Temporary Employment of H-2A Aliens in the United States, 25972-26015 [E9-12436]

Agencies

• Employment and Training Administration
• Wage and Hour Division
• DEPARTMENT OF LABOR

[Federal Register Volume 74, Number 102 (Friday, May 29, 2009)]
[Rules and Regulations]
[Pages 25972-26015]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-12436]



[[Page 25971]]

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Part III





Department of Labor





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Employment and Training Administration



20 CFR Part 655



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Wage and Hour Division

29 CFR Parts 501, 780, and 788



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Temporary Employment of H-2A Aliens in the United States; Final Rule; 
Labor Certification Process for the Temporary Employment of Aliens in 
Agriculture and Logging in the United States: 2009 Adverse Effect Wage 
Rates, Allowable Charges for Agricultural and Logging Workers' Meals, 
and Maximum Travel Subsistence Reimbursement; Notice

Federal Register / Vol. 74, No. 102 / Friday, May 29, 2009 / Rules 
and Regulations

[[Page 25972]]


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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

Wage and Hour Division

29 CFR Parts 501, 780, and 788

RIN 1205-AB55


Temporary Employment of H-2A Aliens in the United States

AGENCY: Employment and Training Administration and Wage and Hour 
Division, Employment Standards Administration, Labor.

ACTION: Final rule; suspension of rule.

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SUMMARY: The Department of Labor (DOL or the Department) is suspending 
the H-2A Final Rule published on December 18, 2008 and in effect as of 
January 17, 2009. That Final Rule amended the regulations governing the 
certification for temporary employment of nonimmigrant workers in 
agricultural occupations on a temporary or seasonal basis, and the 
enforcement of contractual obligations applicable to employers of such 
nonimmigrant workers. To ensure continued functioning of the H-2A 
program, the Department is republishing and reinstating the regulations 
in place on January 16, 2009 for a period of 9 months, after which the 
Department will either have engaged in further rulemaking or lift the 
suspension.

DATES: Effective June 29, 2009.

FOR FURTHER INFORMATION CONTACT: For further information regarding 20 
CFR part 655, contact William L. Carlson, Ph.D., Administrator, Office 
of Foreign Labor Certification, Employment and Training Administration 
(ETA), U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-
4312, Washington, DC 20210; Telephone (202) 693-3010 (this is not a 
toll-free number). Individuals with hearing or speech impairments may 
access the telephone number above via TTY by calling the toll-free 
Federal Information Relay Service at 1-800-877-8339. For further 
information regarding 29 CFR parts 501, 780 and 788, contact James 
Kessler, Branch Chief, Farm Labor Enforcement, Wage and Hour Division, 
Employment Standards Administration, U.S. Department of Labor, 200 
Constitution Avenue, NW., Room S-3510, Washington, DC 20210; Telephone 
(202) 693-0070 (this is not a toll-free number). Individuals with 
hearing or speech impairments may access the telephone number above via 
TTY by calling the toll-free Federal Information Relay Service at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION: 

I. Background and Overview

    The H-2A visa program provides a means for U.S. agricultural 
employers to employ foreign workers on a temporary basis to perform 
agricultural labor or services when U.S. labor is in short supply. 
Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act 
(INA or the Act) (8 U.S.C. 1101(a)(15)(H)(ii)(a)) defines an H-2A 
worker as a nonimmigrant admitted to the U.S. on a temporary or 
seasonal basis to perform agricultural labor or services. Section 
214(c)(1) of the INA (8 U.S.C. 1184(c)(1)) mandates that the Secretary 
of the Department of Homeland Security (DHS) consult with the Secretary 
of the Department of Labor (the Secretary) with respect to the 
adjudication of H-2A petitions, and, by cross-referencing Section 218 
of the INA (8 U.S.C. 1188), with respect to determining the 
availability of U.S. workers and the effect on wages and working 
conditions. Section 218 also provides further details of the H-2A 
application process and the requirements to be met by the agricultural 
employer.
    The Department's regulations at 20 CFR part 655, subpart B--``Labor 
Certification Process for Temporary Agricultural Employment Occupations 
in the United States (H-2A Workers),'' govern the H-2A labor 
certification process. The Department's regulations at 29 CFR part 501 
implement its enforcement responsibilities under the H-2A program. The 
Department's regulations on Fair Labor Standards Act (FLSA) exemptions 
applicable to agriculture, processing of agricultural commodities, and 
related subjects under the FLSA at 29 CFR part 780, and the 
Department's regulations on FLSA exemptions applicable to forestry and 
logging operations at 29 CFR part 788, set forth the Department's 
interpretation of the FLSA provisions relating to agriculture, 
forestry, and logging.
    On December 18, 2008, the Department published a Final Rule 
revising title 20 of the Code of Federal Regulations (20 CFR) part 655 
and title 29 of the Code of Federal Regulations (29 CFR) parts 501, 
780, and 788 (the December 2008 Rule or Final Rule). See 73 FR 77110, 
Dec. 18, 2008. The December 2008 Rule replaced the previous versions of 
20 CFR part 655 (2008) and 29 CFR part 501 (2008) that, for the most 
part, were first published at 52 FR 20507, Jun. 1, 1987. With respect 
to the provisions under 29 CFR parts 780 and 788 that were amended by 
the December 2008 Rule, the previous versions of 29 CFR 780.115, 
780.201, 780.205, and 780.208 were published at 37 FR 12084, Jun. 17, 
1972, and the previous version of 29 CFR 788.10 was published at 34 FR 
15784, Oct. 14, 1969.
    Following the issuance of the December 2008 Rule, United Farm 
Workers and others filed a lawsuit in the U.S. District Court for the 
District of Columbia on January 12, 2009 challenging the December 2008 
Rule. United Farm Workers, et al. v. Chao, et al., Civil No. 09-00062 
RMU (D.D.C.). The plaintiffs asserted that in promulgating the December 
2008 Rule, the Department violated section 218 of the Immigration and 
Nationality Act as well as the Administrative Procedure Act. The 
plaintiffs requested a temporary restraining order and preliminary 
injunction, along with a permanent injunction that would prohibit DOL 
from implementing the December 2008 Rule. On January 15, 2009, Judge 
Ricardo M. Urbina denied the plaintiffs' request for a temporary 
restraining order and preliminary injunction on the basis that the 
plaintiffs failed to show ``likely, imminent and irreparable harm;'' 
the court did not address the merits of the case or whether the 
plaintiffs demonstrated the substantial likelihood of success on the 
merits. Accordingly, the December 2008 Rule went into effect as 
scheduled on January 17, 2009.
    As the Department began implementing the December 2008 Rule, it 
immediately encountered a number of operational challenges which 
continue to prevent the full, effective and efficient implementation of 
the December 2008 regulation. The Department also has realized that the 
implementation of the December 2008 Rule without further consideration 
of the relevant legal and economic concerns that have arisen since its 
publication was proving to be disruptive and confusing not only to the 
Department's administration of the H-2A program but also to State 
Workforce Agencies (SWAs), agricultural employers, and domestic and 
foreign workers, especially in light of the severe economic conditions 
facing the country. Furthermore, the development of the December 2008 
Rule was based in part on the policy positions of the prior 
Administration with which the current Administration may differ and 
wish to reconsider, especially in light of changed economic conditions. 
This is particularly true with respect to the changes to wages paid to 
H-2A workers wrought by the shift of the Adverse

