Department of Labor intends to Axe Christmas Tree Growers

[Luke_Wilbur]

I just got this message from the National Christmas Tree Association

 

The Department of Labor intends to delay implementation of the new H-2A rules that became law on January 17. As part of that legislation, Christmas Tree farming was clearly defined as agriculture, which is consistent with the Fourth Circuit Court of Appeals ruling, recognized in five states, but previously not recognized in the rest of the country. The proposed delay of the H-2A rules would also suspend this determination of Ag Status for Christmas Trees. Once in the suspended state, anything could change, so there is no certainty that Ag Status for Christmas Trees would be restored at the end of the suspension period.

 

On March 17, Department of Labor (DOL) announced that it intends to suspend the changes that it made in the new H-2A regulations that took effect on Jan. 17, 2009 (new rules) for nine months. Assuming that DOL decides to suspend the new rules after the public comment period, it would reinstate the rules in effect on Jan. 16, 2009 (the old rules).

 

The rationale given by DOL for its abrupt action is that that it lacks the resources to implement the new H-2A rules; that it lacks an automated processing system; and it hasn't been able train staff adequately to handle the new procedures, all of which are contributing to application processing delays. DOL also states that it may disagree with the policy positions taken by the Bush Administration that are reflected in the new rules, especially in view of the current domestic unemployment rates. For these reasons, DOL claims that it needs to suspend the new rules so that it can evaluate them.

 

Suspension of the new regulations would adversely affect Christmas tree status, which is defined under the new regulations as agricultural if Christmas trees are produced through the application of extensive agricultural or horticulture techniques. Christmas trees are only considered as forestry if they are grown in the wild under the new regulations.

 

HOW DO I SUBMIT COMMENTS? All comments must be submitted by Friday, March 27. Comments may be submitted online or mailed to (but must arrive by Friday):

 

http://www.regulations.gov/fdmspublic/comp...9000064809180fc

 

Here is the notice and old rules:

 

§ 780.115 Forest products.

 

Trees grown in forests and the lumber derived therefrom are not ‘‘agricultural or horticultural commodities.’’ Christmas trees, whether wild or planted, are also not so considered. It follows that employment in the production, cultivation, growing, and harvesting of such trees or timber products is not sufficient to bring an employee within section 3(f) unless the operation is performed by a farmer or on a farm as an incident to or in conjunction with his or its farming operations. On the latter point, see §§ 780.160 through 780.164 which discuss the question of when forestry or lumbering operations are incident to or in conjunction with farming operations so as to constitute "agriculture."

 

For a discussion of the exemption in section 13(a)(13) of the Act for certain forestry and logging operations in which not more than eight employees are employed, see part 788 of this chapter.

 

13. Redesignate § 780.201 as § 780.215 and suspend newly designated § 780.215.

 

14. Add § 780.201 to read as follows:

 

§ 780.201 Meaning of "forestry or lumbering operations."

 

The term "forestry or lumbering operations" refers to the cultivation and management of forests, the felling and trimming of timber, the cutting, hauling, and transportation of timber, logs, pulpwood, cordwood, lumber, and like products, the sawing of logs into lumber or the conversion of logs into ties, posts, and similar products, and similar operations. It also includes the piling, stacking, and storing of all such products. The gathering of wild plants and of wild or planted Christmas trees

are included. (See the related discussion in §§ 780.205 through 780.209 and in part 788 of this chapter which considers the section 13(a)(13) exemption for forestry or logging operations in which

not more than eight employees are employed.) "Wood working" as such is not included in ‘‘forestry’’ or "lumbering’’ operations. The manufacture of charcoal under modern methods is neither a "forestry" nor "lumbering" operation and cannot be regarded as "agriculture."

 

15. Redesignate § 780.205 as § 780.216 and suspend newly designated § 780.216.

 

16. Add § 780.205 to read as follows:

 

§ 780.205 Nursery activities generally. The employees of a nursery who are engaged in the following activities are employed in "agriculture": (a) Sowing seeds and otherwise propagating fruit, nut, shade, vegetable, and ornamental plants or trees (but not Christmas trees), and shrubs, vines, and

flowers;

 

( Handling such plants from propagating frames to the field;

© Planting, cultivating, watering, spraying, fertilizing, pruning, bracing, and feeding the growing crop.

 

17. Redesignate § 780.208 as § 780.217 and suspend newly designated § 780.217.

 

18. Add § 780.208 to read as follows:

 

§ 780.208 Forest and Christmas tree activities.

 

Operations in a forest tree nursery such as seeding new beds and growing and transplanting forest seedlings are not farming operations. The planting, tending, and cutting of Christmas trees do not constitute farming operations. If such operations on forest products are within section 3(f), they must qualify under the second part of the definition dealing with incidental practices. (See § 780.201.)

