The U.S. Department of Labor (DOL) says that it has found a number of inefficiencies in the H-2A temporary agricultural labor visa program, and the department has a solution: change the program’s rules. The DOL has proposed a number of administrative rule changes that it believes will make the approval process move along quicker, relieve burdens on U.S. farms, and create a more level playing field with regards to pay. Before we talk about the rule changes, let’s recap what the H-2A program is.
H-2A is a visa program for seasonal agricultural laborers from other countries.
Labor shortages have plagued farms across the United States for decades. Congress first created a visa program for non-immigrant labor in the early 1950s, but it wasn’t until 1986 that Congress established the H-2A visa program for temporary agricultural workers. Under this program, farmers may apply to employ H-2A workers on their farm on a temporary or seasonal basis for up to a year, but may apply to renew the worker’s visa for up to three total years.
In order to hire H-2A workers, an employer must certify in an application to the DOL that there are not enough qualified domestic workers willing and able to perform temporary and seasonal agricultural labor. In order to prove that there is not enough domestic labor, the farmer must demonstrate an effort to advertise the available work in the local area.
Further, the farmer must demonstrate to the DOL that employing foreign workers will not negatively affect the wages and working conditions of similarly employed U.S. workers. In other words, a farmer can’t hire foreign labor because it’s cheaper. A farmer is expected to pay the foreign workers the same as the farmer would pay domestic workers, based upon the higher of the DOL’s Adverse Effect Wage Rate, minimum wage, or prevailing wage.
What does the Department of Labor seek to change?
The DOL proposes to make several changes to the H-2A program’s administrative rules. Some of these changes update the rules to reflect what is already happening, while some make slight changes to the program’s overall scope.
- Mandate e-filing. The DOL currently allows farmers to submit their applications online or in hard copy, but reports that 4/5 of applications are completed online. A review by the DOL has found that online applications get completed more quickly, have fewer errors, and reduce costs relative to hard copy submissions. Under the new rule, the DOL would require all applications to be completed online, unless the farmer has a disability or does not have internet access.
- Allow e-signatures. The DOL currently requires farmers to sign a hard copy of their applications and either scan the document into the application or mail it. Under the new rule, the DOL would accept e-signatures as equal to handwritten signatures.
- Subdivide the adverse effect wage rate based upon specific agricultural occupations. In the previous section, we noted that the farmer must pay the foreign workers the same as he or she would pay domestic workers. One way to determine that wage is to use the DOL’s Adverse Effect Wage Rate. Currently, the DOL has one rate for a state or region based upon the combined numbers for field and livestock workers. Under the new rule, the DOL would use Farm Labor Survey data to subdivide agricultural occupations in order to ensure that higher paying occupations, such as supervisors of farmworkers and construction laborers on farms, use an Adverse Effect Wage Rate that properly reflects the wages of those higher paying occupations, rather than one general rate for all agricultural workers.
- Update the methodology for calculating prevailing wage standards. Another way to calculate the minimum wages of H-2A laborers is to base their pay off of the prevailing wage. The current method of calculating the prevailing wage, which has not been updated since 1981, requires in-person interviews of employers. Under the new rule, the DOL would eliminate the in-person requirement and allow states to collect data using more modern methods.
- Incorporate guidance letters regarding animal shearing, commercial beekeeping, custom combining, and reforestation occupations into formal rules. When asked for an interpretation of its rules and policies, a federal agency may issue a guidance letter to the person seeking an interpretation. These guidance letters are not necessarily binding, and have no general application beyond the person seeking the interpretation. By incorporating the guidance into a formal rule, the interpretation holds the force of law. The DOL identified these occupations as unique relative to other agricultural occupations, and created a special set of procedures to obtain H-2A laborers to work these types of jobs.
- Expand the definition of “agriculture” to include reforestation and pine straw activities. Currently, reforestation and pine straw occupations are only available for H-2B applications, which are for non-agricultural occupations. Under the new rule, these activities would be eligible for the agricultural based visa.
- Reduce the time an employer must allow a domestic worker to apply for a job to 30 days. Currently, the DOL requires a farmer to hire all eligible, willing, and qualified U.S. workers who make themselves available to work until the half way point in the H2-A contract period. This means that if a farmer has H-2A laborers working under a six-month contract, then the farmer must hire any eligible, willing, and qualified domestic worker during the first three months of the contract. Under the new rule, the farmer would only have to leave such opportunity open to domestic workers for 30 days.
- Allow an employer to stagger the entry of H-2A labor. Sometimes a farmer does not need all of the H-2A labor to arrive at once, but rather needs some to start on one date and then others to start on a different date. Currently, this would require the farmer to submit an application for each date on which the farmer needs H-2A labor. Under the new rule, the farmer would be able to submit one application but stagger the start dates of his or her workers over the course of 120 days. This 120-day clock begins on the day the first H-2A workers enter the U.S.
