The Department of Homeland Security (DHS) and the Department of Labor (DOL) moved quickly – perhaps too quickly – to resolve legal authority issues raised by recent court decisions vacating low-skilled worker visa (H-2B) regulations by adopting a “joint” interim final rules (IFR) that is available for public inspection and will be published in tomorrow’s Federal Register. Recent court decisions vacated specific prior rules and affirmed a preliminary injunction that held that DOL had no authority to promulgate H-2B regulations at all. The IFR to be published tomorrow tries to resolve those issues through promulgation by the agency that clearly has authority, but the methods used to promulgate the rule raise more questions, and, in reality, the agency with authority is not promulgating such a rule.
Setting the Stage: Comité de Apoyo a los Trabajadores Agricolas v. Solis, or CATA II, vacated portions of 2008 rule and prevents DOL from issuing any prevailing wage determinations based on the four-tiered version of its wage survey embodied in that rule. Additionally, and more problematically, the United States Court of Appeals for the Eleventh Circuit, in Bayou Lawn & Landscape Services. v. Secretary of Labor, upheld a district court decision granting a preliminary injunction against enforcement of DOL’s H-2B rules because plaintiffs were likely to prevail on their allegation that DOL lacked authority to issue rules for the H-2B program. As reported yesterday, DOL submitted an IFR to the Office of Management and Budget (OMB) last week – apparently OMB has completed review. The Administration’s response in the IFR claims that DHS is determining that, in exercising its statutory responsibilities to regulate and administer the H-2B program, requires specific advice from DOL regarding the labor market, and DOL is unable to provide a key component that underlies this advice, namely the prevailing wage determination, without being assured a valid rule is in place. The IFR, however, does not do that.
Interim Final Rule: DHS and DOL are adopting an “interim final rule” – promulgation concurrent with public notice and in advance of an opportunity for public comment. DHS and DOL claim that advance notice and an opportunity to comment. The Administrative Procedure Act (APA) permits promulgation without advance notice and an opportunity to comment if that notice and comment is “impracticable, unnecessary, or contrary to the public interest.” DHS and DOL resort to the legislative history of the APA to claim that “‘[i]mpracticable’ means a situation in which the due and required execution of the agency functions would be unavoidably prevented by its undertaking public rule-making proceedings” and the “‘[p]ublic interest’ supplements…‘impracticable’ [and] requires that public rule-making procedures shall not prevent an agency from operating.”
DHS and DOL must act under an extremely short deadline, outside the control of either agency, to come into compliance with the CATA II court’s vacatur order.
While that may be true, DHS and DOL clearly have known about this potential problem for years and the court decisions both could have been avoided and should not have been surprising. Any serious question about the authority of an agency to promulgate regulations – and these serious questions have been well known for a long time and been within the control of the agencies – should be addressed promptly, not hastily after a court finds that the agency has exceeded its authority. In this case, the agencies have brought on this “emergency” themselves and left a serious question of whether they may use an IFR to resolve the problem.
Effective Immediately: The APA permits an agency to make a rule effective in less than 30 days “for good cause found and published with the rule.” The agencies bootstrap their IFR argument to permit them to make the rule effective immediately, and it is no less of a problem.
Joint Rulemaking: A “joint” rulemaking presupposes that each agency promulgating the rule has the lawful authority to promulgate its rules – the very point contracted here by Bayou Lawn and Landscaping. DHS and DOL claim that:
This interim final rule revises how DOL provides the consultation that DHS has determined is necessary to adjudicate H-2B petitions by revising the methodology by which DOL calculates the prevailing wages to be paid to H-2B workers and U.S. workers recruited in connection with the application for certification; the prevailing wage is then used in petitioning DHS to employ nonimmigrant workers in H-2B status.
Revising “how DOL provides the consultation” is the right idea, but DHS overstates the substance of the rule – no revision of “how” DOL provides consultation is found in the regulatory text; the regulatory text presumes to delegate.
Roles Remodeled: The rule claims (and concedes) that it contains revisions to DHS’s H-2B rules to clarify that DHS is the Executive Branch agency charged with making determinations regarding eligibility for H-2B classification, after consulting with DOL on matters within DOL’s expertise, particularly questions of establishing the methodology for setting the prevailing wage in the H-2B program. The preamble of the public inspection copy discusses this notion, specifically that DHS is “revising DHS’s regulations to resolve any doubt about the consultative role DOL plays in in the H-2B program with respect to prevailing wage determinations.” The regulatory text, however, does something slightly different:
The Secretary of Labor shall separately establish for the temporary labor program under his or her jurisdiction, by regulation at 20 CFR 655, procedures for administering that temporary labor program under his or her jurisdiction, and shall determine the prevailing wage applicable to an application for temporary labor certification for that temporary labor program in accordance with the Secretary of Labor’s regulation at 20 CFR 655.10.
Nowhere does DHS make it clear that it may “delegate” regulatory authority to DOL or that such a redelegation of statutory authority is lawful, not a reorganization, and consistent with limitations on appropriations. DOL’s promulgation of a regulation reasserts the authority that was denied by the 11th Circuit in Bayou Lawn & Landscaping. This hasty remodeling does not accomplish a satisfactory result but reiterates the Department of Justice (DOJ)’s assertion that the Bayou Lawn & Landscaping preliminary injunction – and apparently the 11th Circuit – was wrong.