means it can use to better inform 

workers of their rights and to better 

inform employers and workers alike of 

the longstanding limitations on ‘‘side 

agreements.’’ 

viii. Section 655.135(h)(2) Activities 

Related to Self-Organization and 

Concerted Activity 

The Department proposes a new 

protected activity for any person 

engaged in FLSA agriculture at 

proposed § 655.135(h)(2), relating to 

self-organization and concerted activity, 

for those workers who are exempt from 

similar protections under the NLRA. As 

discussed above, the Department 

believes that these proposed protections 

are necessary to prevent an adverse 

effect on the working conditions of 

workers in the United States similarly 

employed. 8 U.S.C. 1188(a)(1). 

Specifically, the Department proposes at 

§ 655.135(h)(2) to protect engaging in 

activities related to self-organization, 

including any effort to form, join, or 

assist a labor organization, as defined in 

proposed § 655.103(b); a secondary 

activity such as a secondary boycott or 

picket; or other concerted activities for 

the purpose of mutual aid or protection 

relating to wages or working conditions. 

The Department also proposes to protect 

a person’s refusal to engage in any such 

activities. 

By proposing to add protections for 

such activities, the Department intends 

to prohibit an employer from 

intimidating, threatening, restraining, 

coercing, blacklisting, or in any manner 

discriminating against, any person 

engaged in FLSA agriculture for 

engaging, or refusing to engage, in 

activities related to self-organization, 

including, among other things, 

concerted activity for mutual aid or 

protection. The Department’s proposed 

use of the terms ‘‘concerted activity’’ 

and ‘‘mutual aid or protection’’ draws 

upon the general body of case law from 

the Federal courts and the NLRB 

broadly construing similar language in 

the NLRA. However, the Department 

notes that these terms must ultimately 

be interpreted consistently with the 

statutory purpose of the INA and the H– 

2A program, including the need to 

prevent adverse effect on workers in the 

United States, and in light of the H–2A 

program’s unique characteristics. 

The Department proposes that 

concerted activity include employee 

activity ‘‘engaged in with or on the 

authority of other employees, and not 

solely by and behalf of the employee 

himself.’’ Meyers Indus. (Meyers I), 268 

NLRB 493, 497 (1984), remanded sub 

nom., Prill v. NLRB, 755 F.2d 941 (D.C. 

Cir. 1985); see also NLRB v. City 

Disposal Sys. Inc., 465 U.S. 822, 830 

(1984). For example, concerted activity 

includes two or more employees 

presenting joint requests or grievances 

to their employers; 71 a series of 

‘‘spontaneous individual pleas’’ from 

employees about shared concerns; 72

two or more workers circulating or 

signing a petition; 73 two or more 

workers striking or walking off the 

job; 74 participating in a concerted 

refusal to work in unsafe or intolerably 

bad conditions; 75 two or more workers 

talking directly to their employer, to a 

government agency, or to the media 

about problems in their workplace; 76 or 

cooperating as a group with law 

enforcement investigations (including 

investigations by DOL).77 The term 

concerted activity also includes worker 

organizing ‘‘outside the immediate 

employee-employer relationship’’ and 

‘‘common cause’’ activity, including 

concerted activity ‘‘in support of 

employees of employers other than their 

own.’’ See Eastex, Inc. v. NLRB, 437 

U.S. 556, 564–65 (1978). These 

examples are intended to be illustrative 

and not exhaustive. The proposed 

regulation’s protections for concerted 

activity would apply to both workers 

that have joined a labor organization 

and those that have not. See Indiana 

Gear Works v. NLRB, 371 F.2d 273, 274 

(7th Cir. 1967). 

The Department proposes that the 

term concerted activity also encompass 

workers’ individual actions when they 

seek to initiate, induce, or prepare for 

group action, or when workers bring 

shared complaints to the attention of 

management. See Meyers Indus. (Meyers 

II), 281 NLRB 882, 887 (1987) (citing 

Mushroom Transp. Co. v. NLRB, 330 

F.2d 683 (3d Cir. 1964)). For example, 

if an individual attempts to ‘‘enlist [ ] 

the support of his fellow employees’’ in 

shared activity, the worker’s attempt is 

protected regardless of whether other 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63794 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

employees ultimately participate in 

ongoing efforts. Whittaker Corp., 289 

NLRB 933, 933 (1988); Salt River Valley 

Water Users Ass’n, 99 NLRB 849, 853 

(1952) (‘‘[G]roup action is not deemed a 

prerequisite to concerted activity for the 

reason that a single person’s action may 

be the preliminary step to acting in 

concert.’’). An individual’s goal of 

initiating, inducing, or preparing for 

group activity can be inferred from the 

totality of the circumstances. See 

Whittaker Corp., 289 NLRB at 934. For 

example, the fact that a person refers to 

the possibility of taking group action in 

a conversation with their co-workers, or 

the fact that a conversation among coworkers is about wages and working 

conditions, can support a finding that 

the conversation was aimed at inducing 

group action. See id.; Jeanette Corp v. 

NLRB, 532 F.2d 916, 918¥20 (3d Cir. 

1976) (holding that an employer rule 

prohibiting workers from discussing 

wages among themselves suppressed 

concerted activity). An individual’s 

actions to enforce the terms of a CBA 

qualifies as concerted activity even if 

pursued singly, because those actions 

are a continuation of the concerted 

activity of negotiating. See City Disposal 

Systems, 465 U.S. at 830–31. Likewise, 

an employee is engaged in collective 

activity when an individual worker’s 

actions are a ‘‘logical outgrowth’’ of an 

earlier protest by workers. See, e.g., 

NLRB v. Mike Yurosek & Son, Inc., 53 

F.3d 261, 265 (9th Cir. 1995) (workers’ 

refusal to work additional hour was a 

logical outgrowth of earlier, collective 

protestations regarding the employer’s 

reduction in scheduled hours); Every 

Woman’s Place, 282 NLRB 413, 415 

(1986) (single employee’s call to WHD 

regarding overtime pay was a logical 

outgrowth of prior, collective 

complaints to supervisor regarding 

overtime without receiving any 

response). 

The Department intends to define 

activity for ‘‘mutual aid or protection’’ 

to encompass activities for which ‘‘there 

is a link between the activity and 

matters concerning the workplace or 

employees’ interests as employees.’’ 

Fresh & Easy Neighborhood Market, 361 

NLRB 151, 153 (2014). For example, 

agricultural employees’ activity would 

be deemed to be for mutual aid or 

protection for the purposes of proposed 

§ 655.135(h)(2) when it concerns wages, 

hours, benefits, working conditions, 

worker safety, workplace equity, 

housing conditions, worker voice, or 

other issues pertaining to their 

workplace or their interests as 

employees. Employee activity aimed at 

‘‘channels outside the immediate 

employee-employer relationship,’’ or 

‘‘in support of employees of employers 

other than their own’’ may also be for 

‘‘mutual aid or protection.’’ Eastex, 437 

U.S. at 565. For example, political and 

social advocacy may be for mutual aid 

or protection when it has a nexus to 

employees’ ‘‘interests as employees.’’ Id. 

at 566; see also Kaiser Eng’rs, 213 NLRB 

108 (1974). 

Although the terms ‘‘concerted 

activity’’ for ‘‘mutual aid or protection’’ 

would encompass secondary activity, 

such as secondary boycotts and pickets, 

the Department proposes to expressly 

list this among the protected activities 

related to self-organization in light of 

the differences between workers 

covered by the NLRA and those that 

would be covered by this proposed 

provision. The Department notes that, 

while the NLRA, as amended by the 

Taft-Hartley Act, prohibits many labor 

organizations from engaging in 

secondary boycotts or pickets, see 29 

U.S.C. 158(b)(4), this prohibition would 

not apply to the agricultural employees 

to whom the Department’s proposed 

rule would apply, see 29 U.S.C. 152(3). 

Therefore, this proposed rule is 

consistent with the longstanding 

consensus under the NLRA that it is not 

unlawful for agricultural workers, or 

labor organizations composed 

exclusively of agricultural employees, to 

participate in secondary activity. See Di 

Giorgio Fruit, 191 F.2d at 647. However, 

the Department believes that it would 

benefit employees, employers, and the 

Department to reiterate this 

longstanding legal principle by making 

this principle clear in this proposed rule 

at § 655.135(h) and, therefore, on the job 

order. This clarity would help ensure 

that workers could refer to the job order 

to understand what activity is protected 

under the regulation. Likewise, this 

additional clarity would help employers 

comply with their obligations under the 

proposed rule. The Department believes 

that clearly explaining these obligations 

for both H–2A employers and workers 

would prevent unnecessary confusion 

and resulting disputes. 

Additionally, the Department 

recognizes that this proposal to include 

activities related to self-organization as 

a protected activity may prompt 

questions about when and where an 

employer must permit the conduct of 

such activities. Under the proposed 

regulations, an employer could not 

prohibit activities related to selforganization or other concerted 

activities for the purpose of mutual aid 

or protection that occur during 

nonproductive time. Nonproductive 

time means any time the worker is not 

actively performing work, even if the 

worker remains on the clock or the time 

is otherwise compensable. For example, 

nonproductive time generally includes 

lunch breaks, rest breaks, and time 

spent riding as a passenger in a vehicle 

when being transported between 

worksites. Nonproductive time also 

includes any noncompensable time, 

such as time after the end of the 

worker’s workday. Similarly, under the 

proposed regulations, an employer 

would be required to permit selforganization or other concerted 

activities for the purpose of mutual aid 

or protection in nonwork or mixed-use 

areas, even if such areas are on the 

employer’s premises. For example, the 

employer would not be allowed to 

prohibit employees from meeting with 

one another after the end of the workers’ 

workday to discuss wages or working 

conditions in the parking lot of the 

employer’s establishment, insofar as 

employees would otherwise have access 

to the parking lot after the end of the 

workers’ workday. Similarly, consistent 

with the proposed access provision at 

§ 655.135(n), the employer would not be 

allowed to prohibit employees from 

meeting with one another, or with one 

or more representatives from a labor 

organization or with employee guests 

for such discussions in or around 

employer-furnished housing that occur 

outside of the workers’ workday. 

Furthermore, although an employer 

could establish reasonable work rules 

that limit discussions, meetings, and 

gatherings not related to the job while 

the worker is actively performing the 

work, the employer could not apply or 

enforce work rules selectively to 

discourage worker self-organization. For 

example, the employer may place 

reasonable restrictions on employees’ 

use of personal devices while in the 

field. However, if the employer 

selectively applied such restrictions to 

certain individuals who the employer 

suspected were engaged in organizing, 

or only to those text messages or phone 

conversations that the employer 

perceived to be related to worker selforganization or other concerted 

activities while permitting them in other 

instances, such a practice would violate 

the proposed requirement at 20 CFR 

655.135(h)(2). Similarly, while an 

employer could reasonably establish a 

work rule limiting personal 

conversations during productive 

working hours where such 

conversations would affect productivity, 

if the employer selectively enforced this 

work rule against employees for 

conversing about self-organization or 

other concerted activities, such a 

practice would be impermissible. 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63795 

Nothing in this proposal would 

require or prohibit the adoption of any 

specific term of a collective bargaining 

agreement ultimately negotiated 

between the employer and the workers; 

rather, any such agreement would be 

subject to any applicable Federal, State, 

or local law. In addition, as noted above, 

the Department does not intend to 

preempt any applicable State laws or 

regulations that may regulate labormanagement relations, organizing, or 

collective bargaining by agricultural 

workers. Moreover, the remedies 

provided for under this proposed 

regulation are not intended to be 

exclusive; if an agricultural worker has 

other remedies available under State or 

local law, the remedies contemplated 

under this proposal are not intended to 

displace them. 

The Department seeks comments on 

the proposal to protect certain concerted 

activity related to self-organization in 

§ 655.135(h)(2) with respect to workers 

who are engaged in FLSA agriculture. 

Specifically, the Department seeks 

comments on whether to expressly list 

secondary boycotts and pickets among 

the protected activities related to selforganization, the scope of the proposed 

protections and the proposed 

definitions of ‘‘concerted activity’’ and 

‘‘mutual aid or protection,’’ the impact 

that expressly protecting such activity 

would have on the working conditions 

of H–2A workers, workers in 

corresponding employment, and 

agricultural workers in the United States 

more generally, and how this proposal 

would interact with State labor laws. 

The Department also welcomes 

comments on how best to ensure that its 

proposals do not conflict with existing 

State laws and regulations that provide 

for a system of collective bargaining for 

farmworkers and explicitly prohibit 

retaliation against farmworkers. 

ix. Section 655.135(m) Worker Voice 

and Empowerment 

The Department proposes a new 

employer obligation at § 655.135(m) that 

would include a number of protections 

that the Department has determined are 

necessary to prevent an adverse effect 

on the working conditions of workers in 

the United States similarly employed, 8 

U.S.C. 1188(a)(1), as discussed above, by 

protecting the rights of workers under 

the H–2A program to self-organization 

and concerted activity as proposed in 

§ 655.135(h)(2). The employer’s 

obligations under this proposed 

provision would apply only to workers 

engaged in FLSA agriculture. 

Specifically, the Department proposes to 

add requirements that an employer 

provide to a requesting labor 

organization the contact information of 

H–2A workers and workers in 

corresponding employment employed at 

the place(s) of employment; permit 

workers to designate a representative of 

their choosing to attend any meeting 

that may lead to discipline; refrain from 

captive audience meetings unless the 

employer provides certain information 

to ensure that such meeting is not 

coercive; and attest either that they will 

bargain in good faith over the terms of 

a proposed labor neutrality agreement 

with a requesting labor organization, or 

that they will not do so and provide an 

explanation for why they have declined. 

The Department believes that these 

requirements would provide H–2A 

workers and workers in corresponding 

employment with important tools to 

allow them to more successfully 

organize and advocate for better 

working conditions from their 

employers and thereby prevent adverse 

effect on the working conditions of 

similarly employed workers in the 

United States. Finally, to help inform 

workers of their rights under proposed 

§ 655.135(m), the Department is 

proposing to include these proposed 

protections in the disclosures required 

on the job order. 

A. Section 655.135(m)(1) Employee 

Contact Information 

The Department proposes in 

§ 655.135(m)(1) to require employers to 

provide worker contact information to a 

requesting labor organization. As 

explained further below, this proposal is 

similar to but more expansive than the 

‘‘voter list’’ requirements under the 

NLRA, differing in various respects due 

to the unique characteristics of the H– 

2A workforce. Under this provision, 

employers would be required to provide 

to the labor organization a list of all H– 

2A workers and workers in 

corresponding employment engaged in 

agriculture as defined under the FLSA 

and employed at the place(s) of 

employment included within the 

employer’s H–2A Application. The 

proposed list would be in alphabetical 

order, and include each worker’s full 

name, date of hire, job title, work 

location address and ZIP code, and (if 

available to the employer) personal 

email, personal cellular number and/or 

profile name for a messaging 

application, home country address with 

postal code, and home country 

telephone number. The Department 

proposes to require the employer to 

update the list once per certification 

period, if requested by the labor 

organization. In addition, the proposed 

list would be provided to the requesting 

labor organization in a format agreed 

upon by the requesting labor 

organization and the employer and 

would be transmitted electronically. 

The Department believes that this 

proposed requirement would 

significantly bolster the ability of 

workers to effectively self-organize and 

to engage in concerted activity protected 

under proposed § 655.135(h)(2), by 

ensuring that workers have access to 

information regarding the arguments 

both for and against organization, and 

that workers have access to information 

and resources necessary to engage in 

concerted activity regarding working 

conditions. Under the NLRA, the NLRB 

has long recognized the importance to 

organizing rights of workers’ access to 

information regarding the arguments for 

and against organization, and has held 

that the rights to self-organization and to 

engage in concerted activity 

‘‘necessarily encompass employees’ 

rights to communicate with one another 

and with third parties’’ about 

organization and working conditions. 

Quicken Loans, Inc. v. NLRB, 830 F.3d 

542, 545 (D.C. Cir. 2016) (quotations 

omitted) (citing Beth Israel Hospital v. 

NLRB, 437 U.S. 483, 491 (1978) and 

Eastex, 437 U.S. at 565); see also 

Oakwood Hosp. v. NLRB, 983 F.2d 698, 

701 (6th Cir. 1993); Hutzler Bros. Co. v. 

NLRB, 630 F.2d 1012, 1015 (4th Cir. 

1980). To ensure the effective exercise 

of these rights, the NLRB has long 

required employers to provide worker 

contact information to unions in certain 

circumstances because this requirement 

improves the likelihood that workers 

will understand the arguments both for 

and against organization. See 29 CFR 

102.62(d), 102.67(l); RadNet Mgmt., Inc. 

v. NLRB, 992 F.3d 1114, 1122–23 (D.C. 

Cir. 2021) (provision of contact 

information to labor organizations is 

fundamental to effective exercise of 

organizing rights). 

The Department’s proposal here 

contains similar information 

requirements as those listed in the 

NLRB’s requirements at 29 CFR 

102.62(d), but is more expansive given 

the unique characteristics of the H–2A 

program, including the temporary and 

migrant nature of the workforce in 

which the majority of workers are 

exempt from the NLRA’s protections 

and thus may be even less likely than 

NLRA-covered workers to be aware of 

the benefits of self-organization and 

engaging in concerted activity. Workers 

under the H–2A program also are often 

employed and housed in remote 

locations. In light of these 

characteristics, to better protect against 

adverse effect, the Department has 

tailored this proposal to the needs of the 

H–2A workforce. For example, the 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63796 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

78Compare, e.g., Epilepsy Found. of Ne. Ohio, 

331 NLRB No. 92 (2000) (interpreting section 7 to 

extend the Weingarten rule to nonunion 

workplaces); Materials Research Corp., 262 NLRB 

1010 (1982) (same), with, e.g., I.B.M. Corp., 341 

NLRB 1288 (2004) (limiting Weingarten rights to 

employees covered by CBAs); Sears, Roebuck & Co., 

274 NLRB 230 (1985) (same). The Department 

recognizes that the workforce in the H–2A program 

is largely not unionized, and so the proposed 

regulation is not limited to workers that are 

members of a labor organization. 

Department proposes to require the 

employer to provide available contact 

information for the worker in the 

worker’s home country and for any 

messaging application the worker uses 

to communicate (e.g., ‘‘WhatsApp’’). 

The Department also proposes to require 

that the contact list be updated once per 

season, if such an update is requested 

by the labor organization. The 

Department believes that, given the 

potential for organizing activities to 

occur at any time throughout the job 

order period (as opposed to a more timelimited event such as an election, as is 

the case in the context of the NLRB 

voter list requirements), allowing the 

union to request an updated list at the 

time of its choosing would best ensure 

that workers are able to receive 

information regarding the arguments 

both for and against organization, in the 

event of workforce turnover over the 

course of the work contract. However, 

the Department proposes to limit this 

ability to request an updated list to one 

time per season, to avoid unduly 

burdening the employer with complying 

with this request. The Department 

believes that this proposed requirement 

would significantly bolster the ability of 

workers to effectively self-organize and 

to engage in concerted activity by 

ensuring that workers have equal access 

to information regarding the arguments 

both for and against organization, and 

that workers have access to information 

and resources necessary to engage in 

concerted activity regarding working 

conditions. 

The Department also recognizes that 

the ability to self-organize and to engage 

in concerted activity must be balanced 

against the workers’ rights to the privacy 

of their personal information. In the 

context of the NLRA, the NLRB has 

reasoned that any privacy concerns 

raised by an employer providing 

employee contact information to unions 

are outweighed by the benefits and 

necessity of protecting the rights to selforganization and to engage in concerted 

activity. RadNet Mgmt., 992 F.3d at 

1122–23. Under the H–2A program, the 

importance of these benefits is arguably 

even greater and arises earlier in the 

organizing process for the reasons 

discussed above. Therefore, the 

Department believes it is imperative that 

labor organizations have access to the 

information they need to communicate 

with these workers effectively, and that 

this goal would outweigh any privacy 

concerns. However, the Department 

welcomes comment on whether it 

should include a worker ‘‘opt-out’’ 

provision, under which a worker could 

decline to have their contact 

information included in the list the 

employer would provide to the union, 

or if other protections for worker 

privacy may be warranted. The 

Department also welcomes comment on 

whether organizations other than labor 

organizations (defined as proposed in 

§ 655.103(b)) also should be able to 

request this information, particularly in 

light of the unique circumstances of the 

H–2A program, such as ‘‘key service 

providers’’ as defined in proposed 

§ 655.103(b). The Department also 

requests comments regarding the best 

methods to ensure workers are 

adequately notified of these employer 

obligations. 

Finally, the Department notes that 

nothing in this proposed provision 

would limit a worker’s ability to gather 

coworkers’ contact information to share 

both amongst themselves and with 

unions, which is central to effective 

rights to self-organize and engage in 

concerted activity. Cf. Quicken Loans, 

830 F.3d at 548. Moreover, a worker’s 

ability to gather and share coworker 

information with unions would be 

protected under proposed 

§ 655.135(h)(2). For example, a worker 

who gathers coworkers’ contact 

information and shares that information 

with a union so that the union can 

contact the workers regarding the 

benefits of unionization is engaging in 

protected, concerted activity and selforganization. Under proposed 

§ 655.135(h)(2), an employer may not 

retaliate against the worker for gathering 

or sharing this information. 

B. Section 655.135(m)(2) Right To 

Designate a Representative 

The Department proposes in 

§ 655.135(m)(2) to require employers to 

permit workers to designate a 

representative of their choosing to 

attend any meeting between the 

employer and a worker where the 

worker reasonably believes that the 

meeting may lead to discipline. Under 

the proposed provision, the employer 

also would have an obligation to permit 

the worker to receive advice and active 

assistance from the designated 

representative during any such meeting. 

The Department believes that 

proposed § 655.135(m)(2) would 

significantly bolster the ability of H–2A 

and corresponding workers to engage in 

concerted activity as protected in 

proposed § 655.135(h)(2). In the context 

of the NLRA, it is well established that 

in a workplace covered by a CBA, an 

employer interferes with an employee’s 

right to engage in concerted activities 

for mutual aid or protection under 

section 7 of the NLRA when the 

employer denies an employee’s request 

that a union representative accompany 

the employee at an investigatory 

interview that the employee reasonably 

believes might result in disciplinary 

action. See NLRB v. J. Weingarten, Inc., 

420 U.S. 251, 254, 267 (1975). As courts 

and the NLRB have explained, such a 

request by an employee constitutes 

concerted activity because the presence 

of a representative safeguards the 

interests of employees generally, not 

solely the particular employee’s interest. 

See id. at 260–61. 

In any workplace, union or nonunion, 

the presence of a representative at a 

meeting that may lead to discipline, and 

the ability of such representative to 

provide assistance and advice, gives the 

employee a witness, an advisor, and an 

advocate in a potentially adversarial 

situation, thus preventing the 

imposition of unjust discipline by the 

employer. Proposed § 655.135(m)(2) 

thus also helps ensure that workers have 

access to representation to assist in 

safeguarding workers against unjust 

termination under the Department’s 

proposed definition of for cause 

termination. More generally, the ability 

to request a representative’s presence at 

such a meeting enhances employees’ 

ability to act in concert with their 

coworkers to protect their mutual 

interest in ensuring that their employer 

does not impose punishment unjustly. 

Courts have cited similar considerations 

in deeming reasonable the view that 

section 7 of the NLRA permits nonunion 

workers to designate a coworker to 

provide assistance during investigatory 

interviews that may lead to disciplinary 

action. See Epilepsy Found. of Ne. Ohio 

v. NLRB, 268 F.3d 1095, 1100 (D.C. Cir. 

2001). The Department acknowledges 

that the NLRB has frequently shifted its 

position on whether section 7 applies in 

nonunion workplaces, but the 

Department’s proposed regulations for 

the H–2A program apply independently 

of the NLRA, and would cover workers 

that are outside the NLRB’s purview. 

Thus, any shifts in the NLRB’s position 

would not alter proposed 

§ 655.135(m)(2).78 Moreover, the need 

for a representative is particularly acute 

for workers in the H–2A program, given 

their unique vulnerabilities and 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63797 

dependence on the employer for meals, 

housing, and transportation. 

Proposed § 655.135(m)(2) would not 

limit whom a worker may designate as 

a representative. For example, a worker 

may designate a coworker, an outside 

advocate, a representative from a labor 

organization (regardless of whether the 

worker is a member), or any other 

individual. The Department believes it 

is appropriate to permit workers to 

designate a broader scope of 

representatives than the representatives 

contemplated under section 7 of the 

NLRA. The benefits of a representative 

apply even where the representative is 

not employed by the employer, such as 

a legal aid advocate or member of the 

clergy, because a single worker’s efforts 

to seek such assistance and advice 

broadly advances other workers’ shared 

interest in preventing the imposition of 

unjust punishment. Moreover, in H–2A 

workplaces, it is impractical to limit 

such representatives to union 

representatives or coworkers. Due to 

low union density in agricultural 

workplaces, workers in H–2A 

workplaces will seldom have the ability 

to designate union representatives, and 

workers may face difficulties identifying 

trusted coworkers to serve as 

representatives because the temporary 

nature of the work may limit 

opportunities to develop relationships 

with coworkers and because the high 

incidence of retaliation in H–2A 

workplaces may discourage coworkers 

from involvement. 

The Department proposes that the 

employer’s obligation under 

§ 655.135(m)(2) would apply in the 

context of ‘‘meetings between the 

employer and a worker where the 

worker reasonably believes that the 

meeting may lead to discipline.’’ Under 

this proposal, the scope of situations in 

which this obligation would apply is 

broader than the ‘‘investigatory 

interviews’’ in which a worker’s right to 

a representative arises under section 7 

of the NLRA. See Weingarten, 420 U.S. 

at 253, 257–58 (recognizing right to 

representative in ‘‘investigatory 

interview which the employee 

reasonably believed might result in 

disciplinary action’’). The Department 

believes that, given the realities of 

employer-worker interactions in H–2A 

workplaces, it is appropriate to apply 

the employer’s obligation under 

proposed § 655.135(m)(2) beyond such 

‘‘investigatory interviews.’’ Disciplinary 

action in H–2A workplaces may often 

occur in informal contexts or in 

worksite settings such as fields, and 

limiting employers’ obligation to 

‘‘investigatory interviews may constrain 

workers’ ability to designate 

representatives in such contexts or 

settings. However, the Department 

welcomes comments regarding the 

scope of situations in which employers’ 

obligation under proposed 

§ 655.135(m)(2) should apply, 

including, for example, comments 

addressing whether this obligation 

should apply in all situations, not just 

meetings, that a worker may reasonably 

believe could involve or lead to 

discipline, including in situations 

where, for example, employers correct 

work techniques, give instructions, or 

provide training, or whether the 

obligation should apply in situations 

more analogous to the ‘‘investigatory 

interviews’’ addressed in Weingarten. 

The Department also seeks comment as 

to whether it should draw on sources 

other than Weingarten—including State, 

local, or other Federal law—in 

determining when this obligation 

should be applicable, and whether it 

should take into account any other 

considerations particular to workers in 

nonunion settings, or to agricultural 

workers and their interactions with their 

employers. 

The Department also welcomes 

comments on how to ensure that 

workers are adequately informed of the 

employer’s obligation to permit workers 

to request a representative and of the 

circumstances under which this 

obligation would arise. In a workplace 

covered by a CBA and the NLRA, 

workers may rely on their unions for 

information regarding when Weingarten 

rights apply, but the Department 

acknowledges that most agricultural 

workers are not unionized. The 

Department welcomes comments 

regarding the best methods to ensure 

adequate notification, including 

comments that address whether 

employers should be required to inform 

workers of their obligation to permit 

workers to request a representative and 

whether employers should be required 

to notify workers explicitly that a 

meeting may lead to discipline. For 

example, possible methods of notifying 

workers may include requiring that all 

job orders and job assurances shared 

with workers include information about 

the employer’s obligation to permit 

workers to request a representative; 

requiring that employers provide other 

means of written notification in a 

language that workers understand; and/ 

or requiring that employers provide oral 

notification in a language that workers 

understand and that employers 

maintain records of such oral 

notifications. 

In addition to comments on the 

specific questions the Department has 

posed to commenters, the Department 

welcomes comments on the general 

question of how proposed 

§ 655.135(m)(2) can best be 

implemented in the context of 

agricultural employment and the way 

agricultural workers and employers 

interact, including in the contexts of 

herding and range livestock production 

occupations subject to §§ 655.200 

through 655.235 and itinerant animal 

shearing, commercial beekeeping, and 

custom combining occupations subject 

to §§ 655.300 through 655.304. 

C. Section 655.135(m)(3) Prohibition on 

Coercive Speech 

The Department proposes a new 

provision at § 655.135(m)(3) to prohibit 

employers from engaging in coercive 

speech to try to prevent workers from 

advocating for better working conditions 

on behalf of themselves and their 

coworkers. Specifically, the Department 

proposes to add new protections at 

§ 655.135(m)(3) prohibiting coercive 

speech, sometimes referred to as 

‘‘captive audience meetings’’ or 

‘‘cornering.’’ As under section 7 of the 

NLRA, a worker’s right to engage, or not 

engage, in self-organization and 

concerted activity under proposed 

§ 655.135(h)(2) would include the 

worker’s right to listen and the worker’s 

right to refrain from listening to 

employer speech concerning the 

worker’s exercise of those rights. The 

proposed regulation at § 655.135(m)(3) 

would thus prohibit H–2A employers 

from coercing and/or requiring workers 

to listen to or attend an employer’s 

speech or meeting concerning the 

exercise of their rights to engage in 

activities related to self-organization, 

including any effort to form, join, or 

assist a labor organization or engage in 

other concerted activities for the 

purpose of mutual aid or protection 

relating to wages or working conditions. 

Such ‘‘captive audience meetings,’’ 

which would typically occur in the 

workplace during working hours, while 

the workers are on the clock (though 

they might also occur during travel to 

the worksite or in situations where 

workers are not on the clock), inherently 

involve an unlawful threat that 

employees will be disciplined or suffer 

other reprisals if they exercise their 

protected right not to listen to such 

speech. The Department believes that 

such meetings are inherently coercive 

and should not be permitted. 

In the NLRB context, the Supreme 

Court has instructed that employer 

actions should be evaluated from the 

perspective of employees who are in a 

position of ‘‘economic dependence’’ and 

would necessarily pick up threatening 

implications ‘‘that might be more 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63798 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

readily dismissed by a more 

disinterested ear.’’ NLRB v. Gissel 

Packing Co., 395 U.S. 575, 617 (1969); 

see also Hill v. Colorado, 530 U.S. 703, 

717 (2000) (noting that within the 

employment relationship, persistent 

communication after refusal can become 

intimidation, and that persons have ‘‘a 

right to be free’’ from unwanted 

communication) (quoting Rowan v. U.S. 

Post Office Dep’t, 397 U.S. 728, 736 

(1970)). Here, H–2A workers and their 

employers do not have equal bargaining 

power, due in large part to H–2A 

workers’ significant economic 

dependence on their employers. The 

Department is concerned that H–2A 

workers should not be forced to listen 

to such employer speech under threat or 

potential threat of discipline—directly 

leveraging the workers’ dependence on 

their jobs. 

