Expedited rulemaking not remedy for H-2A herder guidance
November 12, 2014
The Department of Labor (DOL) must engage in the notice-and-comment rulemaking process to set wage and housing requirements for cattle, sheep and goat herders under the H-2A visa program, but it does not have to do so on an expedited basis, a federal judge in the District of Columbia ruled Oct. 31.
The decision by Judge Beryl A. Howell of the U.S. District Court for the District of Columbia follows a June ruling from the U.S. Court of Appeals for the District of Columbia Circuit that the DOL violated the Administrative Procedure Act. The appeals court deemed two 2011 DOL training and employment guidance letters invalid in response to a challenge by a group of U.S. workers who said they want to take herding jobs but don't because of substandard wages and housing conditions.
"Given the length of time the case has been pending, the number of issues to be resolved as part of the refashioning of the special procedures for herders, as well as the complexity of the factors involved in the rulemaking and the significance of this issue," Howell wrote, "this Court puts a premium on ensuring that the federal defendants have sufficient time to get the proposed new rule right to avoid the risk that a 'poorly formulated rule would need to be withdrawn in the face of significant public comments, which would add more delay to the process.'?"
Although she rejected the plaintiffs' proposed rulemaking timeline, Howell granted their request that the training and employment guidance letters be vacated once the DOL's new rule becomes effective.
–American Sheep Industry