Federal Register, Volume 80 Issue 200 (Friday, October 16, 2015)

[Federal Register Volume 80, Number 200 (Friday, October 16, 2015)]
[Rules and Regulations]
[Pages 62957-63070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-26252]



[[Page 62957]]

Vol. 80

Friday,

No. 200

October 16, 2015

Part IV





Department of Labor





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Employment and Training Administration





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20 CFR Part 655





Temporary Agricultural Employment of H-2A Foreign Workers in the
Herding or Production of Livestock on the Range in the United States;
Final Rule

Federal Register / Vol. 80 , No. 200 / Friday, October 16, 2015 /
Rules and Regulations

[[Page 62958]]


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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

RIN 1205-AB70


Temporary Agricultural Employment of H-2A Foreign Workers in the
Herding or Production of Livestock on the Range in the United States

AGENCY: Employment and Training Administration, Labor.

ACTION: Final rule.

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SUMMARY: The Department of Labor is issuing regulations to govern its
certification of the employment of nonimmigrant workers in temporary or
seasonal agricultural employment under the H-2A program. Specifically,
these regulations establish standards and procedures for employers
seeking to hire foreign temporary agricultural workers for job
opportunities in herding and production of livestock on the range.
These regulations are consistent with the Secretary of Labor's
statutory responsibility to certify that there are not sufficient able,
willing, qualified and available U.S. workers to perform these jobs,
and that the employment of foreign workers will not adversely affect
the wages and working conditions of workers in the United States
similarly employed. Among the issues addressed in these regulations are
the qualifying criteria for employing foreign workers in the applicable
job opportunities, preparing job orders, program obligations of
employers, filing of H-2A applications requesting temporary labor
certification for range occupations, recruiting U.S. workers,
determining the minimum offered wage rate, and the minimum standards
for housing used on the range. The regulations establish a single set
of standards and procedures applicable to employers seeking to hire
foreign temporary agricultural workers for sheep and goat herding and
range production of livestock, given the unique characteristics of
these job opportunities in their industry.

DATES: Effective Date: This rule will be effective on November 16,
2015.

FOR FURTHER INFORMATION CONTACT: For further information, contact
William W. Thompson, II, Acting Administrator, Office of Foreign Labor
Certification, Employment and Training Administration, U.S. Department
of Labor, 200 Constitution Avenue NW., Room C-4312, Washington, DC
20210; Telephone (202) 693-3010 (this is not a toll-free number).
Individuals with hearing or speech impairments may access the telephone
number above via TTY by calling the toll-free Federal Information Relay
Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

On April 15, 2015, the Employment and Training Administration (ETA)
of the Department of Labor (DOL or Department) issued a notice of
proposed rulemaking (NPRM) requesting comments on proposed standards
and procedures to govern the certification of nonimmigrant workers in
temporary or seasonal agricultural employment under the H-2A program.
Temporary Agricultural Employment of H-2A Foreign Workers in the
Herding or Production of Livestock on the Open Range in the United
States, 80 FR 20300 (2015). Specifically, the NPRM addressed employment
in sheep, goat and cattle herding occupations performed on the open
range.\1\ ETA invited written comments on all aspects of the proposed
regulations from interested parties. ETA also invited public comment on
a variety of specific issues. Originally, the written comment period
closed on May 15, 2015. However, in response to many requests for
additional time in which to comment, ETA extended the comment period
through June 1, 2015. ETA has reviewed and considered all timely
comments received in response to the proposed regulations.
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\1\ As discussed in greater detail below in Sec. IV.A.3.c., we
have modified the definition of ``open range'' based on a
significant number of comments addressing the issue, and the Final
Rule now refers to these herding occupations as work on the
``range.'' However, when discussing this requirement as it appeared
in the former rules or in the proposed provisions in the NPRM, we
rely on the prior references to the ``open range.'' In addition, ETA
has traditionally referred to the production of cattle separately as
the ``open range production of livestock.'' For ease of reference,
and because this Final Rule concludes that the work involved in
sheep, goat and cattle production, including herding, can be treated
similarly for the purposes of this regulation, we may also refer to
the ``range production of livestock'' as ``cattle production,''
which includes ``cattle herding.''
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The Department received 506 timely comments from a wide variety of
sources. Commenters included: Members of Congress; State political
officials, including State governors and legislative representatives;
State executive agencies; individual ranchers that employ H-2A herders
in their operations; national and state-level industry advocacy
organizations; worker advocacy organizations; national and state-level
agriculture advocacy organizations; wool growers associations; sheep
shearing businesses; members of the media; and the Small Business
Administration's Office of Advocacy (SBA Office of Advocacy), among
others. The vast majority of comments specifically addressed issues
contained in ETA's proposed rule. The Department recognizes and
appreciates the value of comments, ideas, and suggestions from all
those who commented on the proposal, and this Final Rule was developed
only after consideration of all the material submitted.