The fact that such threats may arise in 

the context of employer speech would 

not immunize their unlawful coercive 

effect. Under the NLRA, the Supreme 

Court has made clear that threats fall 

outside the scope of employers’ NLRArelated speech rights and constitutional 

free-speech protections. Gissel Packing, 

395 U.S. at 617–20. Nevertheless, 

employers frequently use explicit or 

implicit threats to force employees into 

meetings concerning unionization or 

other NLRA-statutorily protected 

activity. See 2 Sisters Food Grp., 357 

NLRB 1816, 1825 n.1 (2011) (Member 

Becker, dissenting in part) (citing study 

finding ‘‘that in 89 percent of 

[representation election] campaigns 

surveyed, employers required 

employees to attend captive audience 

meetings during work time and that the 

majority of employees attended at least 

five such meeting[s] during the course 

of the campaign’’). These same 

employers often carry out those threats 

by seeking to discharge or discipline 

employees who assert their right to 

refrain from listening by refusing to 

attend such mandatory meetings. The 

Department believes that employers 

should not be permitted to coerce H–2A 

workers in this way under this proposed 

rule, but instead should be required to 

honor H–2A workers’ free choice and 

their rights to listen or to refrain from 

listening to such coercive speech. 

The Department recognizes that 

employers generally have a right under 

the First Amendment to communicate 

their views to their employees. See 

Gissel Packing, 395 U.S. at 617. 

However, protecting workers’ right to 

refrain from listening, as proposed 

§ 655.135(h)(2) does, would not impair 

employers’ constitutional freedom of 

expression. As the Supreme Court has 

recognized, ‘‘employers’ attempts to 

persuade to action with respect to 

joining or not joining unions are within 

the First Amendment’s guaranty.’’ 

Thomas v. Collins, 323 U.S. 516, 537 

(1945). But ‘‘[w]hen to this persuasion 

other things are added which bring 

about coercion, or give it that character, 

the limit of the right has been passed.’’ 

Id. at 537–38. 

The Department therefore proposes to 

prohibit employers from engaging in 

coercive speech intended to oppose 

workers’ protected activity unless the 

employer: (a) explains the purpose of 

the meeting or communication; (b) 

informs employees that attendance or 

participation is voluntary, and that they 

are free to leave at any time; (c) assures 

employees that nonattendance or 

nonparticipation will not result in 

reprisals (including any loss of pay if 

the meeting or discussion occurs during 

their regularly scheduled working 

hours); and (d) assures employees that 

attendance or participation will not 

result in rewards or benefits (including 

additional pay for attending meetings or 

discussions concerning their rights to 

engage in protected activity outside 

their regularly scheduled working 

hours). 

These safeguards were developed 

many years ago by the NLRB to avoid 

‘‘the inherent danger of coercion’’ when 

an employer seeks to interfere with 

protected labor rights. See Johnnie’s 

Poultry Co., 146 NLRB 770, 774 (1964), 

enforcement denied, 344 F.2d 617 (8th 

Cir. 1965). There, the NLRB recognized 

that inherent in the employment 

relationship is the understanding that 

employees cannot, without 

consequences, either refuse to comply 

with their employer’s stated 

requirement (e.g., that they attend a 

meeting) or abandon their assigned 

work duties (e.g., by walking away from 

employer speech directed at them as 

they work). Therefore, the NLRB has 

crafted safeguards to ensure that 

workers’ participation is voluntary at all 

times. See, e.g., Johnnie’s Poultry Co., 

146 NLRB 770, 774 (1964) (providing 

safeguards required when employer 

questions employees about protected 

activity in order to prepare defense 

against unfair-labor-practice charges); 

Struksnes Constr. Co., 165 NLRB 1062, 

1062–63 (1967) (same for when 

employer conducts poll to ascertain 

whether union enjoys majority 

employee support); Allegheny Ludlum 

Corp., 333 NLRB 734, 734 (2001) (same 

for when employer may lawfully 

include visual images of workers in 

anti-union campaign presentations), 

enforced, 301 F.3d 167 (3d Cir. 2002); 

Sunbelt Rentals, Inc., 374 NLRB No. 24 

(2022) (reaffirming Johnnie’s Poultry 

rule). 

The Department believes that such 

safeguards would appropriately protect 

employers’ constitutional free speech 

right to express views, argument, or 

opinion concerning protected 

organizing activity without unduly 

infringing on the rights of workers to 

refrain from listening to such 

expressions as proposed in this rule. 

Therefore, to ensure that workers are not 

held captive to coercive employer 

speech about their protected activity, 

the Department proposes to adopt these 

sensible disclosures that an employer 

must convey to workers in order to 

make clear that their attendance at any 

meeting or discussion in work areas 

during working hours concerning their 

rights to engage in protected activity is 

truly voluntary. Note that no disclosures 

would need to be given when employers 

require workers to attend meetings on 

subjects other than their exercise of 

protected rights (e.g., work assignments 

for the day, tools, job training or safety 

instructions). But these safeguards 

would be required if, for example, the 

employer uses a regular daily meeting or 

a portion of that meeting to seek to 

dissuade employees from acting 

together to improve working conditions 

or safety or engaging in other protected 

concerted activity. The Department’s 

approach is intended to protect both the 

workers’ rights to engage in (or to refrain 

from engaging in) concerted activity 

under this proposed rule, and 

employers’ speech concerning any such 

activity, without unduly infringing on 

either party’s expression. It also seeks to 

make clear that an employer cannot 

retaliate against a worker (or provide 

rewards or benefits) for attending or 

refusing to attend a ‘‘captive audience’’ 

meeting or discussion concerning their 

rights to engage in protected activity, 

even if the meeting occurs during their 

regularly scheduled working hours. 

The Department welcomes comments 

on this proposal, including, specifically, 

whether there are other ways to protect 

workers’ rights to refrain from listening 

to employers’ coercive speech, whether 

other safeguards or employer 

disclosures are appropriate, or how to 

most appropriately tailor the prohibition 

to avoid infringing on employer’s free 

speech rights while protecting workers’ 

right to engage in protected activity. 

D. Section 655.135(m)(4) Commitment 

To Bargain in Good Faith Over Proposed 

Labor Neutrality Agreement 

The Department proposes in 

§ 655.135(m)(4) to require employers to 

attest either that they will bargain in 

good faith over the terms of a proposed 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63799 

79See Non-Legislative Labor Law Reform and PreRecognition Labor Neutrality Agreements: The 

Newest Civil Rights Movement, Hartley, 22 

Berkeley J. Emp. & Lab. L. 369, 378–85 (2001). 

labor neutrality agreement with a 

requesting labor organization, or that 

they will not do so and provide an 

explanation for why they have declined. 

This attestation will provide workers, 

worker advocates, and the public with 

valuable information about prospective 

employers in the H–2A program. 

As noted in the proposed regulatory 

text, a labor neutrality agreement is an 

agreement between a labor organization 

and an employer in which the employer 

agrees not to take a position for or 

against a labor organizing effort. Such 

agreements are effective mechanisms to 

improve workers’ organizing success, as 

they address the major impediments to 

successful organizing efforts: 

‘‘intimidation and delay.’’ 79

As described above, coercive 

employer speech about collective 

bargaining or labor organizations can 

prevent workers from advocating for 

better working conditions on behalf of 

themselves and their coworkers. A labor 

neutrality agreement would protect 

workers from both coercive and noncoercive anti-organizing speech and 

provide workers with a free and fair 

choice about whether to organize. The 

Department believes that labor 

neutrality agreements negotiated 

between H–2A employers and labor 

organizations could help to correct the 

imbalance in bargaining power in the 

H–2A program that the Department has 

identified as having an adverse effect on 

agricultural workers in the United 

States. 

However, as also explained above, 

employers generally have the right 

under the First Amendment to 

communicate their views on 

unionization to their employees. See 

Gissel Packing, 395 U.S. at 617 

(distinguishing lawful communications 

from threats or coercion). Thus, an 

employer’s choice whether to bargain 

over any labor neutrality agreement at 

the request of a labor organization, and 

whether to ultimately enter into such an 

agreement, is entirely voluntary. The 

Department does not intend to oversee 

or monitor any bargaining that 

ultimately takes place, although an 

employer that chooses to agree to 

bargain in good faith yet fails to do so 

would violate this proposed regulation. 

In general, if the employer chooses to 

bargain in good faith, doing so means 

that, upon request by a labor 

organization, the employer will meet at 

reasonable times and confer, in good 

faith, with respect to negotiating the 

terms of a proposed labor neutrality 

agreement. Good-faith bargaining must 

be at arm’s length and must involve 

engaging in genuine efforts to reach an 

accord. See, e.g., NLRB v. Ins. Agents’ 

Int’l Union, 361 U.S. 477, 485 (1960); 

NLRB v. Overnite Transp. Co., 938 F.2d 

815, 821 (7th Cir. 1991). It means that 

the employer must approach bargaining 

with a good faith intention to reach an 

agreement, not just engage in ‘‘surface 

bargaining’’ or ‘‘going through the 

motions.’’ Overnite Transp. Co., 938 

F.2d at 821–22. If requested by either 

party, the execution of a written 

contract incorporating any agreement 

reached is part of good faith bargaining. 

However, neither party is compelled to 

agree to a proposal or make concessions, 

and the Department will not, either 

directly or indirectly, ‘‘compel 

concessions or otherwise sit in 

judgment upon the substantive terms of 

collective bargaining agreements.’’ Id. at 

821 (quoting NLRB v. Am. Nat’l Ins. Co., 

343 U.S. 395, 404 (1952)) (construing 29 

U.S.C. 158(d)). 

The Department believes that 

disclosure and information about 

employers can be a powerful tool for 

workers, and throughout this proposed 

rule has sought to enhance transparency 

and increase workers’ access to 

important information about the job 

opportunity and workers’ rights. 

Therefore, knowing whether an 

employer has chosen to commit to 

bargain in good faith over a labor 

neutrality agreement, or not, can 

provide workers with important 

information about such employers. 

Under proposed § 655.135(m)(4)(ii), 

employers that choose not to bargain 

over labor neutrality agreements must 

state that they are not willing to do so 

and disclose their reasons for making 

that choice. Because this information 

would be disclosed on the job orders, 

workers would be able to use it to 

decide whether they want to work for 

certain employers. In addition, worker 

advocacy groups and labor 

organizations may be able to use this 

information to decide whether to engage 

with certain employers or whether 

workers for such employers might need 

additional assistance from key service 

providers. 

The Department welcomes comments 

addressing any aspect of this proposed 

regulatory provision. In particular, the 

Department seeks comment on whether 

the organization with which an 

employer would bargain should be 

limited other than by the general 

requirement to bargain in good faith, 

such as by including only those labor 

organizations that are subject to the 

Labor Management Reporting and 

Disclosure Act, 29 U.S.C. 401 et seq. 

The Department also welcomes 

comments regarding whether this 

proposed requirement will, as intended, 

advance the goal of ensuring that H–2A 

workers have a free and fair choice over 

whether to exercise their freedom of 

association rights to join together and 

negotiate with their employer as one 

body. 

x. Section 655.135(n) Access to Worker 

Housing 

The Department proposes the 

addition of a new provision, 

§ 655.135(n), governing access to worker 

housing, which is intended to protect 

the right of association and access to 

information for H–2A workers and 

workers in corresponding employment 

and address the isolation that 

contributes to the vulnerability of some 

H–2A workers. 

As set forth above in section IV.C.2.b 

of this preamble, the temporary nature 

of their work and dependency on a 

single employer for work, housing, 

transportation, and necessities, among 

other factors, make H–2A workers 

particularly vulnerable to labor 

exploitation, including violations of H– 

2A program requirements, dangerous 

working conditions, retaliation, and 

labor trafficking. Geographic isolation 

and employer-imposed limitations on 

workers’ movements and 

communication exacerbate this 

vulnerability. 

Studies by nongovernmental 

organizations highlight the vulnerability 

faced by H–2A workers and some 

employers’ use of isolation and 

monitoring to control workers so that 

they do not feel they have any option 

but to accept substandard and illegal 

working conditions. Polaris, the 

organization that operates the National 

Human Trafficking Hotline, identified 

over 2,800 H–2A workers that were 

victims of labor trafficking between 

2018 and 2020 (because human 

trafficking is notoriously underreported, 

it is extremely likely that more H–2A 

workers faced similar experiences). 

Polaris 2018–2020 Report at 7, 10. 

Similarly, Centro de los Derechos del 

Migrante conducted interviews with 100 

H–2A workers between September 2019 

and January 2020 and found that many 

experienced indicators of labor 

trafficking. For instance, 34 percent 

reported restrictions on their movement, 

such as not being permitted to leave 

employer-furnished housing or 

worksites and 32 percent described 

themselves as not feeling free to quit. 

CDM Report at 5. Both organizations 

described H–2A workers being subject 

to extreme isolation, such as being left 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63800 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

80 In late 2021, the United States Attorney’s Office 

for the Southern District of Georgia indicted 24 

defendants on felony charges including human 

smuggling and forced labor. Defendants 

fraudulently used the H–2A program to smuggle 

agricultural workers into the United States from 

Mexico, Guatemala, Honduras, and other countries. 

Once in the United States, workers were forced to 

dig onions with their bare hands, earning $0.20 for 

each bucket harvested, and were threatened with 

guns and violence. The workers were detained in 

crowded, unsanitary buildings with little or no 

food. See Press Release, U.S. Attorney’s Off. for the 

S. Dist. of Ga., Operation Blooming Onion Human 

Trafficking Investigation (Nov. 22, 2021), https://

www.justice.gov/usao-sdga/pr/human-smugglingforced-labor-among-allegations-south-georgiafederal-indictment. See also Jessica Looman, U.S. 

Dep’t of Lab. Blog: Exposing the Brutality of Human 

Trafficking (Jan. 13, 2022), https://blog.dol.gov/ 

2022/01/13/exposing-the-brutality-of-humantrafficking. 

in remote areas without transportation 

or means of communicating with others, 

requiring permission to leave employerfurnished housing, being deliberately 

limited in accessing their support 

systems, having their personal cellular 

phones and passports confiscated, and 

being denied access to other forms of 

communication. Polaris 2018–2020 

Report at 19; CDM Report at 23–24; 

Farmworker Justice Report at 22, 33; see 

also Indictment, U.S. v. Patricio, No. 

5:21–cr–00009 (S.D. Ga.) (describing H– 

2A workers being detained in a work 

camp surrounded by an electric fence 

and having their identification 

documents and personal cellular 

telephones confiscated).80 Thus, the 

Department seeks to protect workers’ 

rights to association and access to 

information both to make them less 

susceptible to labor exploitation, 

including trafficking, and to interrupt 

factors that permit the deterioration of 

working conditions for agricultural 

workers in the United States and thus 

have an adverse effect on workers in the 

United States similarly employed. 

8 U.S.C. 1188(a)(1). 

In light of these serious concerns, 

proposed § 655.135(n)(1) would provide 

that workers residing in employerfurnished housing must be permitted to 

invite, or accept at their discretion, 

guests to their living quarters and/or the 

common areas or outdoor spaces near 

such housing during time that is outside 

of workers’ workday and subject only to 

reasonable restrictions designed to 

protect worker safety or prevent 

interference with other workers’ 

enjoyment of these areas. This 

protection would recognize that workers 

do not relinquish their rights to 

association or access to information 

simply by virtue of residing in 

employer-furnished housing. Nor could 

employers use the statutorily required 

provision of housing as a means to 

isolate or control their workforce by 

blocking their access to information and 

assistance from the outside. The 

proposed regulation would explicitly 

permit workers to invite guests or to 

accept (or reject) visitors wishing to 

speak with them. Because the right to 

invite or accept visitors is limited to 

housing areas and to time that is outside 

of workers’ workday, the Department 

does not anticipate that this will disrupt 

employers’ business operations. 

Under the Department’s proposed 

regulation, this protection is intended to 

apply to all housing furnished by the 

employer pursuant to the employer’s 

statutory and regulatory obligations. 

While the Department anticipates that 

this protection would be the most 

beneficial for workers who reside in 

housing that is geographically isolated, 

it recognizes that even workers whose 

housing is more centrally located may 

be isolated by virtue of employer 

policies that limit their ability to leave 

housing or to interact with the public 

even during time that is outside of 

workers’ workday. The Department is 

aware of instances in which employers 

used abusive restrictions to keep 

workers isolated and to restrict their 

access to services, for example, by 

forbidding workers to leave housing 

areas that may otherwise have been 

accessible except when being 

transported to work or for other limited 

purposes such as to buy groceries, or by 

retaining keys to worker housing or 

employing armed guards such that 

workers did not feel that they could 

leave or have guests. Regardless of 

whether housing is located in a remote 

or densely populated area, workers 

would benefit from a protected right to 

invite and accept visitors. The 

Department seeks comments on whether 

the protection in § 655.135(n)(1) should 

be limited to workers residing in certain 

types of employer-furnished housing or 

in certain locations. 

Because workers typically reside in 

shared quarters, the Department 

recognizes the need to balance different 

workers’ competing needs. It therefore 

proposes to permit reasonable 

restrictions designed to protect worker 

safety or to prevent interference with 

other workers’ enjoyment of the 

housing. For example, it could be 

reasonable for an employer to limit 

visitors’ access to shared sleeping 

quarters during sleeping hours, but to 

permit visitors in the common areas and 

outdoor spaces surrounding worker 

housing provided that they are quiet. 

Similarly, it could be reasonable for an 

employer to limit all visitor access 

during sleeping hours, provided that the 

employer does not use such a restriction 

to effectively bar most visitors. The 

Department seeks comments on what 

would constitute reasonable or 

unreasonable restrictions and other 

means of balancing different workers’ 

interests in shared housing, as well as 

comments on visitor policies that may 

unduly hinder workers’ rights to invite 

or accept guests. 

The Department recognizes that the 

effectiveness of proposed 

§ 655.135(n)(1) may be limited where 

H–2A workers are unaware of, or afraid 

to exercise, their right to invite or accept 

visitors in employer-furnished housing. 

To bolster the effectiveness of this 

proposed requirement, § 655.135(n)(2) 

would provide a narrow right of access 

to labor organizations, which have an 

incentive to report concerns of labor 

exploitation to the Department or other 

law enforcement agencies, as well as to 

provide information to workers on their 

rights under the H–2A program and to 

engage in self-organization. Specifically, 

where employer-furnished housing for 

H–2A workers and workers in 

corresponding employment who are 

engaged in FLSA agriculture is not 

readily accessible to the public, a labor 

organization would be permitted to 

access the common areas or outdoor 

spaces near worker housing for the 

purposes of meeting with workers 

during time that is outside of workers’ 

workday for up to 10 hours per month. 

The protections of paragraphs (n)(1) 

and (2) would be distinct, but would 

complement and bolster one another. 

Whereas the former would permit all 

resident H–2A workers and those in 

corresponding employment to invite or 

accept guests to their living quarters, as 

well as the common areas and outdoor 

spaces surrounding worker housing, the 

latter would permit labor organizations 

to, without explicit invitation, seek out 

workers only in the common areas and 

outdoor spaces surrounding worker 

housing in which H–2A workers and 

those in corresponding employment 

who perform FLSA agriculture reside. 

The former would permit workers to 

invite or accept guests during all time 

that is outside of workers’ workday 

subject only to reasonable restrictions 

designed to balance their rights with the 

rights of other workers. The latter would 

limit labor organizations’ access to 10 

hours per month, an amount of time 

reasonable to make contact with new 

workers that may have started between 

labor organization visits. Finally, the 

latter would only apply in instances 

where the worker housing is on 

property or in a facility that is not 

readily accessible to the public such 

that labor organizations have limited 

alternatives for in-person meetings with 

workers. While the Department also 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63801 

81See also Polaris 2018–2020 Report at 26; CDM 

Report at 23–24; Farmworker Justice Report at 33; 

Indictment, U.S. v. Patricio, No. 5:21–cr–00009 

(S.D. Ga.) (confiscation of identity documents used 

in scheme to traffic H–2A workers). 

82See, e.g., Jessica Looman, U.S. Dep’t of Lab. 

Blog: Exposing the Brutality of Human Trafficking 

(Jan. 13, 2022), https://blog.dol.gov/2022/01/13/ 

exposing-the-brutality-of-human-trafficking. 

83See, e.g., Press Release, U.S. Dep’t of Lab., 

Federal court sentences South Carolina labor 

contractor, operators after investigation finds fraud, 

labor trafficking, abuses of farmworkers (Aug. 3, 

2023), https://www.dol.gov/newsroom/releases/ 

whd/whd20230803. 

proposes the means for labor 

organizations to request worker contact 

information, including, when available, 

workers’ personal cellular telephone 

numbers, it does not consider this a 

substitute for in-person meetings since 

it is aware of multiple instances in 

which workers’ personal cellular 

telephones have been seized by 

employers. See also Patricio Indictment 

at 23; Polaris 2018–2020 Report at 19. 

To help inform workers of their rights 

under this proposal, the Department is 

proposing to include the protections 

that would be afforded under proposed 

§ 655.135(n) in the disclosures required 

on the job order. 

The Department seeks comments on 

all aspects of this proposal. The 

Department is particularly interested in 

comments on proposed § 655.135(n)(2), 

such as those regarding the limitations 

placed on labor organizations’ right of 

access, including the cap of 10 hours 

per month and how to understand when 

worker housing is not readily accessible 

to the public, how this would apply 

when workers engaged in FLSA 

agriculture share housing with workers 

not engaged in FLSA agriculture 

(§ 655.135(n)(2) applies only with 

respect to the former), whether the right 

of access in this provision should be 

expanded to provide similar access to 

some or all key service providers as 

defined in proposed § 655.103(b), and, if 

so, whether the Department should limit 

the scope of the catchall term ‘‘any other 

service providers to which an 

agricultural worker may need access.’’ 

In addition, the Department is interested 

in comments on whether and how 

proposed § 655.135(n)(1) and (2) should 

apply with respect to workers housed 

pursuant to §§ 655.230 (housing for 

work performed on the range in herding 

and range production of livestock 

occupations) and 655.304 (mobile 

housing for workers engaged in animal 

shearing or custom combining). 

Finally, the Department proposes 

corresponding edits to § 655.132(e)(1) to 

address instances in which the 

employer-furnished housing is provided 

by the fixed-site agricultural business 

(‘‘grower’’) as part of its agreement with 

an H–2ALC. Under the current 

provision, where housing is owned, 

operated, or secured by the grower, the 

H–2ALC is required to include with its 

H–2A Application proof that the 

housing complies with the applicable 

standards set forth in § 655.122(d) and 

certified by the SWA. The Department 

proposes to add to this provision the 

requirement that the H–2ALC also 

provide with its H–2A Application 

proof that the grower has agreed to 

comply with the requirements of 

proposed § 655.135(n). In doing so, the 

Department seeks to ensure that the 

protections for access to worker housing 

would be met even where the H–2ALC 

fulfills its obligation to furnish housing 

through its agreement with its client 

grower. The Department welcomes 

comments on what would constitute the 

requisite proof that an H–2ALC would 

be required to submit with its 

application, as well as alternative means 

of ensuring compliance with the access 

protections where housing is provided 

directly by a grower. 

xi. Section 655.135(o) Passport 

Withholding 

The Department proposes to add a 

new paragraph (o) to § 655.135 to better 

protect workers from potential labor 

trafficking by directly prohibiting an 

employer from confiscating a worker’s 

passport, visa, or other immigration or 

government identification documents. 

Under this proposal, the only 

exceptions to this prohibition would be 

where the worker has stated in writing: 

that the worker voluntarily requested 

that the employer keep these documents 

safe, that the employer did not direct 

the worker to submit such a request, and 

that the worker understands that the 

passport, visa, or other immigration or 

government identification document 

will be returned to the worker 

immediately upon the worker’s request. 

Even where the worker has voluntarily 

requested that the employer safeguard 

such documents, the worker must be 

able to have ready access to the 

document, at least during regular 

business hours and at a location that 

does not meaningfully restrict the 

worker’s ability to access the document. 

As detailed in section IV.C.2.b of this 

preamble, H–2A workers are extremely 

vulnerable to labor exploitation, and an 

employer taking or holding a worker’s 

passport is an egregious act that can be 

a strong indication of such 

exploitation.81 Labor trafficking, 

including the restriction of a worker’s 

movements, harms not only the worker 

but also the agricultural workforce in 

the area by subjecting workers to 

depressed working conditions.82 The 

current regulation at § 655.135(e) 

requires an employer to comply with all 

applicable Federal, State, and local 

laws. That section explicitly references 

the William Wilberforce Trafficking 

Victims Protection Reauthorization Act 

of 2008, Pub. L. 110–457, which 

amended the TVPA, Pub. L. 106–386 

(2000), 18 U.S.C. 1592(a). The TVPA, as 

amended, prohibits the unlawful 

destruction, concealment, removal, 

confiscation or possession of another 

person’s passport or other immigration 

documents, under the conditions set 

forth in that statute (e.g., with the intent 

to obtain forced labor in violation of 18 

U.S.C. 1589). 18 U.S.C. 1592(a). The 

Department’s current regulation at 20 

CFR 655.135(e) thus provides that an 

employer may not hold or confiscate a 

worker’s passport, visa, or other 

immigration documents, in compliance 

with the TVPA and other applicable 

laws. The Department added this 

explicit reference to the TVPA and 

passport withholding in the 2010 H–2A 

Final Rule, in response to a comment 

received on the issue, because the 

Department ‘‘recognize[d] the worker’s 

right not to relinquish possession of his 

or her passport to the employer.’’ See 75 

FR 6923. 

Despite the requirements of the 

current regulation at § 655.135(e), 

however, WHD has uncovered multiple 

instances of employers taking or 

withholding a worker’s documents 

against the worker’s wishes.83 Under the 

current regulation, which is dependent 

upon compliance with the TVPA, it is 

often difficult for WHD to ascertain the 

intent of the employer each time a 

passport or document is withheld. 

Further, under the current regulation, it 

can be difficult for WHD to cite a 

violation for passport withholding 

absent a conviction of a trafficking 

offense by a law enforcement agency. As 

noted above, the Department believes it 

is important to prevent passport and 

document withholding to protect the 

workers subject to this practice from 

potential labor trafficking, as well as to 

protect other agricultural workers in the 

area from resulting adverse effects on 

working conditions, pursuant to 8 

U.S.C. 1188(a)(1). Accordingly, to better 

address these issues, and pursuant to its 

authority under 8 U.S.C. 1188(a)(1), the 

Department proposes to flatly prohibit 

the taking or withholding of a worker’s 

passport, visa, or other immigration or 

identification documents against the 

worker’s wishes, independent of any 

other requirements under other Federal, 

State, or local laws, in a new paragraph 

at § 655.135(o). In addition, to promote 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63802 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

84U.S. Gov’t Accountability Office, GAO–15–154, 

H–2A and H–2B Visa Programs: Increased 

Protections Needed for Foreign Workers 33–34 

(2015; Rev. 2017), https://www.gao.gov/assets/gao15-154.pdf. 

85Office of Inspector Gen., U.S. Dep’t of Lab., 

Rep. No. 06–21–001–03–321, Overview of 

Vulnerabilities and Challenges in Foreign Lab. 

Certification Programs (2020). 

86Polaris, Human Trafficking on Temporary 

Work Visas: A Data Analysis 2015–2017 12–13 

(2018), https://polarisproject.org/wp-content/ 

uploads/2019/01/Human-Trafficking-onTemporary-Work-Visas.pdf (noting that workers 

continue to be charged unlawful fees, and stating 

there is ‘‘a general sense of confusion among 

victims as to the relationship between the person 

or agency who facilitated their recruitment and the 

person or company who would ultimately employ 

them’’ and ‘‘many victims were not sure to whom 

they had paid recruitment fees or why they had 

been required’’). 

87U.N. Office on Drugs and Crime, The Role of 

Recruitment Fees and Abusive and Fraudulent 

Recruitment Practices of Recruitment Agencies in 

Trafficking in Persons 23, 47 (2015), https://

www.unodc.org/documents/human-trafficking/ 

2015/Recruitment_Fees_Report-Final-22_June_

2015_AG_Final.pdf. See also International Labour 

Organization, Fair Recruitment Initiative, http://

www.ilo.org/global/topics/fair-recruitment/fri/lang-- 

en/index.htm; International Labour Organization, 

General principles and operational guidelines for 

fair recruitment and Definition of recruitment fees 

and related costs (2019), http://www.ilo.org/ 

wcmsp5/groups/public/---ed_protect/---protrav/--- 

migrant/documents/publication/wcms_536755.pdf. 

compliance with and deter violations of 

this requirement, the Department 

proposes to include failure to comply 

with this assurance and obligation 

within the definition of violations 

subject to debarment under 

§ 655.182(d)(1)(viii) and 29 CFR 

501.20(d)(1)(viii). We note, however, 

that even under the current regulations, 

debarment may be appropriate due to 

passport withholding in certain 

circumstances. See 20 CFR 

655.182(d)(1)(x) and 29 CFR 

501.20(d)(1)(x). Finally, to help inform 

workers of their rights under this 

proposal, the Department is proposing 

to include the protections that would be 

afforded under proposed § 655.135(o) in 

the disclosures required on the job 

order. 

The Department recognizes that an 

employer and/or its agent(s) often 

facilitate a prospective H–2A worker’s 

submission of the worker’s passport, 

visa, or other identification documents 

to the United States Government for 

purposes of visa application, processing, 

or entry to the United States. Nothing in 

the current regulation at § 655.135(e), or 

in proposed § 655.135(o), is intended to 

prohibit such facilitation, provided that 

the worker voluntarily requests the 

employer’s assistance in these processes 

and that the documents are returned to 

the worker immediately upon return by 

the United States Government. 

The Department welcomes comments 

on this proposal, particularly regarding 

whether the Department should include 

any other requirements for application 

of the proposed exception to this 

prohibition, and whether the 

Department should include any 

additional exceptions to this 

prohibition. 

