Winning!

Unfortunately, it’s been far too long since agricultural employers have had much to cheer, but
perhaps we are starting to see some light at the end of the tunnel. And it appears at this point;
it’s not a train barreling down the tracks toward us.

No one in the prior Administration could have looked farm and ranch families in the eye and
credibly argued that the regulatory onslaught by the agencies against them for the four years
beginning on January 20, 2021, were only incremental changes. Attorneys from the
Department of Justice, defending the actions of the Department of Labor (DOL), tried to do so
in our case against the “Worker Protection Rule” brought in Kentucky, but the District Court
judge disagreed and slapped them with an injunction.

It was the second of three injunctions issued by different Courts against this offensive
regulation. DOL, finding they could not enforce the regulation against any farm and ranch
families after NCAE’s victory, was forced to start the process of rescinding this insidious
regulation and NCAE recently filed comments to help close the book on this dark chapter.

Winning!

As that recission process was moving forward, the DOL announced they would be suspending
the collection of new fees from participants in the H-2A program until further notice, reducing
the application costs for users immediately and allowing dollars to remain in the pockets of
those who feed and clothe our nation, rather than transferred to government coffers.
However, the DOL was not yet done. They Office of Foreign Labor Certification announced they
were rescinding guidance issued in 2011 disallowing the “staggering” of entry of temporary
workers into the U.S. on a single petition. This recission would allow employers to file a single
petition for all their needed workers for a season but be allowed to stagger their entry, thereby
reducing the significant costs associated with filing multiple petitions. This was one of the
streamlining items NCAE recommended to the Department of Government Efficiency (DOGE)
when we were asked for our help on how to help cut H-2A users’ costs in using the program.

We were happy to help.

Winning!

H-2A program users received some good news this week as the State Department relented
somewhat on the requirement that all temporary workers would have to go through an

interview.  Interview waivers had previously been used to expedite the consular process and
speed essential workers to our farms and ranches.

NCAE had written several letters to Secretary Rubio, his colleagues in the cabinet at Labor and
Agriculture as well as the White House and pressed our contacts at the Department of State to
encourage them to adjust its policy.  The State Department, like other agencies, experienced a
significant reduction in force at the start of the new Administration.  Additional consular
support had been provided to State by USAID before that agency was eliminated.  The
frequency of delays reported by members had jumped as the consulates’ workload exploded
with too few hands available to do the necessary work. Kind of like the labor shortages
experienced by farm and ranch families.

Winning!

NCAE has scheduled a meeting with the White House Office of Information and Regulatory
Affairs for next Tuesday.  The purpose of the meeting is to attempt to influence what the
Department of Labor is seeking to do with the Adverse Effect Wage Rate (AEWR) following the
vacatur of the 2023 AEWR rule by the Federal District Court in Louisiana.

The Department has filed a Notice of Proposed Rulemaking for an Interim Final AEWR rule (IFR)
which would become effective upon its publication in the Federal Register.  We expect this
process to move very quickly due to the unique nature of an IFR.  Part of the reason for the IFR
is tied to the fact that USDA has ceased the data collection process for its Farm Labor Survey
(FLS) which the Department of Labor has historically misused to establish wage rates in the H-
2A program. A change promoted to the Secretary by NCAE.

NCAE will testify that the disaggregated wage rates that the Louisiana Court found to be
arbitrary and capricious should not be in any way resurrected under this new rule.  We will also
testify that wage rates should be determined by the market, just like the prices for a farmer’s or
a rancher’s crop, rather than a government mandate that disconnects the rates from the
market.

The Department’s misuse of that data has forced America’s food production to flee our shores
and provided our foreign competition an open door to capture market share, forcing the
closure of thousands of family farms.  We are pleased Secretary Rollins listened to our pleas for
relief.

Winning! Let’s get used to it!

The Federal government implemented a social program that farmers and ranchers are required
to run. A friend of mine said something like that the other day and I told her it was interesting
to think of it that way.

The more I thought about it and let it stew, the more it made me stew. The heat was turned
higher as I analyzed the consequences further. This “social program” is not funded by the
Treasury but is instead mandated by the government to come from the pockets of hard-
working farm and ranch families pockets.

It was not supposed to be this way but as we can see from the actions of the prior
Administration in Washington, D.C., this is what they have morphed it into.