II. Statutory and Regulatory Authority

The Immigration and Nationality Act (INA or the Act) establishes
the H-2A visa classification for employers to employ foreign workers on
a temporary basis to perform agricultural labor or services. INA
Section 101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a); see also
INA Secs. 214(c)(1) and 218, 8 U.S.C. 1184(c)(1) and 1188. The INA
authorizes the Secretary of the Department of Homeland Security (DHS)
to permit the admission of foreign workers to perform agricultural
labor or services of a temporary or seasonal nature if the Secretary of
the Department of Labor (Secretary) certifies that:

(A) There are not sufficient workers who are able, willing, and
qualified, and who will be available at the time and place needed to
perform the labor or services involved in the petition; and
(B) The employment of the foreign worker(s) in such labor or
services will not adversely affect the wages and working conditions
of workers in the United States similarly employed.

8 U.S.C. 1188(a)(1).
The Secretary has delegated these responsibilities, through the
Assistant Secretary, Employment and Training Administration (ETA), to
ETA's Office of Foreign Labor Certification (OFLC). Sec. Order 06-2010,
75 FR 66268 (Oct. 27, 2010). The Secretary has delegated responsibility
for enforcement of the worker protections to the Administrator of the
Wage and Hour Division (WHD). Sec. Order 01-2014, 79 FR 77527 (Dec. 24,
2014).
Since 1987, OFLC and its predecessor agencies have operated the H-
2A program under regulations promulgated under the authority of the
Immigration Reform and Control Act of 1986 (IRCA), which amended the
INA and established the H-2A program.\2\ OFLC's

[[Page 62959]]

current regulations governing the H-2A program were published in 2010
following notice and comment. 75 FR 6884 (Feb. 12, 2010) (2010 Final
Rule). Historically, and as provided in 20 CFR 655.102 of the 2010
Final Rule, the H-2A regulations permitted OFLC to set ``special
procedures'' to govern the employment of foreign workers in certain
occupations, such as sheep and goat herding and the range production of
livestock, to which the standard H-2A regulations did not readily
apply, so long as the special procedures adhered to the statutory
mandates to determine U.S. worker availability and to certify that
bringing in foreign workers will not adversely affect the wages and
working conditions of workers in the United States similarly employed.
8 U.S.C. 1188(a)(1). The Department's history of setting standards and
procedures applicable to range herding or production of livestock
occupations through Training and Employment Guidance Letters (TEGLs)
and predecessor sub-regulatory guidance documents is set out in
extensive detail in the NPRM, 80 FR at 20301-20302, and we do not
repeat it here.\3\ However, as a result of a recent court decision,
Mendoza et al. v. Perez, 754 F.3d 1002 (D.C. Cir. 2014), ETA is now
establishing the standards that govern H-2A herder occupations in this
Final Rule through notice and comment rulemaking. The new regulations
will be incorporated at 20 CFR part 655, subpart B.
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\2\ The Immigration and Nationality Act of 1952 created the H-2
temporary worker program. Public Law 82-414, 66 Stat. 163. In 1986,
IRCA divided the H-2 program into separate agricultural and non-
agricultural temporary worker programs. See Public Law 99-603, sec.
301, 100 Stat. 3359 (1986). The H-2A agricultural worker program
designation corresponds to the statute's agricultural worker
classification in 8 U.S.C. 1101(a)(15)(H)(ii)(a).
\3\ This Final Rule supersedes the two TEGLs that currently
govern the temporary employment of foreign herders, TEGL No. 32-10
(Jun. 14, 2011) and TEGL No. 15-06, Change 1 (Jun. 14, 2011).
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III. Discussion of General Comments

This preamble sets out DOL's interpretation of the new regulations
added to Subpart B, section by section. Before setting out the section-
by-section analysis below, however, we will first acknowledge and
respond to comments that did not fit readily into this organizational
scheme.