3. Section 655.137, Disclosure of 

Foreign Worker Recruitment 

The Department proposes new 

disclosure requirements to enhance 

foreign worker recruitment chain 

transparency and bolster the 

Department’s capacity to protect 

vulnerable agricultural workers from 

exploitation and abuse, as explained 

more fully below. As the Government 

Accountability Office (GAO) has 

explained, ‘‘[w]ithout accurate, 

accessible information about employers, 

recruiters, and jobs during the 

recruitment process, potential foreign 

workers are unable to effectively 

evaluate the existence and nature of 

specific jobs or the legitimate parties 

contracted to recruit for employers, 

potentially making them more 

vulnerable to abuse.’’ 84 More recently, 

the Department’s OIG released a report 

that emphasized the need for increased 

transparency in the recruiting chain to 

enhance the Department’s enforcement 

capabilities.85 Concerns expressed by 

workers’ rights advocacy organizations 

and human trafficking prevention 

groups, in addition to the Department’s 

own experience in finding continuing 

abuses by foreign labor recruiters, also 

indicate the need for enhanced 

transparency to aid enforcement and 

protect vulnerable agricultural workers 

from predatory and abusive practices 

during the recruitment process. A recent 

report published by Polaris, an 

organization working to combat labor 

trafficking, notes that abuses by foreign 

labor recruiters continue, with workers 

reporting unlawful fees charged by 

‘‘foreign labor recruiters, their 

employers, or their direct supervisors at 

their jobs,’’ and that additional 

transparency in the recruitment chain is 

needed to ensure the Department can 

identify, investigate, and hold 

accountable those employers and other 

entities who engage in abusive and 

unlawful behavior at various stages of 

the international recruitment process.86

The Department’s proposed changes are 

also consistent with the assessment of 

organizations looking at migrant worker 

abuse globally. For example, the United 

Nations Office on Drugs and Crime, in 

a 2015 report entitled ‘‘The Role of 

Recruitment Fees and Abusive and 

Fraudulent Practices of Recruitment 

Agencies in Trafficking in Persons,’’ 

noted that recruitment systems are often 

‘‘opaque,’’ and that a ‘‘[l]ack of 

evidence,’’ contributes to low levels of 

trafficking convictions for recruiters and 

recruitment agencies.87

Pursuant to its authority under the 

INA, the Department can regulate the 

conduct of U.S. employers using foreign 

labor certification programs and doing 

business with foreign labor recruiters. 

The INA expressly authorizes the 

Department to promulgate regulations 

governing recruitment. The Department 

may only issue a labor certification to an 

employer that has ‘‘complied with the 

criteria for certification (including 

criteria for the recruitment of eligible 

individuals as prescribed by the 

Secretary).’’ 8 U.S.C. 1188(c)(3)(A)(i). 

The INA states 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.’’ 8 

U.S.C. 1188(g)(2). As the Department 

has noted in prior rulemaking, though 

there are limits to the liability the 

Department can impose on employers 

for the actions of recruiters abroad, the 

Department can regulate the conduct of 

recruiters in the H–2A program through 

enforcement of employer obligations to 

foreign workers, such as enforcement of 

the prohibition on imposition of 

recruitment fees. 73 FR 77110, 77160 

(Dec. 18, 2008, suspended). Currently, 

employers must contractually forbid any 

foreign labor contractor or recruiter (or 

any agent of such foreign labor 

contractor or recruiter) whom the 

employer engages, either directly or 

indirectly, in international recruitment 

from seeking payments or other 

compensation from prospective 

employees, in both the H–2A and H–2B 

programs, at 20 CFR 655.135(k) and 

655.20(p), respectively. The H–2B 

regulations at §§ 655.9 and 655.20(aa) 

additionally require employers to 

provide copies of their agreements with 

foreign labor recruiters and disclose 

information about the foreign labor 

recruiters that have or will be engaged 

in connection with their H–2B 

applications. The Department proposes 

similar additional foreign labor recruiter 

disclosure requirements in the H–2A 

program, specifically to require, as a 

condition for approving an H–2A 

Temporary Labor Certification, that the 

employer identify any foreign labor 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63803 

88The Department uses all available tools to 

ensure that prohibited fees are not collected by 

employers, agents, recruiters, or facilitators. The 

Department has previously stated that an employer 

must make it abundantly clear that the recruiter and 

its agents are not to receive remuneration from the 

worker recruited in exchange for access to the job 

opportunity. For example, evidence showing that 

the employer paid the recruiter no fee or an 

extraordinarily low fee, or continued to use a 

recruiter about whom the employer had received 

numerous credible complaints, could be an 

indication that the contractual prohibition was not 

bona fide. See 75 FR 6925–6926. The Department 

has similarly stated that, if it determines that the 

employer knew or reasonably should have known 

that the H–2A worker paid or agreed to pay a 

prohibited fee to a foreign labor contractor or 

recruiter, the employer may be in violation of 20 

CFR 655.135(j). However, should the circumstances 

demonstrate that the employer made a good faith 

effort to ensure that prospective workers were not 

required to pay prohibited fees (such as inquiry of 

both workers and agents/recruiters/facilitators 

regarding the payment of such fees), the Department 

will take the circumstances into consideration in 

determining whether a violation occurred. See U.S. 

Dep’t of Lab., Wage & Hour Div., Field Assistance 

Bulletin No. 2011–2, H–2A ‘‘Prohibited Fees’’ and 

Employer’s Obligation to Prohibit Fees (May. 6, 

2011), https://www.dol.gov/agencies/whd/fieldassistance-bulletins/2011-2. 

recruiters, provide copies of the 

agreements between the employer and 

recruiter, and ensure the agreement 

clearly prohibits the foreign labor 

contractor or recruiter from seeking or 

receiving payments or other 

compensation from prospective 

employees. This proposed requirement 

to disclose information about the 

recruitment chain would assist the 

Department to carry out its enforcement 

obligations, protect vulnerable 

agricultural workers and program 

integrity, and ensure equitable 

administration of the H–2A program for 

law abiding employers. 

In particular, the Department 

proposes a new § 655.137, Disclosure of 

foreign worker recruitment, and a new 

§ 655.135(p), Foreign worker 

recruitment, which are similar to 

§§ 655.9 and 655.20(aa) in the 

regulations governing disclosure of 

foreign worker recruitment in the H–2B 

program. Consistent with §§ 655.9(a) 

and 655.20(aa), proposed §§ 655.137(a) 

and 655.135(p) would require an 

employer and its attorney or agent, as 

applicable, to provide a copy of all 

agreements with any agent or recruiter 

that the employer engages or plans to 

engage in the recruitment of prospective 

H–2A workers, regardless of whether 

the agent or recruiter is located in the 

United States or abroad. Consistent with 

the H–2B program, the proposed rule 

would require employers to provide a 

copy of the agreement at the time the 

employer files the H–2A Application. 

The Department does not propose 

revisions to § 655.135(k), which will 

continue to apply to employers that 

have engaged with agents and foreign 

labor recruiters, directly or indirectly, in 

international recruitment of H–2A 

workers and will continue to require the 

employer to contractually prohibit the 

recruiter(s) from seeking or receiving 

payment from any worker at any time. 

As such, the written contract(s) the 

employer submits under this proposed 

rule must contain this contractual 

prohibition on charging fees and the 

prohibition language must include the 

quoted language specified in 

§ 655.135(k). At the time of collection, 

the Department will review the 

agreements to obtain the names of the 

foreign labor recruiters and government 

registration and license numbers, if any 

(for purposes of maintaining a public 

list, as described below), and to verify 

that these agreements include the 

required contractual prohibition against 

charging fees.88 The Department may 

further review the agreements during 

the course of an audit examination or 

investigation. Certification of an 

employer’s application that includes 

such an agreement does not indicate 

general approval of the agreement or the 

terms therein. Where the required 

contractual prohibition is not readily 

discernible, the Department may request 

further information to ensure that the 

contractual prohibition is included in 

the agreement. Agreements between the 

employer and the foreign labor recruiter 

will not be made public unless required 

by law. Consistent with the 

Department’s current practice in the H– 

2B program, this proposal allows the 

Department to obtain the agreements, 

but the Department will only share with 

the public the identity of the recruiters, 

not the agreements in their entirety, as 

discussed further below. 

Proposed §§ 655.137(b) and 

655.135(p), consistent with the H–2B 

provisions at §§ 655.9(b) and 655.20(aa), 

would require an employer and its 

attorney or agent, as applicable, to 

disclose to the Department the identity 

(i.e., name and, if applicable, 

identification number) and geographic 

location of persons and entities hired by 

or working for the foreign labor recruiter 

and any of the agents or employees of 

those persons and entities who will 

recruit or solicit prospective H–2A 

workers for the job opportunities offered 

by the employer. If the recruiter has a 

valid registration number or license 

number, which is issued by a 

government agency and authorizes the 

recruiter to engage in the solicitation or 

recruitment of workers, the employer 

must provide this unique identification 

information. Consistent with the H–2B 

program, the Department proposes to 

interpret the term ‘‘working for’’ to 

encompass any persons or entities 

engaged in recruiting prospective 

foreign workers for the H–2A job 

opportunities offered by the employer, 

whether they are hired directly by the 

primary recruiter or are working 

indirectly for that recruiter downstream 

in the recruitment chain. As explained 

more fully in the requisite PRA 

supporting statement accompanying this 

proposed rule, the Department proposes 

to gather the additional recruitment 

chain information when the employer 

files its application and will require the 

employer to submit a proposed Form 

ETA–9142A, Appendix D, that mirrors 

the Form ETA–9142B, Appendix C, and 

collects information about the identity 

and location of the recruiter(s) and 

recruitment organization(s) the 

employer used or will use to recruit 

foreign workers. 

Proposed § 655.137(c), and 

corresponding language in § 655.135(p), 

would require the employer to update 

the foreign worker recruitment 

information disclosed in accordance 

with paragraphs (a) and (b) of § 655.137 

with any changes to foreign labor 

recruiter contracts, loss or revocation of 

registration number, or change to the 

names and locations of people involved 

in recruitment after filing the H–2A 

Application, and to continue to make 

these updates until the end of the work 

contract period. The Department 

proposes to require the employer to 

maintain updates to the foreign labor 

recruiter information disclosed at the 

time of filing the H–2A Application and 

be prepared to submit the record to the 

Department, upon request. To clarify the 

employer’s record retention obligation, 

proposed § 655.167(c)(8) would require 

the employer to maintain the foreign 

worker recruitment information 

required by § 655.137(a) and (b) for a 

period of 3 years, similar to the 

provisions at § 655.167(c) that require 

retention of information regarding 

recruitment of U.S. workers. 

The proposed disclosure requirements 

encompass all agreements involving the 

whole recruitment chain that brings an 

H–2A worker to the employer’s certified 

H–2A job opportunity in the United 

States. Employers, and their attorneys or 

agents, as applicable, are expected to 

provide these names and geographic 

locations to the best of their knowledge 

at the time the application is filed. The 

Department expects that, as a normal 

business practice, when completing the 

written agreement with the primary 

recruiting agent or recruiter, the 

employer will ask whom the recruiter 

plans to use to recruit workers in foreign 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63804 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

countries, and whether those persons or 

entities plan to hire other persons or 

entities to conduct such recruitment, 

throughout the recruitment chain. 

Consistent with current practice in 

the H–2B program, proposed 

§ 655.137(d) provides for the 

Department’s public disclosure of the 

names of the agents and foreign labor 

recruiters used by employers, as well as 

the identities and locations of all the 

persons or entities hired by or working 

for the primary recruiter in the 

recruitment of prospective H–2A 

workers, and the agents or employees of 

these entities. Determining the identity 

and location of persons hired by or 

working for the recruiter or its agent to 

recruit or solicit prospective H–2A 

workers—effectively acting as subrecruiters, sub-agents, or subcontractors—bolsters program integrity 

by aiding enforcement of provisions like 

§ 655.135(k), which prohibits the 

seeking or receiving of recruitment fees. 

In addition, the proposed information 

collection requires additional 

disclosures relating to foreign worker 

recruitment that will bring a greater 

level of transparency to the H–2A 

worker recruitment process. By 

maintaining and making public a list of 

agents and recruiters, the Department 

will be in a better position to map 

international recruitment relationships, 

identify where and when prohibited 

fees are collected, ensure that 

contractual prohibitions on collecting 

prohibited fees are bona fide, and, when 

contractual prohibitions are not bona 

fide or do not exist, implement 

sanctions against and collect remedies 

from the appropriate entity. Finally, 

workers would be better protected 

against fraudulent recruiting schemes 

because they will be able to verify 

whether a recruiter is in fact recruiting 

for legitimate H–2A job opportunities in 

the United States. A list of foreign labor 

recruiters also will enhance 

transparency and aid enforcement by 

facilitating information sharing between 

the Departments and the public, and 

assist OFLC, other agencies, workers, 

and community and worker advocates 

to better understand the roles of 

recruiters and their agents in the 

recruitment chain, while permitting a 

closer examination of applications or 

certifications involving recruiters who 

may be engaged in improper behavior. 

Information about the identity of the 

international and domestic recruiters of 

foreign labor will also assist the 

Department in more appropriately 

directing its audits and investigations. 

For example, in the course of its 

enforcement, WHD sometimes reviews 

allegations from H–2A workers that they 

have been charged recruitment fees. 

Those workers, however, are frequently 

unaware of the contractual 

arrangements between the individuals 

alleged to have charged those fees and 

the recruitment agencies for which they 

may serve as sub-agents or subrecruiters, and may only know the 

names, partial names, or nicknames of 

such individuals. This information 

would improve WHD’s ability to 

identify individuals charging fees, 

connect such individuals’ relationships 

with recruitment agencies contracted by 

the employer, determine whether all 

entities had contractually prohibited 

cost-shifting as required under 20 CFR 

655.135(k), and hold the appropriate 

parties responsible. Such information 

would also improve WHD’s ability to 

plan enforcement actions if, for 

example, a sub-recruiter working for 

multiple agencies or serving multiple 

employers is found, as a matter of 

practice, to be charging prohibited fees 

or otherwise engaging in conduct in 

violation of the requirements of the H– 

2A program. Finally, enhancing tools to 

strengthen enforcement of the 

prohibition on the collection of 

prohibited fees and other recruitment 

abuses also ensures that employers who 

comply with the H–2A program 

requirements are not disadvantaged by 

the actions of unscrupulous employers, 

such as those who pass recruitment fees 

on to workers. 

Additionally, the proposed regulatory 

text includes a provision stating that the 

‘‘Department may share the foreign 

worker recruitment information it 

receives from employers with any other 

Federal agency, as appropriate for 

investigative or enforcement purpose, as 

set forth in § 655.130(f).’’ The 

Department is considering making 

further revision to this regulation to 

allow the Department to share the 

foreign worker recruitment information 

it receives with the foreign government 

that has territorial jurisdiction over the 

recruiter for investigative or 

enforcement purpose. Under such a 

proposal, for example, if the Department 

discovers that a specific foreign labor 

recruiter’s contracts allow for the illegal 

collection of recruitment fees, the 

Department may refer that foreign labor 

recruiter to its own government so that 

its government may take any 

appropriate investigative or enforcement 

action. As discussed above with regard 

to disclosure of information by 

recruiters generally, the Department 

believes sharing this information where 

appropriate would not only increase 

transparency throughout the 

international recruitment chain, but also 

help hold accountable those foreign 

labor recruiters who engage in improper 

conduct. 

The Department requests comment on 

whether to allow the sharing of 

recruitment information, including the 

contracts and agreements between 

agents and/or recruiters and employers, 

with foreign governments that have 

territorial jurisdiction over the agent or 

recruiter at issue for investigative or 

enforcement purpose. In particular, the 

Department is interested in public 

comment on the potential benefits of 

sharing this information, and the scope 

of the content that should be shared— 

for example, whether it should just be 

a referral of the names of certain 

recruiters for investigative or 

enforcement purposes, or entire 

contracts between recruiters and 

employers. In addition, because there is 

no mandated template for contracts 

between recruiters and employers— 

though there is some mandated 

language—the Department seeks 

comment on whether confidential 

business information is often included 

in these contracts, and whether there are 

concerns with disclosing the 

information or contracts to foreign 

governments. Comments explaining 

what typically may be found in these 

types of contracts would assist the 

Department in determining whether to 

make further revisions to allow the 

sharing of foreign worker recruitment 

information with foreign governments 

and what safeguards might need to be in 

place. 

The Department believes the 

proposed disclosure requirements will 

increase transparency in the 

international recruitment chain, aid the 

Department in enforcement, and better 

protect foreign workers. The Department 

is soliciting public comments on its 

proposals and encourages commenters 

to provide suggestions for ways the 

Department can use this rulemaking to 

most effectively prevent worker 

exploitation and abuse during the 

international recruitment process, and 

ways the Department can use this 

rulemaking to better protect vulnerable 

agricultural workers from predatory 

recruiters. 

D. Labor Certification Determinations 

1. Section 655.167, Document Retention 

Requirements of H–2A Employers 

The Department proposes a technical 

change to § 655.167(c)(6) to update this 

paragraph’s outdated cross-reference to 

the regulatory citation for the definition 

of ‘‘work contract.’’ The Department 

proposes another technical change to 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63805 

89The employer also would remain responsible 

for compliance with the distinct and existing 

Continued 

§ 655.167(c)(7) to add ‘‘to’’ before 

‘‘DHS.’’ As discussed above, the 

Department proposes a new record 

retention paragraph at § 655.167(c)(8) 

that would require the employer to 

maintain the foreign worker recruitment 

information required by § 655.137(a) 

and (b) for a period of 3 years, and a 

new § 655.167(c)(9) that would require 

the employer to retain the additional 

employment and job related information 

specified in § 655.130(a)(2) and (3) for 

the 3-year period specified in 

§ 655.167(b). The Department also 

proposes new paragraphs at 

§ 655.167(c)(10) and (11) to require 

records of progressive discipline and 

termination for cause, as discussed more 

fully in the preamble section 

corresponding with § 655.122(n). 

Finally, the Department also proposes a 

new paragraph (c)(12) that requires the 

employer to retain evidence 

demonstrating the employer complied 

with proposed § 655.175(b)(2)(i), which 

would require employers with an 

unforeseen minor start date delay to 

notify the SWA and each worker to be 

employed under the approved H–2A 

Application of the delay. 

E. Post-Certification 

1. Section 655.175, Post-Certification 

Changes to Applications for Temporary 

Employment Certification 

The Department proposes a new 

provision at § 655.175 that will address 

an employer’s obligations in the event of 

a post-certification delay in the start of 

work more clearly and consistently with 

the Department’s proposals for start date 

delay procedures at § 653.501(c). The 

Department’s regulations currently 

conflate pre-certification requests to 

make minor amendments to the period 

of employment before the CO issues a 

final determination and postcertification requests for the CO’s 

approval of a delay in the start date 

caused by unforeseeable circumstances; 

both types of requests are currently 

addressed in the pre-determination 

section of subpart B at § 655.145(b). For 

clarity, the Department proposes to 

separate the two types of requests and 

relocate the component of § 655.145(b) 

that addresses post-certification delays 

in the start of work from current 

§ 655.145(b) to the new proposed 

provision at § 655.175. Consistent with 

the type of situations covered by 

proposed § 655.175, the new provision 

is included in the section of the 

regulations that addresses postcertification activities. 

The Department proposes only minor 

conforming changes to the procedure in 

current § 655.145(b) that an employer 

must follow to request a minor 

amendment to the period of 

employment during the processing of 

the H–2A Application. These changes 

are intended to clarify the existing 

procedure for such amendments, and to 

better distinguish that procedure from 

the procedure an employer must follow 

if, after certification, it seeks to delay 

the start of work for reasons that the 

employer could not have foreseen. 

Currently, § 655.145(b) addresses both 

procedures and creates confusion with 

respect to the timeframes in which 

employers can request minor 

amendments. The Department proposes 

to revise the pre-determination 

amendments provision at § 655.145(b) 

so that it addresses only predetermination amendments to the 

period of employment. To further 

distinguish the topics, the Department 

retains the term ‘‘amendment’’ in 

§ 655.145(b) and uses the terms ‘‘delay’’ 

in § 655.175 and clarifies that postcertification changes are not permitted 

unless specified in this subpart (e.g., 

post-certification extensions continue to 

be permitted under § 655.170; a contract 

may be shortened by CO-approved 

mutual agreement under 

§ 655.122(i)(1)(ii)). 

As under the current rule, the new 

§ 655.175 would permit delays in the 

start of work only when such a delay is 

minor and due to unforeseen 

circumstances and the employer’s crops 

or commodities will be in jeopardy prior 

to expiration of an additional 

recruitment period. The Department 

proposes to define a ‘‘minor’’ delay in 

the start date as a delay of 14 calendar 

days or fewer, which eliminates 

ambiguity in the current text and aligns 

this provision with the conceptually 

similar provision at § 655.170(a), which 

limits ‘‘short-term’’ extensions to 2 

weeks and does not require CO 

approval. As is the case for non-minor 

delays under the current rule, where the 

anticipated delay would be more than 2 

weeks or indefinite and cannot be 

considered ‘‘minor,’’ the employer may 

withdraw the application and refile, 

using emergency processing under 

§ 655.134, as applicable, to engage in 

recruitment for the job opportunity, 

which will begin on a newly identified 

start date. If the employer cannot 

employ workers under the terms and 

conditions promised beginning on the 

certified start date and can only offer a 

fraction of the work hours in the 2 

weeks following the certified start date 

(e.g., the employer can offer only a 

single day of work, followed by several 

days without work or a similar offer of 

only minimal hours upon the worker’s 

arrival, followed by an extended rest 

period), the Department will consider 

the employer’s start date delayed and 

the employer will be required to comply 

with proposed § 655.175(b), including 

all housing, subsistence, and 

compensation obligations and the 

proposed obligation to provide notice of 

the delay to workers and the SWA, as 

explained below. 

Consistent with proposed § 653.501(c) 

and current § 655.170(a), proposed 

§ 655.175 would not require the 

employer to submit a delay request to 

OFLC for CO approval. Instead, in the 

event of a minor delay (no more than 14 

calendar days), proposed 

§ 655.175(b)(2)(i) would require the 

employer to notify the SWA and each 

worker to be employed under the 

approved H–2A Application of the 

delay at least 10 business days before 

the certified start date consistent with 

§ 653.501(c), and proposed 

§ 655.167(c)(12) would require the 

employer to retain evidence it provided 

this notice to each worker and to the 

SWA. As noted in the preamble 

explaining changes to § 653.501(c), 

employers are in the best position to 

contact and notify workers of changes to 

the date of need because the employer 

has already contracted to employ the 

workers and should have up-to-date 

contact information for each worker. 

The proposed notice obligation, together 

with the proposed definition of ‘‘minor 

delay’’ and the current and proposed 

obligations discussed below, will strike 

an appropriate balance between the 

employer’s need to respond to 

unforeseen exigent circumstances and 

the needs of agricultural workers to be 

apprised of changes to the terms and 

conditions of the job opportunity and 

compensated in accordance with the 

terms of employment the workers 

accepted. 

Proposed paragraph (b)(1) modifies 

the requirements in current § 655.145(b) 

with respect to the employer’s 

subsistence obligations to workers in the 

event of a minor delay in the start of 

work. Specifically, paragraph (b)(1) 

requires employers with a minor start 

date delay to provide to all workers who 

are already traveling to the place of 

employment, upon their arrival and 

without cost to the workers until work 

commences, except for days for which 

the worker receives compensation under 

proposed paragraph (b)(2)(ii), daily 

subsistence in the same amount 

required during travel under 20 CFR 

655.122(h)(1).89 The employer must 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63806 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

inbound travel and subsistence obligations at 20 

CFR 655.121(h)(1). 

fulfill this subsistence obligation to the 

worker no later than the first date the 

worker would have been paid had they 

begun employment on time. Proposed 

§ 655.175(b)(1) also would remind 

employers that, even in the event of a 

minor delay in the start of work, the 

employer must continue to comply with 

all other requirements under the 

certified H–2A Application, including 

but not limited to the provision of 

housing as described in the job order. 

Proposed paragraph (b)(2)(ii) includes 

new compensation obligations in 

circumstances where the employer 

delays the start of work and fails to 

provide adequate notice of the delay to 

workers, similar to the existing 

provisions at § 653.501(c) and consistent 

with changes proposed to that section, 

explained above. Currently, an 

employer who seeks to delay the start 

date after certification is subject to the 

Wagner-Peyser Act provisions at 

§ 653.501(c), which describe the process 

for providing notice to workers placed 

on the clearance order in the event of a 

delayed start date and an employer’s 

obligations under the work contract in 

those circumstances. The Department’s 

proposals related to § 653.501(c), 

including situations in which the start 

date is delayed, are discussed in greater 

detail above, in the preamble section 

dedicated to discussion of proposed 

changes to those provisions. Proposed 

§ 655.175 retains the employer 

obligations currently provided under 

§ 655.145(b) and these obligations 

continue to apply both to employers 

who notify the SWA and workers as 

required in § 653.501(c) and those who 

do not comply with that notice 

requirement. 

For the same reasons described in 

detail in the preamble discussing 

proposed changes to delayed start date 

obligations at § 653.501(c), the 

Department proposes to require 

employers to provide to each worker to 

be employed under the approved H–2A 

Application the applicable wage rate for 

each hour of the offered work schedule 

in the job order, for each day that work 

is delayed, for a period up to 14 

calendar days, starting with the certified 

start date, if the employer fails to 

provide adequate notice of the delay. 

Under proposed § 655.175(b)(2)(ii), the 

employer’s wage obligation would apply 

in any case where the employer fails to 

provide notice of the delayed start of 

work at least 10 business days prior to 

the certified start date. This obligation 

would apply in conjunction with the 

three-fourths guarantee at § 655.122(i), 

which would continue to require 

employers to guarantee to offer workers 

employment for a total number of work 

hours equal to at least three-fourths of 

the workdays of the total period, 

beginning with the first workday after 

the arrival of the worker at the place of 

employment or the advertised 

contractual first date of need, whichever 

is later. However, under proposed 

§ 655.175(b)(2)(iii), compensation paid 

to a worker under proposed paragraph 

(b)(2)(ii) of this section for any workday 

included within the time period 

described in § 655.122(i) would be 

considered hours offered to the worker 

when determining an employer’s 

compliance with the § 655.122(i) threefourths guarantee obligation. As 

proposed, an employer would be 

permitted to reduce the compensation 

owed to any worker(s) under proposed 

§ 655.175(b)(2)(ii) by the amount of 

wages paid to the worker(s) for work 

performed within the time period 

described in proposed 

§ 655.175(b)(2)(ii), insofar as such wages 

are paid timely and such work is 

otherwise authorized by law. Wages for 

unauthorized work, including work 

performed by H–2A workers outside the 

location or duties certified in the job 

order, may not be credited. The 

Department believes this proposal will 

effectively address the hardship concern 

(discussed above in the preamble 

section regarding § 653.501(c)) by 

providing workers a source of income 

should the employer fail to provide 

such workers sufficient notice of a delay 

in the start of work, while continuing to 

allow the employer flexibility to delay 

the start of work for up to 14 calendar 

days if necessitated by circumstances 

that could not have been foreseen and 

the crops or commodities will be in 

jeopardy prior to the expiration of an 

additional recruitment period. 

Proposed § 655.175 and the proposed 

compensation obligations in situations 

where workers are not notified of a start 

date delay will better protect 

agricultural workers from financial 

hardship they are likely to experience 

should they travel or otherwise rely on 

the information included in the job 

order, only to discover upon arriving 

that work is not available to them. As 

workers’ rights advocacy organization 

and SWA commenters noted during 

prior rulemaking, delayed start dates are 

harmful to workers, who value 

predictability and certainty in 

employment start dates, particularly 

where they turn down other work or 

must travel far to make themselves 

available to work at the time and place 

advertised in the job order. In addition, 

these commenters noted that 

farmworkers have expenses beyond 

housing and meals and cannot afford to 

lose expected pay for up to 2 weeks, 

should the actual start date be later than 

the first date of need offered. The 

Department has determined the housing 

and subsistence obligations in current 

§ 655.145(b) (proposed 

§ 655.175(b)(2)(i)) and the existing threefourths guarantee at § 655.122(i) are not 

sufficient to fully protect workers from 

the financial hardships associated with 

a delayed start date of work when such 

delays are not adequately 

communicated to the worker, 

particularly if a worker is required to 

travel a great distance to accept the job. 

The beginning of the certification period 

is a particularly vulnerable time for 

workers, who may have little or no 

savings as they await a first paycheck; 

delays in the start of work and resulting 

first paycheck exacerbate this 

vulnerability and can lead to financial 

hardships. Providing up to 2 weeks of 

wages, due at the time workers 

anticipate receiving their first paycheck 

had the work begun on time, provides 

a safety net for workers to support 

themselves when work is not available. 

Imposing these pay obligations in the 

event workers are not notified of a 

delayed start of work also may help to 

ensure growers accurately disclose the 

first date of need in the job order. The 

proposed changes also will increase the 

likelihood that workers will receive 

timely notification of any delay in the 

start of work and that employers 

maintain accurate records of notices 

they provide. Sanctions and remedies 

for an employer’s failure to comply with 

the notice or compensation obligations 

required under proposed § 655.175 may 

include, as appropriate, the recovery of 

such compensation, the assessment of 

civil money penalties, revocation of the 

approved certification under § 655.181, 

and, if warranted, debarment of the 

employer under § 655.182. 

The Department invites comment on 

all aspects of these proposed changes, 

including the proposed relocation of the 

provision addressing post-certification 

delays to a new provision at § 655.175 

in the post-certification section of the 

rule and the proposed compensation 

provision applicable to all H–2A 

workers, recruited U.S. workers, and 

workers in corresponding employment 

who expected employment under the 

job order to begin on the certified start 

date, similar to current and proposed 

§ 653.501(c)(5). Commenters are 

encouraged to provide input on the 

proposal to require notice to each 

worker and the SWA, rather than the 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63807 

CO, consistent with proposed changes 

to § 653.501(c); the proposed definition 

of ‘‘minor delay’’ at 14 calendar days 

and whether the final rule should 

require the employer to fulfill the 

obligations at § 655.175(b) in any case 

where it cannot offer full time work as 

specified in the job order for the 14- 

calendar-day period beginning on the 

certified start date (as opposed to solely 

when the employer fails to provide 10 

days of notice, as proposed here); and 

the proposal to permit the employer to 

credit compensation paid under 

proposed § 655.175(b)(2)(ii) toward the 

employer’s three-fourths guarantee 

obligation. 

F. Integrity Measures 

1. Section 655.182, Debarment 

a. The Department Proposes Revisions 

to 20 CFR 655.182 To Shorten Appeal 

Times for Debarment Matters, and 

Shorten the Time To Submit Rebuttal 

Evidence to OFLC 

To help protect and uphold program 

integrity, and to further protect workers 

in the United States, the Department 

proposes to increase the speed with 

which debarments become effective by 

decreasing the time for parties to submit 

rebuttal evidence to OFLC, the time for 

parties to appeal Notices of Debarment 

to the OALJ, and the time for parties to 

appeal debarment decisions to the ARB 

from the OALJ. Reducing these 

timeframes will lead to faster final 

agency adjudications which will more 

efficiently prevent H–2A program 

violators from accessing this program. 

As a result of a more expedited 

debarment process, workers will be 

protected from further harm. 

b. OFLC Debarment Actions 

The Department proposes to amend 

§ 655.182(f)(1) and (2) by reducing the 

period to file rebuttal evidence or 

request a hearing of a Notice of 

Debarment from 30 calendar days to 14 

calendar days. If the party receiving a 

Notice of Debarment does not file 

rebuttal evidence or request a hearing, 

the Notice of Debarment will take effect 

at the end of the 14-calendar-day period 

unless the party has requested, and the 

Administrator has granted, an extension 

of time to submit rebuttal evidence. 

Extensions of time may be granted only 

in limited circumstances as discussed 

further below. 