[[Page 25973]]

Effect Wage Rate (AEWR) from the wage rates based on data compiled by 
the U.S. Department of Agriculture (USDA) to those calculated on data 
from the Bureau of Labor Statistics in its Occupational Employment 
Statistical Survey (OES). This reconsideration may result in new 
rulemaking to seek additional comment from affected users and other 
interested parties. In light of the potential for new rulemaking, the 
Department believes it would not be an efficient use of limited agency 
resources, appropriated from taxpayer funds, to continue to attempt to 
operationalize the December 2008 Rule, and that it would be disruptive 
and confusing for program users and the Department to engage in the 
steps necessary to make the current rule fully operational.
    For these reasons, on March 17, 2009 the Department published a 
Notice of Proposed Suspension of Rule (the Notice), which proposed to 
suspend the December 2008 Rule for 9 months and reinstate on an interim 
basis the prior H-2A regulation in effect on January 16, 2009 (the 
Prior Rule). 74 F.R. 11408 (March 17, 2009). The suspension of the 
December 2008 Rule and temporary reinstatement of the Prior Rule will 
allow the Department to review the December 2008 Rule to ensure that it 
effectively carries out the statutory objectives and requirements of 
the program in a manner that minimizes disruption to the Department, 
SWAs, employers, and workers by temporarily reinstating prior 
regulations which had been in effect for over 20 years and with which 
the agricultural community already is familiar.

II. Comments on the Proposal and the Department's Responses and 
Decision

    The Department received over 800 comments in response to the 
publication of the Notice of Proposed Suspension of Rule (the Notice). 
The majority of the comments were based on form letters raising similar 
issues and concerns. Commenters included individual farmers and 
associations of farmers, farm bureaus, law firms, farmworker advocates, 
State agencies (including SWAs), Members of Congress, and individual 
members of the public. The Department has reviewed the comments and 
taken them into consideration in drafting this Final Suspension Rule 
(Final Rule, or Final Suspension).
    The Department received several comments through means beyond those 
listed in the Notice or after the comment period closed. In fairness to 
all parties, these comments were not reviewed in the consideration of 
the Final Rule. In addition, in the Notice, the Department requested 
that parties limit their comments to the issue of whether the 
Department should suspend the December 2008 Rule for further review and 
consideration of the issues that have arisen since the December 2008 
Rule's publication. Though all comments have been reviewed, only those 
comments responding to issues on which the Department sought comment 
were considered in this Final Rule.

A. Comments Regarding the Stated Policy Rationale for Suspension

1. The Department's Problems in Implementing the December 2008 Rule 
Have Resulted in Confusion, Processing Delays and Program Disruption
a. Lack of Resources
    The Department received a number of comments, both supporting and 
opposing a suspension, responding to the suggestion that both the 
Department and the SWAs lack resources to fully implement and 
administer the current regulations. Some commenters indicated support 
for the Department's position that the December 2008 rule should be 
suspended due to the shortage in resources available for fully 
implementing and administering that rule past the transition period. 
Conversely, a substantial number of comments called into question the 
substance of the rationale, arguing that the Department failed to 
present concrete evidence of a lack of resources to fully implement the 
December 2008 rule. The majority of comments that discussed the lack of 
resources to operationalize the program as written in the December 2008 
Rule argued that the Department presented insufficient evidence and 
only relatively vague statements with no clear supporting evidence. 
Other commenters asserted that the new program is in fact already 
operational and has been for more than two months and is working just 
as the DOL said it would in the December 2008 Rule. One commenter 
pointed to some evidence believed to contradict the Department's claims 
of insufficient resources, citing the DOL's discretionary budget for 
the Fiscal Year 2009 being more than $17.5 billion, constituting a 
nearly 50% increase over Fiscal Year 2008 levels, and indicating that 
the growing trend is likely to continue with the President's budget for 
Fiscal Year (FY) 2010 which includes further increases for the 
Department.
    The Department's FY 2009 budget is irrelevant to the Department's 
ability to implement the December 2008 Rule when it was promulgated. 
The December 2008 rulemaking was commenced and conducted without regard 
to resources required by the Employment and Training Administration 
(ETA) generally or for Office of Foreign Labor Certification (OFLC) 
specifically to implement the changed processes and the potential 
increased use of the program. The Department has determined that the 
agency's mandate is advanced by evaluating the December 2008 Rule, as 
opposed to bringing a potentially flawed program into full operation. 
The suspension will allow the Department to focus its resources in a 
more efficient manner, and will result in a more thorough determination 
regarding the best direction for the H-2A program.
    A few commenters asserted that the Department's claims of resource 
shortfalls are suspect in light of having engaged in the perceived 
costly exercise of suspending the December 2008 Rule and reinstating 
the old regulations that will presumably require more work on the part 
of the Department and the SWAs. Other commenters asserted that 
complaints of funding shortfalls have been prevalent in the State and 
local DOL offices long before the current regulations were implemented. 
A handful of commenters argued that the attestation process under the 
current regulations and related SWA relief from certain housing 
inspection obligations lessened demand on DOL resources, thus 
undermining the Department's argument of budgetary shortfalls. One 
commenter indicated that DOL failed to provide evidence about the new 
role of the SWAs under the current regulations, arguing that SWAs have 
less to do under the current regulations than before and therefore 
should require the same or lesser amount of resources.
    The Department's statutory obligations, especially many of those it 
delegates to the SWAs, have not changed regardless of the set of 
regulations under which they operate. The process of filing an 
application for H-2A workers under either set of regulations still 
begins with the placement of an agricultural order into clearance with 
the SWA having jurisdiction over the work, and continues through the 
State-assisted referral process and the mandatory housing 
inspection.\1\ SWAs retain many

