such claim would have
to be considered in its specific factual context.
Accordingly, the Court concludes that Counts II and Ill shall be
dismissed as moot.
B. Count I Is Ripe For Review
DOL argues that Count I is not "ripe." First it argues that there is no
"new policy" to review because its interpretation is consistent with the
plain language of the regulation. Second, it argues that even if its
policy has shifted, it has not yet "sufficiently crystallized." See Defs.'
Reply at 7. DOL has not, for example, announced a date certain on which
all AEWRs will be published in the future, or specified the
"circumstances which must occur before the AEWRs are issued." See Defs.'
Opp'n to Pls.' Mot. Summ. J. at 4 ("Defs.' Opp'n"); Defs.' Mot. for Summ.
J. at 13 ("Defs.' Mot.").
Ripeness involves an evaluation of "both the fitness of the issue for
judicial decision and the hardship to the parties of withholding court
consideration." Abbot Laboratories v. Gardner, 387 U.S. 136, 149 (1967).
A case is ripe "when it "presents a concrete legal dispute [and] no
further factual development is essential to clarify the issues . . .'"
Rio Grande Pipeline Co. v. FERC, 178 F.3d 533, 540 (D.C. Cir. 1999)
Since 1989, when the final AEWR regulation was issued, DOL has
interpreted it to mean that AEWRs will be published before the H-2A
employment period and early enough so as to effect an equivalence with
the USDA wage rates for the previous year. This interpretation is
contained in DOL's comments accompanying initial publication of the AEWR
regulation in the Federal Register;*fn8 has been recognized by this
Circuit;*fn9 and is contained in a DOL H-2A Handbook.*fn10
Furthermore, it is consistent with the Department's long-standing
practice of publishing AEWRs prior to commencement of the H-2A employment
period, usually in February or March.*fn11
In 2001, DOL took a different tack, delayed publication until August,
and stated that it could publish AEWRs as late as December 31,
notwithstanding that such publication would unquestionably result in
payment of rates that are below "the current average agricultural wage,"
as computed by USDA for the prior year.
In light of DOL's change in position, Plaintiffs' challenge presents a
"concrete legal dispute" that is "fit" for judicial decision.
C. DOL Must Provide Opportunity for Notice and Comment
The Court now turns to the merits of Plaintiffs' notice and comment
is axiomatic that agencies must interpret their own legislative
regulations in a manner that is consistent with previous interpretations
or else provide opportunity for notice and comment under § 553 of the
APA. See National Family Planning & Reproductive Health Ass'n. Inc.
v. Sullivan, 979 F.2d 227, 231-32 (D.C. Cir. 1992) ("[An agency] may not
alter, without notice and comment, (regulations] unless such a change can
be legitimately characterized as merely a permissible interpretation of
the regulation, consistent with its language and original purpose");
Paralized Veterans of America v. D.C. Arena L.P. 117 F.3d 579, 586 (D.C.
Cir. 1997) (rule-making required where the agency affects a "fundamental
change in its interpretation of a substantive regulation")
DOL's new interpretation is at odds with the governing statute and
regulation. As discussed below, the INA and AEWR regulation require that
AEWRs paid during the agricultural season equal the most current USDA
wage rates. This mandated equivalency cannot be achieved if DOL publishes
AEWRs after the H-2A employment period begins. DOL must either publish
AEWRs prior to the H-2A period or provide notice and comment that it is
no longer doing so.
1. AEWRs Must Equal Current USDA Wage Rates
Under the INA, as amended by the IRCA, the Secretary is required to
certify that: "the employment of [temporary alien labor] will not
adversely affect the wages and working conditions of workers in the
United States similarly employed." 8 U.S.C. § 1188(a)(B).*fn12
The INA leaves to DOL the task of designing an AEWR policy that does
not "adversely affect" domestic wages. AFL-CIO v. Brock 835 F.2d 912, 914
(D.C. Cir. 1987). In adopting an AEWR policy, DOL must balance the
competing goals of the statute — providing an adequate labor supply
to growers and protecting the jobs of domestic farmworkers.