For more information about the proposed changes, visit the proposed rule’s entry on the Federal Register HERE.
The public may submit comments until September 24, 2019.
As part of the public rulemaking process, the DOL is seeking public input on the proposed rule changes. Members of the public may submit written comments to the DOL until Tuesday, September 24, 2019.
You may submit a comment online (visit https://www.regulations.gov/) or by mail (send to Adele Gagliardi, Administrator, Office of Policy Development and Research, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW, Room N-5641, Washington, DC 20210). When mailing comments, be sure to include the rule’s Regulatory Information Number (RIN): 1205-AB89.
As our readers can probably tell by now, there has been a lot happening in the agricultural law world over the past couple of weeks. From the Lake Erie Bill of Rights going on the ballot in Toledo to a new court decision on wedding barns, we’ve done our best to keep you in the know. While the legislative sessions in Congress and the Ohio General Assembly have started to shift into a higher gear, covering those bills will take up a lot of space, so be on the lookout for a legislative update soon.
For now, here’s our latest gathering of agricultural law news that you may want to know:
Yep, more WOTUS. The U.S. EPA has announced new public hearings regarding its proposed revised definition of Waters of the United States. The hearing will be held on Wednesday, February 27th and Thursday, February 28th at the Reardon Convention Center in Kansas City, Kansas. For those who wish to provide input, but are unable to make the trip, the U.S. EPA will accept written comments from the public online at http://www.regulations.gov with the docket ID number: EPA-HQ-OW-2018-0149. The online comment portal will accept new submissions until April 14th. The text of the proposed rule, which the U.S. EPA released just in time for Valentine’s Day, is available on the online comment portal page as well as in the Federal Register. For more information about either attending the meeting or submitting a comment to the U.S. EPA, visit the Federal Register’s webpage here. For more information about WOTUS rulemaking, see our most recent WOTUS blog post, or visit the U.S. EPA’s webpage here.
Conservation funding for federal lands could be restored under U.S. Senate bill. In a sign of bipartisanship, the U.S. Senate passed the National Resources Management Act by a vote of 92-8. If the House approves and it receives the President’s signature, the bill would modify a number laws addressing the management and conservation of federal lands, and would also restore funding to the Land and Water Conservation Fund, which had expired last fall. This fund primarily supports the protection of federal public lands and waters, but it also promotes voluntary conservation on private lands and awards grants to states for the acquisition and development of parks and outdoor recreation sites. Also in the bill are two specific changes of note for Ohio. First, section 6004(c) of the bill would increase the cap on total spending for the Ohio & Erie National Heritage Canalway from $10 million to $20 million. Second, section 2502 of the bill would extend the Lewis and Clark National Historic Trail from Illinois to Pennsylvania, which will include portions in Ohio. You can read the full text of the bill and see the official analyses on Congress’s website here.
FFA charter amendments approved by Congress and the President. Citing issues arising from the U.S. Department of Education’s not filling seats on the National FFA Board of Directors, the National FFA sought an amendment to its charter. Congress originally granted the charter in 1950, and any changes to the charter must be done so by an act of Congress. One of the major changes sought by National FFA was a reduction in the number of seats on the board of directors that must be appointed by the Department of Education. By not filling all of the seats on the Board of Directors, the National FFA faced difficulty making decisions because it often could not meet its quorum for meetings. The new amendments reduce the organization’s reliance on an appointment to its board of directors by the U.S. Department of Education, which increases the organization’s ability to self-govern. You can read the text of the bill on Congress’s website here, or visit the National FFA’s webpage on frequently asked questions about the charter revision here.
The PACT Act is back. The Prevention of Animal Cruelty and Torture Act has been reintroduced into the U.S. House of Representatives. The act would allow for significant fines and up to seven years in prison for those convicted of animal crushing, creating animal crushing videos, or distributing animal crushing videos. The bill defines crushing as “actual conduct in which one or more living non-human mammals, birds, reptiles, or amphibians is purposely crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury.” However, the bill does contain exceptions for conduct that is related to “customary and normal veterinary, agricultural husbandry, or other animal management practice[s];” “the slaughter of animals for food;” legal hunting, trapping, and fishing activities; research; defense of a human; and euthanizing an animal. Many in the agriculture community have opposed the bill, arguing that it is duplicative in light of animal protections created by the states and that it risks courts and juries interpreting the language too broadly. At this time, the bill has only been introduced in the U.S. House and referred to the Judiciary Committee.
