USDA Announces Assistance Program for Orchardists and Nursery Tree Growers
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SUMMARY OF THE FINAL 2010 H-2A REGULATIONS
The regulatory chaos that has ensued during the past several years has made it
exceedingly difficult for current and potential H-2A users to understand and comply with the
complex rules that govern participation in the H-2A program.1 The final regulations can be
found at 75 Federal Register 6884-6995 (February 12, 2010). In addition, DOL published in the
Federal Register on February 18, 2010 the 2010 adverse effect wage rates (AEWR) that will be
effective on March 15, 2010. 75 Federal Register 7293-94 (February 18, 2010).
They are effective on March 15, 2010. Those who file applications to participate in the H-2A
program with dates of need on or after June 1, 2010 must comply with the new rules.
American agriculture submitted extensive comments on the practical problems created by
the proposed regulations. While a few suggestions were adopted by DOL in its final rule, the
final regulations retain almost all of those provisions that will make the program difficult and
costly to use and which will subject agricultural businesses to substantial exposure from overly
broad and punitive enforcement measures for violation of highly complex and technical program
terms. Following is a summary of some of the more problematic provisions of the rules that:
• Fail to balance the interests of U.S. workers not to be adversely affected by foreign
workers with the need of employers to have a readily accessible program that affords
timely access to foreign workers at a reasonable cost. The singular focus of the
regulations is protection of U.S. workers at all costs, without adequate justification;
• Establish a cumbersome, lengthy and costly labor certification application process and
onerous enforcement provisions that were justified by the simplified attestation process in
the Bush regulations but not in the context of the new certification process. The rule will
have an especially negative effect on small businesses;
• Retain the 60-75 day recruitment and filing period in advance of the date of need that
makes anticipation of labor needs difficult and which fails to provide a realistic picture of
the availability of recruited domestic workers during that period;
1 The current H-2A regulatory proposal is the latest in a regulatory pendulum that has swung between extreme regulatory positions on what the H-2A statute mandates in balancing protection of the U.S. worker and ensuring that agriculture has a viable temporary and seasonal foreign worker program. The Bush H-2A rules revised the prior
rules that had been in effect since 1987 that implemented the statutory H-2A changes enacted in the Immigration Reform and Control Act of 1986 (hereafter referred to the 1987 rules). On May 29, 2009, the Obama DOL finalized a rule suspending the 2008 rules, after a brief public comment period on whether the 2008 rules should be suspended. On June 29, 2009, the U.S. District Court for the Middle District of North Carolina issued a preliminary
injunction stopping the suspension of the 2008 rules in a lawsuit filed by some grower groups. It is our understanding the DOL has withdrawn its appeal of the injunction of its suspended rule in view of the fact that it has issued the final rule that will be effective on March 15, 2010.
• Eliminate the responsibility of the State Workforce Agencies (SWA) to verify the work
authorization of their referrals, resulting in referral of unauthorized workers, leaving
employers vulnerable if they are later audited by Immigration and Customs Enforcement;
• Eliminate the ability of H-2A workers to perform limited incidental agricultural work
outside of the job description without violating program terms and subjecting employers
to potential debarment if incidental work is performed;
• Establish an unprecedented and overly broad definition of corresponding employment,
the literal terms of which will require that all U.S. workers in an employer’s workforce be
provided payment of the elevated wage rates of the H-2A program, as all H-2A program
benefits, including free housing and in-bound and out-bound transportation;
• Reinstate the AEWR from the 1989 regulations with adverse modifications, including the
unprecedented requirement to increase wages if the prevailing wage rate increases during
the contract period;
• Replaces the longstanding definition of strike and lockout with an unprecedented
definition that allows two persons declaring themselves on strike or locked to block
access to any H-2A workers;
• Create ambiguity as to when H-2A workers must be given disclosure of the job order or
contract in a foreign country;
• Impose a new Fair Labor Standards Act requirement, never previously noticed to the
public, that transportation, subsistence and visa and related border crossing fees paid by
the employee coming to work for the employer cannot reduce the first week’s wages
below the minimum wage and which conflicts with DOL’s longstanding rule requiring
such reimbursement after 50% of the contract period is completed; and
• Retain virtually unchanged the punitive enforcement provisions, including concurrent
debarment authority for WHD and ETA, and elevated civil money penalties.
The practical impact of the rules will be to diminish program participation because of
their complexity, cost, and punitive provisions. The rules take effect at a time when the
Department of Homeland Security (DHS) is expanding worksite enforcement and audits and the need for agriculture to have a viable H-2A program has never been higher. Employers are
caught in a vice between DHS and DOL enforcement. The need for a legislative fix of the H-2A program through Congressional enactment of the extensive H-2A reforms of the Agricultural Job Opportunity, Benefits, and Security Act (AgJOBS) has never been higher. AgJOBS would achieve extensive statutory reforms that would
establish fair and balanced H-2A provisions with respect to a streamlined application process,
wage relief, housing flexibility, program expansion to certain industries such as dairy currently
ineligible to use the program, and a uniform and streamlined legal framework for the settlement
of disputes.
