[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]


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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.

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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 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.
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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, 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 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]
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