A. General Comments

Most of the hundreds of comments we received addressed one or more
specific issues in the NPRM, such as the proposed wage methodology, all
of which are discussed in greater detail in Sec. IV below. However,
within many of those targeted comments were more general remarks on the
nature and the scope of the proposed rule, as discussed here. We
received several general comments in support of the NPRM and the
proposed standards and procedures. Several commenters indicated that
new rules were necessary to improve wages and other conditions for
workers and to monitor compliance with the regulations. Some commenters
noted that the new regulations were long overdue, in particular because
foreign workers in herder occupations are grossly underpaid. One
commenter noted that although herders' wages should be increased, the
upward adjustment should be implemented over a period of time so that
employers can adapt to the wage increase.
The vast majority of comments we received were from individuals or
organizations that opposed specific aspects of the NPRM's provisions,
particularly the wage methodology. Many of the comments were from
individual ranchers who stated that their families had been operating
their businesses for five or more generations. From a review of these
comments, several overarching general themes emerged. Several
commenters observed that the current rules ``are not broken,'' so no
fix is required. Dozens of commenters remarked that the proposed wage
methodology would result in the loss of livelihood of many individual
ranchers, and dozens of others went further to conclude that the
proposed wage methodology would put an end to the production of sheep,
goat and cattle industries in the United States as a whole. Many
commenters noted that satellite industries that provide goods and
services to or derive goods and services from sheep, goat and cattle
production, including textiles businesses and wool mills; the
production of military, sports, and first responder uniforms from sheep
wool; meat processing; feed lots; animal transport; veterinarians and
vet supplies; and seed stock producers, among others, would be
adversely effected by the new regulation. Others noted that in addition
to the impact on satellite industries, the communities in which the
regulated ranches are located would suffer, because the ranches
stimulate the local economy through the purchase of goods, supplies and
services locally to sustain their businesses, including banking
services, grocers and gas stations, among others. The adverse impact to
both the satellite industries and the local communities would include,
the comments noted, the loss of jobs to U.S. and foreign workers alike.
One comment noted that with increased costs to ranchers, which would
result in loss of livestock-based jobs, land grant colleges with
agriculture programs would suffer.
We received many comments that addressed the international aspects
of the herder occupations and the industries that employ them. One
commenter noted that the foreign labor certification program creates
goodwill between the United States and the foreign workers' countries
of origin, and the new rules would diminish that goodwill. Several
comments noted the impact of foreign imports, particularly sheep
imports, on the ability of U.S. ranchers to compete in the global
marketplace. These comments suggested that if herder wages are
increased, the government must also protect the U.S. market from price
competition resulting from less expensive foreign imports. Many
ranchers remarked that foreign importers would further profit because
foreign producers would undercut U.S. meat and wool prices. Commenters
also asserted that foreign meat imports are not held to the same food
safety standards as U.S. meat producers, which increases the cost of
the domestic products.
We also received several dozen comments about the environmental
impact that would result if the sheep, goat and cattle industries
experience increased costs to employ herders. One commenter noted that
grazing livestock producers manage 250 million acres of Western land,
including public land under the stewardship of the U.S. Forest Service
(USFS or Forest Service) in the U.S. Department of Agriculture and the
Bureau of Land Management (BLM) in the U.S. Department of the Interior.
Many of these comments noted that the migratory pattern of animal
herding is itself a natural resource management activity. Among the
natural resource management benefits of controlled animal migration are
the improvement of wildlife habitats that promotes animal breeding and
sustains migratory fowl; the control of the spread of noxious and
invasive weeds; the reduction of the use of herbicides and pesticides;
the increased use of sheep ``fertilizer'' to improve the quality of the
land; and the decreased use of machinery for tending the land, thus
reducing fuel use and our carbon footprint. Several dozen comments
indicated that animal grazing aids in the reduction of undergrowth that
feeds wildfires in the West. Thus, these commenters asserted that if
sheep, goat and cattle producers' costs are raised, this would result
in the reduction of animal grazing overall, which would, in turn,
increase wildfires in the Western United States because of the
abundance of ``fuel'' that would otherwise be reduced by grazing. Such
fires would, among other things, result in the devastation of sage
brush, which is the

