A court has rejected a challenge by agricultural employers to the Labor Department’s 2022 H-2A rule, finding that the department properly followed notice-and-comment procedures.
The National Council of Agricultural Employers had argued that the department illegally withdrew the previous administration’s rule, which was published online nine days before President Joe Biden took office.
U.S. District Judge Rudolph Contreras, however, determined that the Jan. 11, 2021, version of the rule never became official because the Office of Federal Register never made it available for public inspection.
“[T]here is no dispute that the 2021 Rule did not pass the finality threshold,” the judge said in his opinion issued Monday.
The Biden administration withdrew the rule as soon as it took office, ultimately replacing it in November 2022. NCAE said changes in surety bond requirements would drastically increase costs for its members.
Contreras agreed that the examples cited by NCAE show that its members “suffered a concrete injury,” and thus had standing to challenge the 2022 rule. However, he found that the Labor Department had adequately considered comments on its 2019 proposal and that the 2022 rule was a “logical outgrowth” of that proposal.
NCAE CEO Michael Marsh said the group hadn't decided whether to appeal.
In a statement, NCAE said it was "disappointed" with the decision "but remains confident that DOL’s 2022 H-2A rulemaking was and is unlawful. The administration has inundated America’s farm and ranch families with excessive and overly burdensome regulations — and those families are at a breaking point.
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"Americans want their food grown in the United States rather than forfeit their food security and our national security to our foreign competition," NCAE said. "This administrative excess must end."
NCAE also has filed a legal challenge to the Labor Department’s Adverse Effect Wage Rate rule. The group is seeking an injunction in the Middle District of Florida to halt implementation of the rule.
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This story was updated Jan. 30 with a statement from NCAE.
