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Friday, February 19, 2021 CapitalPress.com 11 Reforms: H-2A provides only a fraction of workers ag needs he said, “trying to create a system that gets our existing workers right with the law who are here today, and cre- ates an improved guestworker program.” Continued from Page 1 process and package crops. An estimated 50-70% of those farm laborers are undocumented, and few American citizens are willing to do the strenuous work. “Agricultural work is hard. It’s done outside often, where it’s warm,” said Allison Crit- tenden, director of congres- sional relations for the Farm Bureau. “I think that one way we can quantify the prolifer- ation of the domestic worker shortage is looking at growth in the H-2A program.” The H-2A program pro- vides temporary visas for for- eign agricultural workers to come into the U.S. The num- ber of positions certified by the Department of Labor has risen every year since 2012, reaching 213,394 visas last year. Florida farmers hired the most H-2A workers in 2020, followed by their counter- parts in Georgia, Washing- ton state, California and North Carolina, all of which exceeded 20,000 workers. Still, H-2A provides only a fraction of the workers agri- culture needs. As domestic workers continue to get older, Crittenden said they often pivot out of farm work and into other sectors of the econ- omy, further exacerbating the labor shortage. One study cited by the Farm Bureau shows the agricultural labor shortage accounted for $3.3 billion in missed economic growth in 2012. For that reason, Crittenden said any immigration reform must address both workers already in the country, as well as flaws in the H-2A program to ensure farms can rely on a steady and increasing supply of labor in the future. “This is one of the top problems for our member- ship,” Crittenden said. “We want to make sure, if the train is leaving the station, that we have a solution for agriculture.” Path to citizenship The U.S. Citizenship Act, as its name suggests, focuses on one major aspect of the issue. Biden wants to create a path to legality for undoc- umented migrants already living and working in the country. Under his proposal, undocumented immigrants could apply for temporary legal status with the chance to apply for a green card after five years if they pass crimi- nal background checks and pay their taxes. Immigrant farmwork- ers, as well as those with temporary protected status and Dreamers — those pro- tected under the Deferred Action for Childhood Arriv- als, or DACA Act — would be allowed to apply for green cards immediately, if they meet specific requirements. Congressional appetite Dan Wheat/Capital Press Antonio de Jesus Bailon, H-2A-visa worker, picks Gala apples at Griggs Orchards, Orondo, Wash., in 2018. A new farm labor bill seeks to improve the H-2A foreign guestworker program. Allison Crittenden Dennis Nuxoll After three years, all green card holders who pass addi- tional background checks and demonstrate a knowl- edge of English and U.S. civ- ics can then apply to become citizens. Legalizing the current workforce is critical to the survival of farms, said Den- nis Nuxoll, vice president of government affairs for West- ern Growers. “For us, making sure they are right with the law, that they come out of the shad- ows, is incredibly import- ant for our industry,” Nuxoll said. Western Growers mem- bers produce roughly half of all U.S. fruits and vegetables and two-thirds of all tree nuts grown in Arizona, California, Colorado and New Mexico. Without a path to citi- zenship for current work- ers, Nuxoll said the industry could not make up the labor shortage through guestwork- ers alone. First, he said the H-2A visa program is not built to handle the volume that would be required. Certain indus- tries that require year-round labor, such as dairy, also do not have access to H-2A. At the same time, Nux- oll said farms would be los- ing longtime workers with years of institutional knowl- edge about the operations that can’t be quickly absorbed by new crews. “For our farmers, the existing workers they have, many of whom who have Pay: ‘There are a lot of serious problems with the substitute (bill)’ Continued from Page 1 If farms can’t find a worker, the back wages would have to be paid to Labor and Industries, which would set up a com- mittee to pay out back wages. Farms that don’t pay upfront could be sued. “There are a lot of seri- ous problems with the sub- stitute (bill) passed out of the committee,” Washing- ton State Tree Fruit Asso- ciation President Jon DeV- aney said. “However, chair Keiser did acknowledge that this is an incomplete proposal and a work in progress,” he said. The committee’s five Democrats voted for the reworked bill. King took a neutral stance, banking on future negotiations. “I look forward to work- ing with all of you to try to find reasonable, sensible and fair solutions,” he said. The committee’s three other Republicans voted “no.” “I absolutely will be vot- ing ‘no,’” said Sen. Mark Schoesler, R-Ritzville. Schoesler said that less than a year ago dairy farm- ers were dumping milk because of COVID prob- lems. “Now we’re kicking these people while they’re down,” he