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of the same responsibilities under the December 2008 Rule as they did 
under the prior rule.
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    \1\ The commenters' suggestion that SWAs are no longer required 
to perform housing inspections under the December 2008 Rule is 
simply inaccurate; the fact that, in some exigent circumstances, the 
Department will not withhold a certification for lack of an 
inspection does not relieve the SWA of its responsibility to perform 
the statutorily required inspection. The December 2008 Rule is clear 
that the SWAs are still expected to perform preoccupancy housing 
inspections.
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b. Inability To Implement Sequence of Operational Events
    In the Notice of Proposed Suspension, the Department cited as 
crucial to the proposed suspension its inability to implement the 
sequence of operational events required to avoid confusion and 
processing delays, including implementing an automated review system, 
and training program users and SWA staff. One commenter supporting this 
rationale for the suspension indicated that the December 2008 
regulations compound the application processing problem with guaranteed 
delays in temporary programs--mainly H-2A and H-2B--by creating an 
additional burden in increased supervised recruitment, as well as 
increased demands from the PERM program. Since its effective date, the 
Department has seen a steady increase in the numbers of delayed 
applications, where compliance with the statutory processing times has 
not been met. (See below section II.A.1.c. Processing Delays.) Delayed 
applications can translate into delayed petitions for nonimmigrant 
workers, delayed entries by needed workers, and--for lack of workers--
delayed activities by farms and farming operations. The Department is 
concerned with the correlation between this increasing delay in the 
Department's meeting of its statutory mandate. The suspension is 
intended to allow the Department to work with a system with which it is 
familiar while it determines whether to retain the new system or engage 
in new rulemaking. Using a system with which the Department is familiar 
and which it has the infrastructure to implement will hopefully reduce 
processing times and enable the Department to more closely meet its 
statutory processing obligations.
    Some commenters argued that all new rules require staff training, 
new materials and programs, but that issues arising during the 
implementation period may not be permanent and should not derail a 
lawfully promulgated rule. The Department readily recognizes that new 
regulations undergo necessary implementation phases and that alone is 
not a reason to suspend a rule, even where (as here) the office is 
promulgating significant changes for the first time in over 20 years 
that create considerable need for re-training staff and establishing of 
new guidelines for adjudication, new policy interpretations, etc. 
However, here the extremely narrow window between the publication and 
the effective date of the current regulations, especially since it 
occurred during the Presidential transition period, simply provided too 
little time for the Department to adequately train both staff and users 
in the basics of the program, much less the many nuances in program 
administration. Thus, absent a suspension, an untenable situation has 
developed in which the newly promulgated H-2A program has not been 
effectively implemented, putting users and adjudicators alike at a 
substantive disadvantage.
    A number of comments focused on the Department's statement of need 
for an automated processing system and asserted that the December 2008 
H-2A program is less resource intensive than the old program which had 
no automated system, and is therefore less in need of such a system. 
Other commenters pointed out that the prior H-2A program never had an 
automated processing system due to its complexity. Another commenter 
said that the Department never promised an automated system nor was the 
regulated community expecting one, and that in its experience, the 
processing times have been faster under the new program. Still other 
commenters pointed out that reverting to the old program, with its 
duplicative filing and requirements for manual processing, will not 
result in shorter processing times.
    In the December 2008 Rule, the Department noted that an automated 
system was contemplated at some future time for the public. However, 
the Department's inability to create an internal automated system for 
tracking and processing of applications, not an external one, is the 
most substantial factor with which the Department is currently 
concerned. In a time in which the Department receives thousands of H-2A 
applications, an automated system geared to the relevant format and 
information collection is a necessity for the 21st century. Core 
program processing requirements--such as the calculation of statutory 
processing dates from date of receipt--require some electronic ability 
for collection and calculation. The current system, designed to a now-
obsolete information collection of two pages (compared to the current 
10 page collection), is simply inadequate to track the increased 
information required under the December 2008 regulations--information 
that, under an attestation-based collection, is critical for analysis 
to determine compliance with program requirements. Use of the current 
system to administer the December 2008 Rule will adversely impact 
program integrity. The Department notes, for example, that an inability 
to systematically track information that would enable it to conduct 
audits of certified applications and undertake actions resulting from 
audits means that the Department cannot effectively implement that part 
of the new system. This lack of functionality creates a significant 
inability to adequately address the procedures and systems necessary to 
implement an attestation-based system.\2\ Furthermore, the ability to 
capture particular data elements from employers' applications as a 
basis for determining how to allocate audit resources was fundamental 
to the design of the December 2008 Rule. As discussed in the preamble 
to the December 2008 Rule, the Department envisioned a robust audit 
system that monitored filings under the re-engineered attestation-based 
process to ensure that the employment of H-2A workers does not 
adversely affect the wages and working conditions of similarly employed 
U.S. workers. Without such a system, the potential for fraud is 
increased, program integrity is in jeopardy, and U.S. workers are at 
risk of adverse affect.
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    \2\ In addition, the Department has not yet created a fillable 
form, compelling employers to print the form and type or hand-write 
the information being collected.
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    In response to the Department's statements about its inability to 
provide sufficient training for SWAs and stakeholders on the December 
2008 regulations, a number of commenters indicated that trainings were 
conducted in Denver and Atlanta in advance of the effective date of the 
regulations. In addition, several commenters asserted that DOL 
conducted more than one training for both SWA staff and employers prior 
to the effective date of the regulations and noted that this was the 
first time DOL presented training on the December 2008 Rule to the user 
community.\3\ Another commenter indicated that extensive training was 
conducted and materials were provided at no charge to stakeholders and 
had been available in PDF on DOL's Web site.
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    \3\ This is in fact incorrect, even if relevant; even in recent 
years the Department has engaged in significant outreach to its user 
communities in foreign labor programs. See, e.g., Announcement of 
Public briefings on the H-2B Temporary Non-agricultural Worker Labor 
Certification Program, 72 FR 17940 (Apr. 10, 2007); Announcement of 
Public Briefings on Using Redesigned Labor Certification Forms and 
Stakeholder Meeting, 74 FR 2634 (Jan. 15, 2009).
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    The Department made attempts to educate both stakeholders and SWAs 
as well as its own staff, holding not only