This proposed change aligns with the 

timeframe provided in the Department’s 

2008 H–2A Final Rule. 73 FR 77110 

(Dec. 18, 2008). The 2008 H–2A Final 

Rule provided 14 calendar days for 

parties to submit rebuttal evidence in 

response to a Notice of Intent to Debar, 

and if the party’s rebuttal did not 

persuade the Administrator to terminate 

debarment proceedings, provided an 

additional 30-calendar-day period to 

appeal the Administrator’s post-rebuttal 

Notice of Debarment. Id. at 77228. In the 

preamble to that rule, the Department 

stated, ‘‘[g]iven the severity of 

debarment and revocation, the short 

timeframes set forth in . . . [the 

‘Administrative review and de novo 

hearing before an administrative law 

judge’ section] are neither necessary nor 

appropriate for these types of 

determinations.’’ Id. at 77184. At the 

time, 14 calendar days—twice as long as 

the 7-calendar-day timeframe permitted 

to appeal a denied application—was 

deemed a sufficient timeframe to submit 

evidence in rebuttal both in debarment 

and revocation procedures. Id. at 77187. 

Subsequently, in a 2009 NPRM, the 

Department proposed to eliminate the 

‘‘Notice of Intent to Debar’’ and the 

opportunity to submit rebuttal evidence. 

74 FR 45906, 45923 (Sept. 4, 2009). The 

Department ultimately decided not to 

eliminate the option to submit rebuttal 

evidence after considering comments 

that expressed concerns about due 

process. 75 FR 6884, 6938 (Feb. 12, 

2010). In the final rule, the Department 

restored the option to submit rebuttal 

evidence, with a simultaneous option to 

appeal, but adopted a 30-calendar-day 

timeframe instead of the prior rule’s 14- 

calendar-day period for submission of 

rebuttal evidence. The Department did 

not explicitly state that 30 calendar days 

was more appropriate than 14 calendar 

days or otherwise explain why it now 

considered 30 calendar days an 

appropriate timeframe for submitting 

rebuttal evidence in a debarment 

proceeding. Id. at 6938. The 2010 H–2A 

Final Rule noted that it had intended in 

the corresponding NPRM to propose 

changes to the OFLC debarment 

procedures to ensure ‘‘that the 

procedures [were] consistent with the 

WHD debarment procedures,’’ which, at 

the time, allowed for 30 days to appeal. 

74 FR 45923, 45963; 75 FR 6938. It also 

noted that the opportunity for parties to 

provide rebuttal evidence is ‘‘better 

suited to the method of OFLC 

investigations’’ and parallels OFLC 

revocation procedure, without 

addressing the now-different timeframes 

for submitting rebuttal evidence in a 

revocation proceeding (i.e., 14 days) and 

in a debarment proceeding (i.e., 30 

days). 75 FR 6938. While the 

Department continues to believe the 

ability to submit rebuttal evidence is 

necessary, it does not consider the 30- 

calendar-day timeframe appropriate for 

either OFLC or WHD debarment actions. 

The benefits to expediting the 

debarment procedures and more quickly 

removing violating parties from the 

program far outweigh the limited 

benefits of providing 30 calendar days 

for rebuttal or appeal. Not only does 

more quickly removing violating parties 

from the program better protect workers, 

but it also reduces the time the debarred 

parties spend awaiting a final order 

regarding their status. In addition, 

reducing the period of time better aligns 

with the timeframe available to submit 

rebuttal evidence under OFLC’s 

revocation procedure (i.e., 14 days). As 

both revocation and debarment serve 

similar purposes—to protect workers— 

the Department has determined that it is 

appropriate to align the two rebuttal 

periods. The increased use of electronic 

recordkeeping, as well as the ability to 

submit documentation via email, means 

that the shortened 14-calendar-day 

timeframe to submit rebuttal 

documentation should not be overly 

burdensome. 

Nevertheless, to continue to ensure 

due process for parties and to allow 

adequate time to establish a record, the 

Department proposes permitting parties 

to request an extension of time to 

submit rebuttal evidence in a new 

regulatory provision at § 655.182(f)(2). 

The option to request an extension of 

time to submit rebuttal evidence would 

be available to a party who shows good 

and substantial cause necessitating 

additional time. The proposal would 

require the request to be made in 

writing, with detailed information and 

supporting documentation, and to be 

received by the OFLC Administrator 

within 14 calendar days of the date the 

Notice of Debarment was issued. If the 

OFLC Administrator determines that the 

party has established good and 

substantial cause, the Administrator 

could grant one extension of time to 

submit rebuttal evidence. As specified 

in proposed paragraph (f)(2)(iii), good 

and substantial cause may include, but 

is not limited to, health-related 

emergencies, catastrophic fire- or 

weather-related incidents, or other 

similar conditions that are wholly 

outside the party’s control and hinder a 

party’s ability to respond in a timely 

manner. Should the OFLC 

Administrator deny the one-time 

extension request, such denial is not 

appealable. 

In addition, for the reasons stated 

above, the Department also proposes to 

shorten the timeframes to appeal the 

OFLC Administrator’s Notice of 

Debarment, in lieu of submitting 

rebuttal evidence; to appeal the OFLC 

Administrator’s final determination, 

after review of rebuttal evidence; and for 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63808 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

all parties to request review by the ARB 

from 30 days to 14 calendar days in 

§ 655.182(f)(1), (2), and (3) and (f)(5)(i). 

The Department’s proposal would not 

permit a party to request an extension 

of time to appeal the OFLC 

Administrator’s Notice of Debarment. A 

party need only submit a written request 

for review to appeal a debarment 

decision to an ALJ; they are not required 

to gather or provide additional records 

(as they would to submit a rebuttal), or 

to draft a full legal brief, and therefore 

the request itself should not be 

burdensome. Shortening the time to 

request review by the ARB to 14 

calendar days should also not be 

burdensome for the same reasons. 

As described fully in the discussion of 

section 29 CFR 501.20, the Department 

proposes conforming revisions to 

WHD’s regulations governing the 

timeframe to appeal WHD 

determinations involving debarment as 

well. 

The Department welcomes comments 

on this proposal, including specific 

examples of how the proposed changes 

may affect the regulated community. 

V. Discussion of Proposed Revisions to 

29 CFR Part 501 

The Department proposes revisions to 

the regulations at 29 CFR part 501, 

which set forth the responsibilities of 

WHD to enforce the legal, contractual, 

and regulatory obligations of employers 

under the H–2A program. The 

Department proposes these amendments 

concurrent with and to complement the 

changes ETA proposes to its regulations 

in 20 CFR part 655, subpart B, governing 

the certification of temporary 

employment of nonimmigrant workers 

employed in temporary or seasonal 

agricultural employment. As with the 

proposed revisions to ETA’s regulations, 

the proposed revisions to 29 CFR part 

501 focus on strengthening protections 

for agricultural workers and enhancing 

the Department’s capabilities to monitor 

program compliance and take necessary 

enforcement actions against program 

violators. The Department invites 

comments on all of these proposed 

revisions. 

A. Section 501.3 Definitions 

The Department proposes to add 

definitions of the terms key service 

provider and labor organization in 

§ 501.3(a), to conform to the proposed 

addition of these terms to the 

definitions in 20 CFR 655.103(b) and for 

the reasons set forth in the discussion of 

proposed 20 CFR 655.135(h). The 

Department also proposes to remove the 

definition of the term successor in 

interest from § 501.3(a), to conform to 

and for the reasons described in the 

discussion of proposed 20 CFR 655.104. 

Finally, the Department proposes to add 

a new § 501.3(d), defining the term 

single employer, to conform to and for 

the reasons described in the discussion 

of proposed 20 CFR 655.103(e). 

B. Section 501.4 Discrimination 

Prohibited 

The Department proposes revisions to 

§ 501.4(a) to conform to proposed 

changes to 20 CFR 655.135(h) that 

would expand and strengthen the 

Department’s existing anti-retaliation 

provisions. The reasons for this 

proposal are described fully in the 

discussion of proposed 20 CFR 

655.135(h). The Department does not 

propose any revisions to § 501.4(b) 

regarding WHD investigations and 

enforcement of § 501.4. 

C. Section 501.10 Severability 

As set forth in the discussion of 

proposed 20 CFR 655.190, the 

Department proposes a new § 501.10, 

that would explain that if any provision 

of 29 CFR part 501 is held to be invalid 

or unenforceable by its terms, or as 

applied to any person or circumstance, 

or stayed pending further agency action, 

the provision shall be construed so as to 

continue to give the maximum effect to 

the provision permitted by law, unless 

such holding is one of total invalidity or 

unenforceability, in which event the 

provision or sub-provision shall be 

severable from 29 CFR part 501 and 

shall not affect the remainder thereof. 

The Department seeks comments both 

on the substance and scope of this 

proposed severability clause and 

requests the public’s views on any other 

issues related to severability, such as 

whether the rule in general includes 

provisions amenable to severability; 

whether specific parts of the rule could 

operate independently; whether the 

benefits of the rule would continue to 

justify the costs should particular 

provisions be severed; or whether 

individual provisions are essential to 

the entire rule’s workability. 

D. Sections 501.20, 501.33, 501.42

Debarment and Revocation 

The Department proposes revisions to 

WHD’s regulations at §§ 501.20, 501.33, 

and 501.42, with respect to debarment, 

to maintain consistency with and 

implement various proposed changes to 

ETA’s debarment regulation at 20 CFR 

655.182. These proposed changes are 

described briefly here, and described 

fully in the section-by-section analysis 

of 20 CFR part 655, subpart B. 

1. Successors in Interest 

The Department proposes revisions to 

existing § 501.20(a) and (b) to conform 

to proposed 20 CFR 655.104 and 

655.182 regarding the effect of 

debarment on successors in interest. As 

explained fully in the discussion of 

proposed 20 CFR 655.104, any WHD 

debarment of an employer, agent, or 

attorney applies to any successor in 

interest to that debarred entity, and 

under this proposed rule, WHD need 

not issue a new notice of debarment to 

a successor in interest to a debarred 

employer, agent, or attorney. However, 

as reflected in proposed new paragraph 

§ 501.20(j), WHD would be permitted, 

but not required, to identify any known 

successor(s) in interest in a notice of 

debarment issued to an employer, agent, 

or attorney. 

2. Passport Withholding 

The Department proposes a 

conforming revision to 

§ 501.20(d)(1)(viii) to include within the 

definition of a violation, for purposes of 

debarment, a violation of the proposed 

prohibition on passport withholding at 

20 CFR 655.135(o), as described fully in 

the discussion of proposed 20 CFR 

655.135(o). 

3. Timeline To Appeal WHD Debarment 

Determinations 

For consistency with and 

conformance to the Department’s 

proposal under 20 CFR 655.182 to 

expedite debarment processing, the 

Department proposes to shorten the 

timeframe to appeal any WHD 

determination seeking debarment from 

30 calendar days to 14 calendar days as 

well. Any determination seeking a 

debarment, including for example, 

determinations which also include civil 

money penalties, would be subject to 

the shortened timeframe. 

Determinations by the WHD 

Administrator that do not include 

debarment, but only include, for 

example, an assessment of civil money 

penalties or the payment of back wages, 

would retain a 30-calendar-day 

timeframe for appeal. 

In shortening the appeal timeframes 

for matters involving debarments, the 

Department seeks to bolster program 

integrity and help protect workers from 

further harm. Debarment is a remedy for 

a substantial violation of the program 

and if a determination has been made 

that this is appropriate, then it is also 

appropriate to expedite the process by 

which a party is ultimately prohibited 

from using the program. If the WHD 

Administrator has determined in a 

particular case that debarment is not 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63809 

necessary, then the original timeframe 

of 30 calendar days to appeal will apply. 

Specifically, under proposed 

§ 501.20(e), the debarment would take 

effect 14 calendar days from the Notice 

of Debarment, unless a request for 

review is properly filed within 14 

calendar days of the Notice of 

Debarment. 

Under proposed § 501.33, the 

regulatory text in current paragraph (a) 

would be redesignated to paragraph 

(a)(1) and amended to note that the 30- 

calendar-day timeframe would apply 

when seeking review of a WHD 

determination, except for those 

determinations involving debarment. A 

newly added paragraph (a)(2) would 

state clearly that any person desiring 

review of a WHD determination 

involving debarment shall make their 

written request no later than 14 calendar 

days after the date of the notice referred 

to in § 501.32. 

Finally, under proposed § 501.42, the 

regulatory text in paragraph (a) would 

be revised to clarify that a decision of 

an ALJ not involving debarment would 

still require appeal to the ARB within 30 

calendar days, while newly added text 

would state that any decision involving 

debarment would be required to be 

appealed to the ARB within 14 calendar 

days. The Department proposes further 

conforming edits to these sections. 

The Department is also considering 

whether the timeframe to appeal all 

determinations in this subpart, not only 

those involving debarments, should be 

shortened from 30 to 14 calendar days. 

In particular, the Department is 

concerned that different timeframes to 

appeal different types of determinations 

(i.e., 30 days to appeal a determination 

assessing civil money penalties, but not 

debarment, versus 14 days to appeal a 

determination assessing civil money 

penalties and debarment) may result in 

confusion and employers missing 

appeal deadlines. The Department also 

believes that a shortened appeal 

timeframe of 14 calendar days may 

better ensure that back wages are paid 

timely to workers, and that 14 calendar 

days may be sufficient to appeal any 

determination, not only those 

determinations involving debarment. 

The Department seeks comment as to 

whether the shortened timeframe of 14 

calendar days should apply to all 

determinations of the WHD 

Administrator, not simply those 

determinations involving debarment. 

E. Section 501.33 Request for Hearing 

The Department proposes revisions to 

§ 501.33(b), governing the contents of a 

request for review of a WHD 

determination before the OALJ, to make 

explicit that issues not raised for review 

in such requests would be deemed 

waived. The Department’s current 

regulations make explicit that 

administrative exhaustion is required 

before a party may seek judicial review, 

and that the party requesting a hearing 

before the OALJ must ‘‘[s]pecify the 

issue or issues stated in the notice of 

determination giving rise to such 

request’’ and ‘‘[s]tate the specific reason 

or reasons why the person requesting 

the hearing believes such determination 

is in error.’’ 29 CFR 501.33(b)(2) and (3). 

Despite these provisions, parties 

frequently attempt to raise new issues 

on appeal, whether before the OALJ, the 

ARB, or a Federal court, that were not 

raised in the party’s request for a 

hearing. However, under relevant case 

law, issue exhaustion requirements are 

applicable and appropriate under the 

H–2A administrative review procedures. 

See, Sun Valley Orchards, 2021 WL 

2407468, at *7; Sandra Lee Bart, ARB 

No. 2018–0004, slip op. at 6–7 (ARB 

Sept. 22, 2020); see also Carr v. Saul, 

141 S. Ct. 1352, 1358 (2021) (‘‘Typically, 

issue-exhaustion rules are creatures of 

statute or regulation’’ but where the 

‘‘regulations are silent, . . . courts 

decide whether to require issue 

exhaustion based on an analogy to the 

rule that appellate courts will not 

consider arguments not raised before 

trial courts.’’) (quotation omitted). 

Without explicit regulatory text 

codifying that issue exhaustion applies, 

courts and the Department may be 

required to expend significant resources 

considering or defending against issues 

that are ultimately deemed to have been 

waived. Similarly, parties have asserted 

that they lacked notice that issues not 

raised in a request for hearing before the 

OALJ may be deemed waived. The 

Department thus proposes an explicit 

issue exhaustion provision that will 

better inform parties of the potential 

consequences of failing to raise an issue 

in requests for review of a WHD 

determination (i.e., that issues not 

included cannot be raised later in the 

ALJ proceedings or on review of any 

ALJ decision before the ARB or in 

Federal court), as well as better preserve 

agency and judicial resources. 

Accordingly, the Department 

proposes to revise § 501.33(b)(2) to make 

clear that any issue not raised in a 

party’s request for a hearing before the 

OALJ ordinarily will be deemed waived 

in any further proceedings. The 

proposed language is modeled on 

similar provisions in OSHA’s 

whistleblower regulations governing the 

procedures for administrative review of 

OSHA’s findings in those contexts. See, 

e.g., 29 CFR 1982.110(a). As OSHA has 

explained, including such a requirement 

in the Department’s regulations is 

intended to provide clear and timely 

notice to all parties that issue 

exhaustion may apply, thus alerting the 

parties to the need to raise any and all 

issues and objections before the agency 

to preserve them for further review. See, 

e.g., 80 FR 69115, 69128 (Nov. 9, 2015). 

The Department welcomes comments 

on this proposal. 

VI. Administrative Information 

A. Executive Order 12866: Regulatory 

Planning and Review; Executive Order 

14094: Modernizing Regulatory Review; 

and Executive Order 13563: Improving 

Regulation and Regulatory Review 

Under Executive Order 12866, OMB’s 

Office of Information and Regulatory 

Affairs (OIRA) determines whether a 

regulatory action is significant and, 

therefore, subject to the requirements of 

the Executive order and review by OMB. 

58 FR 51735 (Oct. 4, 1993). Section 3(f) 

of Executive Order 12866, as amended 

by Executive Order 14094, defines a 

‘‘significant regulatory action’’ as an 

action that is likely to result in a rule 

that: (1) has an annual effect on the 

economy of $200 million or more, or 

adversely affects in a material way a 

sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local, 

territorial, or tribal governments or 

communities; (2) creates serious 

inconsistency or otherwise interferes 

with an action taken or planned by 

another agency; (3) materially alters the 

budgetary impacts of entitlement grants, 

user fees, or loan programs, or the rights 

and obligations of recipients thereof; or 

(4) raises novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive order. 88 FR 

21879 (Apr. 11, 2023). This proposed 

rule is a significant regulatory action 

under section 3(f)(4) of Executive Order 

12866, as amended by Executive Order 

14094. 

Executive Order 13563 directs 

agencies to propose or adopt a 

regulation only upon a reasoned 

determination that its benefits justify its 

costs; the regulation is tailored to 

impose the least burden on society, 

consistent with achieving the regulatory 

objectives; and in choosing among 

alternative regulatory approaches, the 

agency has selected those approaches 

that maximize net benefits. 76 FR 3821 

(Jan. 21, 2011). Executive Order 13563 

recognizes that some benefits are 

difficult to quantify and provides that, 

where appropriate and permitted by 

law, agencies may consider and discuss 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63810 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

90The proposed rule would have an annualized 

cost of $1.98 million and a total 10-year cost of 

$16.92 million at a discount rate of 3 percent in 

2021 dollars. 

91The proposed rule would have annualized 

transfer payments from H–2A employers to H–2A 

employees of $12.57 million and a total 10-year 

transfer payments of $107.19 million at a discount 

rate of 3 percent in 2021 dollars. 

qualitatively values that are difficult or 

impossible to quantify, including 

equity, human dignity, fairness, and 

distributive impacts. Id. 

Outline of the Analysis 

Section VI.A.1 describes the need for 

the proposed rule, and section VI.A.2 

describes the process used to estimate 

the costs of the rule and the general 

inputs used, such as wages and number 

of affected entities. Section VI.A.3 

explains how the provisions of the 

proposed rule would result in 

quantified costs and transfer payments, 

and presents the calculations the 

Department used to estimate them. In 

addition, section VI.A.3 describes the 

unquantified transfer payments and 

unquantified cost savings of the 

proposed rule, and a description of 

qualitative benefits. Section VI.A.4 

summarizes the estimated first-year and 

10-year total and annualized costs and 

transfer payments of the proposed rule. 

Finally, section VI.A.5 describes the 

regulatory alternatives that were 

considered during the development of 

the proposed rule. 

Summary of the Analysis 

The Department estimates that the 

proposed rule would result in costs and 

transfer payments. As shown in Exhibit 

1, the proposed rule is expected to have 

an annualized cost of $2.03 million and 

a total 10-year quantifiable cost of 

$14.24 million, each at a discount rate 

of 7 percent.90 The proposed rule is 

estimated to result in annual transfer 

payments from H–2A employers to H– 

2A employees of $12.81 million and 

total 10-year transfer payments of 

$89.95 million at a discount rate of 7 

percent.91

EXHIBIT 1—ESTIMATED MONETIZED COSTS AND TRANSFER PAYMENTS OF THE PROPOSED RULE

[2021 $millions] 

Costs Transfer payments 

Undiscounted 10-Year Total ........................................................................................................................ $19.51 $123.83 

10-Year Total with a Discount Rate of 3% .................................................................................................. 16.92 107.19 

10-Year Total with a Discount Rate of 7% .................................................................................................. 14.24 89.95 

10-Year Average .......................................................................................................................................... 1.95 12.38 

Annualized at a Discount Rate of 3% ......................................................................................................... 1.98 12.57 

Annualized with at a Discount Rate of 7% .................................................................................................. 2.03 12.81 

The total cost of the proposed rule is 

associated with rule familiarization, 

worker contact information, and 

application additions. Transfer 

payments are the results of the 

elimination of the 2-week delay in 

effectiveness of the AEWR after 

publication. See the costs and transfer 

payments subsections of section VI.A.3 

(Subject-by-Subject Analysis) below for 

a detailed explanation. 

The Department was unable to 

quantify some costs, transfer payments, 

cost savings, and benefits of the 

proposed rule. Unquantified transfer 

payments include compensation to 

workers under proposed 

§ 655.175(b)(2)(ii) in cases where the 

start date is delayed without sufficient 

notice and clarifying that piece rate 

should be included in the prevailing 

wage determination. Unquantified costsavings include the Department’s ability 

to deny labor certification applications 

filed by or on behalf of successors in 

interest to debarred employers, agents, 

or attorneys. Unquantified benefits 

include better protection from 

inappropriate termination, protection 

for worker advocacy, reduction in risk 

of injury during employer-sponsored 

transportation, reduction in improper 

holding of passports or other 

immigration documents and enhanced 

integrity and enforcement. The 

Department describes them qualitatively 

in section VI.A.3 (Subject-by-Subject 

Analysis). The Department seeks public 

comments and inputs on all aspects of 

the economic analysis presented here. 

In addition, the Department requests 

public inputs about this rule’s impact 

on labor costs and production of 

agricultural products. 

1. Need for Regulation 

The Department proposes provisions 

in this NPRM that will strengthen 

protections for agricultural workers and 

enhance the Department’s enforcement 

capabilities against fraud and program 

violations. The Department has 

determined the proposed revisions will 

help prevent exploitation and abuse of 

agricultural workers and ensure that 

unscrupulous employers do not gain 

from their violations or contribute to 

economic and workforce instability by 

circumventing the law. It is the policy 

of the Department to maintain robust 

protections for workers and vigorously 

enforce all laws within its jurisdiction 

governing the administration and 

enforcement of nonimmigrant visa 

programs. The Department has 

determined through program 

experience, recent litigation, challenges 

in enforcement, comments on prior 

rulemaking, and reports from various 

workers’ rights advocacy organizations 

that the proposals in this NPRM are 

necessary to strengthen protections for 

agricultural workers, ensure that 

employers, agents, attorneys, and labor 

recruiters comply with the law, and 

enhance the Department’s ability to 

monitor compliance and investigate and 

pursue remedies from program 

violators. 

The proposed rule aims to address 

some of the comments that were beyond 

the scope of the 2022 H–2A Final Rule 

and concerns expressed by workers’ 

rights advocacy groups, labor unions, 

and organizations that combat human 

trafficking. It also seeks to respond to 

recent court decisions and program 

experience indicating a need to enhance 

the Department’s ability to enforce 

regulations related to foreign labor 

recruitment, and to improve 

accountability for successors-in-interest 

and employers who use various 

methods to attempt to evade the law and 

regulatory requirements, and to enhance 

worker protections for a vulnerable 

workforce, as explained further in the 

section-by-section analysis above. 

The Department can use this 

rulemaking to better protect the rights 

and liberties, health and safety, and 

wages and working conditions of 

agricultural workers and best safeguard 

the integrity of the H–2A program, 

while continuing to ensure that 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63811 

92Performance Data, U.S. Dep’t of Lab., https:// 

www.dol.gov/agencies/eta/foreign-labor/ 

performance. 

93Comparing BLS 2030 projections for combined 

agricultural workers (SOC 45–2000) with a 17.9 

percent growth rate of H–2A workers yields 

estimated H–2A workers that are about 127 percent 

greater than BLS 2030 projections. The projected 

workers for the agricultural sector were obtained 

from BLS’s Occupational Projections and Worker 

Characteristics, which may be accessed at https:// 

www.bls.gov/emp/tables/occupational-projectionsand-characteristics.htm. 

94The Department estimated models with 

different lags for autoregressive and moving 

averages, and orders of integration: ARIMA(0,2,0); 

(0,2,1); (0,2,2); (1,2,1); (1,2,2); (2,2,2). For each 

model we used the Akaike Information Criteria 

goodness of fit measure. 

95Calculation: 7.1% = (9,442 ÷ 6,713)(1 ÷ 5)

¥1. 

96Final forecasted estimates of H–2A employer 

participation: 8,464 in 2023, 9,065 in 2024, 9,708 

in 2025, 10,398 in 2026, 11,136 in 2027, 11,927 in 

2028, 12,774 in 2029, 13,681 in 2030, 14,652 in 

2031, and 15,692 in 2032. 

97 May 2021 National Occupational Employment 

and Wage Estimates: 13–1071—Human Resources 

Specialists, Bureau of Lab. Stats., https://

www.bls.gov/oes/current/oes131071.htm. 

98Cody Rice, Wage Rates for Economic Analyses 

of the Toxics Release Inventory Program, U.S. Env’t 

Prot. Agency (June 10, 2002), https://

www.regulations.gov/document?D=EPA-HQ-OPPT2014-0650-0005. 

99Employer Costs for Employee Compensation, 

Bureau of Lab. Stats. (2021), https://www.bls.gov/ 

news.release/ecec.toc.htm. Ratio of total 

compensation to wages and salaries for all private 

industry workers. 

100Employer Costs for Employee Compensation, 

Bureau of Lab. Stats. (2022), https://www.bls.gov/ 

news.release/ecec.toc.htm. Ratio of total 

compensation to wages and salaries for all State and 

local government workers. 

responsible employers have access to 

willing and available agricultural 

workers and are not unfairly 

disadvantaged by employers that exploit 

workers and attempt to evade the law. 

2. Analysis Considerations 

The Department estimated the costs 

and transfer payments of the proposed 

rule relative to the existing baseline (i.e., 

the current practices for complying, at a 

minimum, with the H–2A program as 

currently codified at 20 CFR part 655, 

subpart B, and 29 CFR part 501). 

In accordance with the regulatory 

analysis guidance articulated in OMB’s 

Circular A–4 and consistent with the 

Department’s practices in previous 

rulemakings, this regulatory analysis 

focuses on the likely consequences of 

the proposed rule (i.e., costs, benefits, 

and transfer payments that accrue to 

entities affected). The analysis covers 10 

years (from 2024 through 2033) to 

ensure it captures major costs, benefits, 

and transfer payments that accrue over 

time. The Department expresses all 

quantifiable impacts in 2021 dollars and 

uses discount rates of 3 and 7 percent, 

pursuant to Circular A–4. 

Exhibit 2 presents the number of 

affected entities that are expected to be 

impacted by the proposed rule.92 The 

average number of affected entities is 

calculated using OFLC certification data 

from 2016 through 2021. The 

Department provides this estimate and 

uses it to estimate the costs of the 

proposed rule. 

EXHIBIT 2—NUMBER OF UNIQUE

EMPLOYERS BY TYPE

Fiscal year (FY) Number 

2016 .............................................. 6,713 

2017 .............................................. 7,187 

2018 .............................................. 7,902 

2019 .............................................. 8,391 

2020 .............................................. 7,785 

2021 .............................................. 9,442 

Average ................................. 7,903 

a. Growth Rate 

The Department estimated growth 

rates for certified H–2A workers based 

on FY 2012–2021 H–2A program data, 

presented in Exhibit 3. 

EXHIBIT 3—HISTORICAL H–2A 

PROGRAM DATA

FY Workers 

certified 

2012 ............................................ 85,248 

2013 ............................................ 98,814 

2014 ............................................ 116,689 

2015 ............................................ 139,725 

2016 ............................................ 165,741 

2017 ............................................ 199,924 

2018 ............................................ 242,853 

2019 ............................................ 258,446 

2020 ............................................ 275,430 

2021 ............................................ 317,619 

The geometric growth rate for 

certified H–2A workers using the 

program data in Exhibit 3 is calculated 

as 17.9 percent. This growth rate, 

applied to the analysis timeframe of 

2024 to 2033, would result in more H– 

2A certified workers than projected 

employment of workers in the relevant 

H–2A SOC codes by BLS.93 Therefore, 

to estimate realistic growth rates for the 

analysis, the Department applied an 

autoregressive integrated moving 

average (ARIMA) model to the FY 2012– 

2021 H–2A program data to forecast 

workers and unique employers, and 

estimated geometric growth rates based 

on the forecasted data. The Department 

conducted multiple ARIMA models on 

each set of data and used common 

goodness of fit measures to determine 

how well each ARIMA model fit the 

data.94 Multiple models yielded 

indistinctive measures of goodness of 

fit. Therefore, each model was used to 

project workers and unique employers 

through 2033. Then, a geometric growth 

rate was calculated using the forecasted 

data from each model and an average 

was taken across each model. This 

resulted in an estimated growth rate of 

6.3 percent for H–2A certified workers. 

To estimate the growth rate for unique 

employers, the Department uses FY 

2016–FY 2021 data on unique 

employers. The use of FY 2016 as the 

first year is chosen due to data 

availability on calculated unique 

employers. The Department calculates a 

compound annual growth rate based on 

FY 2016 unique employers (6,713) and 

the FY 2021 unique employers (9,442). 

The result is an estimate of 7.1 percent 

annual growth rate.95

The estimated annual growth rates for 

unique employers (7.1 percent) and 

workers (6.3 percent) were applied to 

the estimated costs and transfers of the 

proposed rule to forecast participation 

in the H–2A program.96

b. Compensation Rates 

In section VI.A.3 (Subject-by-Subject 

Analysis), the Department presents the 

costs, including labor, associated with 

the implementation of the provisions of 

the proposed rule. Exhibit 4 presents the 

hourly compensation rates for the 

occupational categories expected to 

experience a change in the number of 

hours necessary to comply with the 

proposed rule. The Department used the 

mean hourly wage rate for private sector 

human resources (HR) specialists (SOC 

code 13–1071).97 Wage rates are 

adjusted to reflect total compensation, 

which includes nonwage factors such as 

overhead and fringe benefits (e.g., health 

and retirement benefits). We use an 

overhead rate of 17 percent 98 and a 

fringe benefits rate based on the ratio of 

average total compensation to average 

wages and salaries in 2021. For the 

private sector employees, we use a 

fringe benefits rate of 42 percent.99 For 

State and local employees, we use a 

fringe benefits rate of 62 percent.100 We 

then multiply the loaded wage factor by 

the wage rate to calculate an hourly 

compensation rate. The Department 

used the hourly compensation rates 

presented in Exhibit 4 throughout this 

analysis to estimate the labor costs for 

each provision. 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63812 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

101As part of the discontinuation of services 

provision of the proposed rule, there will be 

changes to the number of field checks that will 

occur. The Department assumes that a single 

educational, guidance, and career counselor and 

advisor from the SWA will conduct the site visits. 

