2024-10013: Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States; Ratification of Department's Actions

Federal Register, Volume 89 Issue 90 (Wednesday, May 8, 2024) [Federal Register Volume 89, Number 90 (Wednesday, May 8, 2024)] [Rules and Regulations] [Pages 38838-38839] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 2024-10013] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF LABOR Employment and Training Administration 20 CFR Part 655 [DOL Docket No. ETA-2021-0006] Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States; Ratification of Department's Actions

Agency

Employment and Training Administration, Department of Labor.

Action

Ratification. -----------------------------------------------------------------------

Summary

The Department of Labor is publishing notification of the Assistant Secretary for Employment and Training's ratification of the rule published February 28, 2023, titled Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in the Non-Range Occupations in the United States.

Dates

This ratification was signed on May 3, 2024.

For Further Information 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 persons with a hearing or speech disability who need assistance to use the telephone system, please dial 711 to access telecommunications relay services.

Supplementary Information

I. Background

On December 1, 2021, the Department of Labor (``DOL'' or ``Department'') issued a notice of proposed rulemaking (``NPRM'') in the Federal Register to amend the regulations governing the methodology to determine the Adverse Effect Wage Rate (``AEWR'') for H-2A occupations other than herding and production of livestock on the range (i.e., non-range occupations). See Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States, 86 FR 68174 (Dec. 1, 2021) (``NPRM''). The NPRM was open for public comment for 60 days from December 1, 2021 until January 31, 2022. See id. at 68174, 68185. On February 28, 2023, after having considered the public comments, DOL published a final rule in the Federal [[Page 38839]] Register that amended the methodology to establish the AEWR, largely adopting the proposals from the NPRM with some technical changes. 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) (``Final Rule''). The Final Rule went into effect on March 30, 2023. The Final Rule has become the subject of litigation in which it has been asserted that the Final Rule was improperly issued. Specifically, a question has been raised in litigation concerning whether the Final Rule 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\ On April 29, 2024, the Secretary of Homeland Security, in consultation with the Secretary of Labor and Secretary of Agriculture, approved the Final Rule. Prior to its issuance in February 2023, the Final Rule was provided to the Departments of Homeland Security and Agriculture through the interagency review process prescribed by Executive Order 12866. --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- To resolve any possible uncertainty, 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. --------------------------------------------------------------------------- \2\ Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 13 (D.C. Cir. 2019). ---------------------------------------------------------------------------

II. Ratification

By virtue of the authority vested in 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 Brent Parton, Principal Deputy Assistant Secretary, who was then serving as Acting Assistant Secretary for Employment and Training before the current Assistant Secretary of Labor for Employment and Training assumed office. On February 28, 2023, the Employment and Training Administration published in the FR the Final Rule codifying amendments to the regulations governing the methodology to determine the AEWR for non-range H-2A occupations (all H-2A occupations other than herding and production of livestock on the range). 88 FR 12760 (Feb. 28, 2023). The Final Rule was signed by Acting Assistant Secretary Parton. I have full and complete knowledge of the Final Rule action taken by former Acting Assistant Secretary Parton. Subsequent to the Secretary of Homeland Security's documented approval of the Final Rule dated April 29, 2024, 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 AEWR methodology in the Final Rule are consistent with the Secretary of Labor's statutory responsibility to certify that the employment of H-2A workers will not adversely affect the wages and working conditions of workers in the United States similarly employed, and that the changes adopted in the Final Rule best strike the 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. 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 88 FR 12760, 12799, 12802. 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 May 3, 2024, 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 28, 2023. 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 for Employment and Training, Labor. [FR Doc. 2024-10013 Filed 5-3-24; 4:15 pm] BILLING CODE 4510-FP-P