Comments from the undersigned group of Agricultural Associations resubmitted Friday March, 27, 2009. Docket ETA 2008-0011

National Council of Agricultural Employers

New YorkState Vegetable Growers Association

Texas Vegetable Growers Association

U.S. Apple Association

Washington Growers Clearing House Association

Western Growers Association

March 26, 2009

Thomas Dowd

Administrator, Office of Policy Development and Research

Employment and Training Administration

U.S. Department of Labor

Room N-5641

200 Constitution Avenue, NW

Washington, DC20210

RE: Comment to Docket: ETA-2008-0001

Regulatory Information Number (RIN) 1205-AB55.

Proposed suspension ofthe Labor Certification Process for Temporary Agricultural Employment in the United States (H-2A.)

Comments to docket by National Council of Agricultural Employers (NCAE.)

Representing over 250 individual members and associations NCAEis the only national association focusing exclusively on farm labor issues from the farm management viewpoint. Formed as a non-profit organization in 1964, NCAE represents Agricultural Employer interests before Congress on critical farm labor issues and works closely with the Immigration and Naturalization Service, the Departments of Labor and Agriculture, the Occupational Safety and Health Administration and the Environmental Protection Agency. Agricultural Employers employ hundreds of thousands of full-time and seasonal employees each year and therefore have a direct interest in the Interim Rule. Incorporated as a 501 C-6 Trade Association, NCAE has offices in Washington, DC.

NCAE appreciates the effort of the U.S. Department of Labor (DOL) to simplify compliance with and administration of the Labor Certification Process for Temporary Agricultural Employment in the United States (H-2A); however the current proposal does not appear to be in the best interest of America’s Farmers, Farm Workers, or the Consuming Public. NCAE, on behalf of our Members, recommends AGAINST the currently proposed suspension.

Specific concerns of NCAE Members include:

  • Budgets, Contracted Sales, Purchasing, Hiring, Production Schedules were planned based on the January 17, 2009 effective Final Rule. The financialloss that will occur as a result of suspending the new H-2A regulations will be devastating. Farmers for the past several months have made all their budgeting, production, purchasing, hiring and contracting decisions based on the provisions of DOL’s “new” rules”. To revert back to the “old” rule without notice and the ability to adjust plans and contracts will cause substantial financialloss. Many NCAE Members report they have contracted a majority of their product for the year based on the new wage rates and requirements of the new H-2A rule. The commitments they have made are contractual, made in good-faith based on Federal action, and can not be changed.
  • Growers, Labor Brokers/Agents, and Workers are concerned about the status and potential outcome of applications filed but not yet approved. There is great concern that applications in the works will be delayed and/or rejected due to minor deficiencies and rather than being able to correct deficiencies, as had been the case, applications may have to be refilled under the changed rule. This may result in delays sufficient to cause crop loss as well as loss of employment opportunity that both growers and workers were depending on.
  • In the justification for suspension, the Department, cites inability of federal and state authorities to develop resources and training fast enough to assimilate to the change over to the January 17, 2009 effective H2-A Final Rule. Growers, Labor Brokers/Agents will also experience extreme hardship and financial burden switching back to the old process. Growers, Labor Brokers/Agents have expended time and money to comply with the new (2009) rules, some have even changed the structure of their business to accommodate the 2009 rule and may find state and/or federal business compliance and reporting standards compliancecomplicated or impossible at this late date.
  • Growers and Labor Providers have entered into housing agreements and/or leases based on the expected cost structure and labor needs calculated under the January 17, 2009 final rule. If labor demand declines due to delayed availability or a shifting cost structure, these growers and Labor Providers may be unable to adjust the housing agreements already in effect and thus may incur financial hardship as a result.
  • The H2-A Final Rule, effective January 17, 2009, added several work-sites, occupations, or work duties to the list of Agricultural Employment allowed under the H2-A program. In response, many growers formerly ineligible for H2-worker participation have made plans, and submitted application for H2-A workers for 2009. Others may not need these workers untillater in the year and although they may have planned their cropping pattern, labor budgets, and sales agreements on use of H2-A labor would now find themselves ineligible. A good example would be Christmas Tree growers in much of the U.S.

Although not all growers welcomed the January 17, 2009 change when introduced, the “new” rule (H2-A Final Rule effective January 17, 2009) was developed over a year’s time with extensive notice and comments from all interested parties providing time for input and adaptation to the new regulations. To abruptly change the regulations, with limited time for input and without sufficient time for farmers to alter-agricultural production plans, budgets, sales contracts, etc. leaves the welfare of the American farmer at risk during a time of national economic crisis. NCAE Members and many other agricultural stakeholders perceive this and other concerns with the H2A program as further justification of the extreme need for Congress to pass clear and workable AgJOBS legislation to assure a long term solution to the need of U.S. agriculture for a fair, equitable, and economically viable temporary guest worker program.

Thank you for the opportunity to comment on this important issue. If NCAE can answer specific questions relative to our comments and concerns please contact Frank Gasperini, Executive Vice President at 202-728-0300.

Thank You,

Frank A. Gasperini, Jr.

National Council of Agricultural Employers

1112 16th Street NW, Suite 920

Washington, DC20036202-728-0300

Lindy Kubecke

NY State Vegetable Growers Association

P.O. Box 4256

Ithaca, NY 14852-4256

Ray Prewett

TX Vegetable Assn

Ray Prewett

901 Business Park Drive, #400

Mission, TX78572

Diane Kurrle

U.S. Apple Association

Diane Kurrle

8233 Old Courthouse Road, Suite 200

Vienna, VA22182-3816

Kirk Mayer

WA Growers Clearing House Assn., Inc.
Box 2207
Wenatchee, WA98807-2207

Jason E. Resnick

Western Growers Association
17620 Fitch Street
Irvine, CA92614