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briefing sessions for the public (in which some SWA staff participated) 
but also for SWAs, limiting the latter to the transition procedures. 
However, the December 2008 Rule, published during the middle of a 
Presidential transition period, became effective only 30 days after the 
publication, as noted above. This gave both internal and external users 
little time to understand, implement, and adapt to the changes 
contained in the December 2008 Rule. Most significantly, the Department 
had little opportunity, prior to the effective date of the rule, to 
provide adequate assistance to the affected communities on both sides 
of the application process.
c. Processing Delays
    In its March 17, 2009 Notice of Proposed Suspension, the Department 
pointed to delays and corresponding disruption to the program in the 
middle of the growing season as a core reason for temporarily 
suspending the current regulations pending additional review.
    Most comments received in response to this statement disagreed with 
the Department's assertion that it had experienced processing delays. 
Many commenters complained that the Department failed to offer 
specific, detailed and concrete evidence demonstrating the nature and 
extent of the processing delays. Large growers associations cited 
contrary experience, indicating either fewer delays under the current 
regulations than in the past, or timely processing of applications. 
However, several commenters along with a substantial number of other 
program users expressed a great deal of frustration with the Department 
for failing to meet their need for extensive technical assistance, as 
well as a general lack of comprehension of the December 2008 Rule.
    One commenter stated that DOL staff has done a good job 
implementing the current regulations on the operational level, despite 
complaints of inadequate staff, improper infrastructure and archaic 
computer support. Others commenters noted that employers have 
experienced fewer delays under the new regulations despite the fact 
that the H-2A program has always been understaffed.
    Despite the anecdotal experiences of individual commenters, the 
ability of the Chicago National Processing Center (CNPC) to issue 
timely case decisions under the new H-2A regulations has decreased. 
Timely case decisions (in which an acceptance/modification letter is 
issued no later than 7 days of receipt of the H-2A application and/or a 
final determination no later than 30 days before the employer's date of 
need) have decreased as a percentage of H-2A applications adjudicated 
in any given week. While the percentage of delayed cases--cases outside 
the statutory timeframes for adjudication--has varied since the 
effective date of the current rule, it has not fallen below 27% of all 
cases in process at that time, and has been as high as 58%. The median 
days processing time for 2009 has also exceeded the times in 2008; in 
February 2009, the median number of days to process a case was 27 days 
(compared to 23 days for the same time period in 2008). In March 2009, 
the median number of days to process a case was 25, compared to 23 days 
in March 2008. In summary, the number of days from case receipt to 
adjudication has increased, as has the Department's percentage of 
delayed cases. Therefore, despite the December 2008 rule's intended 
purpose, that rule is at least one factor in the increases in the time 
in which applications have been handled, which has led to increased 
delays in application processing.
    While the increased processing times may seem modest, they are 
cause for concern to the Department. In a statutory processing 
timeframe in which applications are filed only 45 days prior to the 
date of need and must be adjudicated no later than 30 days prior to 
date of need, delays of even a few days signal a significant failure by 
the Department to meet its statutory timeframes. One of the 
Department's goals in seeking to streamline the processing of H-2A 
applications was to ensure timely processing of applications--which was 
already a concern for the Department. Not only has that goal not been 
achieved, the new processing model has, at least so far, pushed that 
goal farther away. The processing delays also highlight the 
Department's ever-increasing inability to adequately perform its 
functions under the December 2008 Rule. This is particularly worrisome 
considering that the Department has seen its number of H-2A 
applications actually decrease compared to the same time span last 
year, with the Department receiving only 706 H-2A applications in 
February 2009, compared to 930 applications it received during the same 
month last year. Due to this demonstrated trend, the Department 
foresees increased difficulties in meeting its statutory processing 
times if the H-2A program experiences its anticipated increase in 
future participation. Delays in the Department's processing times mean 
that DHS and the Department of State have less time to process visa 
petitions, grant visas and admit workers before the employer's date of 
need. While there is no evidence that the current delays have caused 
harm, if the delays continue to increase, as it appears likely that 
they will, at some point the harm will become very real.
    Though most commenters did not address the effect of additional 
demands on the Department to process incoming applications, one large 
growers' association opposed to the suspension noted that the existing 
DOL-reported delays will be increased by a suspension, resulting in 
unacceptable delays and gridlock for H-2A and H-2B employers for the 
majority of applications scheduled to be filed in April through June 
2009.
    The Department disagrees that a suspension will exacerbate the 
current delays in processing program applications. The process for 
filing and handling applications during the suspension will be the 
filing procedures of the former rule with which CNPC and SWA staff and 
all previous program users are familiar. The burden of review during a 
suspension will be shared by SWAs and the CNPC. As a consequence, 
processing times should decrease with the reinstatement of the former 
rule.
d. Confusion and Disruption Under the Procedures of the December 2008 
Rule
    The Department said in its March 17, 2009 Notice of Proposed 
Suspension that there is increasing evidence that continuing to 
implement the December 2008 regulations in light of existing experience 
and before additional examination is disruptive and confusing to the 
Department's administration of H-2A program, SWAs, agricultural 
employers and domestic and foreign workers.
    The Department received several comments supporting the suspension 
because of this confusion and ensuing disruption. One commenter noted 
that the regulations should be suspended because they have caused 
confusion among employers, State Workforce Agency staff and workers. 
Another commenter cited anecdotal evidence of policy confusion and 
contradictions on the local level requiring a certain group of 
employers to pay overtime wages contrary to the current regulations, 
although this commenter generally opposed suspension of the 2008 rule 
on this basis. Another commenter, writing on behalf of a State 
Workforce Agency, indicated that confusion is already manifest in the 
processing of job orders during the transition period. Yet another 
commenter provided examples of confusion prevalent in communications 
between the SWA and the CNPC on such issues as the timing of receipt of

