Interlocutory appeal from an order of the District Court for the District of Vermont (Albert W. Coffrin, Chief Judge) denying DOL's motion for summary judgment.
Feinberg, Chief Judge, Lumbard and Newman, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
This action challenges a regulation promulgated by defendant-appellant Department of labor ("DOL") establishing a methodology for determination of annual percentage changes in a wage rate required to be paid by agricultural employers who import temporary foreign workers. We granted DOL's application under 28 U.S.C. § 1292(b) for review of an order of the District Court for the District of Vermont (Albert W. Coffrin, Chief Judge) denying DOL's motion for summary judgment.*fn1 We now reverse.
The challenged regulation, 20 C.F.R. § 655.207(b) (1984), is part of a framework of statutory provisions and regulations known as the "H-2 Program," under which aliens are granted temporary visas to work in the United States. The plaintiffs-appellees represent New England apple growers who employ foreign workers to pick apples.*fn2 These workers are admitted to the United States under provisions of the Immigration and Nationality Act, 8 U.S.C. §§ 1101-1525 (1982), that establish categories of "nonimmigrant aliens," id. §§ 1101(a)(15), 1184, including aliens who come "temporarily to the United States to perform temporary services or labor, if unemployed person capable of performing such service or labor cannot be found in this country," id. § 1101(a)(15) (H) (ii). Under the Act, employers must petition the Attorney General for permission to hire such aliens. Id. § 1184(c). The Act authorizes the Attorney General to adopt regulations fixing the conditions under which such petitions may be granted and directs him to take this action "after consultation with appropriate agencies of the Government."*fn3 Id. § 1184(a), (c). In carrying out this mandate, the Attorney General has sought the advice of DOL.
The Immigration and Naturalization regulations require a petitioning employer to obtain
certification from the Secretary of Labor . . . stating that qualified persons in the United States are not available and that the employment of the [foreign worker] will not adversely affect wages and working conditions of workers in the United States similarly employed . . . .
8 C.F.R. § 214.2(h) (3) (i) (A) (1985). Pursuant to this regulatory directive, DOL has in turn adopted regulations establishing procedures that agricultural employers must follow in order to obtain the necessary certification. See 20 C.F.R. §§ 655.200-655.212 (1984). The regulations pertinent to this case condition certification upon an employer's acceptance of a specially computed wage rate called the "adverse effect rate" ("AER") as the minimum hourly wage to be paid to both foreign and domestic employees. See id. §§ 655.200(b), 655.202(a) (9), 655.207.
DOL has designed the AER to ensure that importation of H-2 workers will not depress the wages of similarly employed domestic laborers. Id. § 655.200(b). If DOL finds that employment of aliens in a particular area or occupation has not depressed the wages of domestic workers, it will set the AER at a level equal to the prevailing wage in that area or occupation. Id ; see id. § 655.207(a). On the other hand, if DOL determines that employment of aliens has depressed the wages of domestic workers, it will designate a "wage rate higher than the prevailing wage rate" as the AER. Id. § 655.200(b); see id. § 655.207(b). Underlying this controversy is DOL's determination that the wages of domestic agricultural workers in a number of states have been adversely affected by importation of H-2 workers.*fn4 Accordingly, DOL has imposed an AER higher than the prevailing wage on agricultural employers seeking to hire aliens to work in those states.
Historically, DOL has set AERs on an annual basis. From 1968-1981, DOL computed annual changes in AERs by using data contained in a United States Department of Agriculture ("USDA") survey, which covered wages paid to farm workers during one week in each calendar quarter. To calculate the current AER for a particular state, DOL would adjust the previous year's AER for that state by the same percentage as the change in annual average wage rates as reported by USDA. Until 1981, USDA had calculated the annual average rates on the basis of quarterly surveys. In July 1981 USDA announced that is was abandoning its quarterly survey in favor of an annual survey measuring only one week in July. DOL believed that it could not rely on the annual survey in calculating AERs because the survey would not measure wages paid during the harvest seasons for the principal crops in which H-2 workers are employed.*fn5 The action taken by DOL in developing a substitute methodology for AERs has embroiled the agency in many lawsuits,*fn6 including this one.
In 1982 DOL announced that the 1981 AERs would remain in effect for 1982 and that it was considering alternative methodologies for use in future years. See 47 Fed. Reg. 37,980 (Aug. 27, 1982). Litigation brought in the district Court for the District of Columbia by domestic farm laborers located in four states resulted in court orders directing DOL to establish new AERs for use in 1982.*fn7 Accordingly, DOL adopted an interim methodology under which it calculated new AERs for the four states covered by the court orders, using USDA data from the first two quarters of 1981.*fn8 See 48 Fed. Reg. 232-35 (Jan. 4, 1983). Commenters on the 1982 methodology supported DOL's decision that the USDA annual survey did not provide an adequate basis for computing annual changes in AERs. For example, USDA commented that it saw no justification for using the annual survey to calculate AERs and that it knew of no appropriate data that was being collected by any agency. Some employers commented favorably on the interim measure but also stated that a new methodology should be developed for use in future years. See id. at 233.
In publishing a final rule establishing 1982 AERs, DOL stated that it was not adopting a methodology for use beyond 1982, but the final rule itself was open to the interpretation that DOL intended that 1982 AERs for the four affected states and 1981 AERs for all other states would remain in effect indefinitely. See id. at 232, 235. This interpretation formed the basis for successful challenges by domestic farm workers to the 1982 regulation. See NAACP, Jefferson County Branch v. Donovan, 566 F. Supp. 1202, 1206-07 (D.D.C. 1983). On June 28, 1983, the district court in NAACP v. Donovan, supra, ordered DOL to develop a new methodology to calculate 1983 AERs for all states, holding that DOL's regulations required setting AERs on a yearly basis. In complying with that order, DOL proposed and finally adopted an amendment to 20 C.F.R. § 655.207(b), which established a new methodology for calculating annual changes in AERs. That amendment is challenged in this case.
In a notice of proposed rule-making published on July 22, 1983, DOL invited comment*fn9 on an AER methodology that would rely on data supplied by the Bureau of Labor Statistics ("BLS") through the Employment and Wages Program ("ES-202 Program"). The ES-202 Program is conducted by BLS in cooperation with state employment security agencies. See 1 BLS Handbook of Methods 32 (Bulletin No. 2134-1 Dec. 1982). The program generates wage data in the following manner: Each quarter, the state agencies receive reports from employers covered by unemployment insurance, setting forth number of employees, total wages, taxable wages, and unemployment insurance contributions. In turn, the state agencies provide BLS with quarterly reports showing the number of covered employers, employment during the mid-week of each month, and total wages paid during the quarter. The state agencies supply this information to BLS under codes identifying categories of employers. See id. at 32-34. For its new AER computations DOL proposed to use ES-202 data reported under codes covering those employers hiring the bulk of foreign agricultural workers. See 48 Fed. Reg. 33,685 (July 22, 1983). In essence, DOL proposed an AER methodology identical to that used in years when the USDA quarterly survey data were available but substituting the relevant ES-202 data: Each year DOL would adjust AERs by the annual percentage ...