March 21, 2009

Mr. Thomas Dowd, Administrator
Office of Policy Development & Research
Employment and Training Administration
U.S. Department of Labor
200 Constitution Ave., NW
Room N-5641
Washington, D.C. 20210

RE: RIN 1205-AB55
Proposed Revision of H2A Regulations
For more than a decade Georgia H2A users have been actively involved in an effort to
make H2A regulations less complex. These growers are the “good guys,” agricultural
employers that are making every effort to do the right thing by operating within the law.
As H2A employers these growers use legal labor, provide their workers safe housing,
fair pay and good working conditions. However, these Georgia growers have suffered
financially from unfair competition by those in their industry who employ undocumented
agricultural workers present in our state and throughout other agricultural regions of the
country. Now Georgia’s H2A employers must also deal with significant operational
uncertainty caused by the US Department of Labor’s sudden suspension of the present
H2A regulations.
This rulemaking action by the USDOL allows only a ten-day window for affected
growers to comment and that truncated comment period falls during most growers’ peak
planning and planting season. To expect that the agricultural industry can suddenly
cease operations to immediately prepare a detailed response to an action of such
magnitude is unreasonable.
On January 17, 2009 the US Department of Labor, in compliance with the
Administrative Procedures Act, issued changes to the H2A program addressing many of
the concerns which growers had expressed for years. It is our opinion the changes
which were implemented on January 17, 2009 make the H2A program more workable and have encouraged more growers to participate. The H2A program under the present regulations has become a more viable option for all growers, regardless of size and financial status. As use of H2A increases due to the January 17th program improvements, any reasons to have underpaid, un-housed and unprotected agricultural
workers in Georgia will correspondingly decrease.
The USDOL’s March 17, 2009 arbitrary, unilateral and precipitous action to suspend the
January 17th regulations is inexplicable and will have a significant operational and
financial impact on Georgia’s H2A employers. Long-time H2A growers have already
planned for 2009 crop activities using current regulations to budget operating costs,
secure loans, plan personnel needs, finalize contracts and schedule product deliveries.
To impose different rules after operating loans and planting/harvesting schedules have
been established will result in tremendous disruption to these growers. Examples of
such disruptions are: types/amount of crops that can be planted, cultivated and
harvested, number of acres that can be planted, the size of the workforce hired to
perform the necessary duties. All of these questions affect marketing and contractual
decisions regarding sale of crops.
Additionally, if the January 17th rules are suspended, potential first-time H2A growers
may be discouraged from program participation because of confusion about the
reinstatement of the regulations which were the basis for their reluctance in the past.
Further, growers who may have been planning to use H2A but changed their minds due
to uncertainty regarding costs and operating rules will find it difficult at the last minute to
locate domestic workers in numbers sufficient to meet their needs.
Nowhere in the Federal Register is the economic impact of this precipitous rulemaking
addressed by the Department. It is inconceivable that after only six weeks under
regulations reviewed and then promulgated in compliance with APA, the Labor
Department could ascertain that a return to previous regulations is economically
beneficial to the Department, H2A employers or workers.
Comments from the Department suggest one of the reasons for suspending the
regulations was their concern that the Department lacked sufficient resources– both
people, equipment and ability to develop systems to operate the program under the
January 17th regulations. The Department stated that administering the suspended
rules would significantly overtax the agency’s infrastructure and negatively affect the
processing time required for labor work orders certification. To date in 2009, we are not
aware of any H2A employer in Georgia—one of the three largest H2A-using states—
that has experienced delay in receiving their requested certification under the
regulations that are in place. Most H2A employers have received their certifications in
an average of 5 days, which is quite acceptable and actually an improvement over
previous response periods.
The Foreign Labor Certification section of USDOL has processed H2A applications
manually in the past under more rigid review processes than are required by the present
self-attestation procedures. We do not understand why the new, simpler self-attestation
process would create more work than previously required.

Nor are we aware of any new resource issues with the Georgia State Workforce Agency
caused by the present regulations. Under the present regulations, SWA staff is
responsible only for housing inspections and placing job orders, a reduction in program
responsibility that should improve their utilization of H2A staff. Further, the deadlines for
housing inspections have been relaxed, allowing SWA inspectors more time to fulfill
their responsibilities than under the previous regulations.
If one of the USDOL’s purported reasons for the need for additional review of the
January 17th regulations is a claim that the new regulations could adversely affect
agricultural workers, the action is even more inexplicable. To the contrary, increased
use of H2A, with its “domestic workers first” requirement, will offer better working
conditions and higher average wages to ALL agricultural workers—particularly US
citizens and permanent residents who are presently competing with a largely illegal
workforce. The presence of an illegal workforce in any industry depresses wages for
that industry’s legal domestic workforce, as many studies have demonstrated.
The present regulations also significantly strengthen the enforcement role of the
USDOL. Improvement of enforcement to insure compliance with both H2A and other
labor laws administered by USDOL also guarantees better protections for all agricultural
workers.
The agricultural industry contributes significantly to the economy of the United States.
This sudden action is a breach of faith by the United States Department of Labor and
will have significant impact for years to come. The proposed action is a serious and
significant change in rule making.
We therefore urge the secretary to take the following actions:
1. The Department should reverse this action not only because of the hardship and
uncertainly it will cause to H2A employers, but because this rulemaking is in
direct violation of the Administrative Procedures Act. Agriculture production is a
difficult enough profession addressing day-to-day issues of crop pest pressures,
weather, market pricing and multiple-agency regulatory rules without having to
deal with having a new administration change the ‘labor rules’ with only 10 days
notice.
2. If action to immediately withdraw this action is not taken, at a minimum the
Department should lengthen the comment period to 60 days in order to
accommodate an affected industry that is presently in its peak production
season. (It should be noted that during the current regulations’ comment period
of 60 days, the same entities who have raised issues with their implementation
demanded that the Department allow 30 additional days for review and comment.
To require that the agricultural community complete their comments regarding
reversal with any degree of specificity within 10 days is unreasonable.)
3. Further, we urge the Department to create a review committee which includes
H2A users to advise the Secretary on issues affecting the H2A and any other agricultural program. We believe that the Department has no greater stakeholders than those who create the agricultural jobs in this nation.
Thank you for the opportunity to submit these comments.
Charles T. Hall, Jr.
Executive Director
Georgia Fruit and Vegetable Growers Association