said. The dairy federa- tion estimates that dairies would have to pay out $90 million to $120 million if the overtime decision were applied to a three- year period that ended when the Supreme Court ruled. Wood said Monday the federation has roughly cal- culated that retroactively applying the decision to all agricultural employees would cost $2 billion. The court’s ruling overturned a law passed by lawmakers in 1959. The bill endorsed by the Senate labor com- mittee goes farther than any court has in punish- ing agricultural employ- ers for following that law, Wood said. If lawmakers don’t pro- vide relieve, the dairy fed- eration likely would pur- sue a federal lawsuit, he said. Dan Fazio Rep. Dan Newhouse been with them for decades, are the backbone of Ameri- can agriculture, at least with regards to produce,” Nux- oll said. “That’s the reason, frankly, you’re able to go to Safeway or Albertsons and enjoy fruits, vegetables and tree nuts.” H-2A missing That being said, Nuxoll said the H-2A program is in need of reform. “You have to do both,” he said of immigration and guestworker reform. “They go hand-in-hand.” That is what critics say is missing from the Biden plan. A summary of the U.S. Cit- izenship Act on the White House website makes no reference to H-2A or guest- worker reform, while the pro- gram continues to suffer from rising costs and complicated bureaucracy. Sequeira, the attorney and former assistant labor sec- retary, said the conversa- tion begins with ballooning wages. The minimum wage for H-2A workers is calculated annually using a survey col- lected by the USDA. From that, the Labor Department issues what is known as the Adverse Effect Wage Rate, or AEWR, which is intended to keep wages for foreign workers high enough that they don’t adversely affect the employment of domestic workers by displacing them. Any domestic workers working alongside H-2A workers also get that higher pay. Last year, the Trump administration approved a two-year freeze of the AEWR, only to have it over- turned by a federal judge in California. The 2021 AEWR for the Northwest, published on Feb. 11, is $16.34 per hour for field and livestock workers — a 3% increase from 2020. The AEWR in California is at $16.05 per hour. Meanwhile, labor costs in Mexico are $7 per day to produce the same crops, Sequeira said. And that’s not taking into account the American farmer’s obliga- tion to provide free housing and transportation under the H-2A program. “You tell me how you can come anywhere close to profitability when your products are sitting side-by- side on the grocery shelf,” Sequeira said. Cost is not the only prob- lem. Bringing in guestwork- ers requires navigating sev- eral agencies, which can sometimes take months and cause delays in harvest. A survey conducted by the Farm Bureau found that 72% of growers reported that H-2A workers arrived, on average, 22 days after their “date of need.” Dan Fazio, executive director of Wafla, formerly the Washington Farm Labor Association based in Olym- pia, said the H-2A program is overly complex for grow- ers, and has been since it was created in 1986. “It’s not a workable pro- gram. Small employers can’t use it,” Fazio said. “That’s why the West Coast never used the H-2A program. We had a better guestworker pro- gram — the ‘y’all come’ guestworker program.” Establishing unity But simply legalizing undocumented workers is not in anybody’s best interest either, Fazio said. He pointed to caravans of immigrants arriving at the U.S.-Mexico border, and declining eco- nomic conditions in Mex- ico as the country goes into a recession. “That’s what you see from the Biden administration. Their statements are all about a path to legalization,” Fazio said. “You have this undoc- umented workforce com- ing here, and it’s not in any- body’s best interest to come here undocumented. Our best interest as a country is to have a simple guestworker program.” Fazio said the issue boils down to fairness. H-2A employers go through strin- gent regulations to hire sea- sonal workers, paying upward of $25,000 per bed to build and provide housing, along with inflated wages, while farms with undocu- mented workers sidestep those responsibilities. That has created tension within the industry, and led to fighting among friends as farmers seek reforms, Fazio said. The challenge, he said, will be uniting to push for common interests in the next round of legislation. “In exchange for legalizing undocumented workers, we need a good working future flow program,” he said. “If all of agriculture was on board with that, we would get a good working future flow program” that would help procure ade- quate numbers of workers in years to come. Nuxoll, with Western Growers, agreed that unity is key. “We have been working on this particular issue for the better part of 20 years,” Crittenden, with the Farm Bureau, said the Biden plan is only a framework now, but it “demonstrates enthusiasm” for solving the issue. “I think Congress recog- nizes that, if what they want is expediency and to show prog- ress on immigration over- all, perhaps we have to break these individual issues down,” she said. “I think if it’s broken up into pieces, you will see those individual pieces move