The H-2A Temporary Agricultural Worker Program is intended to allow farmers and ranchers to
legally hire foreign workers when there are too few domestic workers who are ready, willing,
and available to do the work that needs to be done. Under the law, these jobs must be
temporary or seasonal so unfortunately, those farm jobs that are not, do not qualify.

Consequently, my friends in the dairy industry who need milkers, can’t use the program to fill
their need for those workers. Similarly, mushroom farms, year-round greenhouses, hog
operators, and many other livestock businesses, etc., are shut out as well.

So how was this temporary work platform for agricultural work transformed into a social
program? It took a lot of work and regulators unleashed to do their damage.

The global marketplace for agricultural labor ought to determine the wages that are paid and
typically do. A given level of demand for a commodity, including labor, with a given level of
supply for that commodity will determine its price. That’s what farm and ranch families
experience every day. They produce a crop for a market that will pay them for it given the
supply of the crop and demand for that crop in the market. Pretty simple, isn’t it? Supply and
demand.

This is the way it should work unless, of course, government regulators have a social agenda to
advance and are let loose.

Agricultural businesses that participate in the H-2A program and use foreign workers to fill jobs
for which domestic workers are unavailable, must not adversely affect the wages and working
conditions of American workers similarly employed. That makes sense. Hire Americans first.

However, to affect the absence of an adverse effect, the regulators put in place rules to
advance a social agenda in the prior Administration.

Not only did the wage regulation promulgated by the Biden Department of Labor (DOL),
continue its misuse of the USDA’s Farm Labor Survey (FLS) to establish wages for most workers,
the social engineering piece was not profound enough for the bureaucrats. We must
understand that the average gross wages compiled by the FLS do not represent a wage rate
found in agriculture anywhere on Earth. It includes not only base wages but incentive
payments for productivity, overtime, bonuses, piece rates, and any other compensation paid to
workers divided by the number of hours worked. It also includes the wages paid to H-2A
workers who are the unintended beneficiaries of the wage so compiled. Crazy!

Apparently, because markets aren’t trusted by bureaucrats, and some politicians believe they
can hoodwink their constituents into believing that everything should be free, the prior
Administration took it a step further. They decided that for common tasks done on the farm,
like driving a truck from the field to the packing shed, building a corral for your livestock, driving
your coworkers from the housing to the job site, that a separate state by state wage series
should establish that.

This action of course had the foreseeable consequence of shuttering American farms, forfeiting
our food production to our competition all to boost wages far beyond what the market will pay.
A social program to transfer assets from agricultural enterprises to their employees.

Similarly, activists in the Biden DOL put forth regulations under the guise of “Worker
Protection” that the U.S. Supreme Court and the Congress had both indicated wouldn’t fly.
Courts shut this down, at no small cost to the people who had to litigate it, and now this
Administration is working to rescind that foolishness.

This Administration should do the same with the AEWR rule. Let markets work and give
American farm and ranch families a break from this social engineering.

Let Freedom Ring!

Feeling humility from time to time is not a bad thing.

I was invited to participate in a panel discussion on “Legal Labor Pathways” for agricultural jobs
in the United States. The panel was put together and moderated by the U.S. Agency for
International Development (USAID) and was to take place in early May. Unlike many of the
opportunities we receive to discuss important ag labor issues, this panel was not going to take
place in Washington, D.C.

This panel took place in the capital of Guatemala, Guatemala City.

NCAE has been engaging with the Ministries of Labor for the countries of Northern Central
America (Guatemala, El Salvador, and Honduras), for the last several years. We have also been
working with USAID. Part of the USAID mission in this area, and which we have supported, is a
strategy to stem the flow of irregular migration at the U.S. southern border by creating
opportunities for legal migration for temporary or seasonal work in the U.S. on farms and
ranches.

America’s farm and ranch families need workers as fewer domestic workers apply for jobs in
rural America and as the population of U.S. farmworkers ages out of the workforce. The notion
is relatively simple with a lot of positive attributes.

U.S. farmers and ranchers get needed workers that are ready, willing, and available, at the
times and locations around the country required. Temporary or seasonal workers get a chance,
provided they can pass the interview and the legal vetting process, to come into the U.S. legally
and work and then return home. Irregular migration at the U.S. southern border of migrants
from these “Labor Neighbor” countries diminishes and our national security is enhanced.

Win-win-win.

