Jul 28, 2025

Low-hanging fruit opportunities

There is an abundance of low-hanging fruit.

Think of it. You walk into a grove or an orchard, and there it is: All the apples, oranges or cherries, all hanging there easily within reach. No need for a ladder or a lift or other assistive harvest device to fill your bag, bucket or bin. Sweet!

You would think that is what the Trump administration’s Department of Justice (DOJ) must see when their attorneys look at the regulatory body of work on agricultural labor left them by the previous administration. Everywhere they look they must see bounty.

NCAE is working to help even the most myopic DOJ attorney see plenty, and it’s not even covered by foliage. It’s right there.

The new administration has launched a regulatory review among multiple agencies to uncover regulations that are anti-competitive, burdensome or unlawful. We are more than happy to help.

NCAE has already developed and submitted comments to the Small Business Administration (SBA) in its process. The SBA was particularly interested in regulations that might impact smaller enterprises. In our research and compilation on this effort, we found so many bad regulations that we had to cull a few.

However, we shared with SBA that the Department of Labor’s (DOL) Adverse Effect Wage Rate (AEWR) rule has many infirmities. The rule that was originally estimated by DOL to add only $375 million to ag employers’ wage bills over a 10-year period instead may add nearly $2 billion to what employers must pay. Oops!

Further, this rule also runs afoul of a Supreme Court decision last term called Loper Bright Enterprises. In its decision penned by the chief justice, prior precedent that afforded federal agencies great deference in promulgating regulations was explicitly overruled. This Chevron deference was cited by the Florida Federal District Court more than 15 times in denying NCAE’s motion for preliminary injunction that challenged the rule. This unconstitutional and unlawful AEWR rule should be withdrawn.

Similarly, we told the SBA that DOL’s Worker Protection Rule that has now been enjoined by three different federal district courts should suffer the same fate as the AEWR. This rule, which violates the Supreme Court’s decision from 2021 in a case referred to as Cedar Point, would allow union organizers or other malign actors access to a farm or ranch absent the requisite compensation to the farmer for the union’s taking of his property. This rule also runs afoul of the National Labor Relations Act of 1935.

We told SBA that the DOL’s Program Rule that eliminated required statistical integrity in the development of prevailing wage surveys increased surety bond costs passed on to farm and ranch families by their farm labor contractor. The elimination of family members to efficiently cost share H-2A workers that didn’t work 30 hours per week on one facility should also be rescinded.

NCAE also let SBA know that the Department of Homeland Security’s (DHS) passing along fees for the cost of its asylum program to farm and ranch families provided no benefit but added costs to H-2A users. This regulation needs to go, too.

Finally, we let the SBA know what we think of the DHS’s Worker Protection Regulation that could result in the blacklisting of an employer from the H-2A program for virtually any minor infraction of the regulations. Think about it.

Workers preparing their breakfast in the housing before work set off the smoke alarm. One of the workers takes the battery out of the alarm to keep it from squawking but then forgets to replace it before rushing to work. A DOL inspector subsequently finding the battery missing could blacklist the employer absent any due process. This rule needs to find the dumpster.

NCAE has already filed similar comments with the Office of Management and Budget, and we will file comments with the DOJ on these regulations as well. We also understand that the DOL is going to have a similar deregulation process, and we are ready.

There is an abundance of low-hanging fruit. The agencies need to pick it.

— Michael Marsh has led the National Council of Agricultural Employers since 2017. A Wyoming native and certified public accountant, Marsh worked for a CPA firm with farm and ranch clients investigating fraud. He was director of finance for the Almond Board of California for 7 years and for 15 years was CEO of the largest U.S. dairy producer trade association.