Nebraska wind farms sue to enforce contract and keep utility from flying off into the sunset. Three Nebraska windfarms in a power supply contract with the Nebraska Public Power District (NPPD) have filed suit to prevent the utility from backing out of the contract. The wind farms filed a complaint in federal court in Nebraska on January 30th, alleging that NPPD expressed its intention to terminate a power purchase agreement, and that doing so would be wrongful. The complaint explains NPPD’s position that the wind farms materially violated the contract by investing in other businesses and operations. The plaintiffs disagree that there was a breach, but say that even if there was, NPPD cannot terminate the contract because it knew of the transactions. The plaintiffs also note that NPPD has eminent domain power. They argue that by terminating the contract, NPPD knows that the wind farms will likely enter default with creditors. This could allow NPPD to acquire the rights of the wind farms through a foreclosure sale or eminent domain. To prevent NPPD from terminating the contract, the parties requested, and were granted, a temporary restraining order until March 1st that requires NPPD to honor the contract. The case is cited as Laredo Ridge Wind, LLC v. Nebraska Pub. Power Dist., No. 8:19-cv-45 (D. Neb.).
Wisconsin Supreme Court asked to decide scope of agency power to regulate agriculture. A Wisconsin court of appeals has certified two cases to the Wisconsin Supreme Court, asking the court to determine the extent of the Wisconsin Department of Natural Resource’s authority to regulate agriculture in order to protect groundwater. A certification represents a lower court seeking guidance on an issue that the lower court believes it is not in the best position to decide without knowing what the higher court thinks. These cases are important for Wisconsin because they pertain to a law passed in 2011 that restrained authority of state agencies to act beyond express grants of authority by the state legislature. Specifically, the cases ask whether the Wisconsin DNR can impose conditions on issuing a permit beyond the conditions stated in a statute. The affected parties in the cases range from dairy farms to manufacturers and from food processors to municipal water utilities. Environmental groups hope that state agencies may take a more expansive look at environmental impacts when reviewing permit applications. The two certification orders are available here and here.
Less than a week into the administration of Ohio Governor Mike DeWine, a new approach to watersheds in distress has emerged. Director Dorothy Pelanda assumed the helm of the Ohio Department of Agriculture (“ODA”) earlier this week. (Read more about the new director below). By Tuesday, ODA had changed the status of the proposed watersheds in distress rules in the Register of Ohio to “To Be Refiled.”
Watersheds in Distress Proposed Rules “To Be Refiled”
The change in status of the proposed rules signals that ODA plans to change its earlier proposal. The Register of Ohio, which is where state agencies post rules and proposed rules, defines a proposed rule with a “To Be Refiled” status as one “that has been temporarily removed from JCARR consideration by the rule-filing agency.” Until a sponsoring agency acts, the proposed rule remains in the “To Be Refiled” status and off of the agenda of the Joint Committee on Agency Rule Review (“JCARR”). As we mentioned in a previous blog post, JCARR was set to consider the controversial proposal at its January 22, 2019 meeting. However, the change in status of the proposed rules means that JCARR will not consider them until ODA takes further action. ODA may revise the proposal, refile as-is, take no action, or withdraw the proposal.
Readers may recall from a previous blog post that the Kasich administration sought to expand the number of watersheds designated as “in distress,” which would impose additional regulations and restrictions on farmers who apply manure and nutrients to the land. Further, the proposal would have required impacted farmers to submit a nutrient management plan to ODA, and ODA would have to audit at least 5 percent of those plans. ODA’s Soil and Water Conversation Division held a hearing on November 21st, and a number of stakeholders attended to provide comments. A summary report of the hearing is available here. Currently, the Grand Lake St. Marys Watershed is the only watershed in Ohio subject to the additional requirements.
Dorothy Pelanda Assumes Directorship of Ohio Department of Agriculture
Director Pelanda steps into Governor Mike DeWine’s cabinet as the 39th Director of the Ohio Department of Agriculture. She served in the Ohio House of Representatives from 2011 until the end of the previous General Assembly, and held leadership positions within the Republican caucus. Prior to her appointment to the Ohio House, Director Pelanda practiced law in Union County. She is a graduate of the University of Akron School of Law, Miami University, and Marysville High School. Director Pelanda is the first woman to serve as the Director of the Ohio Department of Agriculture. For more information about Director Pelanda, visit ODA’s website here.
The Joint Committee on Agency Rule Review (JCARR) plays an important role in Ohio’s government. Its review of new and old rules assists in verifying that administrative rules are not duplicative, overly-burdensome, or costly. Among other things, JCARR also helps to confirm that rules in fact carry out what the legislature had in mind when passing the law. In fact, on Monday, December 10, 2018, JCARR will decide the fate of the controversial watersheds in distress rules (we explained the proposed rules in this blog post) prompted by Governor Kasich’s July 2018 executive order.
The Joint Committee on Agency Rule Review, often referred to by its acronym, JCARR, was enacted by the Ohio General Assembly in 1977, and is codified in section 101.35 of the Ohio Revised Code. JCARR is charged with “review[ing] proposed new, amended, and rescinded rules” from Ohio’s administrative agencies. The state’s administrative agencies are numerous and include the Ohio Department of Agriculture, the Ohio Environmental Protection Agency, and the Ohio Department of Natural Resources, just to name a few. The administrative agencies are responsible for making the administrative rules to help carry out the Ohio General Assembly’s legislation.