I must admit I felt some trepidation as the airplane’s wheels lifted away from the runway at
Reagan National Airport. I had never traveled to Central America and when the panel
organizers had told me that our hotel was going to be in the “safe zone” of the city, it raised
concern as to what was outside.

I landed in twilight and collected my checked bag. Not being a Spanish speaker, I slowly
navigated the maze to get to Guatemalan Customs and fill out their declaration. After that
process, I was met by two representatives of the Ministry of Labor and our driver whisked us off
to the hotel.

The country is beautiful, and the people are very warm and friendly. The Ministry had set up
several agricultural tours for our small group ahead of our meetings and the next morning we
drove outside the city to visit several farms.

The highway was clogged with hundreds of motorcycles and cars of all sorts. Refurbished and
custom designed BlueBird school buses seemed to be a ride of choice for many Guatemalans.
The narrow highway shoulders carried pedestrian traffic and appeared to be transit for several
stray brownish-yellow dogs. I hoped none of them would get hit…the pedestrians or the pups.

I was surprised by the frenetic commerce that crowded the thoroughfare. Auto and motorcycle
mechanics advertised their shops, next door to Shell stations, McDonald’s, and Taco Bell. When
traffic crawled, street vendors wandered out into the traffic hawking bottles of water and bags
of chips. Chaos.

The next day I had the opportunity to sit through interviews of Guatemalans interested in a 90-
day contract to pick apples in Washington. The workers were well-scrubbed, excited, but their
apprehension was palpable. The interviewees, none of whom had ever been into the U.S. and
had already been interviewed by the Ministry of Labor explained they would be able to make
more in their 90-day job in Washington, than they would be able to make in 5 years in
Guatemala.

During the interview they shared that they had dreams. One prospect stated when he came
home, he wanted to start building a house and someday add a wood floor. Another
interviewee said he wanted to grow coffee when he returned. One of the other individuals
claimed to have desires to open a small bodega.

The aspirations of these potential workers were on display and touched me.

As my flight took off for the return trip leaving Guatemala, I couldn’t help but feel humbled and
that was okay. Feeling humility from time to time is not a bad thing.

March 15, 2024

Michael Marsh, NCAE President & CEO

I do a good deal of travel for work.  It’s very important for me to get out of Washington, D.C. and visit with farm and ranch families – real people.  These families are truly the very best of America and that’s why I so enjoy working on their behalf in the nation’s capital.  

I almost always fly out of Reagan National Airport, and I like to leave early in the morning, both to avoid delays in travel but also to ensure that I can timely get to my destination.  

After picking me up, the taxi will drive south along the Potomac River.  In the early morning with little wind, I get to see some of the architectural icons across the river.  The Kennedy Center, the Lincoln Memorial, the Washington Monument, and the Jefferson Memorial are always lit up and each has a distinct reflection that shimmers on the river’s surface as we head south.  It almost seems peaceful, belying the chaos a Congress and Administration can bring to agricultural employers. 

And battling that chaos keeps me busy.

The Congress has been bogged down for months trying to pass the Appropriations bills necessary to fund the government.  These bills were supposed to be passed prior to the end of the 2023 fiscal year on September 30^th.  However, with all the recesses the Congress takes, to say nothing of removing the Speaker of the House and then failing to quickly elect a replacement, shenanigans blocked legislative progress and Continuing Resolutions (CR) have been required to keep the government open.  One CR, after another, after another.

A different way to look at this Congressional ineptitude is to look at what they have accomplished, or haven’t, so far in this Congress.  And of course, the Congress’ inability to perform has allowed the Administration to have their way on many issues to the detriment of agricultural employers.

In the first year of this session, the Congress passed just 27 new laws that were signed by the President.  As someone who recognizes the importance of limited government for enterprise sustainability, in many ways I appreciate that few new laws are necessary.  However, in the void that is created by Congressional inaction, an Administration can wreak havoc with their regulatory regime.  And we have seen that occurring in this Administration, just like we witnessed in the last.

This lack of Congressional effort allowed the Executive branch to issue more than 3,000 new regulations while the Legislative branch was in such turmoil.  Did Americans really need all those additional regulations in 2023?

And, unfortunately, this failure to perform in the Congress continues into its second year and allows the Administration to race ahead with even more regulation.  Many of those are now being rushed to procedurally avoid Congressional review that might slow the onslaught that is coming.  And several of these are real doozies!  