[[Page 25976]]

job orders from the CNPC, the use of master applications, and the 
timely identification of traditional labor supply States.
    Another commenter indicated that SWAs are currently receiving 
insufficient support from the CNPC for dealing with pre-filing issues, 
such as rejection of qualified U.S. workers. Confusion also exists 
about the timing of housing inspections which are being conducted under 
two sets of differing regulations. The same commenter provided 
additional evidence of confusion and disruption, including the presence 
of anomalies in wage rates, which have caused the issuance of wage rate 
determinations that are occasionally lower than the State minimum wage 
rate; and also, instances where an SWA was instructed to make referrals 
to non-provider and non-traditional labor supply states, which in turn 
reduced the chances of getting U.S. workers to fill the positions.
    The Department received other comments which challenged its 
assertions about the confusion and disruption caused by the current 
regulations. The most common objection from the commenters challenged 
the very existence of confusion and disruption under the December 2008 
regulations, and noted that DOL did not specify in the Notice of 
Proposed Suspension the types of confusion and disruption experienced 
in administering the program or present examples. In addition, a large 
number of commenters argued that employers and the larger regulated 
community were not experiencing confusion. At least one commenter added 
that DOL would create confusion and disruption by suspending the 
regulations. One large grower association identified DOL as the source 
of confusion and disruption and accused the Department of limiting 
access to guidance, training and informational resources, and 
neglecting to fulfill its obligations in advising the regulated 
community on the current regulations.
    The majority of commenters opposed to the suspension posited that 
there is no disruption among users resulting from the relevant legal 
and economic concerns associated with the December 2008 Rule. One 
commenter indicated that the current H-2A program is different from the 
prior regulatory regime in form and substance but the changes do not 
constitute such a fundamental shift in the Department's obligations, 
given the long lead time before the rule's promulgation to warrant a 
precipitous change in direction. One association noted that the largest 
users of the current H-2A program reported that the December 2008 
regulations have made for a more logical, predictable, reliable and 
less disruptive approach to securing legal labor than the old 
regulations.
    While each commenter's experience may be different, the Department 
disagrees with those commenters that there has been no disruption or 
confusion resulting from the new regulations. That the Department did 
not spell out in detail the specifics of the confusion experienced by 
program users, but only summarized the level of confusion and suggested 
it was sufficient to propose suspending the rule, does not negate the 
existence or lessen the impact of such confusion. Indeed, the 
Department received over 200 e-mail inquiries seeking clarification of 
the December 2008 regulations during the 3 months that a special 
mailbox was open to the public.
    Moreover, the inquiries that the Department has received show the 
general lack of understanding and knowledge among employers with the 
process implemented by the December 2008 Rule. As noted above, the 
Department did conduct two briefing sessions for the public in December 
2008 just before the publication of the December 2008 Rule, which fewer 
than 200 H-2A employers, agents, attorneys, farmworker advocates, State 
Workforce Agency employees, and others were able to attend. The 
attendees were provided an advance (draft) copy of the rule text at the 
meeting, and were provided a brief overview of the new regulations to 
be issued by DOL, (by both ETA and ESA). The Department of Homeland 
Security, which issued its own H-2A regulations at the same time, also 
participated in both briefings. These two briefings, however, did not 
even begin to respond to the questions and concerns arising from the 
new rule. Moreover, because of the resource constraints discussed 
earlier and the change in administrations and priorities, the 
Department has not been able to individually address the subsequent 
comments and questions nor provide adequate general program guidance.
    After that briefing, the Department has received, between late 
December and early March, at least 250 written inquiries from program 
users on the basic program requirements. Some of these questions, both 
simple and complex, have come from some of the same commenters who now 
say they have seen no difficulties with the new rule. While a few 
questions demonstrated an understanding of the new rule, many others 
demonstrated complete confusion with the new regulatory requirements, 
the forms, or the process in general. The following are some of the 
questions received by the Department as recently as March 2009 which 
show a fundamental lack of understanding of the new rule:

    ``Do I advertise before I send in the application and do I send 
copies of this advertising?''
    ``To confirm, does form 9142 take the place of both form 750 and 
790 in the new H-2A certification processing?''
    ``Does employer have to place a job order with SWA before filing 
the application with DOL? Is there any wait time?''

These questions evidence confusion about the basic program requirements 
and employers' obligations under the December 2008 regulations.
    In addition, many more questions were directed to the individual 
SWAs, which at times over the past few months have provided 
contradictory or misinformed guidance (as noted by some commenters), in 
large part due to the SWA staff's own lack of understanding of the 
December 2008 rule. The Department has become aware, for example, that 
at least one SWA, a full month into the program, was erroneously giving 
out incorrect wage rates, which were directly contrary to the 
requirements of the new regulations. Another SWA asked the Department, 
as recently as April 2009, whether, on an application filed under the 
December 2008 Rule, it was required to refer, and the employer required 
to accept, referrals through 50 percent of the contract period (the 
``50 percent rule'' of the former regulations), not the 30 days post-
date of need as required under the December 2008 Rule.
    SWAs still have a significant role under the December 2008 
regulation, so their fundamental misunderstanding of the essential 
elements of the new regulation threatens program integrity and 
contributes to the public's continued confusion about the H-2A 
application process and corresponding employer obligations.
    The most telling evidence of confusion among the farming employer 
community, however, lies in the number of applications the Department 
has received that require modifications in order to be made acceptable 
for processing. In the first three months of the program, January, 
February and March 2009, the Department found that 50%, 56%, and 46% of 
the applications processed in those months, respectively, required 
modifications to the applications. For the same timeframe last year, 
the percentages of applications requiring modifications were 10%, 16%, 
and 26%, respectively. This severe disparity of modifications of 
everything

[[Page 25977]]