Make-up of the committee
JCARR is made up of five members of each house of the Ohio General Assembly, meaning that five members from the house of representatives and five members from the senate make up the full committee. The speaker of the house appoints the five representatives, and the president of the senate appoints the five senators. The appointments must be bipartisan; each house may only appoint three members of the same political party. During the general assembly’s first regular session, the speaker of the house chooses the chairperson of JCARR from their house appointees, and the president of the senate chooses the vice-chair. During the second regular session, the chair and vice-chair are chosen in the reverse.
Conditions that rules must meet
If JCARR reviews an administrative rule and finds that rule to “violates one or more” of six requirements, the committee may “make a recommendation to invalidate the rule.” The six requirements are as follows:
- The rules do not exceed the scope of the rule-making agency’s statutory authority;
- The rules do not conflict with a rule of that agency or another rule-making agency;
- The rules do not conflict with the intent of the legislature in enacting the statute under which the rule is proposed;
- The rule-making agency has prepared a complete and accurate rule summary and fiscal analysis of the proposed rule, amendment, or rescission (Revised Code 127.18);
- The rule-making agency has met the incorporation by reference standards for a text or other material as stated in Revised Code 121.72, Revised Code 121.75, or Revised Code 121.76; and
- If the rule has an adverse impact on business (Revised Code 107.52), the rule-making agency has demonstrated through the business impact analysis, the Common Sense Initiative office recommendations, and the agency’s memorandum of response to the recommendations, that the regulatory intent of the rule justifies its adverse impact on business.
If a rule is found to violate any of the conditions listed above, a member of JCARR can move to recommend a resolution to invalidate the rule. The motion for invalidation must include the reason for the invalidation specifically based on one or more of the above conditions. The motion can be to invalidate the whole rule, or just part of the rule. If the motion for invalidation is seconded by another committee member, the members of JCARR can then vote on the motion. A majority of the committee is required to recommend a resolution for amended, revised, and rescinded rules. A two-thirds super majority is required to recommend a resolution to invalidate a no-change 5 year review.
If a motion for invalidation passes JCARR, the rule is put into suspension, meaning the administrative agency cannot proceed with the rule. A member of the committee then writes a concurrent resolution about invalidating the rule. Then, depending on which house the writer of the resolution comes from, the resolution goes to the house of representatives or senate, where the body has five session days to act on the resolution. If that time lapses, or there is no majority vote within five days, then the resolution dies, meaning the rule would no longer be suspended. If the resolution does pass the first body by majority vote, it then goes to the other house of General Assembly. Again, in the second body, the resolution must be voted on within 5 session days and be passed by a majority vote. If the resolution does not pass or is not voted on, again, the rule comes out of suspension. Finally, if the concurrent resolution for invalidating the rule passes both the house and senate, the rule is invalidated.
5 Year Review of Rules
Administrative agencies in Ohio must review their administrative rules every five years. The first part of the review requires the agency to ascertain whether or not the rule has a harmful effect on business in the state of Ohio. If the agency decides that the rule does have a bad impact on business, then the rule must be sent to the Common Sense Initiative office (CSI). The CSI is charged with finding ways to diminish the effects on business.
After the analysis of the effect on business, the agency decides whether or not the rule needs to be updated or removed. Upon deciding that a rule needs to be changed or removed, the agency must then file the rule with JCARR as a five year amended or rescinded rule. Then, JCARR goes through the process described above—the committee determines whether the amended or rescinded rule violates any of the six requirements, and if it does, the committee follows the process for rule invalidation.
If the agency determines that the rule should remain as it is, then it should file the rule as a five year no-change rule. JCARR then considers the following questions as pertains to the no-change rule:
- Should the rule be continued based on the intent of the statute under which the rule was adopted?
- Should the rule be amended to give more flexibility at the local level?
- Should the rule be rescinded or eliminated because of unnecessary paperwork?
- Does the rule meet the standards for incorporation by reference?
- Does the rule duplicate, overlap, or conflict with other rules?
- Is there a continued need for the rule?
- If the rule has an adverse impact on business, did the rulemaker demonstrate through the business impact analysis, CSI recommendations, and the memorandum of response that the regulatory intent of the rule justifies its adverse impact on business?
If JCARR finds that one of the above questions was violated or not sufficiently addressed by the agency, then the committee can entertain a motion for invalidation of the rule, triggering the rule invalidation process discussed above.
JCARR has an excellent website with informative videos and other information about its purpose and how it carries out the review process, available here. For a deeper dive into JCARR and the review process, the committee’s procedure manual is also very helpful.