EXHIBIT 4—COMPENSATION RATES

[2021 dollars] 

Position Grade level Base hourly 

wage rate Loaded wage factor Overhead costs Hourly compensation rate 

(a) (b) (c) d = a + b + c 

Private Sector Employees 

HR Specialist ................. N/A ................................. $34.00 $14.28 ($34.00 × 0.42) $5.78 ($34.00 × 0.17) $54.06 

State Government Employees 101

Educational, guidance, 

and career counselors 

and advisors.

N/A ................................. 29.09 $18.01 ($29.09 × 0.619) $4.95 ($29.09 × 0.17) $52.05 

3. Subject-by-Subject Analysis 

The Department’s analysis below 

covers the estimated costs, transfer 

payments, and qualitative benefits of the 

proposed rule. In accordance with 

Circular A–4, the Department considers 

transfer payments as payments from one 

group to another that do not affect total 

resources available to society. This 

proposed rule includes the cost of rule 

familiarization, application additions, 

and worker contact information, and 

transfer payments associated with the 

elimination of the 2-week delayed 

effective date of the AEWR. 

a. Costs 

The following section describes the 

quantified and unquantified costs of the 

proposed rule. 

i. Quantified Costs 

The following sections describes the 

quantified costs of rule familiarization, 

application addition, and worker 

contact information provisions of the 

proposed rule. 

A. Rule Familiarization 

When the proposed rule takes effect, 

H–2A employers will need to 

familiarize themselves with the new 

regulations. Consequently, this will 

impose a one-time cost in the first year. 

New employers in each subsequent year 

would need to familiarize themselves 

with current regulations regardless of 

this proposed rule. 

To estimate the first-year cost of rule 

familiarization, the Department applied 

the growth rate of H–2A employers (7.1 

percent) to the number of unique H–2A 

employers (7,903) to determine the 

number of unique H–2A applicants 

impacted in the first year. The number 

of unique H–2A employers (8,464) was 

multiplied by the estimated amount of 

time required to review the rule (1 

hour). The Department requests public 

comments and inputs regarding this 

estimate. This number was then 

multiplied by the hourly compensation 

rate of HR specialists ($54.06 per hour). 

This calculation results in a one-time 

undiscounted cost of $457,570 in the 

first year after the proposed rule takes 

effect. The annualized cost over the 10- 

year period is $53,641 and $65,148 at 

discount rates of 3 and 7 percent, 

respectively. 

B. Application Additions 

Once the proposed rule takes effect, 

H–2A employers will need to fill out 

additional information on the H–2A 

Application (such as individual owners’ 

names, home addresses, phone, date of 

birth, identifying information for all 

managers/labor supervisors; DBA 

information; identifying info for 

recruiters, including those the petitioner 

directly hires and all employees, 

contractors, agents, including the name 

and information for direct contacts to 

the workers; address for worker 

housing; and names/contact information 

of recruiters or hiring agents), which 

will impose a yearly cost as the 

additional time is required for every 

application for certification. 

To estimate the yearly cost of the 

application additions, the Department 

applied the growth-rate of H–2A 

employers (7.1 percent) to the current 

number of unique certified H–2A 

employers (7,903) to determine the 

number of unique H–2A employers in 

the first year (8,464). The number of 

unique certified H–2A employers in the 

first year is then multiplied by the 

growth rate again to determine the 

number of unique certified H–2A 

employers in the second year. This 

process is repeated each year to 

determine the total number of unique 

certified H–2A employers every year 

during the study period. Since it is 

assumed that only a single HR specialist 

per employer will incur the additional 

time investment, the estimated total 

yearly cost can be estimated by 

multiplying the total number of unique 

certified H–2A employers (8,464) by the 

HR specialist hourly wage rate ($34.00 

per hour), the loaded wage factor and 

the overhead rate for the private sector 

(1.59), and the estimated additional time 

taken to gather and enter the 

information on a yearly basis (2 hours 

on average). The Department requests 

public comments and inputs regarding 

this estimate. Lastly, this value is 

multiplied by the growth rate of unique 

employers (7.1 percent) to the nth 

power, with n being equal to the period 

year. The result is $915,140 in the first 

year, an undiscounted average cost over 

a 10-year period of $1,270,386, and 

discounted annualized costs of 

$1,286,884, and $1,308,447 at rates of 3 

and 7 percent respectively. 

C. Worker Contact Information 

This provision of the proposed rule 

would require employers to provide 

worker contact information (a list of all 

H–2A workers and workers in 

corresponding employment employed at 

the place(s) of employment within the 

employer’s application) to a requesting 

labor organization. Employers must 

make this disclosure upon the request of 

a labor organization, and must update 

the disclosure, again upon the request of 

the labor organization, up to one time 

per work contract period. The 

Department assumes that on average 

each employer will need to respond to 

requests from one labor organization 

and that responding to the initial 

request and one request for an updated 

list will take 1 hour each year. The 

Department requests public comments 

and inputs regarding this estimate. 

To determine the total additional 

costs of this provision, the Department 

used the average number of unique 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63813 

102Revisions to the elimination of the 2-week 

effective date delay for AEWR publication will also 

result in wage transfers from U.S. employers to 

workers in corresponding employment but the 

Department is not able to quantify this transfer due 

to the lack of data for workers in corresponding 

employment and their wages. 

103H–2A disclosure data may be accessed at 

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

performance. 

104The Department uses the 6.3 percent growth 

rate of H–2A workers (6.3) percent to produce final 

forecasted estimates of H–2A workers: 89,208 in 

2023, 94,837 in 2024, 100,821 in 2025, 107,183 in 

2026, 121,136 in 2027, 128,780 in 2028, 136,906 in 

2029, 145,545 in 2030, 14,652 in 2031, and 154,729 

in 2032. 

certified H–2A employers (7,903) and 

applied the unique employer growth 

rate (7.1 percent) and assumed that the 

number of labor organizations that 

would request employee lists from each 

employer is one. The Department then 

multiplied the number of requests by 

the estimated time to respond to each 

request per year (1 hour). This number 

was then multiplied by the hourly 

compensation rate of an HR specialist 

($34.00) and the loaded wage factor and 

the overhead rate for the private sector 

(1.59) to obtain the total cost of the 

worker contact information provision. 

This results in the estimated total cost 

for this provision in the first year of 

$457,570. This process is repeated each 

year resulting in an undiscounted 

average annual cost of $635,193 and 

discounted annualized costs of 

$643,442, and $654,223 at discount 

rates of 3 and 7 percent respectively. 

The Department seeks public comments 

and inputs on its assumptions on the 

number of labor organizations that 

would request employee lists from each 

H–2A employer and the estimated time 

to respond per year. 

ii. Unquantified Costs 

A. Transportation: Seat Belts for Drivers 

and Passengers 

As part of the proposed rule, 

employers would have to ensure seat 

belts are provided for drivers and 

passengers in transportation vehicles, 

used to transport H–2A and 

corresponding workers, that were 

required by U.S. Department of 

Transportation regulations to be 

manufactured with seat belts. This 

could impose both a one time and 

annual cost to those employers who had 

previously, lawfully modified or 

removed seat belts in such vehicles and 

would be required to reinstall or retrofit 

seat belts to comply with the proposed 

rule through the cost of installing the 

necessary seat belts and the decreased 

fuel efficiency of transportation vehicles 

caused by the additional weight of the 

seat belts. The Department does not 

have data to estimate the number of seat 

belts to be retrofitted, or in the 

alternative vehicles that would need to 

be purchased, to provide seat belts for 

drivers and passengers in the above 

scenario. The Department seeks public 

comment on data and information that 

would support estimating this cost, 

including whether vehicle owners or 

users may lawfully modify or remove a 

seatbelt where the vehicle is required by 

DOT regulations to be manufactured 

with that seatbelt. 

b. Unquantified Cost Savings 

The following section describes the 

unquantified cost savings of the 

proposed rule. 

i. Successors in Interest 

Once the proposed rule takes effect, 

the Department would be able to deny 

labor certification applications filed by 

or on behalf of successors in interest to 

debarred employers, agents, or 

attorneys. Currently, the Department 

must first issue a separate notice of 

debarment to the successor in interest, 

and go through a lengthy administrative 

hearing and review process, before it 

may deny an application filed by or on 

behalf of a successor. The proposed rule 

would therefore result in cost savings 

from not having to go through the 

process to debar successors in interest 

but instead apply the predecessor’s 

debarment to the successor. The 

Department lacks detailed data on the 

length of time necessary to enter a final 

order of debarment against successors 

under the current regulations, and the 

annual number of successor debarments 

and as a result is unable to accurately 

quantify this cost savings. The 

Department seeks public comment on 

data that would support estimating this 

cost savings. 

c. Transfer Payments 

The following section describes the 

transfer payments of the proposed rule. 

i. Quantified Transfer Payments 

This section discusses the 

quantifiable transfer payments related to 

revisions to the elimination of the 2- 

week effective date delay for AEWR 

publication. The Department considers 

transfers as payments from one group to 

another that do not affect total resources 

available to society. The transfers 

measured in this analysis are wage 

transfers from U.S. employers to H–2A 

workers. H–2A workers are migrant 

workers who will spend some of their 

earnings on consumption goods in the 

U.S. economy but likely send a large 

fraction of their earnings to their home 

countries.102 Therefore, the Department 

considers the wage transfers in the 

analysis as transfer payments within the 

global economic system. 

A. Elimination of the 2-Week Effective 

Date Delay for AEWR Publication 

Currently, the Department publishes 

the AEWR as soon as data is available, 

typically in the middle of December. 

There is then a 2-week delay until the 

AEWR is effective, typically January 1st 

of the following year. Once the 

proposed rule takes effect, the 2-week 

delay until the AEWR is effective will 

be removed and the AEWR will be 

effective immediately. Therefore, 

employers that employ workers during 

the 2-week period from mid-December 

to early January will see a transfer to 

employees due to the elimination of the 

2-week delay of wage increases from the 

AEWR publication. 

To estimate the transfer, the 

Department first uses FY 2020 and FY 

2021 H–2A certification data to 

calculate the weighted average increase 

in AEWR from one year to the next.103

The Department weights the average by 

the number of workers in each State 

with employment between December 

14th and the end of the year to account 

for regional differences in employment 

during December. The result is an 

average increase in the AEWR by $1.09. 

The Department then calculates the 

average number of days worked between 

December 14 and the end of the year 

(11.87) using the FY 2020 and FY 2021 

H–2A certification data. Finally, the 

Department estimates the average 

annual number of workers with work 

during this period using the H–2A 

certification data (89,208).104

The Department determines the total 

amount of the transfers by multiplying 

the 2-year weighted AEWR difference 

for end-of-year employment (1.09), the 

2-year average number of days worked 

between December 14 and the end of 

year (11.87), the number of work hours 

in a day (8), and the number of H–2A 

workers during this period (89,208). To 

determine the transfers for every year in 

the 10-year period, the total number of 

H–2A workers during the period is 

multiplied by the growth rate of H–2A 

workers (6.3 percent). The same process 

is repeated for every year in the period. 

The total undiscounted average annual 

transfers associated with this provision 

is $12,382,839 and the discounted 

annualized transfers are $12,566,020, 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63814 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

105BLS News Release, Union Members—2022. 

Bureau of Lab. Stats., https://www.bls.gov/ 

news.release/pdf/union2.pdf. 

106Wendy Chun-Hoon, U.S. Dep’t of Lab. Blog: 

Want Equal Pay? Get a Union, https://blog.dol.gov/ 

2022/02/15/want-equal-pay-get-a-union?_

ga=2.66102894.1387872399.1678980555- 

949551915.1678980555. 

107Marc Doussard & Ahmad Gamal, The Rise of 

Wage Theft Laws: Can Community—Labor 

Coalitions Win Victories in State Houses?, 52 Urb. 

Aff. Rev. 780–807 (2016), https://doi.org/10.1177/ 

1078087415608008. 

108Aaron Sojourner & Jooyoung Yang, Effects of 

Unionization on Workplace-Safety Enforcement: 

Regression-Discontinuity Evidence, Inst. of Lab. 

Econ., IZA Discussion Papers 9610 (2015), https:// 

ideas.repec.org/p/iza/izadps/dp9610.html. 

109The VSL is used by DOT to value fatalities 

associated with vehicle crashes. The VSL is based 

upon the base year’s VSL adjusted for the annual 

change in the Consumer Price Index. Dep’t of 

Transp., Departmental Guidance on Valuation of a 

Statistical Life in Economic Analysis, https://

www.transportation.gov/office-policy/ 

and $12,806,284 at discount rates of 3 

and 7 percent respectively. 

ii. Unquantified Transfer Payments 

This section discusses the 

unquantifiable transfer payments related 

to the reverse of the 14-day grace period 

to start dates, and piece rates. 

A. Reverse of the 14-Day Grace Period 

for Start Dates 

Currently, if an employer fails to 

contact the SWA of a start date change 

at least 10 days ahead, it must offer 

work hours and pay wages to each 

farmworker who followed the procedure 

to contact the SWA for updated start 

date information for the first week. If the 

employer requests a start date delay 

after workers have departed for the 

place of employment, the employer 

must provide housing and subsistence. 

After the proposed rule takes effect, 

employers that do not notify both the 

SWA and the worker at least 10 days 

before the anticipated start date, would 

be required to pay workers the hourly 

rate for the hours listed on the job order 

for each day work is delayed up to 2 

weeks resulting in a transfer from 

employers to employees. The 

Department is unable to quantify this 

transfer because it lacks detailed data on 

the prevalence of job delays, the number 

of employees impacted by these delays, 

and the number of hours impacted by 

the delays on average, or the number of 

hours employers must spend contacting 

employees and as a result is unable to 

accurately quantify this transfer. The 

Department seeks public comment on 

data that would support estimating this 

transfer payment. 

B. Piece Rates 

This proposed rule clarifies language 

within 20 CFR 655.120(a) and 655.122(l) 

to make clear that the employer is 

required to advertise and pay the 

highest of the AEWR, prevailing hourly 

wage or piece rate, CBA rate, or Federal 

or State minimum wage, or any other 

wage rate the employer intends to pay. 

The Department is unable to quantify 

this transfer because it lacks data on the 

frequency of instances when employers 

will have to pay higher wages as a result 

of including and considering applicable 

piece rates in job offers. The Department 

seeks public comment on data that 

would support estimating this transfer 

payment. 

d. Unquantified Benefits 

i. Termination for Cause 

This rule proposes that workers 

would only be terminated for cause for 

a failure to meet productivity standards 

or failure to comply with employer 

policies and procedures, and only if the 

termination was justified and 

reasonable. The designation of a 

termination as being for cause strips 

workers of essential rights to which they 

would otherwise be entitled— 

specifically the three-fourths guarantee, 

payment for outbound transportation, 

and, if a U.S. worker, the right to be 

contacted for re-hire in the following 

season—and therefore it is essential that 

workers not be deprived of these rights 

using inconsistent or unfair procedures. 

The proposed rule would require 

fairness in disciplinary and termination 

proceedings if the termination were to 

be designated as being for cause, which 

would prevent workers from being 

unjustly stripped of certain rights under 

the H–2A program. The Department 

lacks data on the numbers of 

terminations for cause each year and 

whether those terminations were 

justified and reasonable, and the 

number of hours required by employers 

to document termination proceedings as 

defined by this proposed rule. 

ii. Protections for Worker Advocacy and 

Self-Organization 

The Department’s proposal would 

provide stronger protections for workers 

protected by the H–2A program to 

advocate for better working conditions 

on behalf of themselves and their 

coworkers and would prevent 

employers from suppressing this 

activity. These protections would help 

prevent adverse effect on the working 

conditions of similarly employed 

agricultural workers in the United States 

and would increase the likelihood of 

worker advocacy and organizing while 

protecting those workers from 

intimidation and retaliation by 

employers. There are additional benefits 

for workers and employers. Wages for 

nonunion workers are higher in 

industries where a larger share of 

workers are union members.105 Unions 

also help close the gender pay gap and 

ensure worker advocacy protection and 

equitable pay for women because 

collectively bargained wages and pay 

scales are transparent and apply equally 

to workers in the same job.106 In sum, 

protection for worker advocacy and selforganization provides unquantifiable 

benefits to workers under the H–2A 

program. 

Unions also complement the 

Department’s enforcement efforts in 

preventing wage-related violations and 

in ensuring workplace safety and health. 

Unions play a central role in curbing 

wage-related violations by negotiating 

contractual guarantees of workers’ 

wages and a process for enforcing these 

guarantees. Unions also encourage State 

and local legislation to protect wages 107

and help low-wage, vulnerable workers 

understand their rights and report 

violations. Additionally, a recent study 

of NLRB and OSHA data shows that 

union certification has positive effects 

on the rate of OSHA safety and health 

inspections, the share of inspections 

carried out in the presence of a union 

representative, violations cited, and 

penalties assessed.108

Although the Department lacks data 

on how to quantify the benefits of such 

increased worker protections, the 

proposed regulations should increase 

workers’ dignity and safety and should 

improve the working conditions for all 

agricultural workers employed by H–2A 

employers. 

iii. Transportation: Seat Belts for Drivers 

and Passengers 

Once the proposed rule takes effect, 

employer-provided transportation 

would be required to have seat belts 

available for all workers transported, if 

those vehicles were required by DOT 

regulations to be manufactured with 

seat belts. Seat belt use reduces the 

severity of crash-related injuries and 

deaths. The Department lacks data on 

the baseline number of crashes, whether 

those vehicles involved in crashes were 

equipped with seat belts and the 

occupants were using seat belts and 

subsequent injuries or fatalities 

involving vehicles transporting H–2A 

workers and therefore is not able to 

estimate the benefit from reduced 

fatalities or injuries. The benefit from 

reducing even a single fatality or serious 

injuries is significant. The value of a 

statistical life (VSL) that would measure 

the benefit of avoiding a fatality is 

estimated to be $11.8 million.109 Recent 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63815 

transportation-policy/revised-departmentalguidance-on-valuation-of-a-statistical-life-ineconomic-analysis. 

110Based on MAIS4 and MAIS1 injury per crash 

costs estimated by NHTSA in Table 1–9. Summary 

of Comprehensive Unit Costs, The Economic and 

Societal Impact of Motor Vehicle Crashes, 2019 

(Revised), Nat’l Highway Traffic Safety Admin. 

(2023), https://crashstats.nhtsa.dot.gov/Api/Public/ 

ViewPublication/813403. 

NHTSA reports suggest avoiding injury 

crashes can be highly beneficial, with 

estimates that avoiding a critical injury 

crash is worth $3.8 million (32 percent 

of a fatality) and avoiding minor injuries 

is worth $63,000 (0.5 percent of a 

fatality), respectively.110

iv. Protection Against Passport and 

Other Immigration Document 

Withholding 

To better protect this vulnerable 

workforce from potential labor 

trafficking, the Department proposes to 

flatly prohibit an employer, including 

through its agents or attorneys, from 

taking or withholding of a worker’s 

passport, visa, or other immigration or 

identification documents against the 

worker’s wishes, independent of any 

other requirements under other Federal, 

State, or local laws, in a new provision 

at 20 CFR 655.135(o). This proposal 

would help ensure that H–2A workers 

are less likely to be subject to labor 

exploitation and thus it safeguards the 

health, safety, and dignity of those 

workers and also prevents the 

depression of working conditions for the 

local agricultural workforce. The 

Department seeks comments on how it 

can quantify these benefits. 

v. Enhanced Integrity and Enforcement 

Capabilities 

The Department proposes reduced 

time frames to submit appeal requests 

for debarment matters and a reduced 

timeframe to submit rebuttal evidence to 

OFLC. This would lead to faster final 

agency adjudications and thereby better 

protect and uphold program integrity 

and agricultural workers by more 

efficiently and effectively preventing H– 

2A program violators from accessing the 

program. The Department seeks 

comments on how it can quantify these 

benefits. 

4. Summary of the Analysis 

Exhibit 5 summarizes the estimated 

total costs and transfer payments of the 

proposed rule over the 10-year analysis 

period. The Department estimates the 

annualized costs of the proposed rule at 

$2.21 million and the annualized 

transfer payments (from H–2A 

employers to employees) at $12.81 

million, each at a discount rate of 7 

percent. Unquantified transfer payments 

include reverse of the 14-day grace 

period for start dates and clarifying that 

piece rate should be included in the 

prevailing wage determination. 

Unquantified cost-savings include the 

Department’s ability to deny labor 

certification applications filed by or on 

behalf of successors in interest to 

debarred employers, agents, or 

attorneys. Unquantified benefits include 

better protection from inappropriate 

termination, protection for worker 

advocacy, reduction in risk of injury 

during employer sponsored 

transportation, reduction in improper 

holding of passports or immigration 

documents, and enhanced integrity and 

enforcement. The Department requests 

public comments and inputs on this 

rule’s potential distributional impacts 

and ripple effects in the economy. 

EXHIBIT 5—ESTIMATED MONETIZED COSTS AND TRANSFER PAYMENTS OF THE PROPOSED RULE

[2021 $millions] 

Year Costs Transfer payments 

2024 ............................................................................................................................................................. $1.83 $9.26 

2025 ............................................................................................................................................................. 1.4787 9.84 

2026 ............................................................................................................................................................. 1.57 10.46 

2027 ............................................................................................................................................................. 1.69 11.12 

2028 ............................................................................................................................................................. 1.81 11.83 

2029 ............................................................................................................................................................. 1.93 12.57 

2030 ............................................................................................................................................................. 2.07 13.37 

2031 ............................................................................................................................................................. 2.22 14.21 

2032 ............................................................................................................................................................. 2.38 15.11 

2033 ............................................................................................................................................................. 2.54 16.06 

Undiscounted 10-Year Total ........................................................................................................................ 19.51 123.83 

10-Year Total with a Discount Rate of 3% .......................................................................................... 16.92 107.19 

10-Year Total with a Discount Rate of 7% .......................................................................................... 14.24 89.95 

10-Year Average .......................................................................................................................................... 1.95 12.38 

Annualized with a Discount Rate of 3% ............................................................................................... 1.98 12.57 

Annualized with a Discount Rate of 7% ............................................................................................... 2.03 12.81 

5. Regulatory Alternatives 

The Department considered a 

regulatory alternative to this proposed 

rule’s proposal to make updated AEWRs 

effective on the date of publication in 

the Federal Register. Under the 

alternative proposal, AEWRs would 

become effective 7 calendar days after 

publication in the Federal Register. 

This proposal would have been a 

compromise between the immediate 

effective date proposed in this rule and 

the current effective date, which can be 

as many as 14 calendar days after the 

Department publishes the updated 

AEWRs in the Federal Register. The 

benefit of the alternative proposal is that 

it would continue to provide employers 

a short window of time to adjust payroll 

or recordkeeping systems or make any 

other adjustments that may be necessary 

after the Department’s announcement of 

update AEWRs, while providing a 

shorter adjustment window than under 

the current rule. However, the 

Department determined the 

disadvantages of a 7-calendar-day 

implementation period for updated 

AEWRs outweighed any potential 

benefits. Although this alternative 

would require employers to begin 

paying agricultural workers at least the 

newly required higher wage within a 

calendar week of the date the updated 

AEWRs are published in the Federal 

Register, it would not ensure that 

workers are paid at least the wage rate 

determined to prevent adverse effect for 

all hours worked. Further, unlike the 

possible 14-day period in the current 

rule, the 7-calendar-day period would 

not correspond with a typical 2-week 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63816 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

111The wage transfer under this alternative would 

be approximately half of the impact of the proposed 

rule’s proposal to make updated AEWRs effective 

on the date of publication in the Federal Register 

($12.81 million at a discount rate of 7 percent). 112See 87 FR 61660, 61688 (Oct. 12, 2022) 

(quoting 75 FR 6884, 6901 (Feb. 12, 2010)). 

113SBA Table of Small Business Size Standards 

Matched to North American Industry Classification 

System Codes (December 19, 2022), https://

www.sba.gov/document/support--table-sizestandards. 114See https://advocacy.sba.gov/resources/theregulatory-flexibility-act for details. 

115 Data Axle (Aug. 2023), https://www.dataaxle.com. 

116SBA Table of Small Business Size Standards 

Matched to North American Industry Classification 

System Codes (Aug. 2019), https://www.sba.gov/ 

document/support—table-size-standards. 

pay period; potentially creating more 

logistical challenges than it obviates. As 

the Department has explained in prior 

rulemaking, the duty to pay an updated 

AEWR during the employment period if 

it is higher than other required wage 

sources is not a new employer 

obligation. The Department recognizes 

that AEWR adjustments may alter 

employer budgets, but the Department 

believes the difference in the impact 111

on budget and payroll planning between 

the proposed immediate effective date 

and a 7-day period after publication is 

outweighed by the benefits to 

agricultural workers noted above. 

Moreover, as the Department noted in 

the 2010 H–2A Final Rule, employers 

are aware of the annual AEWR 

adjustment and the Department 

encourages employers to continue to 

include the annual adjustment in their 

contingency planning to allow 

flexibility to account for any possible 

wage adjustments.112

The Department also considered two 

regulatory alternatives to the employee 

contact information proposal, with 

respect to the proposed requirement that 

employers provide a labor organization 

with an updated employee contact list 

once per season, if requested. First, the 

Department considered a more stringent 

alternative, requiring the employer to 

provide the requesting labor 

organization with an updated list, if 

requested, up to once per month. This 

alternative would best ensure that the 

labor organization has accurate contact 

information for those workers actually 

employed by the employer throughout 

the entire job order period, and 

therefore would best ensure that 

workers who may have an interest in or 

against organizing have access to 

relevant information. However, this 

alternative would impose significantly 

more burden on the employer to 

comply. Second, the Department 

considered a less stringent alternative, 

that would not require the employer to 

provide any updates to the requesting 

labor organization; in other words, the 

requesting labor organization would be 

entitled to one list per season, without 

any updates. This alternative would be 

the least burdensome of the three, but 

would be less likely to ensure that all 

eligible workers have access to 

information regarding organization. The 

Department therefore chose to propose 

that the employer provide a one-time 

per season update, if requested, as the 

Department believes this alternative best 

balances the need for workers to receive 

information regarding arguments both 

for and against organization against 

unduly burdening the employer with 

providing multiple updates to the 

employee contact list. 

B. Regulatory Flexibility Analysis and 

Small Business Regulatory Enforcement 

Fairness Act and Executive Order 

13272: Proper Consideration of Small 

Entities in Agency Rulemaking 

The Regulatory Flexibility Act of 1980 

(RFA), 5 U.S.C. 601 et seq., as amended 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

Public Law 104–121, requires agencies 

to determine whether regulations will 

have a significant economic impact on 

a substantial number of small entities. 

The Department certifies that the 

proposed rule does not have a 

significant economic impact on a 

substantial number of small entities. 

The Department presents the basis for 

this certification in the analysis below. 

1. Description of the Number of Small 

Entities to Which This Proposed Rule 

Will Apply 

a. Definition of Small Entity 

The RFA defines a ‘‘small entity’’ as 

a (1) small not-for-profit organization, 

(2) small governmental jurisdiction, or 

(3) small business. The Department used 

the entity size standards defined by the 

Small Business Administration (SBA), 

in effect as of December 19, 2022, to 

classify entities as small.113 SBA 

establishes separate standards for 

individual 6-digit North American 

Industry Classification System (NAICS) 

industry codes, and standard cutoffs are 

typically based on either the average 

number of employees, or the average 

annual receipts. Small governmental 

jurisdictions are another noteworthy 

exception. They are defined as the 

governments of cities, counties, towns, 

townships, villages, school districts, or 

special districts with populations of less 

than 50,000 people.114

b. Number of Small Entities 

The Department collected 

employment and annual revenue data 

from the business information provider 

Data Axle 115 and merged those data into 

the H–2A certification data for FY 2020 

and FY 2021. This process allowed the 

Department to identify the number and 

type of small entities in the H–2A 

certification data as well as their annual 

revenues. The Department determined 

the number of unique employers in the 

FY 2020 and FY 2021 certification data 

based on the employer name and city. 

The Department identified 9,927 unique 

employers (excluding labor contractors). 

Of those 9,927 employers, the 

Department was able to obtain data 

matches of revenue and employees for 

2,615 H–2A employers in the FY2020 

and FY2021 certification data. Of those 

2,615 employers, the Department 

determined that 2,105 were small (80.5 

percent).116 These unique small entities 

had an average of 11 employees and 

average annual revenue of 

approximately $3.62 million. Of these 

small unique entities, 2,085 of them had 

revenue data available from Data Axle. 

The Department’s analysis of the impact 

of this proposed rule on small entities 

is based on the number of small unique 

entities (2,085 with revenue data). 

To provide clarity on the agricultural 

industries impacted by this regulation, 

Exhibit 6 shows the number of unique 

H–2A small entities employers with 

certifications in the FY 2020 and FY 

2021 certification data within each 

NAICS code at the 6-digit level. 

EXHIBIT 6—NUMBER OF H–2A SMALL EMPLOYERS BY NAICS CODE

6-digit NAICS Description Number of 

employers Percent Size standard 

111998 ........... All Other Miscellaneous Crop Farming ..................................... 611 29 $1.0 million. 

444220 ........... Nursery, Garden Center, and Farm Supply Stores .................. 162 8 $12.0 million. 

561730 ........... Landscaping Services ............................................................... 134 6 $8.0 million. 

445230 ........... Fruit and Vegetable Markets ..................................................... 127 6 $8.0 million. 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63817 

117Size standards vary by NAICS code. 118Calculation: ($34.00 + $34.00(0.42) + 

34.00(0.17)) * 1 = $54.00. $34.00 (1.59) * 1 = $54.00. 

$34.00 (1.59) * 2 = $108.00. 

119 In CY 2020 the average wage impact to all 

small entities is $620 and in CY 2021 $1,032. 

120 In CY 2020 the average wage impact small 

entities with wage impacts is $1,937 and in CY 

2021 $3,191. 

121See, e.g., NPRM, Increasing the Minimum 

Wage for Federal Contractors, 79 FR 60634 (Oct. 7, 

2014) (establishing a minimum wage for 

contractors); Final Rule, Discrimination on the 

Basis of Sex, 81 FR 39108 (June 15, 2016). 

122See, e.g., Final Rule, Medicare and Medicaid 

Programs; Regulatory Provisions to Promote 

Program Efficiency, Transparency, and Burden 

Reduction; Part II, 79 FR 27106 (May 12, 2014) 

(Department of Health and Human Services rule 

stating that under its agency guidelines for 

conducting regulatory flexibility analyses, actions 

that do not negatively affect costs or revenues by 

more than three percent annually are not 

economically significant). 

EXHIBIT 6—NUMBER OF H–2A SMALL EMPLOYERS BY NAICS CODE—Continued 

6-digit NAICS Description Number of 

employers Percent Size standard 

424480 ........... Fresh Fruit and Vegetable Merchant Wholesalers ................... 84 4 100 employees. 

111339 ........... Other Noncitrus Fruit Farming .................................................. 78 4 $1.0 million. 

112990 ........... All Other Animal Production ...................................................... 57 3 $1.0 million. 