from minimum requirements to contract issues demonstrates how little 
knowledge of the new regulations even seasoned users of the program 
have been able to glean.
    Based on the volume and nature of the inquiries that the Department 
has received in the early days of the December 2008 Rule, as well as 
the number of applications that require further investigation, the 
Department disagrees that there is no confusion. The significant lack 
of understanding of the new rule is evident from the questions the 
Department continues to receive daily from even seasoned program users, 
and is of deep concern to the Department. Even if some members of the 
regulated community understand the current implementation of the new 
rule sufficiently for compliance purposes, there remains the fact that 
the December 2008 rule is not yet fully implemented, as the Department 
is still operating the program within the transition procedures prior 
to full Final Rule implementation.
2. Avoiding the Disruption of Fully Implementing a Complex Regulatory 
Scheme When Further Review of Policy and Economic Concerns Are 
Warranted
    In the March 17 Notice, the Department identified as a factor in 
considering whether to suspend the current regulations the disruptive 
effect of implementing a complex regulatory scheme without further 
consideration of the legal and economic concerns that have arisen 
during the current economic downturn, such as the rising unemployment 
among U.S. workers and the impact that may have on the Department's H-
2A statutory obligation to ensure no adverse effect on the U.S. worker 
population from the introduction of the foreign workforce. Although the 
Department received many comments opposing this basis for suspending 
the regulations, the Department also received several comments strongly 
supporting the proposed action.
    One commenter asserted that the current regulations should be 
suspended because of the change in economic circumstances which has 
taken place since the promulgation of the December 2008 Rule, including 
the increased unemployment that is having an effect on the availability 
of U.S. workers. Another commenter on the State level noted that 
unemployment has increased nationally and in its State in a way not 
anticipated during the rulemaking process for the December 2008 Rule. 
The commenter urged that the Department must have an opportunity to 
reconsider policy implications of the H-2A program overall, 
particularly those program components that are likely to have an 
adverse impact on the U.S. workforce in the changed economic 
circumstances.
    Another commenter indicated that DOL did not provide supporting 
evidence showing that the delay in implementation of the December 2008 
regulations will cause disruption in the agricultural sales, production 
and market conditions, even in this unstable economic environment. This 
commenter went on to assert that DOL's proposed suspension will drive 
up costs and force users out of the program and negatively impact 
supporting jobs in the greater economy, thus itself generating a 
disruptive economic impact. Another commenter noted that DOL's mandate 
is not to abate the effects of increased unemployment but to protect 
workers, which it is adequately doing under the current regulations.
    The commenter's objection to the proposed suspension based on the 
purported increase in employers' expenses due to an increase in 
required wage rates is a critical reason the Department needs to 
examine and re-evaluate the wage regime instituted under the December 
2008 Rule. One of the Department's most important functions in its 
administration of the H-2A program is to ensure that admission of H-2A 
workers does not adversely affect the wages of U.S. workers. At all 
times, but particularly in the midst of a severe economic downturn, the 
Department is required to ensure that its regulations do not create or 
compound an adverse effect on U.S. workers. This is particularly the 
case where, as in the H-2A program, the Department has a statutory 
obligation to ensure protection of U.S. agricultural workers, one of 
the most vulnerable sectors of the workforce.\4\ The many commenters 
who cite increased wages as a central reason for not suspending the 
December 2008 Rule are doing so on the grounds that wage costs for 
their foreign workforce under the former regulations will be higher 
than under the December 2008 Rule. One of the primary reasons that the 
new Administration wants to review the December 2008 Rule is precisely 
to determine whether the generally reduced wage rates under that rule 
are having a depressive effect on farmworker wages.
---------------------------------------------------------------------------

    \4\ There is little dispute among commenters with the 
Department's position that farm hires are disadvantaged in the labor 
market relative to most other U.S. wage and salary workers. U.S. 
Department of Agriculture, ``Profile of Hired Farmworkers, A 2008 
Update,'' Economic Research Report, No. 60, July 2008, page iii.
---------------------------------------------------------------------------

    The Department stated in its Notice of Proposed Suspension that the 
December 2008 Rule, and the policy positions from which the rule was 
promulgated, may need to be reconsidered given the efforts being made 
by the current Administration to stabilize the economy. A majority of 
commenters criticized the Department for considering a change in the 
regulations on policy grounds. Some of these commenters asserted that 
even if the current Administration does not agree with the policies 
represented by the December 2008 Rule, the December 2008 Rule was 
carefully considered, planned and prepared over a long period of time 
and underwent a significant amount of review. Others noted that the 
December 2008 Rule was legally promulgated and should not be 
``scrapped'' without the Department first undertaking a similarly 
painstaking new rulemaking process.
    The Department also received comments supporting its desire to 
revisit the policies of the previous Administration reflected in the 
December 2008 Rule in light of the goals and objectives of the current 
Administration. One such commenter argued that it would be an 
inefficient use of limited agency resources, as well as confusing and 
disruptive to the program users, to engage in the full implementation 
of the December 2008 Rule if the Department is likely to issue a 
different rule soon. This commenter felt the suspension would be less 
disruptive and confusing than continuation of the December 2008 rule.
    The Department agrees that it is not appropriate to fully implement 
a rule that is under reexamination by the current Administration. The 
Administration has, through the suspension, taken the first step to 
begin a review of the regulatory policies of the previous 
Administration reflected in the December 2008 Rule in light of its own 
policies.
    The Department also agrees with those commenters who feel that less 
disruption will follow from a suspension than from a continuation of 
the December 2008 Rule. The Administration is not at this time 
eliminating the rulemaking of the previous Administration; rather, it 
is temporarily putting that rulemaking on hold in order to review the 
policies in that rulemaking and, if warranted, reopen the issues 
contained in the H-2A program for further notice and comment. The 
suspension is of limited duration in both effect and time; by providing 
notice and an end date, the Department is limiting the impact of the 
suspension as much as is feasible while

[[Page 25978]]

still enabling the review the Administration believes is necessary. The 
December 2008 Rule is not now being ``scrapped'' but is being 
temporarily suspended in order for the Administration to undertake what 
it considers to be an essential review.

B. Impetus for the Timing of Suspension

    The March 17 Notice of Proposed Suspension stresses the importance 
of moving swiftly with the suspension in order to avoid confusion and 
disruption of the H-2A program in the midst of the growing season.
    One group of farmworker advocate organizations offered support for 
the immediate implementation of a suspension, arguing that the 
regulations must be suspended before the end of the transition period 
of the current regulations to avoid compounded confusion and 
disruptions in application processing due to the Department's inability 
to fully and properly implement the complex new regulatory program. 
Other comments supported this position, noting that if there is a 
likelihood that a new program will be designed and the December 2008 
Rule changed, the December 2008 Rule should be suspended immediately in 
order to prevent confusion and disruption.
    Most commenters, however, criticized the Department's timing of the 
suspension, indicating that it would be disruptive during the critical 
time for crop production. The commenters argued that the suspension 
overlapping with the growing season will hurt the employers who have 
already planned and calculated their costs on the basis of the current 
regulations.
    As discussed further below, however, the Department has clearly 
indicated its intent to apply the current regulations to all 
applications filed prior to the effective date of this Final Rule. 
Since most applications for this growing season have been filed or will 
have been filed before this Final Rule becomes effective, the 
Department does not believe that the concerns about disruption for this 
season are a major concern. For additional discussion, see Section III. 
infra.

