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[Federal Register Volume 90, Number 7 (Monday, January 13, 2025)]
[Rules and Regulations]
[Pages 2609-2610]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-00525]

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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-2009-0004]

Temporary Agricultural Employment of H-2A Aliens 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 
February 10, 2010, titled Temporary Agricultural Employment of H-2A 
Aliens in the United States.

DATES: This ratification was signed on January 7, 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).
    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 September 4, 2009, 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 Aliens in the United 
States, 74 FR 45906 (Sept. 4, 2009) (``NPRM''). The NPRM was open for 
public comment for 45 days until October 5, 2009. See Temporary 
Agricultural Employment of H-2A Aliens in the United States, 75 FR 6884 
(Feb. 12, 2010) (``Final Rule'').
    On February 12, 2010, DOL published a final rule in the FR that 
adopted much of the regulatory text proposed in the NPRM, with some 
important changes. See Final Rule, 75 FR at 6884. The Final Rule 
included improvements to the application processing procedures, worker 
protections, and program integrity measures. The Final Rule went into 
effect on March 15, 2010.
    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\ Further, on November 25, 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 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.\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 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 Jane Oates, Assistant 
Secretary for Employment and Training, and Nancy Leppink, Deputy 
Administrator of the Wage and Hour Division. On February 12, 2010, 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. 75 FR 6884 (Feb. 
12, 2010).
    The Final Rule was signed by Assistant Secretary Oates and Deputy 
Administrator Leppink. We have full and complete knowledge of the Final 
Rule action taken by former Assistant Secretary Oates and former Deputy 
Administrator Leppink. Subsequent to the Secretary of Homeland 
Security's documented approval of the Final Rule dated November 25, 
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 improving the H-2A application and 
temporary labor certification process, strengthening protections for 
workers, and enhancing

[[Page 2610]]

program integrity measures. 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 Final Rule, 75 FR 
at 6953.
    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 
February 12, 2010. 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. 2025-00525 Filed 1-8-25; 4:15 pm]
BILLING CODE 4510-FP-P
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