One of these zingers has prompted NCAE to schedule a meeting with the White House to share our concerns.  This meeting with the Office of Information and Regulatory Affairs is referred to as an Executive Order 12866 meeting and allows another opportunity for us to express concerns regarding extreme regulatory overreach.  

All indications we have received are that the Administration is intent on moving ahead with one of its most pernicious anti-farm and ranch family regulations I have ever seen.  Despite serious Constitutional frailties with the proposal.  

This rule crafted under the guise of “worker protections” by activists would, in contravention of U.S. Supreme Court precedent, allow union organizers access to farm and ranch property to threaten, harass, coerce, intimidate, and bully, our farmworkers to extract their hard-earned wages for the benefit of the union.  This unlawful “taking” of farm and ranch families’ property via union access was recently condemned by the Court.  Unfortunately, that condemnation would not to be adhered to under this regulation.

As if that wasn’t bad enough, the regulation suggests that the will of the Congress, as dysfunctional as it can be, doesn’t have to be adhered to either.  The National Labor Relations Act (NLRA) passed by the Congress and signed by President Roosevelt, exempted agriculture from unionization efforts under Federal regulation.  The creators of this new regulation have indicated that they mustn’t heed the will of the Congress, like the way they think they do not need to heed the will of the Court.  They argue the NLRA does not preempt agricultural unionization under this new Federal regulation.

The Administration is taking advantage of Congress’ failings, pressing their agenda ahead of the people’s.  This chaos that exists must be stilled like the placid surface of the Potomac River I see on my way to the airport.  It must stop if farm and ranch families, and the American consumers who rely on them, are to survive.

They call this the “silly season” in Washington, D.C.

“Silly season” is the period after Labor Day and ahead of the midterm elections as another Congress flails around ahead of its passage into history.  Curious proposals make their way into introduced legislation that have virtually no chance of ever being able to muster enough support to gain Committee attention, let alone Floor action.  However, they are advanced so a member can go back to their state or district to campaign and tout what they have done on behalf of their constituents.

Of course, there is some real work that needs to occur in the Congress as it wraps, but that sometimes seems to be an afterthought to the silliness.

Prior to the end of September, the Congress will have to agree on a plan to keep the government funded.  Funding for the programs the government has implemented has to be approved on a regular basis and, absent that approval, certain aspects of the government are forced into shutdown.  Several years ago, we witnessed one of these shutdowns, the consequent tumble in stock markets around the world reflecting concern that the U.S. might default on its debt, and even the absurdity of long lines of government employees queueing for distributions from food banks.  

I witnessed these lines here in D.C. close to my office near the FBI building.  A somber sight in our nation’s capital.

A couple of different “cures” to a standoff over the potential closure of the government will be considered.  One would be for the Congress to pass a continuing resolution (CR) to continue to fund the government and its programs.  A CR is a type of appropriations legislation that extends funding at the same level as in the prior fiscal year but terminates on a certain date.  After which, the Congress must pass another CR or, do its work and pass the government appropriations measures, as is their responsibility.

A second “cure” would be an omnibus spending bill.  An omnibus spending bill is a type of bill that packages many of the smaller ordinary appropriations bills the Congress is required to pass into one larger single bill that can be passed with only one vote in each Chamber.  However, as we have seen in the past, these omnibus bills can be “Christmas treed” and adorned with various ornaments extrinsic to the necessary appropriations.  This can lead to omnibus failure due to an inability to garner enough votes or, it can lead to less than desirous outcomes.

The circumstance of this silly season has consequences for agricultural labor.

Following the passage of a CR in this Congress, members will recess to their states and districts to campaign for reelection.  And the election season thankfully ends on a date statutorily set by the Federal Government as “the Tuesday next after the first Monday in the month of November”.  Alternatively, the Congress could choose to pass an omnibus measure ahead of the end of September and assure the government stays funded.

So, what this means for agricultural labor reform, is that our time is exceedingly short to get anything done.

In March 2021, the House of Representatives passed HR 1603 “The Farm Workforce Modernization Act of 2021” (FWMA).  While it is not a perfect bill, as no legislation is, it reflects rare bipartisan progress on a vexing issue that must be addressed.

Since then, NCAE and our aggie allies have been working to advance a more employer-friendly version of this legislation in the U.S. Senate.  This Senate effort has been championed by Michael Bennet (D-CO) and Mike Crapo (R-ID) reflecting the bipartisan attention this issue requires as well as the necessity of acquiring 60 votes to pass off the Senate floor.  Their negotiations are not yet complete.