424930 ........... Flower, Nursery Stock, and Florists’ Supplies Merchant 

Wholesalers.

51 2 100 employees. 

424910 ........... Farm Supplies Merchant Wholesalers ...................................... 41 2 200 employees. 

484230 ........... Specialized Freight (except Used Goods) Trucking, Long-Distance.39 2 $30.0 million. 

All Other 117 ............................................................................... 701 33 

Total 2,085 100 

2. Projected Impacts to Affected Small 

Entities 

The Department has estimated the 

incremental costs for small entities from 

the baseline (i.e., the current practices 

for complying, at a minimum, with the 

H–2A program as currently codified at 

20 CFR part 655, subpart B) to this 

proposed rule. As discussed in previous 

sections, the Department estimates 

impacts using historical certification 

data and therefore simulates the impacts 

of the proposed rule to each actual 

employer in the H–2A program rather 

than using representative data for 

employers within a given sector. The 

Department estimated the costs of (a) 

time to read and review the proposed 

rule, (b) the time to send employee lists 

to labor organizations upon request, (c) 

the time required to complete H–2A 

applications due to application 

additions, and (d) wage transfers due to 

the removal of the 2-week effective date 

delay from the AEWR publication. The 

estimates included in this analysis are 

consistent with those presented in the 

E.O. 12866 section. 

The Department estimates that 2,085 

unique small entities, would incur a 

one-time cost of $54.00 to familiarize 

themselves with the rule, an annual cost 

of $54.00 to send employee contact lists 

to labor organizations, and a per 

application cost of $108.00 to complete 

H–2A applications.118

In addition to the cost of rule 

familiarization, employee contact lists, 

and application additions above, each 

small entity will have an increase in the 

wage costs due to the revisions to the 

wage structure. To estimate the wage 

impact for each small entity we 

followed the methodology presented in 

the E.O. 12866 section. For each 

certification of a small entity, the 

Department calculated total wage 

impacts of the proposed rule in CY 2020 

and CY 2021 based on each certification 

for employment between December 14th 

and the end of the year, and the annual 

increase in AEWR. The Department 

estimates the wage impact to all small 

entities is $826 on average.119 Many of 

the small entities have no wage impact 

from the proposed rule because they do 

not have workers employed at the end 

of December. Of small entities with 

wage impacts, their average wage 

impact is $2,567.120

The Department determined the 

proportion of each small entity’s total 

revenue that would be impacted by the 

costs of the proposed rule to determine 

if the proposed rule would have a 

significant and substantial impact on 

small entities. The cost impacts 

included estimated first-year costs and 

the wage impact introduced by the 

proposed rule. The Department used a 

total cost estimate of 3 percent of 

revenue as the threshold for a 

significant individual impact and set a 

total of 15 percent of small entities 

incurring a significant impact as the 

threshold for a substantial impact on 

small entities. 

A threshold of 3 percent of revenues 

has been used in prior rulemakings for 

the definition of significant economic 

impact.121 This threshold is also 

consistent with that sometimes used by 

other agencies.122

Exhibit 7 provides a breakdown of 

small entities by the proportion of 

revenue affected by the costs of the 

proposed rule. Of the 2,085 unique 

small entities with revenue data in the 

FY 2020 and FY 2021 certification data, 

0.7 percent of employers are estimated 

to have more than 3 percent of their 

total revenue impacted in the first year 

based on 2020 data and 2 percent of 

employers are estimated to have more 

than 3 percent of their total revenue 

impacted in the first year based on 2021 

data. Based on the findings presented in 

Exhibit 7, the proposed rule does not 

have a significant economic impact on 

a substantial number of small H–2A 

employers. 

EXHIBIT 7—COST IMPACTS AS A PROPORTION OF TOTAL REVENUE FOR SMALL ENTITIES

Proportion of revenue impacted 

2020, by NAICS Code 

111998 444220 561730 445230 All other Total 

<1% .............................................. 594 (97.2%) 162 (100.0%) 133 (99.3%) 127 (100.0%) 1,028 (97.8%) 2,044 (98.0%) 

1%–2% ......................................... 12 (2.0%) 0 (0.0%) 1 (0.7%) 0 (0.0%) 10 (1.0%) 23 (1.1%) 

2%–3% ......................................... 2 (0.3%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 2 (0.2%) 4 (0.2%) 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63818 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

123For administrative purposes only, the 

Department submitted the July 2019 NPRM’s ICR 

under OMB Control Number 1205–0537. OMB 

authorized the NPRM’s ICR as OMB Control 

Number 1205–0537 due to the Department’s 

separate renewal of the ICR under OMB Control 

Number 1205–0466, which currently expires on 

October 31, 2025. In March 2023, the Department 

submitted a nonmaterial change request to transfer 

the burden from this OMB control number (1205– 

0537) to the existing OMB control number for the 

H–2A Foreign Labor Certification Program (1205– 

0466) and proceeded to discontinue the use of OMB 

Control Number 1205–0537. 

124The current Form ETA–790/790A, H–2A 

Agricultural Clearance Order, and addenda, provide 

language to employers to disclose necessary 

information regarding the material terms and 

conditions of the job opportunity. A copy of Form 

ETA–790/790A is now integrated with the Form 

ETA–9142A for purposes of the Department’s 

temporary agricultural labor certification 

determination; the CO reviews the Form ETA–790/ 

790A in combination with Form ETA–9142A when 

the employer submits Form ETA–9142A to the 

NPC. 

EXHIBIT 7—COST IMPACTS AS A PROPORTION OF TOTAL REVENUE FOR SMALL ENTITIES—Continued 

Proportion of revenue impacted 

2020, by NAICS Code 

111998 444220 561730 445230 All other Total 

3%–4% ......................................... 1 (0.2%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 1 (0.1%) 2 (0.1%) 

4%–5% ......................................... 1 (0.2%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 4 (0.4%) 5 (0.2%) 

>5% ....................................... 1 (0.2%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 6 (0.6%) 7 (0.3%) 

Total >3% ............................. 3 (0.5%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 11 (1.0%) 14 (0.7%) 

Proportion of revenue impacted 2021, by NAICS Code 

<1% .............................................. 564 (92.3%) 161 (99.4%) 131 (97.8%) 127 (100.0%) 1,010 (96.1%) 1,993 (95.6%) 

1%–2% ......................................... 20 (3.3%) 1 (0.6%) 2 (1.5%) 0 (0.0%) 14 (1.3%) 37 (1.8%) 

2%–3% ......................................... 8 (1.3%) 0 (0.0%) 1 (0.7%) 0 (0.0%) 5 (0.5%) 14 (0.7%) 

3%–4% ......................................... 4 (0.7%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 4 (0.4%) 8 (0.4%) 

4%–5% ......................................... 5 (0.8%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 4 (0.4%) 9 (0.4%) 

>5% .............................................. 10 (1.6%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 14 (1.3%) 24 (1.2%) 

Total >3% ............................. 19 (3.1%) 0 (0.0%) 0 (0.0%) 0 (0.0%) 22 (2.1%) 41 (2.0%) 

C. Paperwork Reduction Act 

In order to meet its statutory 

responsibilities under the INA, the 

Department collects information 

necessary to render determinations on 

requests for temporary agricultural labor 

certification, which allow employers to 

bring foreign labor into the United 

States on a seasonal or other temporary 

basis under the H–2A program. The 

Department uses the collected 

information to determine if employers 

are meeting their statutory and 

regulatory obligations. This information 

is subject to the PRA, 44 U.S.C. 3501 et 

seq. A Federal agency generally cannot 

conduct or sponsor a collection of 

information, and the public is generally 

not required to respond to an 

information collection, unless it is 

approved by OMB under the PRA and 

displays a currently valid OMB control 

number. In addition, notwithstanding 

any other provisions of law, no person 

shall generally be subject to penalty for 

failing to comply with a collection of 

information that does not display a 

valid control number. See 5 CFR 

1320.5(a) and 1320.6. The Department 

obtained OMB approval for this 

information collection under Control 

Number 1205–0466. 

This information collection request 

(ICR), concerning OMB Control Number 

1205–0466, includes the collection of 

information related to the Department’s 

temporary agricultural labor 

certification determination process in 

the H–2A program. The PRA helps 

ensure that requested data is provided 

in the desired format, reporting burden 

(time and financial resources) is 

minimized, collection instruments are 

clearly understood, and the impact of 

collection requirements on respondents 

can be properly assessed. 

On October 25, 2018, as part of its 

ongoing effort to streamline information 

collection, clarify statutory and 

regulatory requirements, and provide 

greater oversight in the H–2A program, 

the Department published a 60-day 

notice announcing its proposed 

revisions to the collection of 

information under OMB Control 

Number 1205–0466 in the Federal 

Register in connection with the 

proposed rule Temporary Agricultural 

Employment of H–2A Nonimmigrants in 

the United States, 84 FR 36168 (July 26, 

2019).123 See 83 FR 53911. The 

Department published a final rule on 

October 12, 2022.124 See 87 FR 61660. 

The Department now proposes 

additional revisions to this information 

collection, covered under OMB Control 

Number 1205–0466, to further revise the 

information collection tools based on 

regulatory changes proposed in this 

NPRM. The additional proposed 

revisions to Form ETA–9142A and 

appendices and Form ETA–790/790A 

and addenda will align information 

collection requirements with the 

Department’s proposed regulatory 

framework and continue the ongoing 

efforts to provide greater clarity to 

employers on regulatory requirements, 

standardize and streamline information 

collection to reduce employer time and 

burden preparing applications, and 

promote greater efficiency and 

transparency in the review and issuance 

of labor certification decisions under the 

H–2A visa program. For example, the 

Department proposes a new Form ETA– 

9142A, Appendix C, H–2A Owner, 

Operator, Manager and Supervisor 

Information, to implement proposed 

§ 655.130(a), which would require 

employers to provide the identity, 

location, and contact information of all 

persons who are the owners, operators, 

managers, and supervisors of the 

agricultural business. Additionally, the 

Department proposes a new Form ETA– 

9142A, Appendix D, Foreign Labor 

Recruiter Information, to implement 

proposed § 655.137(b), which would 

require the employer, and its attorney or 

agent (as applicable), to provide the 

identity and location of all persons and 

entities hired by or working for the 

recruiter or agent, and any of the 

agent(s) or employee(s) of those persons 

and entities, to recruit prospective 

foreign workers for the H–2A job 

opportunities offered by the employer 

under an H–2A Application for 

Temporary Employment Certification, 

Form ETA–9142A. 

Overview of Information Collections 

Proposed by This NPRM 

Title of Collection: H–2A Temporary 

Agricultural Employment Certification 

Program. 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63819 

Type of Review: Revision of a 

Currently Approved Information 

Collection. 

OMB Control Number: 1205–0466. 

Description: This NPRM proposes to 

require (1) all agents who file H–2A 

applications on behalf of employers to 

demonstrate that a bona fide 

relationship exists between them and 

the employer; (2) agents who are Farm 

Labor Contractors to provide a copy of 

their Migrant and Seasonal Agricultural 

Worker Protection Act (MSPA) 

Certificate of Registration; (3) employers 

to prohibit in a written contract any 

foreign labor contractor or recruiter (or 

any agent of such foreign labor 

contractor or recruiter) whom the 

employer engages, either directly or 

indirectly, in international recruitment 

of H–2A workers, from seeking or 

receiving payments or other 

compensation from prospective 

employees; (4) employers to determine 

the appropriate wage to offer, advertise, 

and pay workers to perform the 

agricultural services or labor in 

preparing the Form ETA–790A; (5) that 

the job order submitted to the SWA and 

Department must meet the content 

standards set forth in 20 CFR part 653, 

subpart F, and 20 CFR 655.122; (6) 

completion of the Form ETA–9142A 

when an employer seeks a temporary 

labor certification to employ 

nonimmigrant workers under the H–2A 

visa classification; and (7) employers 

operating as H–2A Labor Contractors 

(H–2ALCs) must provide additional 

documentation at the time of filing the 

Form ETA–9142A. 

Affected Public: Individuals or 

Households, Private Sector—businesses 

or other for-profits, Government, State, 

Local, and Tribal Governments. 

Form(s): ETA–9142A, H–2A 

Application for Temporary Employment 

Certification; ETA–9142A—Appendix 

A; ETA–9142A—Final Determination: 

H–2A Temporary Labor Certification 

Approval; ETA–790/790A, H–2A 

Agricultural Clearance Order; ETA–790/ 

790A—Addendum A; ETA–790/790A— 

Addendum B; ETA–790/790A— 

Addendum B; ETA–9142A, Appendix 

C; ETA–9142A, Appendix D 

Obligation to Respond: Required to 

Obtain or Retain Benefits. 

Estimated Total Annual Respondents: 

467,843. 

Estimated Total Annual Responses: 

14,586. 

Estimated Total Annual Burden 

Hours: 102,864.74. 

Estimated Total Annual Other Burden 

Costs: $0. 

Regulations Sections: Subpart F of 

part 655. 

Agency: DOL–ETA. 

Title of Collection: Agricultural 

Recruitment System Forms Affecting 

Migrant and Seasonal Farmworkers. 

Type of Review: Revision of a 

Currently Approved Information 

Collection. 

OMB Control Number: 1205–0134. 

Description: This NPRM proposes to 

revise Agricultural Clearance Order 

Form, ETA Form 790B, which will be 

attached to the Agricultural Clearance 

Order Form, ETA Form 790 (see OMB 

Control Number 1205–0466). ETA Form 

790B is only used for employers who 

submit clearance orders requesting U.S. 

workers for temporary agricultural jobs, 

which are not attached to requests for 

foreign workers through the H–2A visa 

program (non-criteria clearance orders). 

ETA is including the estimated burden 

to the public for the completion of ETA 

Form 790 as it relates to those 

employers seeking to place non-criteria 

job orders through the ARS in addition 

to the estimated burden for ETA Form 

790B because employers would fill out 

both forms. 

Affected Public: State Governments, 

Private Sector: Business or other forprofits, not-for-profit institutions, and 

farms. 

Obligation to Respond: Required to 

Obtain or Retain Benefits. 

Estimated Total Annual Respondents: 

5,112. 

Estimated Total Annual Responses: 

5,112. 

Estimated Total Annual Burden 

Hours: 2,981.84. 

Estimated Total Annual Other Burden 

Costs: $0. 

Regulations Sections: Subpart F of 

part 653. 

Agency: DOL–ETA. 

The Department invites comments on 

all aspects of the PRA analysis. 

Comments that are related to a specific 

form or a specific form’s instructions 

should identify the form or form’s 

instructions using the form number 

(e.g., ETA–9142A or Form ETA–790/ 

790A) and should identify the particular 

area of the form for comment. A copy 

of the proposed revised information 

collection tools can be obtained by 

contacting the office listed below in the 

addresses section of this notice. Written 

comments must be submitted on or 

before November 14, 2023. 

The Department is particularly 

interested in comments that: 

• evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

• evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used, 

and the agency’s estimates associated 

with the annual burden cost incurred by 

respondents and the government cost 

associated with this collection of 

information; 

• enhance the quality, utility, and 

clarity of the information to be 

collected; and 

• minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submissions 

of responses. 

Comments submitted in response to 

this notice will be considered and 

summarized or included in the ICR the 

Department will submit to OMB for 

approval; they will also become a matter 

of public record. Commenters are 

encouraged not to submit sensitive 

information (e.g., confidential business 

information or personally identifiable 

information such as a Social Security 

number). 

D. Unfunded Mandates Reform Act of 

1995 

The Unfunded Mandates Reform Act 

of 1995 (UMRA) (Pub. L. 104–4, 

codified at 2 U.S.C. 1501 et seq.) is 

intended, among other things, to curb 

the practice of imposing unfunded 

Federal mandates on State, local, and 

tribal governments. UMRA requires 

Federal agencies to assess a regulation’s 

effects on State, local, and tribal 

governments, as well as on the private 

sector, except to the extent the 

regulation incorporates requirements 

specifically set forth in law. Title II of 

the UMRA requires each Federal agency 

to prepare a written statement assessing 

the effects of any regulation that 

includes any Federal mandate in a 

proposed or final agency rule that may 

result in $100 million or more 

expenditure (adjusted annually for 

inflation) in any one year by State, local, 

and Tribal governments, in the 

aggregate, or by the private sector. A 

Federal mandate is any provision in a 

regulation that imposes an enforceable 

duty upon State, local, or tribal 

governments, or upon the private sector, 

except as a condition of Federal 

assistance or a duty arising from 

participation in a voluntary Federal 

program. 

This proposed rule does not result in 

unfunded mandates for the public or 

private sector because private 

employers’ participation in the program 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63820 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

125E.O. 13132, Federalism, 64 FR 43255 (Aug. 10, 

1999). 

126E.O. 13175, Consultation and Coordination 

with Indian Tribal Governments, 65 FR 67249 (Nov. 

9, 2000). 

is voluntary, and State governments are 

reimbursed for performing activities 

required under the program. The 

requirements of title II of the UMRA, 

therefore, do not apply, and the 

Department has not prepared a 

statement under the UMRA. 

E. Executive Order 13132 (Federalism) 

This proposed rule would not have 

substantial direct effects on the States, 

on the relationship between the 

National Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of E.O. 

13132,125 it is determined that this 

proposed rule does not have sufficient 

federalism implications to warrant the 

preparation of a federalism summary 

impact statement. 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

The Department has reviewed this 

proposed rule in accordance with E.O. 

13175 126 and has determined that it 

does not have tribal implications. This 

proposed rule does not have substantial 

direct effects on one or more Indian 

tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and tribal governments. 

List of Subjects 

20 CFR Part 651 

Employment, Grant programs—labor. 

20 CFR Part 653 

Agriculture, Employment, Equal 

employment opportunity, Grant 

programs—labor, Migrant labor, 

Reporting and recordkeeping 

requirements. 

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. 

20 CFR Part 658 

Administrative practice and 

procedure, Employment, Grant 

programs—labor, Reporting and 

recordkeeping requirements. 

29 CFR Part 501 

Administrative practice and 

procedure, Agricultural, Aliens, 

Employment, Housing, Housing 

standards, Immigration, Labor, Migrant 

labor, Penalties, Transportation, Wages. 

For the reasons stated in the 

preamble, the Department of Labor 

proposes to amend 20 CFR parts 651, 

653, 655, and 658 and 29 CFR part 501 

as follows: 

TITLE 20: EMPLOYEES’ BENEFITS 

Employment and Training 

Administration 

PART 651—GENERAL PROVISIONS 

GOVERNING THE WAGNER-PEYSER 

ACT EMPLOYMENT SERVICE 

■ 1. The authority citation for part 651 

continues to read as follows: 

Authority: 29 U.S.C. 49a; 38 U.S.C. part III, 

4101, 4211; Secs. 503, 3, 189, Pub. L. 113– 

128, 128 Stat. 1425 (Jul. 22, 2014). 

■ 2. Amend § 651.10 by: 

■ a. Adding the definition for Agent, 

Criteria clearance order, and 

Discontinuation of services in 

alphabetical order; 

■ b. Revising the definition for 

Employment-related laws; and 

■ c. Adding definitions for Farm labor 

contractor, Joint employer, Non-criteria 

clearance order, Successor in interest, 

and Week in alphabetical order. 

The additions and revision read as 

follows: 

§651.10 Definitions of terms used in this 

part and parts 652, 653, 654, and 658 of this 

chapter. 

* * * * * 

Agent means a legal entity or person, 

such as an association of employers, or 

an attorney for an association, that is 

authorized to act on behalf of the 

employer for purposes of recruitment of 

workers through the clearance system 

and is not itself an employer or joint 

employer, as defined in this section, 

with respect to a specific job order. 

* * * * * 

Criteria clearance order means a 

clearance order that is attached to an 

application for foreign temporary 

agricultural workers pursuant to part 

655, subpart B, of this chapter. 

* * * * * 

Discontinuation of services means 

that an employer, agent, farm labor 

contractor, joint employer, or successor 

in interest, as defined in this section, 

cannot participate in or receive any 

Wagner-Peyser Act employment service 

provided by the ES to employers 

pursuant to parts 652 and 653 of this 

chapter. 

* * * * * 

Employment-related laws means those 

laws and implementing regulations that 

relate to the employment relationship, 

such as those enforced by the 

Department’s WHD, OSHA, or by other 

Federal, State, or local agencies. 

* * * * * 

Farm labor contractor means any 

person or entity, other than an 

agricultural employer, an agricultural 

association, or an employee of an 

agricultural employer or agricultural 

association, who, for any money or 

other valuable consideration paid or 

promised to be paid, recruits, solicits, 

hires, employs, furnishes, or transports 

any migrant or seasonal farmworker 

(MSFW). 

* * * * * 

Joint employer means where two or 

more employers each have sufficient 

definitional indicia of being an 

employer of a worker as defined in this 

section, they are, at all times, joint 

employers of that worker. An employer 

that submits a job order to the ES 

clearance system as a joint employer, is 

a joint employer of any worker placed 

and employed on the job order during 

the period of employment anticipated, 

amended, or otherwise extended in 

accordance with the order. 

* * * * * 

Non-criteria clearance order means a 

clearance order that is not attached to an 

application for foreign temporary 

agricultural workers pursuant to part 

655, subpart B, of this chapter. 

* * * * * 

Successor in interest—A successor in 

interest includes any entity that is 

controlling and carrying on the business 

of a previous employer, agent, or farm 

labor contractor, regardless of whether 

such successor in interest has succeeded 

to all the rights and liabilities of the 

predecessor entity. A successor in 

interest to an employer, agent, or farm 

labor contractor may be held liable for 

the duties and obligations of that 

employer, agent, or farm labor 

contractor for purposes of recruitment of 

workers through the ES clearance 

system or enforcement of ES 

regulations. The following factors, 

including those as used under Title VII 

of the Civil Rights Act and the Vietnam 

Era Veterans’ Readjustment Assistance 

Act, may be considered in determining 

whether an employer, agent, or farm 

labor contractor is a successor in 

interest; however, these factors are not 

exhaustive, and no one factor is 

dispositive, but all of the circumstances 

will be considered as a whole: 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63821 

(1) Substantial continuity of the same 

business operations; 

(2) Use of the same facilities; 

(3) Continuity of the work force; 

(4) Similarity of jobs and working 

conditions; 

(5) Similarity of supervisory 

personnel; 

(6) Whether the former management 

or owner retains a direct or indirect 

interest in the new enterprise; 

(7) Similarity in machinery, 

equipment, and production methods; 

(8) Similarity of products and 

services; 

(9) The ability of the predecessor to 

provide relief; and 

(10) For purposes of discontinuation 

of services, the involvement of the 

firm’s ownership, management, 

supervisors, and others associated with 

the firm in the violation(s) at issue. 

* * * * * 

Week means 7 consecutive calendar 

days. 

* * * * * 

PART 653—SERVICES OF THE 

WAGNER-PEYSER ACT EMPLOYMENT 

SERVICE SYSTEM 

■ 3. The authority citation for part 653 

continues to read as follows: 

Authority: Secs. 167, 189, 503, Public Law 

113–128, 128 Stat. 1425 (Jul. 22, 2014); 29 

U.S.C. chapter 4B; 38 U.S.C. part III, chapters 

41 and 42. 

■ 4. Amend § 653.501 by: 

■ a. Adding paragraph (b)(4); 

■ b. Revising paragraphs (c)(3) 

introductory text, (c)(3)(i) and (iv), and 

(c)(5); and 

■ c. Removing and reserving paragraphs 

(d)(4), (7), and (8). 

The addition and revisions read as 

follows: 

§ 653.501 Requirements for processing 

clearance orders. 

* * * * * 

(b) * * * 

(4) Prior to placing a job order into 

intrastate or interstate clearance, ES staff 

must consult the Department’s Office of 

Foreign Labor Certification and Wage 

and Hour Division debarment lists, and 

the Department’s Office of Workforce 

Investment discontinuation of services 

list. 

(i) If the employer requesting access to 

the clearance system is currently 

debarred from participating in the H–2A 

or H–2B foreign labor certification 

programs, the SWA must initiate 

discontinuation of services pursuant to 

part 658, subpart F, of this chapter. 

(ii) If the employer requesting access 

to the clearance system is currently 

discontinued from receiving ES services 

under § 658.503 of this chapter by any 

State, the SWA must not approve the 

clearance order for placement into 

intrastate or interstate clearance. 

(iii) For purposes of this paragraph 

(b)(4), ‘‘employer’’ has the meaning 

given in § 658.500(b) of this chapter. 

(c) * * * 

(3) SWAs must ensure that the 

employer makes the following 

assurances in the clearance order: 

(i) The employer will provide to 

workers referred through the clearance 

system the number of hours of work 

cited in paragraph (c)(1)(iv)(D) of this 

section for the week beginning with the 

anticipated date of need, unless the 

employer has amended the date of need 

at least 10 business days prior to the 

original date of need (pursuant to 

paragraph (c)(3)(iv) of this section). 

* * * * * 

(iv) The employer will notify the 

order-holding office or SWA 

immediately upon learning that a crop 

is maturing earlier or later, or that 

weather conditions, over-recruitment, or 

other factors have changed the terms 

and conditions of employment. If there 

is a change to the date of need, the 

employer will notify the order-holding 

office or SWA, and each worker who 

has been placed on the clearance order 

using the contact information the 

worker provided to the employer, in 

writing (email and other forms of 

electronic written notification are 

acceptable) at least 10 business days 

prior to the original date of need. The 

employer must maintain records of the 

notification and the date notification 

was provided to the order-holding office 

or SWA and workers for 3 years. If the 

employer does not properly notify the 

order-holding office or SWA and 

workers at least 10 business days prior 

to the original date of need, the 

employer will provide housing and 

subsistence to all workers placed on the 

clearance order who are already 

traveling to the place of employment, 

without cost to the workers, until work 

commences, and, consistent with 

paragraph (c)(5) of this section, will pay 

the placed workers for the hours listed 

on the clearance order, at a rate 

consistent with paragraph (c)(5) of this 

section, for each day work is delayed up 

to 2 weeks or provide alternative work. 

* * * * * 

(5) If there is a change to the 

anticipated date of need and the 

employer fails to notify the orderholding office or SWA and all workers 

placed on the clearance order at least 10 

business days prior to the original date 

of need the employer must provide 

housing and subsistence to all workers 

placed on the clearance order who are 

already traveling to the place of 

employment, without cost to the 

workers, until work commences, and 

must pay the placed workers the 

specified hourly rate of pay, or if the 

pay is piece-rate, the higher of the 

Federal or State minimum wage, or an 

applicable prevailing wage, or for 

criteria orders the rate of pay required 

under part 655, subpart B, of this 

chapter for each day work is delayed up 

to 2 weeks starting with the originally 

anticipated date of need or provide 

alternative work if such alternative work 

is stated on the approved clearance 

order. If an employer fails to comply 

under this paragraph (c)(5) the orderholding office must process the 

information as an apparent violation 

pursuant to § 658.419 of this chapter 

and may refer an apparent violation of 

the employer’s payment obligation 

under this paragraph (c)(5) to the 

Department’s Wage and Hour Division. 

* * * * * 

PART 655—TEMPORARY 

EMPLOYMENT OF FOREIGN 

WORKERS IN THE UNITED STATES 

■ 5. The authority citation for part 655 

continues to read as follows: 

Authority: Section 655.0 issued under 8 

U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) 

and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n), and 

(t), 1184(c), (g), and (j), 1188, and 1288(c) and 

(d); 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. 303(a)(8), Pub. L. 102– 

232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 

note); sec. 323(c), Pub. L. 103–206, 107 Stat. 

2428; sec. 412(e), Pub. L. 105–277, 112 Stat. 

2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L. 

106–95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 

note); 29 U.S.C. 49k; Pub. L. 107–296, 116 

Stat. 2135, as amended; Pub. L. 109–423, 120 

Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR 

214.2(h)(6)(iii); and sec. 6, Pub. L. 115–218, 

132 Stat. 1547 (48 U.S.C. 1806). 

Subpart A issued under 8 CFR 214.2(h). 

Subpart B issued under 8 U.S.C. 

1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8 

CFR 214.2(h). 

Subpart E issued under 48 U.S.C. 1806. 

Subparts F and G issued under 8 U.S.C. 

1288(c) and (d); sec. 323(c), Pub. L. 103–206, 

107 Stat. 2428; and 28 U.S.C. 2461 note, Pub. 

L. 114–74 at section 701. 

Subparts H and I issued under 8 U.S.C. 

1101(a)(15)(H)(i)(b) and (b)(1), 1182(n), and 

(t), and 1184(g) and (j); sec. 303(a)(8), Pub. L. 

102–232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 

note); sec. 412(e), Pub. L. 105–277, 112 Stat. 

2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 

note, Pub. L. 114–74 at section 701. 

Subparts L and M issued under 8 U.S.C. 

1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d), 

Pub. L. 106–95, 113 Stat. 1312, 1316 (8 U.S.C. 

1182 note); Pub. L. 109–423, 120 Stat. 2900; 

and 8 CFR 214.2(h). 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63822 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

■ 6. Amend § 655.103 by: 

■ a. In paragraph (b), adding definitions 

for Key service provider and Labor 

organization in alphabetical order and 

removing the definition for Successor in 

interest; and 

■ b. Adding paragraph (e). 

The additions read as follows: 

§ 655.103 Overview of this subpart and 

definition of terms. 

* * * * * 

(b) * * * 

Key service provider. A health-care 

provider; a community health worker; 

an education provider; an attorney, legal 

advocate, or other legal service provider; 

a government official, including a 

consular representative; a member of the 

clergy; and any other service provider to 

which a worker may need access. 

Labor organization. Any organization 

of any kind, or any agency or employee 

representation committee or plan, in 

which workers participate and which 

exists for the purpose, in whole or in 

part, of dealing with employers 

concerning grievances, labor disputes, 

wages, rates of pay, hours of 

employment, or conditions of work. 

* * * * * 

(e) Definition of single employer for 

purposes of temporary or seasonal need 

and contractual obligations. Separate 

entities will be deemed a single 

employer (sometimes referred to as an 

‘‘integrated employer’’) for purposes of 

assessing temporary or seasonal need 

and for enforcement of contractual 

obligations if they meet the definition of 

single employer in this paragraph (e). 

Under the definition of single employer, 

a determination of whether separate 

entities are a single employer is not 

determined by a single factor, but rather 

the entire relationship is viewed in its 

totality. Factors considered in 

determining whether two or more 

entities consist of a single employer 

include: 

(1) Common management; 

(2) Interrelation between operations; 

(3) Centralized control of labor 

relations; and 

(4) Degree of common ownership/ 

financial control. 

■ 7. Add § 655.104 to read as follows: 

§ 655.104 Successors in interest. 

(a) Liability of successors in interest. 

Where an employer, agent, or attorney 

has violated 8 U.S.C. 1188, 29 CFR part 

501, or this subpart, a successor in 

interest to that employer, agent, or 

attorney may be held liable for the 

duties and obligations of the violating 

employer, agent, or attorney in certain 

circumstances. 

(b) Definition of successors in interest. 