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habitat of sage grouses that nest in grasslands across the American
West. Other commenters noted that without regular grazing, invasive
weeds would overtake Western grasslands. One comment indicated that if
ranchers' costs are increased, ranch land would be sold, and developers
would build tract housing. The land management issues offered by these
comments raise important questions about the role of animal grazing and
care of our natural resources. This Final Rule is limited to the
regulation of particular issues dealing with the employment of herders,
but we have consulted with our sister agencies, USFS and BLM, about
particular issues addressed in this Final Rule, including the proposed
definition of ``open range,'' discussed further below in Sec. IV.A.3.
of the section-by-section analysis.
Many ranchers noted that, in their view, foreign herders are
satisfied with their current wages and working conditions. In support
of this conclusion, they indicated that the wages earned are far
superior to those wages they might earn for the same work in their
countries of origin. Ranchers noted that their foreign workers
routinely send funds home, suggesting that the herders have expendable
income. They also noted that the same herders return to their U.S. jobs
year after year, suggesting that the wages and working conditions are
satisfactory to support the retention of foreign herders. Several
ranchers noted that herders become ``one of the family'' and are
welcome in the ranch house to take meals with the family, and that
employers take good care of herders' health and welfare. To this end,
we received several comments inviting us to visit the ranches and the
herders so that we could better understand the industry and the way of
life. Several ranchers indicated that if there were, in fact,
exploitive ranch operations that did not ``play by the rules,'' DOL
should take action against those ranchers but not change the current
rules.
We received several comments requesting that we ``work closely''
with the industry to develop ``workable new rules.'' Prior to this
notice and comment proceeding, we received and considered written input
from the industry, as well as employee advocates, in developing the
provisions proposed in the NPRM. 80 FR at 20309. We have also reviewed
and considered carefully all 506 comments received from the
stakeholders affected by this Final Rule, including both industry and
employee representatives. We address in more detail below, particularly
in the section on the wage methodology adopted in the Final Rule, the
concerns raised about the adverse impact of the regulation on ranchers,
their local communities, and other industries that serve the ranching
industries. As we discuss more fully below, we recognize that after
decades of the status quo, in which there was no change to the rules
governing these industries, the current modernization effort can have a
broad impact, and we have made adjustments to the proposed provisions,
as discussed more fully below, with these interests in mind, as well as
those of the employees. We thank all commenters for their input,
including those that offered their general support for and their
opposition to the new regulations, and we have considered all these
remarks as we developed the provisions included in this Final Rule.\4\
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\4\ We note that we received several general comments about
issues outside the scope of the present rulemaking. One comment
asserted that this rulemaking ``sets a dangerous precedent'' for
regulating the beekeeping and custom combine harvesting industries
that also employ H-2A workers. Another comment indicated that the
United States needs ``immigration reform,'' but did not specify the
nature of that reform. One comment asserted that the government
should not be involved at all in agriculture, that the ``open
market'' should control, and that ``government supports'' for sheep
and cattle ranchers should be removed. One commenter submitted that
employers should be required to provide herders with two weeks of
paid vacations. Finally, three comments suggested that DOL should
expand the H-2A program to include other year-round animal
agriculture, including dairy production. As noted, these comments
all address issues that are not within the scope of this rulemaking.
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B. Mendoza v. Perez and the Need for Rulemaking