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USDA Subsidy Program Threatens Industry's Mulch and Bark Supply
This article is provided by ONLA and ANLA as a Lighthouse Program partner benefit
Passed as part of the 2007 Farm Bill, the Biomass Crop Assistance Program (BCAP) wascreated to stimulate the production of agricultural crops for the purposes of creating new,renewable sources of energy. Originally designed with switchgrass and other commodities in mind, the eligibility of woody forest by-products was later included as eligible materials under the BCAP program. The idea was to allow small forest owners to remove stumps from forest products and to provide forest slashings for the purpose of creating wood pellets and woody biomass. Unfortunately, the confluence of unintended consequences, the lack of the technology and materials necessary to collect these stumps and woody remnants, and a soft market for forest products and by-products has put the current wood fiber market at risk. The ability to grow new crops in a short period of time has made the BCAP program become reliant on the current wood fiber market to meet these far-reaching renewable energy goals.http://www.surveymonkey.com/s/BCAP_Survey
ANLA BCAP ResourcePage:http://anla.org/index.cfmarea=&page=Content&CategoryID=277
H-2A Rules- Bad to Worse
Users of the H-2A temporary and seasonal worker program are bracing for new Labor Department rule set to take effect March 15. The rules reverse efforts by the Bush Aministrationto streamlineand simplify the process for using the program, and will increase recruting, transportation, wage and other costs. ANLA is participating in a thorough legal review of the rule, and is finalizing a summary. More in-depth analysis and preliminary compliance advice are being prepared and will initially be available to members who are helping fund the review. Questions? Contact Craig Regelbrugge, cregelbrugge@anla.org
Immigration once again grabbed headlines the week of December 14, with introduction of this Congress’ first comprehensive immigration reform legislation, and an employer-unfriendly H-2B reform proposal. Also, ANLA met with Homeland Security Secretary Janet Napolitano. Brief details on each appear below; links to related documents will be posted shortly at ANLA.org.
On December 15, Rep. Luis Gutierrez (D-IL) and nearly 100 colleagues introduced the Comprehensive Immigration Reform for American Security And Prosperity (CIR ASAP) legislation. The bill, the first comprehensive immigration bill introduced this Congress, contains enforcement and border security, employment verification, and legalization provisions. From an employer perspective it is a mixed bag. On a very positive note Gutierrez included the ANLA-endorsed AgJOBS provisions in his bill. AgJOBS would overhaul the H-2A program, and provide an earned legalization program for experienced and essential farm workers. On a more disappointing note, the bill would add more burdens to the H-2B program. While the bill is an important marker for a coming immigration debate, it is not expected to be the vehicle for reform. The debate is expected to start in the Senate, with legislation being discussed by Sens. Chuck Schumer (D-NY) and Lindsey Graham (R-SC).
On December 16, California Democratic Reps. George Miller and Zoe Lofgren introduced an H-2B bill in the House. The bill, under ANLA review, adds new recruitment, wage, and other employer obligations to a program that unions have targeted for changes. Again, the bill does not address the fundamental need for H-2B cap relief, and if it moved, it might cripple employers’ ability to use the program. This is also a “marker” bill expected to influence the broader immigration debate, rather than moving alone.
Finally, also on December 15, ANLA was the sole business association that took part in a small meeting with Homeland Security Secretary Janet Napolitano, to discuss the status and prospects for comprehensive immigration reform. On a positive note, DHS is preparing internally for the possibility of Congress taking up the issue early next year. On a more concerning note, Napolitano made clear that her department’s stance on enforcement will continue. Already, DHS has conducted a record number of employer audits, and ANLA knows of several green industry businesses that have been hit. Watch for more as the situation develops.
Craig
Craig J. Regelbrugge
Vice President, Government Relations
and Research
American Nursery & Landscape Association
1000 Vermont Ave NW , 3rd Floor
Washington , DC 20005
202/789-2900; Direct 202/741-4851; Cell 202/425-4401
cregelbrugge@anla.org
USDA Subsidy Program Threatens Industry's Mulch and Bark Supply
This article is provided by ONLA and ANLA as a Lighthouse Program partner benefit
When the USDA issued a Notice of Available Funding for the BCAP program late last year, $500 million was made available to subsidize the purchase of materials like pine bark and hardwood/softwood chips used in the production of mulch. While 46% of the current wood fiber market already goes toward fuel and biomass, USDA will be offering a subsidy of up to $45 per bone dry ton of these materials. As a result, suppliers in the Southeastern U.S. have notified growers that these materials will be withheld from the market until a determination can be made regarding eligibility at this heavily subsidized price.
Upon realizing that the BCAP program was having some significant unintended consequences on existing markets, USDA froze the program and issued a new proposed rule for the BCAP program. While there is language included regarding the exclusion of "high value products" in mature markets for things such as wood fiber, there is concern that these high value products are ill-defined. Further, it is feared that USDA will lack the resources to enforce how these products are defined by suppliers of wood fiber materials.
ANLA is currently collecting information on how price increases and the unavailability of these materials would affect wholesale and retail growers, independent garden centers and landscape operations. Lighthouse Partners are encouraged to direct their members to participate in a survey, and to utilize the BCAP resource page at ANLA.com to submit comments on the USDA's proposed rule for implementation of the program. The links are below:
BCAP Survey:
USDA Subsidy Program Threatens Industry's Mulch and Bark Supply