A successor in interest includes an 

entity that is controlling and carrying on 

the business of a previous employer, 

agent, or farm labor contractor, 

regardless of whether such successor in 

interest has succeeded to all the rights 

and liabilities of the predecessor entity. 

The following factors, including those 

as used under Title VII of the Civil 

Rights Act and the Vietnam Era 

Veterans’ Readjustment Assistance Act, 

may be considered in determining 

whether an employer, agent, or attorney 

is a successor in interest; however, these 

factors are not exhaustive, and no one 

factor is dispositive, but all of the 

circumstances will be considered as a 

whole: 

(1) Substantial continuity of the same 

business operations; 

(2) Use of the same facilities; 

(3) Continuity of the work force; 

(4) Similarity of jobs and working 

conditions; 

(5) Similarity of supervisory 

personnel; 

(6) Whether the former management 

or owner retains a direct or indirect 

interest in the new enterprise; 

(7) Similarity in machinery, 

equipment, and production methods; 

(8) Similarity of products and 

services; 

(9) The ability of the predecessor to 

provide relief; and 

(10) For purposes of debarment, the 

personal involvement of the firm’s 

ownership, management, supervisors, 

and others associated with the firm in 

the violation(s) at issue. 

(c) Effect of debarment on successors 

in interest. When an employer, agent, or 

attorney is debarred under § 655.182 or 

29 CFR 501.20, any successor in interest 

to the debarred employer, agent, or 

attorney is also debarred. No application 

for H–2A workers may be filed by or on 

behalf of a successor in interest to a 

debarred employer, agent, or attorney, 

subject to the term limits set forth in 

§ 655.182(c)(2). If the CO determines 

that an application for H–2A workers 

was filed by or on behalf of a successor 

in interest to a debarred employer, 

agent, or attorney during the period of 

debarment as set forth in § 655.182(c)(2), 

the CO will issue a Notice of Deficiency 

(NOD) pursuant to § 655.141 or deny the 

application pursuant to § 655.164, as 

appropriate depending upon the status 

of the H–2A application, solely on the 

basis that the entity is a successor in 

interest to a debarred employer, agent, 

or attorney. If the OFLC Administrator 

determines that a certification for H–2A 

workers was issued to a successor in 

interest to a debarred employer, the 

OFLC Administrator may revoke the 

certification pursuant to § 655.181(a). 

The employer, agent, or attorney may 

appeal its status as a successor in 

interest to the debarred entity, pursuant 

to the procedures for appeals of CO 

determinations at § 655.171. 

■ 8. Amend § 655.120 by revising 

paragraphs (a) and (b)(2) and (3) to read 

as follows: 

§ 655.120 Offered wage rate. 

(a) Employer obligation. (1) Except for 

occupations covered by §§ 655.200 

through 655.235, to comply with its 

obligation under § 655.122(l), an 

employer must offer, advertise in its 

recruitment, and pay a wage that is at 

least the highest of: 

(i) The AEWR; 

(ii) A prevailing wage rate, if the 

OFLC Administrator has approved a 

prevailing wage survey for the 

applicable crop activity or agricultural 

activity and, if applicable, a distinct 

work task or tasks performed in that 

activity, meeting the requirements of 

paragraph (c) of this section; 

(iii) The agreed-upon collective 

bargaining wage; 

(iv) The Federal minimum wage; 

(v) The State minimum wage; or 

(vi) Any other wage rate the employer 

intends to pay. 

(2) Where the wage rates set forth in 

paragraph (a)(1) of this section are 

expressed in different units of pay, the 

employer must list the highest 

applicable wage rate for each unit of pay 

in its job order and must offer and 

advertise all of these wage rates in its 

recruitment. The employer’s obligation 

to pay the highest of these wage rates is 

set forth at § 655.122(l)(2). 

(b) * * * 

(2) The OFLC Administrator will 

publish a notice in the Federal Register, 

at least once in each calendar year, on 

a date to be determined by the OFLC 

Administrator, establishing each AEWR. 

The updated AEWRs will be effective as 

of the date of publication of the notice 

in the Federal Register. 

(3) If an updated AEWR for the 

occupational classification and 

geographic area is published in the 

Federal Register during the work 

contract, and the updated AEWR is 

higher than the highest of the previous 

AEWR; a prevailing wage for the crop 

activity or agricultural activity and, if 

applicable, a distinct work task or tasks 

performed in that activity and 

geographic area; the agreed-upon 

collective bargaining wage; the Federal 

minimum wage; or the State minimum 

wage, the employer must pay at least the 

updated AEWR beginning on the date 

the updated AEWR is published in the 

Federal Register. 

* * * * * 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63823 

■ 9. Amend § 655.122 by revising 

paragraphs (h)(4), (i)(1)(i) and (ii), (l), 

and (n) to read as follows: 

§ 655.122 Contents of job offers. 

* * * * * 

(h) * * * 

(4) Employer provided transportation. 

(i) All employer-provided transportation 

must comply with all applicable local, 

State, or Federal laws and regulations, 

and must provide, at a minimum, the 

same transportation safety standards, 

driver’s licensure, and vehicle insurance 

required under 29 U.S.C. 1841, 29 CFR 

500.104 or 500.105, and 29 CFR 500.120 

through 500.128. 

(ii) The employer shall not operate 

any employer-provided transportation 

that is required by the U.S. Department 

of Transportation regulations, including 

49 CFR 571.208, to be manufactured 

with seat belts, unless all passengers 

and the driver are properly restrained by 

seat belts meeting standards established 

by the U.S. Department of 

Transportation, including 49 CFR 

571.209 and 571.210. 

(iii) The job offer must include a 

description of the modes of 

transportation (e.g., type of vehicle) that 

will be used for inbound, outbound, 

daily, and any other transportation. 

(iv) If workers’ compensation is used 

to cover transportation in lieu of vehicle 

insurance, the employer must either 

ensure that the workers’ compensation 

covers all travel or that vehicle 

insurance exists to provide coverage for 

travel not covered by workers’ 

compensation and it must have property 

damage insurance. 

(i) * * * 

(1) * * * 

(i) For purposes of this paragraph 

(i)(1), a workday means the number of 

hours in a workday as stated in the job 

order and excludes the worker’s Sabbath 

and Federal holidays. The employer 

must offer a total number of hours to 

ensure the provision of sufficient work 

to reach the three-fourths guarantee. The 

work hours must be offered during the 

work period specified in the work 

contract. 

(ii) In the event the worker begins 

working later than the specified 

beginning date of the contract, the 

guarantee period begins with the first 

workday after the arrival of the worker 

at the place of employment, and 

continues until the last day during 

which the work contract and all 

extensions thereof are in effect. 

* * * * * 

(l) Rates of pay. Except for 

occupations covered by §§ 655.200 

through 655.235, the employer must pay 

the worker at least the highest wage rate 

set forth in § 655.120(a)(1). 

(1) The employer must calculate 

workers’ wages using the wage rate that 

will result in the highest wages for each 

worker in each pay period. When 

calculating wages based on an hourly 

wage rate, the calculation must reflect 

every hour or portion thereof worked 

during a pay period. The wages actually 

paid cannot be lower than the wages 

that would result from the wage rate(s) 

guaranteed in the job order. 

(2) Where the wage rates set forth in 

§ 655.120(a)(1) include both hourly and 

non-hourly wage rates, the employer 

must calculate each worker’s wages, in 

each pay period, using the highest wage 

rate for each unit of pay, and pay the 

worker the highest of these wages for 

that pay period. The wage actually paid 

cannot be lower than the wages that 

would result from the wage rate(s) 

guaranteed in the job offer. 

(3) If the employer requires one or 

more minimum productivity standards 

of workers as a condition of job 

retention, such standards must 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, if the 

employer first applied for temporary 

agricultural labor certification after 

1977, such standards must be no more 

than those normally required (at the 

time of the first Application for 

Temporary Employment Certification) 

by other employers for the activity in 

the area of intended employment. 

(4) If applicable, the employer must 

state in the job order: 

(i) That overtime hours may be 

available; 

(ii) The wage rate(s) to be paid for any 

such overtime hours; 

(iii) The circumstances under which 

the wage rate(s) for overtime hours will 

be paid, including, but not limited to, 

after how many hours in a day or 

workweek the overtime wage rate will 

be paid, and whether overtime wage 

rates will vary between places of 

employment; and 

(iv) Where the overtime pay is 

required by law, the applicable Federal, 

State, or local law requiring the 

overtime pay. 

* * * * * 

(n) Termination for cause or 

abandonment of employment. (1) If a 

worker is terminated for cause or 

voluntarily abandons employment 

before the end of the contract period, 

and the employer notifies the NPC, and 

DHS in the case of an H–2A worker, in 

writing or by any other method 

specified by the Department in a notice 

published in the Federal Register or 

specified by DHS not later than 2 

working days after such termination for 

cause or abandonment occurs, the 

employer will not be responsible for 

providing or paying for the subsequent 

transportation and subsistence expenses 

of that worker under this section, and 

that worker is not entitled to the threefourths guarantee described in 

paragraph (i) of this section, and, in the 

case of a U.S. worker, the employer will 

not be obligated to contact that worker 

under § 655.153. 

(2) A worker is terminated for cause 

when the employer terminates the 

worker for failure to meet productivity 

standards or failure to comply with 

employer policies or rules. 

(i) An employer may terminate a 

worker for cause only if all of the 

following conditions are satisfied: 

(A) The employee has been informed 

(in a language understood by the 

worker) of the policy, rule, or 

productivity standard, or reasonably 

should have known of the policy, rule, 

or productivity standard; 

(B) If the termination is for failure to 

meet a productivity standard, such 

standard is disclosed in the job offer; 

(C) Compliance with the policy, rule, 

or productivity standard is within the 

worker’s control; 

(D) The policy, rule, or productivity 

standard is reasonable and applied 

consistently; 

(E) The employer undertakes a fair 

and objective investigation into the job 

performance or misconduct; and 

(F) The employer engages in 

progressive discipline to correct the 

worker’s performance or behavior. 

(ii) Progressive discipline is a system 

of graduated and reasonable responses 

to an employee’s failure to meet 

productivity standards or failure to 

comply with employer policies or rules. 

Disciplinary measures should be 

proportional to the failure but may 

increase in severity if the failure is 

repeated, and may include immediate 

termination for egregious misconduct. 

Prior to each disciplinary measure, the 

employer must notify the worker of the 

infraction and allow the worker to 

present evidence in their defense. 

Following each disciplinary measure, 

except where the appropriate 

disciplinary measure is termination, the 

employer must provide relevant and 

adequate instruction to the worker, and 

the employer must afford the worker 

reasonable time to correct the behavior 

or to meet the productivity standard 

following such instruction. The 

employer must document each 

disciplinary measure, evidence the 

worker presented in their defense, and 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63824 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

resulting instruction, and must clearly 

communicate to the worker that a 

disciplinary measure has been imposed. 

(iii) A worker is not terminated for 

cause where the termination is: contrary 

to a Federal, State, or local law; for an 

employee’s refusal to work under 

conditions that the employee reasonably 

believes will expose them or other 

employees to an unreasonable health or 

safety risk; because of discrimination on 

the basis of race, color, national origin, 

age, sex (including sexual orientation or 

gender identity), religion, disability, or 

citizenship; or, where applicable, where 

the employer failed to comply with its 

obligations under § 655.135(m)(4) in a 

meeting that contributed to the 

termination. 

(iv) The employer bears the burden of 

demonstrating that any termination for 

cause meets the requirements of this 

paragraph (n)(2). 

(3) Abandonment will be deemed to 

begin after a worker fails to report to 

work at the regularly scheduled time for 

5 consecutive working days without the 

consent of the employer. 

(4) The employer is required to 

maintain records described in this 

section for not less than 3 years from the 

date of the certification. 

(i) Records of notification to the NPC, 

and to DHS in the case of an H–2A 

worker, of termination for cause or 

abandonment. 

(ii) Disciplinary records, including 

each step of progressive discipline, any 

evidence the worker presented in their 

defense, any investigation related to the 

termination, and any subsequent 

instruction afforded the worker. 

(iii) Records indicating the reason(s) 

for termination of any worker, including 

disciplinary records as described in 

paragraph (n)(4)(ii) of this section and 

§ 655.167. 

* * * * * 

■ 10. Amend § 655.130 by revising 

paragraph (a) to read as follows: 

§ 655.130 Application filing requirements. 

* * * * * 

(a) What to file. (1) An employer that 

desires to apply for temporary 

agricultural labor certification of one or 

more nonimmigrant workers must file a 

completed Application for Temporary 

Employment Certification, all 

supporting documentation and 

information required at the time of filing 

under §§ 655.131 through 655.137, and, 

unless a specific exemption applies, a 

copy of Form ETA–790/790A, submitted 

as set forth in § 655.121(a). 

(2) The Application for Temporary 

Employment Certification must include 

the employer’s legal name, trade 

name(s), and a valid FEIN as well as a 

valid place of business (physical 

location) in the United States and a 

means by which it may be contacted by 

prospective U.S. applicants for 

employment. For each employer of any 

worker employed under this 

application, the Application for 

Temporary Employment Certification 

must include the identity, location, and 

contact information of all persons who 

are the owners of that entity. 

(3) For each place of employment 

identified in the job order, the 

Application for Temporary Employment 

Certification must include the identity, 

location, and contact information of all 

persons and entities, if different than 

the employer(s), who are the operators 

of the place of employment, and of all 

persons who manage or supervise any 

worker employed under this 

application, regardless whether those 

managers or supervisors are employed 

by the employer or another entity. 

(4) If the information specified in 

paragraphs (a)(2) and (3) of this section 

changes during the work contract 

period, the employer must update its 

records to reflect the change. The 

employer must continue to keep this 

information up to date until the end of 

the work contract period, including any 

extensions. The employer must retain 

the updated information in accordance 

with § 655.167(c)(9) and must make this 

updated information available in the 

event of a post-certification audit or 

upon request by the Department. The 

Department may share the information 

it receives from employers with any 

other Federal agency, as appropriate for 

investigative or enforcement purpose, as 

set forth in paragraph (f) of this section. 

* * * * * 

■ 11. Amend § 655.132 by revising 

paragraph (e)(1) to read as follows: 

§ 655.132 H–2A labor contractor filing 

requirements. 

* * * * * 

(e) * * * 

(1) All housing used by workers and 

owned, operated, or secured by the 

fixed-site agricultural business complies 

with the applicable standards as set 

forth in § 655.122(d) and certified by the 

SWA and that the fixed-site agricultural 

business has agreed to comply with the 

requirements at § 655.135(n); and 

* * * * * 

■ 12. Amend § 655.135 by revising the 

introductory text and paragraph (h) and 

adding paragraphs (m), (n), (o), and (p) 

to read as follows: 

§ 655.135 Assurance and obligations of H– 

2A employers. 

An employer seeking to employ H–2A 

workers must agree as part of the 

Application for Temporary Employment 

Certification and job offer that it will 

abide by the requirements of this 

subpart and of 29 CFR part 501 and 

must make each of the following 

additional assurances: 

* * * * * 

(h) No unfair treatment. (1) The 

employer has not and will not 

intimidate, threaten, restrain, coerce, 

blacklist, discharge or in any manner 

discriminate against, and has not and 

will not cause any person to intimidate, 

threaten, restrain, coerce, blacklist, or in 

any manner discriminate against, any 

person who has: 

(i) Filed a complaint under or related 

to 8 U.S.C. 1188 or this subpart or any 

Department regulation in this chapter or 

29 CFR part 501 promulgated under 8 

U.S.C. 1188; 

(ii) Instituted or caused to be 

instituted any proceeding under or 

related to 8 U.S.C. 1188 or this subpart 

or any Department regulation in this 

chapter or 29 CFR part 501 promulgated 

under 8 U.S.C. 1188; 

(iii) Testified or is about to testify in 

any proceeding under or related to 8 

U.S.C. 1188 or this subpart or any 

Department regulation in this chapter or 

29 CFR part 501 promulgated under 8 

U.S.C. 1188; 

(iv) Consulted with an employee of a 

legal assistance program or an attorney 

on matters related to 8 U.S.C. 1188 or 

this subpart or any Department 

regulation in this chapter or 29 CFR part 

501 promulgated under 8 U.S.C. 1188; 

(v) Consulted with a key service 

provider on matters related to 8 U.S.C. 

1188 or this subpart or any Department 

regulation in this chapter or 29 CFR part 

501 promulgated under 8 U.S.C. 1188; 

(vi) Exercised or asserted on behalf of 

themself or others any right or 

protection afforded by 8 U.S.C. 1188 or 

this subpart or any Department 

regulation in this chapter or 29 CFR part 

501 promulgated under 8 U.S.C. 1188; 

or 

(vii) Filed a complaint, instituted or 

caused to be instituted any proceeding, 

or testified or is about to testify in any 

proceeding under or related to any 

applicable Federal, State, or local laws 

or regulations, including safety and 

health laws. 

(2) With respect to any person 

engaged in agriculture as defined and 

applied in 29 U.S.C. 203(f), the 

employer has not and will not 

intimidate, threaten, restrain, coerce, 

blacklist, discharge, or in any manner 

discriminate against, and has not and 

will not cause any person to intimidate, 

threaten, restrain, coerce, blacklist, or in 

any manner discriminate against, any 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63825 

person who has engaged in activities 

related to self-organization, including: 

any effort to form, join, or assist a labor 

organization; a secondary activity such 

as a secondary boycott or picket; or 

other concerted activities for the 

purpose of mutual aid or protection 

relating to wages or working conditions; 

or refused to engage in any or all of such 

activities. 

* * * * * 

(m) Worker voice and empowerment. 

With respect to any H–2A worker or 

worker in corresponding employment 

engaged in agriculture as defined and 

applied in 29 U.S.C. 203(f), employed at 

the place(s) of employment included in 

the Application for Temporary 

Employment Certification, the employer 

agrees to: 

(1) Provide to a requesting labor 

organization a complete list of H–2A 

workers and workers in corresponding 

employment employed at the place(s) of 

employment included in the 

Application for Temporary Employment 

Certification within 1 week of the 

request. The list will be in alphabetical 

order (last name first) and will show the 

worker’s full name, date of hire, job 

title, work location address and ZIP 

code, and if available, personal email 

address, personal cellular telephone 

number and/or profile name for a 

messaging application used by the 

worker to communicate, home country 

address with postal code, and home 

country telephone number. The list will 

be provided in an agreed-upon format 

and transmitted electronically. The 

employer must update the worker 

contact list upon the labor 

organization’s request, but no more than 

once within the period of employment 

listed in the job order. 

(2) Permit workers to designate a 

representative to attend any meeting 

between the employer and a worker 

where the worker reasonably believes 

that the meeting may lead to discipline 

and permit workers to receive advice 

and active assistance from the 

designated representative during any 

such meeting. Where such meetings are 

held at a worker’s place of employment 

or other privately owned property, 

workers’ designated representatives 

must be given access to the place of 

employment or property as needed to 

attend and participate. 

(3)(i) Refrain from engaging in 

coercive employer speech intended to 

oppose workers’ protected activity 

unless the employer: 

(A) Explains the purpose of the 

meeting or communication; 

(B) Assures workers that attendance 

or participation is voluntary, and that 

they are free to leave at any time; 

(C) Assures workers that 

nonattendance or nonparticipation will 

not result in reprisals (including any 

loss of pay if the meeting or discussion 

occurs during their regularly scheduled 

working hours); and 

(D) Assures workers that attendance 

or participation will not result in 

rewards or benefits (including 

additional pay for attending meetings or 

discussions concerning their rights to 

engage in protected activity outside 

their regularly scheduled working 

hours). 

(ii)(A) Obtain affirmative consent 

from a worker to talk to that worker in 

work areas during working hours 

concerning their rights to engage in 

protected activity; and 

(B) Assure the worker that such 

discussions are entirely voluntary and 

that they may end the meeting or 

discussion at any time without loss of 

pay (either by leaving or by asking the 

employer to stop). 

(4) Attest that the employer will 

either: 

(i) Bargain in good faith with a 

requesting labor organization over the 

terms of a proposed labor neutrality 

agreement, meaning an agreement in 

which the employer agrees to not take 

a position for or against a labor 

organizing effort; or 

(ii) Not bargain in good faith with a 

requesting labor organization over the 

terms of a proposed labor neutrality 

agreement and provide an explanation 

for why it has declined to do so. 

(n) Access to worker housing. (1) 

Workers residing in employer-furnished 

housing must be permitted to invite, or 

accept at their discretion, guests to their 

living quarters and/or the common areas 

or outdoor spaces near such housing 

during time that is outside of the 

workers’ workday subject only to 

reasonable restrictions designed to 

protect worker safety or prevent 

interference with other workers’ 

enjoyment of these areas. 

(2) Where employer-furnished 

housing in which any H–2A worker or 

worker in corresponding employment 

engaged in agriculture as defined and 

applied in 29 U.S.C. 203(f) resides is 

located on property or in a facility not 

readily accessible to the public, a labor 

organization must not be denied access 

to the common areas or outdoor spaces 

near such housing for the purpose of 

meeting with workers, provided that 

such meetings occur outside of the 

workers’ workday and do not exceed a 

total of 10 hours per month. 

(o) Passport withholding. During the 

period of employment that is the subject 

of the Application for Temporary Labor 

Certification, the employer may not 

hold or confiscate a worker’s passport, 

visa, or other immigration or 

government identification document 

except where the worker states in 

writing that: the worker voluntarily 

requested that the employer keep these 

documents safe, the employer did not 

direct the worker to submit such a 

request, and the worker understands 

that the passport, visa, or other 

immigration or government 

identification document will be 

returned to the worker immediately 

upon the worker’s request. 

(p) Foreign worker recruitment. The 

employer, and its attorney or agent, as 

applicable, must comply with 

§ 655.137(a) by providing a copy of all 

agreements with any agent or recruiter 

whom it engages or plans to engage in 

the recruitment of H–2A workers, and 

the identity and location of the persons 

and entities hired by or working for the 

agent or recruiter and any of the agents 

and employees of those persons and 

entities, to recruit foreign workers. 

Pursuant to § 655.130(a), the agreements 

and information must be filed with the 

Application for Temporary Employment 

Certification. The employer must update 

this documentation in accordance with 

§ 655.137(c). 

■ 13. Add § 655.137 to read as follows: 

§ 655.137 Disclosure of foreign worker 

recruitment. 

(a) If the employer engaged an agent 

or foreign labor recruiter, directly or 

indirectly, in international recruitment, 

the employer, and its attorney or agent, 

as applicable, must provide copies of all 

contracts and agreements with any agent 

and/or recruiter, executed in connection 

with the job opportunity, as specified in 

§ 655.135(p). These agreements must 

contain the contractual prohibition 

against charging fees as set forth in 

§ 655.135(k). 

(b) The employer, and its attorney or 

agent, as applicable, must provide all 

recruitment-related information 

required in the Application for 

Temporary Employment Certification, 

as defined in § 655.103(b), which 

includes the identity and location of all 

persons and entities hired by or working 

for the recruiter or agent, and any of the 

agents or employees of those persons 

and entities, to recruit prospective 

foreign workers for the H–2A job 

opportunity. 

(c) The employer must continue to 

keep the foreign labor recruiter 

information referenced in paragraphs (a) 

and (b) of this section up to date until 

the end of the work contract period. The 

employer must retain the updated 

information in accordance with 

§ 655.167(c)(8) and must make this 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63826 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

updated information available in the 

event of a post-certification audit or 

upon request by the Department. The 

Department may share the foreign 

worker recruitment information it 

receives from employers with any other 

Federal agency, as appropriate for 

investigative or enforcement purpose, as 

set forth in § 655.130(f). 

(d) The Department of Labor will 

maintain a publicly available list of 

agents and recruiters (including 

government registration numbers, if 

any) who are party to the agreements 

employers submit, as well as the 

persons and entities the employer 

identified as hired by or working for the 

recruiter and the locations in which 

they are operating. 

■ 14. Amend § 655.145 by revising the 

section heading and paragraph (b) to 

read as follows: 

§ 655.145 Pre-determination amendments 

to applications for temporary employment 

certification. 

* * * * * 

(b) Minor changes to the period of 

employment. The Application for 

Temporary Employment Certification 

may be amended to make minor changes 

in the total period of employment before 

the CO issues a final determination. 

Changes will not be effective until 

submitted in writing and approved by 

the CO. In considering whether to 

approve the request, the CO will review 

the reason(s) for the request, determine 

whether the reason(s) are on the whole 

justified, and take into account the 

effect any change(s) would have on the 

adequacy of the underlying test of the 

domestic labor market for the job 

opportunity. An employer must 

demonstrate that the change to the 

period of employment could not have 

been foreseen, and the crops or 

commodities will be in jeopardy prior to 

the expiration of an additional 

recruitment period. Upon acceptance of 

an amendment, the CO will submit to 

the SWA any necessary modification to 

the job order. 

■ 15. Amend § 655.167 by revising 

paragraphs (c)(6) and (7) and adding 

paragraphs (c)(8) through (12) to read as 

follows: 

§ 655.167 Document retention 

requirements of H–2A employers. 

* * * * * 

(c) * * * 

(6) The work contract or a copy of the 

Application for Temporary Employment 

Certification as defined in § 655.103(b) 

and specified in § 655.122(q). 

(7) If applicable, records of notice to 

the NPC and to DHS of the 

abandonment of employment or 

termination for cause of a worker as set 

forth in § 655.122(n). 

(8) Written contracts with agents or 

recruiters as specified in § 655.137(a) 

and the identities and locations of 

persons hired by or working for the 

agent or recruiter and the agents and 

employees of these agents and 

recruiters, as specified in § 655.137(b). 

(9) The identity, location, and contact 

information of all persons who are the 

owners of each employer, as specified in 

§ 655.130(a)(2), and the identity, 

location, and contact information of all 

persons and entities who are the 

operators of the place of employment (if 

different than the employers) and of all 

persons who manage or supervise any 

worker employed under the application, 

as specified in § 655.130(a)(3). 

(10) If applicable, disciplinary 

records, including each step of 

progressive discipline, any evidence the 

worker presented in their defense, any 

investigation related to the termination, 

and any subsequent instruction afforded 

the worker. 

(11) If applicable, records indicating 

the reason(s) for termination of any 

worker, including disciplinary records 

described in § 655.122(n)(4)(ii) and this 

section, relating to the termination as set 

forth in § 655.122(n). 

(12) If applicable, evidence 

demonstrating the employer notified the 

SWA and each worker of an unforeseen 

minor delay in the start date of need, as 

specified in § 655.175(b)(2)(i). 

* * * * * 

■ 16. Add § 655.175 to read as follows: 

§ 655.175 Post-certification changes to 

applications for temporary employment 

certification. 

(a) No post-certification changes. The 

Application for Temporary Employment 

Certification may not be changed after 

certification, except where authorized in 

this subpart. The employer is obligated 

to comply with the terms and 

conditions of employment contained in 

the Application for Temporary 

Employment Certification and job order 

with respect to all workers recruited in 

connection with its certification. 

(b) Post-certification changes to the 

first date of work. Where the work under 

the approved Application for 

Temporary Employment Certification 

will not begin on the first date of need 

certified and will be delayed for a 

period of no more than 14 calendar 

days, due to circumstances that could 

not have been foreseen, and the crops or 

commodities will be in jeopardy prior to 

the expiration of an additional 

recruitment period, the employer need 

not withdraw an approved Application 

for Temporary Employment 

Certification, provided the employer 

complies with the obligations at 

paragraphs (b)(1) and (2) of this section. 

(1) In the event of a minor delay (no 

more than 14 calendar days), the 

employer must provide to all workers 

who are already traveling to the place of 

employment, upon their arrival and 

without cost to the workers until work 

commences, daily subsistence in the 

same amount required during travel 

under § 655.122(h)(1), except for days 

for which the worker receives 

compensation under paragraph (b)(2)(ii) 

of this section. The employer must 

fulfill this subsistence obligation to the 

worker no later than the first date the 

worker would have been paid had they 

begun employment on time. Employers 

must comply with all other 

requirements of the certified 

Application for Temporary Employment 

Certification beginning on the first date 

of need certified, including but not 

limited to housing under § 655.122(d). 

(2)(i) In the event of a minor delay (no 

more than 14 calendar days), the 

employer must notify the SWA and each 

worker to be employed under the 

approved Application for Temporary 

Employment Certification of the delay at 

least 10 business days before the 

certified start date of need. The 

employer must contact the worker in 

writing (email and other forms of 

electronic and written notification are 

acceptable), using the contact 

information the worker provided to the 

employer. The employer must retain 

evidence of such notification under 

§ 655.167. 

(ii) If the employer fails to provide 

timely notification required under 

paragraph (b)(2)(i) of this section to any 

worker(s), the employer must pay such 

worker(s) the same rate of pay required 

under this subpart, for each hour of the 

offered work schedule in the job order, 

for each day that work is delayed, for a 

period up to 14 calendar days. The 

employer must fulfill this obligation to 

the worker no later than the first date 

the worker would have been paid had 

they begun employment on time. 

(iii) For purposes of an employer’s 

compliance with the three-fourths 

guarantee under § 655.122(i), any 

compensation paid to a worker under 

paragraph (b)(2)(ii) of this section for 

any workday included within the time 

period described in § 655.122(i) will be 

considered hours offered to the worker. 

■ 17. Amend § 655.181 by revising 

paragraph (a)(1) to read as follows: 

§ 655.181 Revocation. 

(a) * * * 

(1) The issuance of the temporary 

agricultural labor certification was not 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63827 

justified due to fraud or 

misrepresentation in the application 

process, including because the 

certification was issued in error to a 

debarred employer, including a 

successor in interest, during the period 

of debarment as set forth in 

§ 655.182(c)(2); 

* * * * * 

■ 18. Amend § 655.182 by revising 

paragraphs (a), (b), (d)(1)(viii), (f)(1) 

through (4), and (f)(5)(i) to read as 

follows: 

§ 655.182 Debarment. 

(a) Debarment of an employer, agent, 

or attorney. The OFLC Administrator 

may debar an employer, agent, or 

attorney from participating in any action 

under 8 U.S.C. 1188, this subpart, or 29 

CFR part 501 subject to the time limits 

set forth in paragraph (c) of this section, 

if the OFLC Administrator finds that the 

employer, agent, or attorney 

substantially violated a material term or 

condition of the temporary agricultural 

labor certification, with respect to H–2A 

workers; workers in corresponding 

employment; or U.S. workers 

improperly rejected for employment, or 

improperly laid off or displaced. 

(b) Effect on future applications. (1) 

No application for H–2A workers may 

be filed by or on behalf of a debarred 

employer, or by an employer 

represented by a debarred agent or 

attorney, subject to the term limits set 

forth in paragraph (c)(2) of this section. 

If such an application is filed, it will be 

denied without review. 

(2) No application for H–2A workers 

may be filed by or on behalf of a 

successor in interest to a debarred 

employer, agent, or attorney, subject to 

the term limits set forth in paragraph 

(c)(2) of this section. If the CO 

determines that such an application is 

filed, the CO will issue a NOD pursuant 

to § 655.141 or deny the application 

pursuant to § 655.164, as appropriate 

depending upon the status of the 

Application for Temporary Employment 

Certification, solely on the basis that the 

entity is a successor in interest to a 

debarred employer, agent, or attorney. 