This means that for agricultural employers who have been looking to this Congress to at last provide a solution to the demand for agricultural labor that constantly outraces supply, options are limited. 

The Congress could pass the omnibus spending bill discussed earlier and attempt to attach ag labor reform to that piece of legislation.  Alternatively, after the midterm elections, and during the “lame duck” session of the 117^th Congress, bipartisan leadership in both Chambers could join to advance legislation on this critical issue.

It may be the “silly season” in D.C., but for agricultural employers, it’s not funny.

How One NCAE Member Transformed Tragedy into an Opportunity to Give Back

How we respond in the face of adversity says a lot about who we are, both as people and as organizations. However, turning tragedy into an opportunity to help and support others takes a special vision and collaboration.

When John Derrick, the Vineyard Manager of Mercer Ranches in Prosser, Washington, learned he lost his close friend in the September 11, 2001 terrorist attacks, he was devastated.

John’s friend, Richard Guadagno, was one of the heroic passengers of Flight 93. As we know, Flight 93 crashed into the Pennsylvania farmland after passengers thwarted a fourth attack on U.S. soil–one that likely was meant to destroy the United States Capitol.

John knew he needed to do something to honor his friend and the others lost in the 9/11 attacks. “To me,” John explained, “to be able to tell this story of Flight 93 was important.” For John, however, the path forward was not so clear. “I always questioned how I was going to end up helping.”

Rob Mercer, President of Mercer Ranches, previously served as a Captain in the U.S. Marine Corps and reenlisted
to serve in Iraq in 2007-2008. When he returned to Mercer Ranches, John approached him with this desire to honor the memory of his friend. Rob and John discussed opportunities to commemorate those lives lost and the role that Mercer Ranches could play.

Ultimately, the vision to plant a memorial block of their vineyard, Block 93, came to fruition.

With the concept of Block 93 fresh in their minds, John and Rob began to work. Ground preparation of the one-acre lot that would become Block 93 began in the Horse Heaven Hills in 2009. In 2010, they planted 911 vines of Cabernet Sauvignon grapes earmarked for use in a premium wine. Members of Mercer Ranches and the surrounding community volunteered to plant the last 40 vines—representing the 40 passengers and crew lost on Flight 93—by hand.

What began as a personal memorial quickly evolved. “It is a super powerful idea,” John said, “that came out of talking about something that I wanted and needed–and something that Rob wanted and needed as well.”

John credits Rob’s vision and leadership for turning Block 93 into a charity. Rob, he explained, saw Block 93 as a way to turn the tragedy of 9/11 into an opportunity for Mercer Ranches to give back to the community.

All proceeds of Block 93 are donated to charitable organizations such as Children of Fallen Patriots Foundation, Semper Fi Fund, and Friends of Flight 93. Mercer also donates bottles of Block 93 to other organizations, including the Flight 93 Memorial in Stoystown, Pennsylvania, which are then able to leverage the wine to raise money for their own causes.

Since starting Block 93, John explained, “we have donated over a quarter of a million dollars.”

Beyond the direct impact Block 93 makes as a charity, it also provides Mercer Ranches an opportunity to build bridges with the surrounding community. As a large farm, and particularly one that is associated with a winery, there are a lot of tours involved. “Getting that chance to get one-on-one time [with visitors] is powerful,” he added.

Visitors are often unaware of the path food takes to get to the plate, and may even have negative preconceptions about agriculture. John explained that Block 93 gives him the opportunity to “share and say I am just as human as you are and we really [have] quite a bit in common…[E]veryone knows where they were [on 9/11], what they were doing, and how it impacted them—directly or indirectly.”

As a result, he added, visitors have told him “they appreciate what we are doing and that we are telling the story.”

This bridge works both ways, he added. “I have gotten to hear their stories as well.”

Block 93 is a crown jewel for Mercer Ranches and exemplifies the good that the agricultural community can do. For other agricultural employers looking for their own charitable opportunity, John has some advice.

“I think the need is out there for everyone to get more involved with the community,” he explained. “No matter your idea or how you connect, there is somebody that wants to connect with you as well and has that same need. Take your ideas and run with them—they will find traction.”

Telling one’s story can have a tremendous impact on changing minds about what agriculture is. As John said, “we know what we know—getting to share allows us to find commonality.”

NCAE Spotlight Mercer Ranches