The NPRM indicated that among the reasons for the current
rulemaking was the decision in the Mendoza case, cited above. That case
required the Department to engage in notice and comment rulemaking to
set standards governing the employment of foreign herders because those
standards were legislative rules governed by the Administrative
Procedure Act, 5 U.S.C. 553. Mendoza, 754 F.3d at 1024-1025. We
received several comments to the effect that although the Mendoza case
required the Department to engage in notice and comment rulemaking,
that case did not require the Department to alter the substantive
standards that currently govern the employment of foreign herders as
set out in the applicable TEGLs. These comments note that we could have
simply proposed the current TEGL standards without change, and asked
for comment on those provisions.
We agree that the Mendoza case only required us to engage in notice
and comment rulemaking, but did not require us to alter the standards
as they were set in the applicable TEGLs. However, the NPRM provided
reasons other than the Mendoza case to support notice and comment
rulemaking initiated by a proposal that substantively altered the
standards long governing herding occupations. As noted in the NPRM,
ETA's traditional method of determining the prevailing wage for these
occupations--the use of surveys by the state workforce agencies
(SWAs)--has become increasingly difficult. In these occupations the
prevailing wage has served as the Adverse Effect Wage Rate (AEWR). Few
survey results are produced, which casts doubt on the statistical
validity of those surveys. 80 FR at 20302, 20307. New wage methodology
standards were needed to establish ``a more effective and workable
methodology for determining and adjusting a monthly [wage] for these
unique occupations[.]'' 80 FR at 20302. In addition, because of the
difficulty in setting the wage under the prior methodology based on the
SWA surveys, herder occupations have experienced ``wage stagnation in
various degrees across these occupations[.]'' 80 FR at 20307. In many
cases, herders whose wages are set under the current standards are
making only slightly more in nominal wages than they were 20 years ago,
and therefore are making significantly less in real terms today. Id.
Therefore, we needed to engage in notice and comment rulemaking not
only as a result of Mendoza; we also needed to address the inadequate
wage methodology that over years contributed to herder wage stagnation.
It is a reasonable exercise of DOL's discretion to propose a new wage
methodology in the NPRM on which commenters could and did provide
input.
We received two joint comments from worker advocate groups that
supported the need for rulemaking, particularly to address the
inadequate wage methodology and herder wage stagnation. A relatively
brief worker advocate joint submission applauded the proposed rules,
asserting that the revisions will ``greatly benefit both temporary
foreign workers and U.S. workers alike, including long-overdue wage
increases and other proposed provisions that seek to address the poor
working conditions.'' \5\ A more