C. The Department's Authority To Suspend the December 2008 Rule

    A number of commenters objected to the proposed suspension of the 
December 2008 Rule because the Department's rulemaking process for the 
proposed suspension was not in compliance with the Administrative 
Procedure Act (APA). There appeared to be differing views among the 
commenters on the conformity of the Notice of Proposed Suspension with 
the rulemaking requirements under the APA. Accordingly, the Department 
reiterates the key facts relating to the rulemaking process undertaken 
thus far. On March 17, 2009, the Department published its Notice of 
Proposed Suspension in the Federal Register. The Notice proposed to 
suspend the December 2008 Rule for nine months and to reinstate the 
Prior Rule. The Notice requested comments relating solely to the 
proposed suspension itself (i.e., not the substance or merits of either 
rule) from the public through March 27, 2009. The publication of the 
Notice of Proposed Suspension did not in any way result in the 
immediate suspension of the December 2008 Rule. Rather, the Department 
accepted comments from the public during the ten-day period between 
March 17, 2009 and March 27, 2009. Once the comment period closed, the 
Department reviewed and considered the comments that it received from 
the public and, through this Final Rule, is suspending the December 
2008 Rule and reinstating the Prior Rule for 9 months. The suspension 
of the December 2008 Rule and reinstatement of the Prior Rule will not 
take effect until 30 days after the date of this Final Rule's 
publication.
    These facts are significant with respect to various comments that 
the Department's actions during this rulemaking process are a violation 
of the APA. Because different actions are cited by the commenters as 
bases of the asserted APA violation, we address each action separately.
1. 10-Day Comment Period
    A number of commenters argued that the 10-day comment period 
provided in the Notice of Proposed Suspension was unreasonable and 
violated the APA. Commenters claimed that many farmers were in the 
midst of their growing season, and 10 days was too short of a period to 
provide a sufficient response to the notice. Rather, these commenters 
stated that an adequate comment period required at least 30 days. 
Additionally, some commenters cited the apparent discrepancy between 
the 10-day comment period for the proposed suspension and the 60-day 
comment period for the Department's rulemaking process for the December 
2008 Rule. Accordingly, there were many requests to extend the comment 
period up to 60-90 days.
    Section 553 of the APA plainly states:

    (b) General notice of proposed rule making shall be published in 
the Federal Register, unless persons subject thereto are named and 
either personally served or otherwise have actual notice thereof in 
accordance with law. The notice shall include:
    a statement of time, place, and nature of public rule making 
proceedings;
    reference to the legal authority under which the rule is 
proposed; and
    either the terms or substance of the proposed rule or a 
description of the subjects and issues involved.
* * * * *
    (c) After notice required by this section, * * * the agency 
shall give interested persons an opportunity to participate in the 
rule making through submission of written data, views, or arguments 
with or without opportunity for oral presentation. After 
consideration of the relevant matter presented, the agency shall 
incorporate in the rules adopted a concise general statement of 
their basis or purpose.

    An agency is only required to provide a ``meaningful opportunity'' 
for comments on a proposed rule, which means that an agency's mind must 
be open to considering them. See Grand Canyon Air Tour Coalition v. 
FAA, 154 F.3d 455 (D.C. Cir. 1998). Nowhere does the APA set forth a 
minimum time period for accepting rulemaking comments. In fact, courts 
have upheld comment periods as short as seven days. See Northwest 
Airlines, Inc. v. Goldschmidt, 645 F.2d 1309 (8th Cir. 1981). 
Additionally, comment periods shorter than 30 days have been upheld 
where there was no evidence of any harm to the petitioners by the short 
comment period, as demonstrated by the volume and substance of comments 
received by the agency and the measurable effect such comments had on 
the final rule. See Florida Power & Light Company v. U.S., 846 F.2d 
765, 772 (D.C. Cir. 1988) (upholding 15-day comment period where 61 
comments were received, ``some of them lengthy'') and Omnipoint 
Corporation v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996) (upholding 15-day 
comment period where 45 comments and 42 letters were received).
    Here, the Department received over 800 comments, many of which 
contained detailed analyses of the impact suspension would have on the 
participants in the H-2A program and which the Final Rule has addressed 
and taken into account. Given the absence of a required minimum comment 
period under the APA, the sheer volume and substance of the comments 
and the Department's detailed discussion and consideration of the 
comments in this Final Rule, the Department believes that the 10-day 
comment period for this rulemaking is reasonable. Furthermore, while 
the Department did provide a longer comment period during the 2008 H-2A 
rulemaking process, a shorter timeframe is warranted here given the

[[Page 25979]]

need for expediency as discussed earlier in this preamble and the much 
more limited scope of this suspension rulemaking.
2. Limitation of Scope of Comments to Suspension
    An agricultural association objected to the Department's limitation 
of the scope of comments to the suspension itself, as opposed to 
comments on the merits or substance of either the current H-2A rule or 
its predecessor rule. The association stated that it has numerous 
comments it would like to offer on both the current regulations, as 
well as the prior regulations, and on this basis the association 
objected to the Department's reinstatement of the old regulations 
during the suspension period.
    As the Notice of Proposed Suspension makes clear, the current 
Administration intends to review and evaluate the social and economic 
implications of the December 2008 Rule. The Department stated that if 
it were to decide to suspend the December 2008 Rule, the Department 
will either ``engage in further rulemaking or the suspension will be 
lifted after 9 months.'' Thus, comments on the merits of the existing 
and previous program would be appropriate when the merits of the 
program are actually at issue in that rulemaking. The suspension of the 
December 2008 Rule and reinstatement of the Prior Rule is strictly a 
temporary measure arising from the Department's need to review in an 
expeditious manner the December 2008 Rule to ensure that the Department 
effectively carries out the statutory objectives and requirements of 
the H-2A program. The December 2008 Rule has not been repealed; it will 
only be held in abeyance for nine months. Unless the Department engages 
in further rulemaking, about which comments on the substance and merits 
of the proposed regulation will be solicited, the December 2008 Rule 
will continue to remain in effect once the suspension expires after 
nine months.
3. Effective Date of Suspension
    As mentioned earlier, there was some confusion among the commenters 
as to when the suspension would take effect. Some commenters believed 
that the suspension took effect upon publication of the Notice of 
Proposed Suspension or would take effect immediately at the close of 
the comment period. Another commenter believed that the suspension 
would take effect before April 1, 2009. Accordingly, a few commenters 
stated that the Department was required to show good cause in order for 
the suspension of the current H-2A rule to take effect immediately. 
However, the Department never stated in the Notice of Proposed 
Suspension, nor does it intend in this Final Rule, that the suspension 
would take effect immediately.
    As explained earlier, neither the publication of the Notice of 
Proposed Suspension, nor the close of the comment period resulted in 
the immediate suspension of the December 2008 Rule. The Department 
never intended to issue, and in fact is not issuing, a Final Rule 
suspending the December 2008 Rule without having undertaken a 
substantive review and consideration of the comments that were 
submitted during the comment period. Part of this misunderstanding may 
be attributed to the Department's reference in its Notice of Proposed 
Suspension that ``if the suspension continues on April 1, 2009, the 
previous regulations that were in effect on April 1, 2008 would appear 
in the next published version of the CFR as 20 CFR 655.1 and 20 CFR 
part 655.'' The Department merely intended to track the publication 
schedule of the CFR, in which title 20 is updated annually as of April 
1st. However, the Department acknowledges that the statement may have 
been thought to erroneously imply that the suspension would have been 
in effect before April 1, 2009, which was not the Department's 
intention. The Department would like to clarify that because the 
suspension did not take effect before April 1, 2009, this year's 
published version of the CFR as 20 CFR 655.1 and 20 CFR part 655 will 
contain the December 2008 Rule in effect as of April 1, 2009.
    A farmworker advocacy organization expressed support for the 
suspension to take effect immediately upon publication of the Final 
Rule of suspension. However, while the circumstances described in this 
preamble warrant suspending the December 2008 Rule, the Department 
recognizes the need to have some period of adjustment to the Prior 
Rule, in light of the challenges associated with changing regulatory 
programs, as noted by many commenters. Accordingly, the Department has 
determined not to waive the 30-day delayed effective date requirement 
in Section 553(d) of the APA.

