Rule2025-00828
Temporary Agricultural Employment of H-2A Foreign Workers in the Herding or Production of Livestock on the Range in the United States; Ratification of Department's Actions
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 15, 2025
Issuing agencies
Labor DepartmentEmployment and Training Administration
Abstract
The Department of Labor is publishing notification of the Assistant Secretary for Employment and Training's ratification of the rule published October 16, 2015, titled Temporary Agricultural Employment of H-2A Foreign Workers in the Herding or Production of Livestock on the Range in the United States.
Full Text
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<title>Federal Register, Volume 90 Issue 9 (Wednesday, January 15, 2025)</title>
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[Federal Register Volume 90, Number 9 (Wednesday, January 15, 2025)]
[Rules and Regulations]
[Pages 3626-3627]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-00828]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
[DOL Docket No. ETA-2015-0004]
Temporary Agricultural Employment of H-2A Foreign Workers in the
Herding or Production of Livestock on the Range in the United States;
Ratification of Department's Actions
AGENCY: Employment and Training Administration, Department of Labor.
ACTION: Ratification.
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SUMMARY: The Department of Labor is publishing notification of the
Assistant Secretary for Employment and Training's ratification of the
rule published October 16, 2015, titled Temporary Agricultural
Employment of H-2A Foreign Workers in the Herding or Production of
Livestock on the Range in the United States.
DATES: This ratification was signed on January 10, 2025.
FOR FURTHER INFORMATION CONTACT: For further information regarding 20
CFR part 655, contact Brian Pasternak, Administrator, Office of Foreign
Labor Certification, Employment and Training Administration, U.S.
Department of Labor, 200 Constitution Avenue NW, Room N-5311,
Washington, DC 20210, telephone: (202) 693-8200 (this is not a toll-
free number). Individuals with hearing or speech impairments may access
the telephone numbers above via Teletypewriter (TTY)/Telecommunications
Device for the Deaf (TDD) by calling the toll-free Federal Information
Relay Service at 1 (877) 889-5627.
SUPPLEMENTARY INFORMATION:
I. Background
On April 15, 2015, the Department of Labor (``DOL'' or
``Department'') issued a notice of proposed rulemaking (``NPRM'') in
the Federal Register (``FR'') to amend its regulations regarding the
certification of temporary employment of nonimmigrant workers in
temporary or seasonal agricultural employment in herding or the
production of livestock on the range in the United States. See
Temporary Agricultural Employment of H-2A Foreign Workers in the
Herding or Production of Livestock on the Open Range in the United
States, 80 FR 20300 (Apr. 15, 2015) (``NPRM''). The NPRM was open for
public comment for 45 days until June 1, 2015. See 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) (``Final Rule''). On October 16, 2015, DOL published a
final rule in the FR. See Final Rule, 80 FR at 62958. The Final Rule
went into effect on November 16, 2015. Id.
Since publication of the Final Rule, a question has been raised in
litigation concerning whether a separate rule, Adverse Effect Wage Rate
Methodology for the Temporary Employment of H-2A Nonimmigrants in the
Non-Range Occupations in the United States, 88 FR 12760 (Feb. 28,
2023), was approved by the Attorney General in consultation with the
Secretary of Labor and the Secretary of Agriculture. 8 U.S.C. 1188,
Statutory Note.\1\ With respect to the Final Rule, prior to its
issuance on October 15, 2015, the Final Rule was provided to the
Departments of Homeland Security and Agriculture through the
interagency review process prescribed by Executive Order 12866.
Further, on December 31, 2024, the Secretary of Homeland Security, in
consultation with the Secretary of Labor and Secretary of Agriculture,
approved the Final Rule.
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\1\ Although this provision vests approval authority in the
``Attorney General,'' the Secretary of Homeland Security now may
exercise this authority. See 6 U.S.C. 202(3)-(4), 251, 271(b), 291,
551(d)(2), 557; 8 U.S.C. 1103(c) (2000).
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To resolve any possible uncertainty with respect to the Final Rule,
the Department, through its Assistant Secretary for Employment and
Training, is ratifying the Final Rule. Under established case law, an
agency may, through ratification, ``purge[ ] any residual taint or
prejudice left over from'' a potential defect in a prior governmental
action.\2\ The Department is issuing this ratification out of an
abundance of caution, and this ratification is not a statement that the
Final Rule is invalid absent this ratification.
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\2\ Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives,
920 F.3d 1, 13 (D.C. Cir. 2019).
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II. Ratification
By virtue of the authority vested in the Secretary of Labor by law,
including by the Immigration and Nationality Act of 1952, as amended, 8
U.S.C. 1101 et seq. (``INA''), and as delegated to the
[[Page 3627]]
Assistant Secretary for Employment and Training, 75 FR 66268, I am
affirming and ratifying a prior action by Portia Wu, Assistant
Secretary for Employment and Training. On October 16, 2015, the
Employment and Training Administration published in the FR the Final
Rule codifying amendments to the Department's regulations regarding the
certification of temporary employment of nonimmigrant workers employed
in temporary or seasonal agricultural employment, establishing
standards and procedures for employers seeking to hire foreign
temporary agricultural workers for job opportunities in herding and
production of livestock on the range. 80 FR 62958 (Oct. 16, 2015).
The Final Rule was signed by Assistant Secretary Wu. I have full
and complete knowledge of the Final Rule action taken by former
Assistant Secretary Wu. Subsequent to the Secretary of Homeland
Security's documented approval of the Final Rule dated December 31,
2024, in consultation with the Secretary of Labor and Secretary of
Agriculture, and out of an abundance of caution and to avoid any doubt
as to its validity, I have independently evaluated the Final Rule and
the basis for adopting it. I have determined that the amendments to the
regulations in the Final Rule are consistent with the Secretary of
Labor's statutory responsibility to certify that there are insufficient
able, willing, and qualified U.S. workers available to perform the
needed work and that the employment of H-2A workers will not adversely
affect the wages and working conditions of workers in the United States
similarly employed. I have also determined that the changes adopted in
the Final Rule strike an appropriate balance between the statute's
competing goals of providing employers with an adequate supply of legal
agricultural labor and protecting the wages of workers in the United
States similarly employed by establishing regulatory standards and
procedures applicable to the employment of workers in these unique
occupations, which occur in remote areas and require workers to be on
call for long periods of time. I also agree with the Department's
certification that the Final Rule has a significant economic impact on
a substantial number of small entities. See Final Rule, 80 FR 63039.
Therefore, pursuant to my authority as the Assistant Secretary for
Employment and Training, and based on my independent review of the
action and the reasons for taking it, I hereby affirm and ratify the
Final Rule, as of January 10, 2025, including all regulatory analysis
certifications contained therein. This action is taken without
prejudice to any right to litigate the validity of the Final Rule as
approved and published on October 16, 2015. Nothing in this action is
intended to suggest any legal defect or infirmity in the approval or
publication of the Final Rule.
Jos[eacute] Javier Rodr[iacute]guez,
Assistant Secretary, Employment and Training Administration, Labor.
[FR Doc. 2025-00828 Filed 1-14-25; 8:45 am]
BILLING CODE 4510-FP-P
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