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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 [www.gpo.gov]
[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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