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[Federal Register Volume 90, Number 9 (Wednesday, January 15, 2025)]
[Rules and Regulations]
[Pages 3625-3626]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-00829]

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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

[DOL Docket No. ETA-2020-0005]

Adjudication of Temporary and Seasonal Need for Herding and 
Production of Livestock on the Range Applications Under the H-2A 
Program; 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 December 16, 2021, titled Adjudication of Temporary and 
Seasonal Need for Herding and Production of Livestock on the Range 
Applications Under the H-2A Program.

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 May 6, 2021, 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 adjudication 
of temporary and seasonal need for employers seeking herding or 
production of livestock on the range job opportunities under the H-2A 
program. See Adjudication of Temporary and Seasonal Need for Herding 
and Production of Livestock on the Range Applications Under the H-2A 
Program, 86 FR 24368 (May 6, 2021) (``NPRM''). The NPRM was open for 
public comment for 30 days until June 7, 2021. See Adjudication of 
Temporary and Seasonal Need for Herding and Production of Livestock on 
the Range Applications Under the H-2A Program, 86 FR 71373, 71376 (Dec. 
16, 2021) (``Final Rule''). On December 16, 2021, DOL published the 
Final Rule in the FR. See Final Rule, 86 FR 71373. The Final Rule went 
into effect on January 18, 2022. 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 December 16, 2021, 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 Assistant 
Secretary for Employment and Training, 75 FR 66268, I am affirming and 
ratifying a prior action by Angela Hanks, Acting Assistant Secretary 
for Employment and Training. On December 16, 2021, the Employment and 
Training Administration published in the FR the Final Rule codifying 
amendments to the Department's

[[Page 3626]]

regulations regarding the adjudication of temporary need for employers 
seeking to employ nonimmigrant workers in job opportunities covering 
the herding or production of livestock on the range. 86 FR 71373 (Dec. 
16, 2021).
    The Final Rule was signed by Acting Assistant Secretary Hanks. I 
have full and complete knowledge of the Final Rule action taken by 
former Acting Assistant Secretary Hanks. 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 ensuring the Department's 
adjudication of temporary or seasonal need is conducted in the same 
manner for all applications for temporary agricultural labor 
certification, consistent with statute's requirements. I 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, 86 FR 71382.
    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 December 16, 2021. 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. 2025-00829 Filed 1-14-25; 8:45 am]
BILLING CODE 4510-FP-P
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