faster.” For example, the Farm Workforce Modernization Act did pass the Democrat-con- trolled House with biparti- san support last year before stalling in the Republican-led Senate. While Democrats now control both chambers of Congress by thin margins, Crittenden said any bill will still need substantial Republi- can support to reach 60 votes needed in the Senate to avoid a filibuster. Rep. Dan Newhouse, R-Wash., was a chief spon- sor of the Farm Workforce Modernization Act, along with Zoe Lofgren, D-Calif. That bill would have let farm- workers apply for legal sta- tus as a “Certified Agricultural Worker” if they had done 180 days of agricultural work over the last two years. Workers would then be able renew that status every five years if they claim at least 100 days of agricultural work per year. The bill also pro- posed streamlining H-2A and capping wage rate increases at 4.25% over 10 years. Though it did not pass, Newhouse said the bill gar- nered support from more than 300 farm groups. He is bullish on reintroducing the bill before an April 1 dead- line to avoid another round of lengthy committee hearings. Newhouse said the Biden proposal, as is, likely stands no chance of pass- ing as comprehensive reform among Republican lawmak- ers and even some moderate Democrats. “It’s actually very concern- ing to me, some of the things that are being talked about,” Newhouse said. “I don’t think it benefits our national security at all. We need to know who is coming into our country, why, and how long they will be staying.” Newhouse said there is still an appetite in Congress to solve the agricultural labor issue. “The need in the industry is certainly as great, if not greater, now than it was two years ago,” he said. “We’re strategizing, meeting regu- larly and talking about how we move forward.” Dairy: The 7,228-acre dairy has undergone a turbulent past Continued from Page 1 for $225 million, accusing the ranch of faking invoices and charging the company for more than 200,000 cattle that, in fact, did not exist. Both Easterday Ranches and Easterday Farms have since filed for Chapter 11 bankruptcy protection. East- erday Farms is the fami- ly’s farming business, grow- ing 22,500 acres of potatoes, onions, corn and wheat in the Columbia Basin. In a statement to the Cap- ital Press, Cole Easterday, one of the owners of Easter- day Dairy, said the company is still working to secure a Confined Animal Feeding Operation, or CAFO, permit from the Oregon Department of Agriculture and Depart- ment of Environmental Qual- ity to reopen the dairy near Boardman. “Though the situation with Easterday Ranches and East- erday Farms is unfortunate, Easterday Dairy LLC’s com- mitment to our current CAFO permit and our permit appli- cation is unchanged,” he said. Cole Easterday declined to comment on the lawsuit or bankruptcy filings. George Plaven/Capital Press The milking parlor at Easterday Farms Dairy includes two rotating carousels capable of milking 180 cows at a time. The 7,228-acre dairy has already undergone a turbulent past. As Lost Valley Farm, it opened in early 2018 and was shut down within a year after racking up more than 200 per- mit violations under previous ownership, including open-air lagoons overflowing with liq- uid manure. Easterday Farms bought the property, including build- ings and infrastructure — but not the cows — for $66.7 million in 2019. The family promised to invest $15 mil- lion in the dairy, upgrading its wastewater treatment system and correcting environmental deficiencies that led to Lost Valley’s demise. “It’s a state-of-the-art dairy,” said Cody Easterday, president of Easterday Farms, during a tour and interview in July 2019. “It just needs to be finished, and it needs to have the correct management.” Easterday Dairy applied for a CAFO permit in June 2019. Oregon’s CAFO pro- gram is jointly administered by the state Department of Agriculture and Department of Environmental Quality to ensure operations will not pollute “waters of the state.” According to its permit application, the dairy would have 9,700 mature dairy cows, 8,600 dairy heifers and 10,000 additional non-dairy cattle kept on site. Those ani- mals would produce an esti- mated 5.4 million cubic feet of liquid manure, 5.9 million cubic feet of solid manure and 11.7 million cubic feet of processed wastewater annually. The dairy would recy- cle all that nitrogen-rich manure by using it as fertil- izer on 5,390 acres of sur- round farmland, a process known as land application. It would additionally have stor- age capacity for more than 10 million cubic-feet of manure in lagoons for up to 111 days, and year-round storage for more than 13 million cubic- feet on an impervious soil pad. Wym Matthews, CAFO program manager for ODA, said the Easterday Dairy application is under review and agencies are working toward issuing a draft permit that would then be available for public review. “There is quite a bit of back and forth between the agencies in developing the permit,” Matthews said. “One of the things, because this proposed site is located in a groundwater manage- ment area, it’s a new source of nitrogen in an area that already has known con- cerns about nitrate levels in groundwater.”