After passage of the IRCA in 1986, DCL abandoned its former methods*fn13
of calculating AEWRs in favor of the current method, whereby AEWRs equal
the current USDA rates. That method is set forth in the disputed
regulation, which provides:
the AEWRs for all agricultural employment . . . for
which temporary alien agricultural labor certification
is being sought shall be equal to the annual weighted
average hourly wage rate for field and livestock
workers (combined) for the region as published
annually by the U.S. Department of Agriculture (USDA)
based on the USDA quarterly wage survey.
20 C.F.R. § 655.107(a) (emphasis added).
Consistent with the statutory purpose of avoiding adverse effects on
domestic wages, the language requires that AEWRs equal the annual USDA
rates. Id. ("the AEWRs for all agricultural employment . . . for which . . .
labor certification is being sought, shall be equal to the USDA
rates as published annually.") (emphasis added).
Its own comments accompanying the regulation confirm that the
regulation requires AEWR and USDA rate equivalency.*fn14 For example, in
publishing the final rule, DOL stated that the rate paid would be equal to
the "current average agricultural wage." 54 Fed. Reg. 28, 037 (July 5,
In promulgating the interim rule, DOL stated that the AEWR would be
"equal to the previous year's annual regional average hourly wage rates
for field and livestock workers (combined), as computed by USDA quarterly
wage surveys." See Labor Certification Process for H-2A Workers, 52 Fed.
Reg. 20, 496, 20, 502-505 (June 1, 1987) ("Interim Final Rule")
Furthermore, this Circuit has recognized that the regulation requires
equivalency with USDA rates. See Dole, 923 F.2d at 184 (upholding the
AEWR regulation and noting that it was a "new, simpler methodology in
which the [AEWRs] would be the previous year's annual regional average
hourly wage for agricultural workers (the USDA average wage) with no
added adjustments."). Thus, the AEWR regulation at issue requires that
the AEWRs in effect equal the current USDA wage rates.
2. DOL Must Publish the AEWRs Before Commencement of the H-2A
Before 2001, DOL had consistently published AEWRs prior to commencement
of the H-2A employment period, always by April, and usually in February
or March of the year in question, DOL now maintains that it may publish
the AEWRs as late as December 31. This view is irreconcilable with the
regulation, and represents a departure from prior practice.
As discussed above, the AEWR regulation requires that AEWRs "shall
equal" the current USDA data. This will not occur under DOL's
interpreataion.*fn16 It is undisputed that the AEWRs are not effective
until they are published, and that the previous year's AEWRs, based on
two year old USDA data, are paid to agricultural workers until
publication of the current AEWRs.
Moreover, although the plain text of the regulation provides no date
certain for AEWR publication, it does indicate that the AEWRs will be
published in advance of the anticipated agricultural season, i.e.,
referring to "the AEWRs for all agricultural employment . . . for which
temporary labor certification is being sought." 20 C.F.R. § 655.107(a)
The DOL H-2A Handbook confirms that "the AEWRs are usually published in
March or April, and become effective immediately upon publication." 53
Fed. Reg. 22, 076, 22, 095 (June 13, 1988) Similarly, the initial
comments accompanying adoption of the regulation repeatedly emphasize the
importance of early publication.*fn17
The DOL now proposes an interpretation that is a clear departure from
the text and intent of the regulation and from its own longstanding
policy of publishing prior to the H-2A period. Consequently, given the
mandate that AEWRs should be equivalent to current USDA wage rates, and
given that such equivalence cannot be achieved if publication does not
occur prior to the H-2A employment period, DOL must either adhere to its
original interpretation and publish prior to the H-2A period or provide
opportunity for notice and comment as required under the APA.
For the foregoing reasons, the Court grants in part and denies in part
Plaintiffs' Motion for Summary Judgment and grants in part and denies in
part Defendants' Motion for Summary Judgment. An Order will issue with