The employer, agent, or attorney may 

appeal its status as a successor in 

interest to the debarred entity, pursuant 

to the procedures for appeals of CO 

determinations at § 655.171. 

* * * * * 

(d) * * * 

(1) * * * 

(viii) A violation of the requirements 

of § 655.135(j), (k), or (o); 

* * * * * 

(f) * * * 

(1) Notice of debarment. If the OFLC 

Administrator makes a determination to 

debar an employer, agent, or attorney, 

the OFLC Administrator will send the 

party a Notice of Debarment. The Notice 

will state the reason for the debarment 

finding, including a detailed 

explanation of the grounds for and the 

duration of the debarment, and it will 

inform the party subject to the Notice of 

its right to submit rebuttal evidence or 

to request a debarment hearing. If the 

party does not file rebuttal evidence or 

request a hearing within 14 calendar 

days of the date of the Notice of 

Debarment, the Notice will be the final 

agency action and the debarment will 

take effect at the end of the 14-day 

period. 

(2) Rebuttal. The party who received 

the Notice of Debarment may choose to 

submit evidence to rebut the grounds 

stated in the Notice within 14 calendar 

days of the date the Notice is issued. If 

rebuttal evidence is timely filed, the 

OFLC Administrator will issue a final 

determination on the debarment within 

30 calendar days of receiving the 

rebuttal evidence. If the OFLC 

Administrator determines that the party 

should be debarred, the OFLC 

Administrator will inform the party of 

its right to request a debarment hearing 

according to the procedures of 

paragraph (f)(3) of this section. The 

party must request a hearing within 14 

calendar days after the date of the OFLC 

Administrator’s final determination, or 

the OFLC Administrator’s determination 

will be the final agency action and the 

debarment will take effect at the end of 

the 14-calendar-day period. 

(i) The OFLC Administrator may grant 

one extension of the time period for 

filing rebuttal evidence for any party 

that has shown good and substantial 

cause. 

(ii) If the party seeks to request a onetime extension of time to submit 

rebuttal evidence, the party must make 

the request in writing to the OFLC 

Administrator and the written request 

for extension must be received by the 

OFLC Administrator within 14 calendar 

days of the date the Notice of Debarment 

is issued. Such a request must be made 

in writing to the OFLC Administrator. 

(iii) Only requests that include 

detailed information and supporting 

documentation describing the good and 

substantial cause that has necessitated 

the one-time extension request may be 

granted. Good and substantial cause 

may include, but is not limited to, 

health-related emergencies, catastrophic 

fire- or weather-related incidents, or 

other similar conditions that are wholly 

outside the party’s control and hinder 

the party’s ability to respond with 

rebuttal evidence within the required 

timeframe. A denial of a one-time 

extension request is not appealable. 

(3) Hearing. The recipient of a Notice 

of Debarment may request a debarment 

hearing within 14 calendar days of the 

date of a Notice of Debarment or the 

date of a final determination of the 

OFLC Administrator after review of 

rebuttal evidence submitted pursuant to 

paragraph (f)(2) of this section. To 

obtain a debarment hearing, the 

debarred party must, within 14 calendar 

days of the date of the Notice or the 

final determination, file a written 

request to the Chief Administrative Law 

Judge, United States Department of 

Labor, 800 K Street NW, Suite 400–N, 

Washington, DC 20001–8002, and 

simultaneously serve a copy to the 

OFLC Administrator. The debarment 

will take effect 14 calendar days from 

the date the Notice of Debarment or 

final determination is issued, unless a 

request for review is properly filed 

within 14 calendar days from the 

issuance of the Notice of Debarment or 

final determination. The timely filing of 

a request for a hearing stays the 

debarment pending the outcome of the 

hearing. Within 10 calendar days of 

receipt of the request for a hearing, the 

OFLC Administrator will send a 

certified copy of the ETA case file to the 

Chief ALJ by means normally assuring 

next-day delivery. The Chief ALJ will 

immediately assign an ALJ to conduct 

the hearing. The procedures in 29 CFR 

part 18 apply to such hearings, except 

that the request for a hearing will not be 

considered to be a complaint to which 

an answer is required. 

(4) Decision. After the hearing, the 

ALJ must affirm, reverse, or modify the 

OFLC Administrator’s determination. 

The ALJ will prepare the decision 

within 60 calendar days after 

completion of the hearing and closing of 

the record. The ALJ’s decision will be 

provided immediately to the parties to 

the debarment hearing by means 

normally assuring next-day delivery. 

The ALJ’s decision is the final agency 

action, unless either party, within 14 

calendar days of the ALJ’s decision, 

seeks review of the decision with the 

Administrative Review Board (ARB). 

(5) * * * 

(i) Any party wishing review of the 

decision of an ALJ must, within 14 

calendar days of the decision of the ALJ, 

petition the ARB to review the decision. 

Copies of the petition must be served on 

all parties and on the ALJ. The ARB will 

decide whether to accept the petition 

within 30 calendar days of receipt. If the 

ARB declines to accept the petition, or 

if the ARB does not issue a notice 

accepting a petition within 30 calendar 

days after the receipt of a timely filing 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63828 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

of the petition, the decision of the ALJ 

will be deemed the final agency action. 

If a petition for review is accepted, the 

decision of the ALJ will be stayed unless 

and until the ARB issues an order 

affirming the decision. The ARB must 

serve notice of its decision to accept or 

not to accept the petition upon the ALJ 

and upon all parties to the proceeding. 

* * * * * 

■ 19. Add § 655.190 to read as follows: 

§ 655.190 Severability. 

If any provision of this subpart is held 

to be invalid or unenforceable by its 

terms, or as applied to any person or 

circumstance, or stayed pending further 

agency action, the provision shall be 

construed so as to continue to give the 

maximum effect to the provision 

permitted by law, unless such holding 

is one of total invalidity or 

unenforceability, in which event the 

provision or sub-provision shall be 

severable from this subpart and shall 

not affect the remainder thereof. 

■ 20. Amend § 655.210 by adding 

paragraph (g)(3) to read as follows: 

§ 655.210 Contents of herding and range 

livestock job orders. 

* * * * * 

(g) * * * 

(3) If applicable, the employer must 

state in the job order: 

(i) That overtime hours may be 

available; 

(ii) The wage rate(s) to be paid for any 

such overtime hours; 

(iii) The circumstances under which 

the wage rate(s) for overtime hours will 

be paid, including, but not limited to, 

after how many hours in a day or 

workweek the overtime wage rate will 

be paid, and whether overtime wage 

rates will vary between-place(s) of 

employment; and 

(iv) Where the overtime pay is 

required by law, the applicable Federal, 

State, or local law requiring the 

overtime pay. 

* * * * * 

PART 658—ADMINISTRATIVE 

PROVISIONS GOVERNING THE 

WAGNER-PEYSER ACT EMPLOYMENT 

SERVICE 

■ 21. The authority citation for part 658 

continues to read as follows: 

Authority: Secs. 189, 503, Pub. L. 113– 

128, 128 Stat. 1425 (Jul. 22, 2014); 29 U.S.C. 

chapter 4B. 

■ 22. Revise § 658.500 to read as 

follows: 

§ 658.500 Scope and purpose of subpart. 

(a) This subpart contains the 

regulations governing the 

discontinuation of services provided by 

the ES to employers pursuant to parts 

652 and 653 of this chapter. 

(b) For purposes of this subpart only, 

where the term ‘‘employer’’ is used, it 

refers to employers, agents, farm labor 

contractors, joint employers, and 

successors in interest to any employer, 

agent, farm labor contractor, or joint 

employer, as defined at § 651.10 of this 

chapter. 

■ 23. Amend § 658.501 by: 

■ a. Revising paragraphs (a)(1), (2), and 

(4) through (8) and (b); and 

■ b. Removing paragraph (c). 

The revisions read as follows: 

§ 658.501 Basis for discontinuation of 

services. 

(a) * * * 

(1) Submit and refuse to correct or 

withdraw job orders containing terms 

and conditions which are contrary to 

employment-related laws; 

(2) Submit job orders and refuse to 

provide assurances, or refuse to 

withdraw job orders that do not contain 

assurances, required pursuant to the 

Agricultural Recruitment System for 

U.S. Workers at part 653, subpart F, of 

this chapter; 

* * * * * 

(4) Are found by a final determination 

by an appropriate enforcement agency 

to have violated any employmentrelated laws and notification of this 

final determination has been provided 

to the Department or the SWA by that 

enforcement agency, including those 

who are currently debarred from 

participating in the H–2A or H–2B 

foreign labor certification programs 

pursuant to § 655.73 or § 655.182 of this 

chapter or 29 CFR 501.20 or 503.24; 

(5) Are found to have violated ES 

regulations pursuant to § 658.411 or 

§ 658.419; 

(6) Refuse to accept qualified workers 

referred through the clearance system 

for criteria clearance orders filed 

pursuant to part 655, subpart B, of this 

chapter; 

(7) Refuse to cooperate in field checks 

conducted pursuant to § 653.503 of this 

chapter; or 

(8) Repeatedly cause the initiation of 

the procedures for discontinuation of 

services pursuant to paragraphs (a)(1) 

through (7) of this section. 

(b) If an ES office or SWA has 

information that an employer 

participating in the ES may not have 

complied with the terms of its current 

or prior temporary labor certification, 

under, for example the H–2A and H–2B 

visa programs, SWA officials must 

determine whether there is a basis 

under paragraph (a) of this section for 

which the SWA must initiate 

procedures for discontinuation of 

services. SWA officials must 

simultaneously notify the OFLC 

National Processing Center of the 

alleged non-compliance. 

■ 24. Revise § 658.502 to read as 

follows: 

§ 658.502 Notification to employers of 

intent to discontinue services. 

(a) Except as provided in paragraph 

(b) of this section, where the SWA 

determines that there is an applicable 

basis for discontinuation of services 

under § 658.501(a)(1) through (8), the 

SWA must notify the employer in 

writing that it intends to discontinue the 

provision of ES services in accordance 

with this section and must provide the 

reasons for proposing discontinuation of 

services. 

(1) Where the decision is based on 

§ 658.501(a)(1), the SWA must specify 

the date the order was submitted, the 

job order involved, and the terms and 

conditions contrary to employmentrelated laws and the laws involved. The 

SWA must notify the employer in 

writing that all ES services will be 

terminated unless the employer within 

20 working days: 

(i) Provides adequate evidence that 

the terms and conditions are not 

contrary to employment-related laws; or 

(ii) Withdraws the terms and 

conditions and resubmits the job order 

in compliance with all employmentrelated laws; or 

(iii) If the job is no longer available, 

makes assurances that all future job 

orders submitted will be in compliance 

with all employment-related laws. 

(2) Where the decision is based on 

§ 658.501(a)(2), the SWA must specify 

the date the order was submitted, the 

job order involved, the assurances 

involved, and explain how the employer 

refused to provide the assurances. The 

SWA must notify the employer that all 

ES services will be terminated unless 

the employer within 20 working days: 

(i) Resubmits the order with the 

required assurances; or 

(ii) If the job is no longer available, 

makes assurances that all future job 

orders submitted will contain all 

assurances required pursuant to the 

Agricultural Recruitment System for 

U.S. Workers at part 653, subpart F, of 

this chapter. 

(3) Where the decision is based on 

§ 658.501(a)(3), the SWA must specify 

the terms and conditions the employer 

misrepresented or the assurances with 

which the employer did not fully 

comply, and explain how the employer 

misrepresented the terms or conditions 

or failed to comply with assurances on 

the job order. The SWA must notify the 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63829 

employer that all ES services will be 

terminated unless the employer within 

20 working days: 

(i) Provides adequate evidence that 

terms and conditions of employment 

were not misrepresented; or 

(ii) Provides adequate evidence that 

there was full compliance with the 

assurances made on the job orders; or 

(iii) Provides adequate evidence that 

it has resolved the misrepresentation of 

terms and conditions of employment or 

noncompliance with assurances and 

provides adequate assurance that 

specifications on future orders will 

accurately represent the terms and 

conditions of employment and that 

there will be full compliance with all 

job order assurances. 

(4) Where the decision is based on 

§ 658.501(a)(4), the SWA must provide 

evidence of the final determination, 

including debarment. For final 

determinations, the SWA must specify 

the enforcement agency’s findings of 

facts and conclusions of law as to the 

employment-related law violation(s). 

For final debarment orders, the SWA 

must specify the time period for which 

the employer is debarred from 

participating in one of the Department’s 

foreign labor certification programs. The 

SWA must notify the employer that all 

ES services will be terminated unless 

the employer within 20 working days: 

(i) Provides adequate evidence that 

the enforcement agency’s determination 

is not final because, for example, it has 

been stayed pending appeal, overturned, 

or reversed; or 

(ii) Provides adequate evidence that, 

as applicable: 

(A) The Department’s debarment is no 

longer in effect; and 

(B) The employer has completed all 

required actions imposed by the 

enforcement agency as a consequence of 

the violation, including payment of any 

fines or restitution to remediate the 

violation; and 

(iii) Provides assurances that any 

policies, procedures, or conditions 

responsible for the violation have been 

corrected and the same or similar 

violations are not likely to occur in the 

future. 

(5) Where the decision is based on 

§ 658.501(a)(5), the SWA must specify 

which ES regulation, as defined in 

§ 651.10, the employer has violated and 

must provide basic facts to explain the 

violation. The SWA must notify the 

employer that all ES services will be 

terminated unless the employer within 

20 working days: 

(i) Provides adequate evidence that 

the employer did not violate ES 

regulations; or 

(ii) Provides adequate evidence that 

appropriate restitution has been made or 

remedial action taken; and 

(iii) Provides assurances that any 

policies, procedures, or conditions 

responsible for the violation have been 

corrected and the same or similar 

violations are not likely to occur in the 

future. 

(6) Where the decision is based on 

§ 658.501(a)(6), the SWA must indicate 

that the employer filed the job order 

pursuant to part 655, subpart B, of this 

chapter, and specify the name of each 

worker the SWA referred and the 

employer did not accept. The SWA 

must notify the employer that all ES 

services will be terminated unless the 

employer within 20 working days: 

(i) Provides adequate evidence that 

the workers were accepted; or 

(ii) Provides adequate evidence that 

the workers were not available to accept 

the job; or 

(iii) Provides adequate evidence that 

the workers were not qualified; or 

(iv) Provides adequate evidence that 

the workers were referred after the time 

period described in § 655.135(d) of this 

chapter elapsed; or 

(v) Provides adequate evidence that: 

(A) After refusal, the employer 

accepted the qualified workers referred; 

or 

(B) Appropriate restitution has been 

made or other remedial action taken; 

and 

(vi) Provides assurances that qualified 

workers referred in the future will be 

accepted or, if the time period described 

in § 655.135(d) of this chapter has 

lapsed, provides assurances that 

qualified workers referred on all future 

criteria clearance orders will be 

accepted. 

(7) Where the decision is based on 

§ 658.501(a)(7), the SWA must explain 

how the employer did not cooperate in 

the field check. The SWA must notify 

the employer that all ES services will be 

terminated unless the employer within 

20 working days: 

(i) Provides adequate evidence that it 

did cooperate; or 

(ii) Immediately cooperates in the 

conduct of field checks; and 

(iii) Provides assurances that it will 

cooperate in future field checks. 

(8) Where the decision is based on 

§ 658.501(a)(8), the SWA must list and 

provide basic facts explaining the prior 

instances where the employer has 

repeatedly caused initiation of 

discontinuation proceedings. The SWA 

must notify the employer that all ES 

services will be terminated unless the 

employer within 20 working days 

provides adequate evidence that the 

SWA’s initiation of discontinuation in 

prior proceedings was unfounded. 

(b) SWA officials must discontinue 

services immediately in accordance 

with § 658.503, without providing the 

notice described in this section, if an 

employer has met any of the bases for 

discontinuation of services under 

§ 658.501(a) and, in the judgment of the 

State Administrator, exhaustion of the 

administrative procedures set forth in 

this section would cause substantial 

harm to workers. 

■ 25. Revise § 658.503 to read as 

follows: 

§ 658.503 Discontinuation of services. 

(a) Within 20 working days of receipt 

of the employer’s response to the SWA’s 

notification under § 658.502(a), or at 

least 20 working days after the SWA’s 

notification has been received by the 

employer if the SWA does not receive 

a response, the SWA must notify the 

employer in writing of its final 

determination. If the SWA determines 

that the employer did not provide a 

satisfactory response in accordance with 

§ 658.502(a), the SWA’s notification 

must specify the reasons for its 

determination and state that the 

discontinuation of services is effective 

20 working days from the date of the 

notification. The notification must also 

state that the employer may request 

reinstatement or appeal the 

determination by requesting a hearing 

pursuant to § 658.504, and that a request 

for a hearing stays the discontinuation 

pending the outcome of the hearing. If 

the employer does not request a hearing, 

the SWA must also notify the ETA 

Office of Workforce Investment of any 

final determination to discontinue ES 

services within 10 working days of the 

date the determination becomes 

effective. 

(b) Where the SWA discontinues 

services immediately under 

§ 658.502(b), the SWA’s written 

notification must specify the facts 

supporting the applicable basis for 

discontinuation under § 658.501(a), the 

reasons that exhaustion of the 

administrative procedures would cause 

substantial harm to workers, and that 

services are discontinued as of the date 

of the notification. The notification 

must also state that the employer may 

request reinstatement or appeal the 

determination by requesting a hearing 

pursuant to § 658.504, and that a request 

for a hearing relating to immediate 

discontinuation does not stay the 

discontinuation pending the outcome of 

the hearing. Within 10 working days of 

the date of issuance, the SWA must also 

notify the ETA Office of Workforce 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63830 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

Investment of any determination to 

immediately discontinue ES services. 

(c) If the SWA discontinues services 

to an employer that is subject to Federal 

Contractor Job Listing Requirements, the 

SWA must notify the ETA regional 

office immediately. 

(d) If the SWA discontinues services 

to an employer based on a complaint 

filed pursuant to § 658.411, the SWA 

must notify the complainant of the 

employer’s discontinuation of services. 

(e) If the SWA discontinues services 

to an employer, the employer cannot 

participate in or receive Wagner-Peyser 

Act ES Services provided by the ES, 

including by any SWA, to employers 

pursuant to parts 652 and 653 of this 

chapter. From the date of 

discontinuance, the SWA that issued 

the determination must remove the 

employer’s active job orders from the 

clearance system. No SWA may process 

any future job orders from the employer 

or provide any other services pursuant 

to parts 652 and 653 of this chapter to 

the employer unless services have been 

reinstated under § 658.504. 

(f) SWAs must continue to provide 

the full range of ES and other 

appropriate services to workers whose 

employers experience discontinuation 

of services under this subpart. 

■ 26. Revise § 658.504 to read as 

follows: 

§ 658.504 Reinstatement of services. 

(a) Where the SWA discontinues 

services to an employer under 

§ 658.502(b) or § 658.503, the employer 

may submit a written request for 

reinstatement of services to the SWA or 

may, within 20 working days of 

receiving notice of the SWA’s final 

determination, appeal the 

discontinuation by submitting a written 

request for a hearing. 

(b) If the employer submits a written 

request for reinstatement of services to 

the SWA: 

(1) Within 20 working days of receipt 

of the employer’s request for 

reinstatement, the SWA must notify the 

employer of its decision to grant or deny 

the request. If the SWA denies the 

request for reinstatement, it must 

specify the reasons for the denial and 

notify the employer that it may request 

a hearing, in accordance with paragraph 

(c) of this section, within 20 working 

days. 

(2) The SWA must reinstate services 

if: 

(i) The employer provides adequate 

evidence that the policies, procedures, 

or conditions responsible for the 

previous discontinuation of services 

have been corrected and that the same 

or similar circumstances are not likely 

to occur in the future; and 

(ii) The employer provides adequate 

evidence that it has responded to all 

findings of an enforcement agency, 

SWA, or ETA, including payment of any 

fines or restitution to remediate the 

violation, which were the basis of the 

discontinuation of services, if 

applicable. 

(c) If the employer submits a timely 

request for a hearing: 

(1) The SWA must follow the 

procedures set forth in § 658.417. 

(2) The SWA must reinstate services 

to the employer if ordered to do so by 

a State hearing official, Regional 

Administrator, or Federal 

Administrative Law Judge as a result of 

a hearing offered pursuant to paragraph 

(c)(1) of this section. 

(d) Within 10 working days of the 

date of issuance, the SWA must notify 

the ETA Office of Workforce Investment 

of any determination to reinstate ES 

services, or any decision on appeal 

upholding a SWA’s determination to 

discontinue services. 

TITLE 29: LABOR 

Wage and Hour Division 

PART 501—ENFORCEMENT OF 

CONTRACTUAL OBLIGATIONS FOR 

TEMPORARY ALIEN AGRICULTURAL 

WORKERS ADMITTED UNDER 

SECTION 218 OF THE IMMIGRATION 

AND NATIONALITY ACT 

■ 27. The authority citation for part 501 

continues to read as follows: 

Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a), 

1184(c), and 1188; 28 U.S.C. 2461 note; and 

sec. 701, Pub. L. 114–74, 129 Stat. 584. 

■ 28. Amend § 501.3 by: 

■ a. In paragraph (a), adding the 

definitions of Key service provider and 

Labor organization in alphabetical order 

and removing the definition of 

Successor in interest; and 

■ b. Adding paragraph (d). 

The additions read as follows: 

§ 501.3 Definitions. 

(a) * * * 

Key service provider. A health-care 

provider; a community health worker; 

an education provider; an attorney, legal 

advocate, or other legal service provider; 

a government official, including a 

consular representative; a member of the 

clergy; and any other service provider to 

which a worker may need access. 

Labor organization. Any organization 

of any kind, or any agency or employee 

representation committee or plan, in 

which workers participate and which 

exists for the purpose, in whole or in 

part, of dealing with employers 

concerning grievances, labor disputes, 

wages, rates of pay, hours of 

employment, or conditions of work. 

* * * * * 

(d) Definition of single employer for 

purposes of temporary or seasonal need 

and contractual obligations. Separate 

entities will be deemed a single 

employer (sometimes referred to as an 

‘‘integrated employer’’) for purposes of 

assessing temporary or seasonal need 

and for enforcement of contractual 

obligations if they meet the definition of 

single employer in this paragraph (d). 

Under the definition of single employer, 

a determination of whether separate 

entities are a single employer is not 

determined by a single factor, but rather 

the entire relationship is viewed in its 

totality. Factors considered in 

determining whether two or more 

entities consist of a single employer 

include: 

(1) Common management; 

(2) Interrelation between operations; 

(3) Centralized control of labor 

relations; and 

(4) Degree of common ownership/ 

financial control. 

■ 29. Amend § 501.4 by revising 

paragraph (a) to read as follows: 

§ 501.4 Discrimination prohibited. 

(a)(1) A person may not intimidate, 

threaten, restrain, coerce, blacklist, 

discharge, or in any manner 

discriminate against any person who 

has: 

(i) Filed a complaint under or related 

to 8 U.S.C. 1188 or this part; 

(ii) Instituted or caused to be 

instituted any proceedings related to 8 

U.S.C. 1188, 20 CFR part 655, subpart B, 

or this part; 

(iii) Testified or is about to testify in 

any proceeding under or related to 8 

U.S.C. 1188, 20 CFR part 655, subpart B, 

or this part; 

(iv) Consulted with an employee of a 

legal assistance program or an attorney 

on matters related to 8 U.S.C. 1188, 20 

CFR part 655, subpart B, or this part; 

(v) Consulted with a key service 

provider on matters related to 8 U.S.C. 

1188, 20 CFR part 655, subpart B, or this 

part; 

(vi) Exercised or asserted on behalf of 

themself or others any right or 

protection afforded by 8 U.S.C. 1188, 20 

CFR part 655, subpart B, or this part; or 

(vii) Filed a complaint, instituted or 

caused to be instituted any proceeding, 

or testified or is about to testify in any 

proceeding under or related to any 

applicable Federal, State, or local laws 

or regulations, including safety and 

health laws. 

(2) With respect to any person 

engaged in agriculture as defined and 


ddrumheller on DSK120RN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 63831 

applied in 29 U.S.C. 203(f), a person 

may not intimidate, threaten, restrain, 

coerce, blacklist, discharge or in any 

manner discriminate against, and may 

not cause any person to intimidate, 

threaten, restrain, coerce, blacklist, or in 

any manner discriminate against, any 

person who has engaged in activities 

related to self-organization, including: 

any effort to form, join, or assist a labor 

organization; a secondary activity such 

as a secondary boycott or picket; or 

other concerted activities for the 

purpose of mutual aid or protection 

relating to wages or working conditions; 

or refused to engage in any or all of such 

activities except to the extent that such 

right may be affected by an agreement 

requiring membership in a labor 

organization as a condition of 

employment. 

* * * * * 

■ 30. Add § 501.10 to subpart A to read 

as follows: 

§ 501.10 Severability. 

If any provision of this part is held to 

be invalid or unenforceable by its terms, 

or as applied to any person or 

circumstance, or stayed pending further 

agency action, the provision shall be 

construed so as to continue to give the 

maximum effect to the provision 

permitted by law, unless such holding 

is one of total invalidity or 

unenforceability, in which event the 

provision or sub-provision shall be 

severable from this part and shall not 

affect the remainder thereof. 

■ 31. Amend § 501.20 by revising 

paragraphs (a), (b), (d)(1)(viii), and (e) 

and adding paragraph (j) to read as 

follows: 

§ 501.20 Debarment and revocation. 

(a) Debarment of an employer, agent, 

or attorney. The WHD Administrator 

may debar an employer, agent, or 

attorney from participating in any action 

under 8 U.S.C. 1188, 20 CFR part 655, 

subpart B, or this part, subject to the 

time limits set forth in paragraph (c) of 

this section, if the WHD Administrator 

finds that the employer, agent, or 

attorney substantially violated a 

material term or condition of the 

temporary agricultural labor 

certification, with respect to H–2A 

workers, workers in corresponding 

employment, or U.S. workers 

improperly rejected for employment, or 

improperly laid off or displaced, by 

issuing a Notice of Debarment. 

(b) Effect on future applications. (1) 

No application for H–2A workers may 

be filed by or on behalf of a debarred 

employer, or by an employer 

represented by a debarred agent or 

attorney, subject to the time limits set 

forth in paragraph (c)(2) of this section. 

If such an application is filed, it will be 

denied without review. 

(2) No application for H–2A workers 

may be filed by or on behalf of a 

successor in interest, as defined in 20 

CFR 655.104, to a debarred employer, 

agent, or attorney, subject to the term 

limits set forth in paragraph (c)(2) of this 

section. If the CO determines that such 

an application is filed, the CO will issue 

a Notice of Deficiency (NOD) pursuant 

to 20 CFR 655.141 or deny the 

application pursuant to 20 CFR 655.164, 

as appropriate depending upon the 

status of the Application for Temporary 

Employment Certification, solely on the 

basis that the entity is a successor in 

interest to a debarred employer, agent, 

or attorney. The employer, agent, or 

attorney may appeal its status as a 

successor in interest to the debarred 

entity, pursuant to the procedures for 

appeals of CO determinations at 20 CFR 

655.171. 

* * * * * 

(d) * * * 

(1) * * * 

(viii) A violation of the requirements 

of 20 CFR 655.135(j), (k), or (o); 

* * * * * 

(e) Procedural requirements. The 

Notice of Debarment must be in writing, 

must state the reason for the debarment 

finding, including a detailed 

explanation of the grounds for and the 

duration of the debarment, must 

identify appeal opportunities under 

§ 501.33 and a timeframe under which 

such rights must be exercised and must 

comply with § 501.32. The debarment 

will take effect 14 calendar days from 

the date the Notice of Debarment is 

issued, unless a request for review is 

properly filed within 14 calendar days 

from the issuance of the Notice of 

Debarment. The timely filing of an 

administrative appeal stays the 

debarment pending the outcome of the 

appeal as provided in § 501.33(d). 

* * * * * 

(j) Successors in interest. When an 

employer, agent, or attorney is debarred 

under this section, any successor in 

interest to the debarred employer, agent, 

or attorney is also debarred, regardless 

of whether the successor is named or 

not named in the notice of debarment 

issued under paragraph (a) of this 

section. 

■ 32. Amend § 501.33 by revising 

paragraphs (a), (b)(2), and (c) to read as 

follows: 

§ 501.33 Request for hearing. 

(a)(1) Any person desiring review of a 

determination referred to in § 501.32, 

including judicial review, except any 

determination that includes debarment, 

shall make a written request for an 

administrative hearing to the official 

who issued the determination at the 

WHD address appearing on the 

determination notice, no later than 30 

calendar days after the date of issuance 

of the notice referred to in § 501.32. 

(2) Any person desiring review of any 

determination that includes debarment, 

including judicial review, shall make a 

written request for an administrative 

hearing to the official who issued the 

determination at the WHD address 

appearing on the determination notice, 

no later than 14 calendar days after the 

date of issuance of the notice referred to 

in § 501.32. 

(b) * * * 

(2) Specify the issue or issues stated 

in the notice of determination giving 

rise to such request (any issues not 

raised in the request ordinarily will be 

deemed waived); 

* * * * * 

(c) The request for such hearing must 

be received by the official who issued 

the determination, at the WHD address 

appearing on the determination notice, 

within the time set forth in paragraph 

(a)(1) or (2) of this section. Requests may 

be made by certified mail or by means 

normally assuring overnight delivery. 

* * * * * 

■ 33. Amend § 501.42 by revising 

paragraph (a) to read as follows: 

§ 501.42 Procedures for initiating and 

undertaking review. 

(a) A respondent, WHD, or any other 

party wishing review, including judicial 

review, of a decision of an ALJ not 

including debarment must, within 30 

calendar days of the decision of the ALJ, 

petition the ARB to review the decision. 

A respondent, WHD, or any other party 

wishing review, including judicial 

review, of a decision of an ALJ 

involving debarment must, within 14 

calendar days of the decision of the ALJ, 

petition the ARB to review the decision. 

Copies of the petition must be served on 

all parties and on the ALJ. If the ARB 

does not issue a notice accepting a 

petition for review of any decision 

(whether involving debarment, or not) 

within 30 calendar days after receipt of 

a timely filing of the petition, the 

decision of the ALJ will be deemed the 

final agency action. If within 30 

calendar days of the date of a decision 

not involving debarment, or within 14 

calendar days of the date of a decision 

involving debarment no petition has 


ddrumheller on DSK120RN23PROD with PROPOSALS2
63832 Federal Register / Vol. 88, No. 178 / Friday, September 15, 2023 / Proposed Rules 

been received, the decision of the ALJ 

will be deemed the final agency action. 

* * * * * 

Julie A. Su, 

Acting Secretary of Labor. 

[FR Doc. 2023–19852 Filed 9–13–23; 8:45 am] 

BILLING CODE 4510–FP–P; 4510–FR–P; 4510–27–P 


ddrumheller on DSK120RN23PROD with PROPOSALS2