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[Federal Register Volume 90, Number 7 (Monday, January 13, 2025)]
[Rules and Regulations]
[Pages 2610-2611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-00526]

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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Parts 653 and 655

Wage and Hour Division

29 CFR Part 501

[DOL Docket No. ETA-2019-0007]

Temporary Agricultural Employment of H-2A Nonimmigrants in the 
United States; Ratification of Department's Actions

AGENCY: Employment and Training Administration and Wage and Hour 
Division, 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 and the Administrator 
of the Wage and Hour Division's ratification of the rule published 
October 12, 2022, titled Temporary Agricultural Employment of H-2A 
Nonimmigrants in the United States.

DATES: This ratification was signed on January 7, 2025.

FOR FURTHER INFORMATION CONTACT: 
    For further information regarding 20 CFR part 653, contact Kimberly 
Vitelli, Administrator, Office of Workforce Investment, Employment and 
Training Administration, Department of Labor, 200 Constitution Avenue 
NW, Washington, DC 20210, telephone: (202) 693-3980 (this is not a 
toll-free number).
    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).
    For further information regarding 29 CFR part 501, contact Daniel 
Navarrete, 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 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 July 26, 2019, 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 employed 
in temporary or seasonal agricultural employment and the enforcement of 
the obligations applicable to employers of such nonimmigrant workers. 
See Temporary Agricultural Employment of H-2A Nonimmigrants in the 
United States, 84 FR 36168 (July 26, 2019) (``NPRM''). The NPRM was 
open for public comment for 60 days from July 26, 2019 until September 
24, 2019. See id. at 36168.
    On October 12, 2022, DOL published a final rule in the FR that 
adopted much of the regulatory text proposed in the NPRM, with some 
significant changes. Temporary Agricultural Employment of H-2A 
Nonimmigrants in the United States, 87 FR 61660 (Oct. 12, 2022) 
(``Final Rule'').\1\ The Final Rule included improvements to the 
minimum standards and conditions of employment that employers must 
offer to workers, improvements to program integrity measures, such as 
program debarment for substantial violations of program requirements, 
revisions to the standards and procedures for determining prevailing 
wage rates, and revisions to modernize and simplify the temporary 
employment certification process. The Final Rule went into effect on 
November 14, 2022.
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    \1\ On January 11, 2021, DOL transmitted to the Office of the 
Federal Register (``OFR'') a draft of an unpublished draft final 
rule covering certain aspects of the NPRM. On January 20, 2021, 
prior to the draft final rule being published in the FR and prior to 
OFR making it available for public inspection, DOL requested that 
OFR withdraw the document from processing ``for the purpose of 
reviewing issues of law, fact, and policy raised by the rule.'' See 
Announcement, U.S. Department of Labor Withdraws Forthcoming H-2A 
Temporary Agricultural Program Rule for Review, (Jan. 20, 2021), 
https://perma.cc/CTW2-VH2U.
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    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.\2\ With respect to the Final Rule, prior to its 
issuance in October 2022, the Final Rule was provided to the 
Departments of Homeland Security and Agriculture through the 
interagency review process prescribed by Executive Order 12866. On 
November 7, 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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    \2\ 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 and its Administrator of the Wage and Hour Division, 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.\3\ 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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    \3\ 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

[[Page 2611]]

by the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. 
1101 et seq. (``INA''), and as delegated to the Assistant Secretary for 
Employment and Training, 75 FR 66268, and the Administrator of the Wage 
and Hour Division, 75 FR 55352, we are affirming and ratifying a prior 
action by Martin J. Walsh, Secretary of Labor. On October 12, 2022, the 
Employment and Training Administration and the Wage and Hour Division 
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 and the enforcement of the obligations 
applicable to employers of such nonimmigrant workers. 87 FR 61660 (Oct. 
12, 2022).
    The Final Rule was signed by Secretary Walsh. We have full and 
complete knowledge of the Final Rule action taken by former Secretary 
Walsh. Subsequent to the Secretary of Homeland Security's documented 
approval of the Final Rule dated November 7, 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, we have 
independently evaluated the Final Rule and the basis for adopting it. 
We 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. We 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 strengthening protections for workers, 
modernizing and simplifying the H-2A application and temporary labor 
certification process, and easing regulatory burdens on employers. We 
also agree with the Department's certification that the Final Rule does 
not have a significant economic impact on a substantial number of small 
entities. See 87 FR 61660, 61787.
    Therefore, pursuant to our authorities as the Assistant Secretary 
for Employment and Training and the Administrator of the Wage and Hour 
Division, and based on our independent review of the action and the 
reasons for taking it, we hereby affirm and ratify the Final Rule, as 
of January 7, 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 12, 2022. 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.
Jessica Looman,
Administrator, Wage and Hour Division, Labor.
[FR Doc. 2025-00526 Filed 1-8-25; 4:15 pm]
BILLING CODE 4510-FP-P
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