 

PART 788—FORESTRY OR LOGGING OPERATIONS IN WHICH NOT MORE

 

THAN EIGHT EMPLOYEES ARE EMPLOYED

 

19. Redesignate § 788.10 as § 788.18 and suspend newly designated § 788.18.

 

20. Add § 788.10 to read as follows:

 

§ 788.10 "Preparing * * * other forestry products."

 

As used in the exemption, "other forestry products" mean plants of the forest and the natural properties or substances of such plants and trees.

 

Included among these are decorative greens such as holly, ferns and Christmas trees, roots, stems, leaves, Spanish moss, wild fruit, and brush. Gathering and preparing such forestry products as well as transporting them to the mill, processing plant, railroad, or other transportation terminal are among the described operations.

 

Preparing such forestry products does not include operations which change the natural physical or chemical condition of the products or which amount to extracting as distinguished from gathering, such as shelling nuts, or mashing berries to obtain juices.

 

Signed in Washington, DC, this 10th day of

March 2009.

Douglas F. Small,

Deputy Assistant Secretary, Employment and

Training Administration.

Shelby Hallmark,

Acting Assistant Secretary, Employment

Standards Administration.

 

http://edocket.access.gpo.gov/2009/pdf/E9-5562.pdf

 

Sections 780.205, 780.201 and 788.10 of the old regulations treat Christmas tree production as forestry and exclude it from the agricultural definition. Thus, workers employed in Christmas tree production and harvesting would have to be paid overtime under the old rules. By suspending the new rule, DOL would restore the inequity that it eliminated when it recognized the agricultural status of Christmas trees.

 

Some agricultural organizations may file a lawsuit within the next week seeking a restraining order under the Administrative Procedure Act prohibiting DOL from suspending the new rules. It is impossible to predict the outcome of such litigation. Meanwhile, it is important for agricultural organizations affected by the proposed suspension to share their views with the agency about the proposed suspension and potential reopening of rulemaking during the ten day comment period. The notice asks that comments be limited to the suspension itself, or issues that have arisen since the new rule's publication, rather than specific comments on the old or new rules.

 

 

Thomas Dowd, Administrator Office of Policy Development and Research

Employment and Training Administration

U.S. Department of Labor, 200 Constitution Avenue, NW

Room N-5641

Washington, DC 20210

Regulatory Information Number (RIN) 1205-AB55

[Luke_Wilbur]

I personally feel that this decision may kill the industry and will be a major blow to the holiday industry. Growing Christmas Trees is like growing any other crop. It requires cultivating and harvesting. The only difference is that it is not harvested on the first year. During their average 10 year lifespan there is much observation occurring on the trees. Every June while we are shearing (shaping) our trees an inspector comes to our look for invasive insects and disease. Your decision will effect this service. Insects and disease will spread without being checked. During our Fall and Winter meetings members of the Department of Agriculture and Forestry Service come and discuss the latest farming techniques, pesticides, and insect and disease problems. Your decision will effect this service. In the spring Christmas Tree growers get their trees from the State Nursery run by the forestry department. Your decision will effect this. Christmas Tree Farmers have the ability to get crop insurance. Your decision will effect this. The extension service does free soil analysis for farmers to know what fertilizer and trees can be planted on their fields. You decision will affect this.

 

I personally thought the Obama administration was about building a green economy in the USA. This decision will turn the Christmas Tree industry into an artificial tree made in China industry. All the carbon that is removed from the atmosphere during the growth cycle of the trees will be replace with plastic products made from fossil fuels. The FDR administration created the conservation corps to plant trees. What I see from this decision is Agriculture and Forestry employees losing jobs. And Christmas Tree growers having to sell their businesses to land developers or to the lumber and coal industry.

[Guest Nancy H_*]

I must be missing something here: aren't Christmas tree farms actually BOTH agriculture AND forestry? Am I an idiot? Seems to me Christmas tree farms are in fact both - PER SE.

[Luke_Wilbur]

This has been a long battle. If you go on the USDA's web site you will see that Christmas trees are grown as a crop and not planted in the wild. The USDA does not want to fullfill its obligation, because they now do not have money for it.

 

Feature: Christmas Tree Facts

• Christmas trees have been sold commercially in the U.S. since 1850.

• As many as 36 million Christmas trees are produced each year and 95 percent are shipped or sold directly from Christmas tree farms. In North America, there are more than 15,000 Christmas tree growers.

• The best selling trees are Scotch pine, Douglas fir, Noble fir, Fraser fir, Virginia pine, Balsam fir and white pine.

• Over one million acres have been planted in Christmas trees.

• More than 2,000 trees are usually planted per acre. On average, 1000 to 1500 survive. In the north, 750 survive.

• This year, 73 million new Christmas trees will be planted.

• It takes 6 to 10 years to grow a mature Christmas tree.

 

http://plant-materials.nrcs.usda.gov/news/...ures/trees.html

 

Ron Wolford wrote this piece. I am going to contact him for a clearer definition at 773-233-0476.

 

Also calling Jay Hayek 217-244-0534

Edited March 26, 2009 by Luke_Wilbur