D. Impact of Suspension

    The Department received many comments expressing concern about the 
impact of the suspension. The Department first would like to explain 
and clarify how the suspension of the current rule and reinstatement of 
the Prior Rule will take effect before addressing the particular 
concerns raised by commenters. The suspension will become effective 30 
days after the date of publication of this Final Rule. The Department 
stated in its Notice of Proposed Suspension that ``[i]f a final 
decision is reached to suspend the H-2A Final Rule, any H-2A 
application for which pre-filing positive recruitment was initiated in 
accordance with the H-2A Final Rule prior to the date of suspension 
will continue to be governed by the H-2A Final Rule.'' This statement 
must be understood in the context of the Department's subsequent 
extension of the transition procedures.
    On April 16, 2009, after the issuance of the Notice of Proposed 
Suspension, the Department published an Interim Final Rule (IFR) which 
extended the transition period under 20 CFR 655.102(b)(2) to cover all 
applications with a date of need on or before January 1, 2010. See 74 
FR 17597. During the transition period employers do not engage in pre-
filing recruitment in traditional or expected labor supply States in 
which there are a significant number of qualified domestic workers. 
Under the transition procedures, employers are provided information on 
expected labor supply States as part of their post-filing recruitment 
instructions. Given that all applications filed before the effective 
date of the suspension will still be subject to the transition 
provision at 20 CFR 655.102(b)(2), which provides for post-filing 
recruitment, no employers will be required to engage in pre-filing 
positive recruitment before the effective date of the suspension. 
Nevertheless, in keeping with the intent expressed in the Notice of 
Proposed Suspension, any H-2A application which is filed while the 
December 2008 Rule is still in effect will continue to be governed by 
the December 2008 Rule, while applications filed on or after the 
effective date of the suspension and the reinstatement of the Prior 
Rule will be governed by the Prior Rule.
    Despite a recommendation from a farmworker advocacy organization to 
apply the Prior Rule to all pending and approved job orders, the 
Department does not believe there is a legal basis to do so, and 
therefore will not apply the Prior Rule to applications filed under the 
December 2008 Rule. Following the farmworker advocacy organization's 
suggestion would undermine employers' expectations and reliance on the 
current rule prior to its suspension. Moreover, implementing this 
suggestion may violate the prohibition on retroactive rulemaking. See 
Nat'l Mining Ass'n v. Dep't of Labor, 292 F.3d 849, 860 (D.C. Cir. 
2002).

[[Page 25980]]

    The reinstatement of the Prior Rule will be accompanied by the 
reinstatement of Form ETA-750 in the H-2A program. Form ETA-9142 for H-
2A applications\5\ may be filed up to the day before the effective date 
of the suspension. However, as of the effective date of this Final 
Rule, employers will be expected to use Form ETA-750, and any H-2A 
applications filed using the Form ETA-9142 will not be accepted.
---------------------------------------------------------------------------

    \5\ Note that the discontinuation of Form ETA-9142 in the H-2A 
program in no way affects the requirement to use the Form ETA-9142 
in the H-2B program.
---------------------------------------------------------------------------

1. Uncertainty of Applicable Regulations; Impact on Planning and 
Operations
    A number of commenters expressed concerns about the confusion and 
disruption that would result from the suspension of the December 2008 
Rule. In particular, a State agricultural agency questioned: (1) 
Whether farmers would be allowed to abandon applications when they 
learn that they are going to be subject to the Prior Rule; (2) whether 
it would be possible for farmers to end up with some workers being 
subject to the December 2008 Rule and some to the Prior Rule; (3) 
whether farmers will find that their applications filed under the 
December 2008 Rule are rejected once the Prior Rule is in place. Such 
concerns were echoed by a number of farmers and agricultural 
associations, particularly as to how the suspension would affect 
applications filed but not yet approved.
    Employers always have had the ability to abandon or withdraw 
pending applications without penalty, regardless of which regulations 
apply. However, as explained above, the Department has clearly 
identified the time frame for determining whether an application falls 
under the December 2008 Rule or the Prior Rule. Applications filed 
before the effective date of this Final Rule will be governed by the 
December 2008 Rule. Applications filed on or after the effective date 
of this Final Rule will be governed by the Prior Rule. Thus, 
applications filed before the effective date of this Final Rule will 
not be governed by the Prior Rule and therefore, could not be rejected, 
nor will the employer be penalized, because the application is not in 
compliance with the Prior Rule.
    The Department understands that one of the results of this 
suspension is that a farmer may have workers subject to two different 
sets of rules, depending on the date on which the applications covering 
the H-2A workers were filed. However, as discussed in greater detail in 
Section II(C)(3) of this preamble, such situations already occur and 
have not detrimentally affected the H-2A enforcement process.
    A number of growers also raised concerns about having invested much 
time and effort in learning the December 2008 Rule, and that their 
reliance on the December 2008 Rule in planning for their 2009 growing 
season will cause them to incur additional administrative, operations, 
and financial burdens if the December 2008 Rule is suspended. In 
particular, one agricultural association stated that their members 
planned for their 2009 crop activities using the December 2008 Rule to 
budget for operating costs, secure financing, plan personnel needs, 
finalize contracts, and schedule product deliveries. They claimed that 
such c