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comprehensive worker advocate joint comment submitted the same day,
which included many of the same signatories as the other worker
advocate joint comment, supported the rulemaking as necessary to revise
the current wage methodology that has produced wage stagnation over a
period of years.\6\ This comment stated that DOL has relied on old data
and outdated surveys, with sample sizes that are too small to be
statistically valid. This comment identified problems with the wage-
setting method under the TEGLs, including permitting reliance on prior
years' surveys and basing the wage on neighboring states where no
survey results were available. This comment also identified the failure
to filter out the wages of H-2A nonimmigrants in the survey results,
and errors and inconsistencies in the SWA surveys (which, the comment
indicates, may be a misclassification of workers) as contributing to
wage stagnation. The comment suggested that the methodology is flawed
and has cost herders ``millions of dollars.'' Although much of the
specific substance of this comment will be discussed below in the
section-by-section analysis, DOL concurs with the general theme of both
employee advocate joint comments that, apart from the Mendoza case,
this rulemaking is warranted to address problems with the wage
methodology and herder wage stagnation, as we stated in the NPRM.\7\
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\5\ Fifty-four groups and three individuals were signatories to
this 4 page joint employee advocate comment providing input on
wages, housing, food, employer-provided items, experience
requirements, and a few other issues. The signatories to this joint
comment were American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO); California Church IMPACT; California Rural
Legal Assistance Foundation; CATA--EL Comit[eacute] de Apoyo a los
Trabajadores Agr[iacute]colas/The Farmworker Support Committee;
Catholic Migrant Farmworker Network; Central-West Justice Center,
Migrant Farmworker Program; Centro de los Derechos del Migrantes,
Inc.; Church of the Brethren, Office of Public Witness; Coalition of
Immokalee Workers; Coalition to Abolish Slavery & Trafficking;
Cumberland Presbyterian Church Missions Ministry Team; Disciples of
Christ Refugee and Immigration Ministries; Dominican Sisters and
Associates of Peace; Eastern Regional Alliance of Farmworker
Advocates; Equal Justice Center; Farmworker Association of Florida;
Farmworker Justice; Food Chain Workers Alliance; Franciscan Sisters
of Little Falls Justice & Peace Commission; Friends of Farmworkers,
Inc.; Global Workers Justice Alliance; Greater Rochester Coalition
for Immigration Justice; Immigrant Worker Project--Ohio; Jobs With
Justice; La Union Del Pueblo Entero; Labor Council for Latin
American Advancement; Legal Aid Services of Oregon; L[iacute]deres
Campesinas; National Guestworkers Alliance; National Consumers
League; National Council of La Raza (NCLR); National Employment Law
Project; National Farm Worker Ministry; North Carolina Farmworkers
Project; New Mexico Center on Law and Poverty; New Mexico Legal Aid;
National Farm Worker Ministry; Northwest Workers' Justice Project;
Office of Justice, Peace and the Integrity of Creation at the Stuart
Center; Orange County Interfaith Committee to Aid Farm Workers;
PathStone Corporation; Pi[ntilde]eros y Campesinos Unidos del
Noroeste (PCUN); Polaris Project; Public Citizen; Public Justice
Center; Puerto Rico Legal Service Migrant Worker Project; Ramsay
Merriam Fund; Rural Neighborhoods; Sisters of Charity of the Blessed
Virgin Mary, Dubuque Iowa; Telamon Corporation; Towards Justice; The
Episcopal Church; United Farm Workers; United Migrant Opportunity
Services; Sergio Velasquez Catalan (one of the named plaintiffs in
Mendoza v. Perez, No. 11-cv-01790 (D.D.C. May 7, 2015)); Thomas A.
Arcury, Ph.D., Professor; Susan Gzesh, Senior Lecturer & Executive
Director, Pozen Family Center for Human Rights, University of
Chicago.
\6\ Fourteen groups and three individuals were signatories to a
35 page employee advocate joint comment with attachments, and
included California Rural Legal Assistance; California Rural Legal
Assistance Foundation; Central California Legal Services; Colorado
Legal Services, Community Legal Services of Arizona; Farmworker
Justice; Florida Legal Services; Global Workers' Alliance; Jennifer
J. Lee, Assistant Clinical Professor of Law, Temple University
Beasley School of Law; Legal Aid Services of Oregon; Northwest
Justice Project; Southern Minnesota Regional Legal Services; Texas
RioGrande Legal Aid; United Farm Workers; Utah Legal Services;
Zacarias Mendoza and Francisco Castro (two of the plaintiffs in
Mendoza v. Perez, No. 11-cv-01790 (D.D.C. May 7, 2015)).
\7\ We have reviewed and considered both employee advocate joint
comments. Because the comprehensive joint comment essentially
addressed all the subjects that the shorter one did and in greater
detail, and because there is a good deal of overlap in the
signatories, when referencing the joint comments of the employee
advocates, we will refer to them as the ``Worker Advocates' Joint
Comment.''
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C. Historical Background of Foreign Herder Employment

We received several comments, including from industry associations
Mountain Plains Agricultural Services (Mountain Plains) and Western
Range Association (Western Range) that address the early history of
foreign sheep herders coming into the United States to perform herding
work, as early as the 1950s. The NPRM discussed this history in some
length. 80 FR at 20301-20302. Based on the history, one commenter noted
that early herders from the Basque region in Spain were given special
treatment in order to permit their entry into the United States to work
when no U.S. workers were available, which gave rise to the
establishment of special procedures. Three commenters underscored that
Congress recognized the special needs of sheep ranchers in their early
enactments in the 1950s. Two commenters indicated, without specific
citation, that IRCA intended that DOL grant special procedures to
ranchers seeking foreign herders. One commenter asserted that foreign
herders should be permitted to stay in the United States longer than
typically allowed because of the unique skills of foreign herders. One
commenter submitted that the history of special procedures, as
reflected in early Congressional action, DOL sub-regulatory action, and
subsequent regulations permitting the establishment of special
procedures, provides a sound foundation for the continuation of special
procedures. Several commenters noted that the process and standards set
out in early Departmental guidance and later incorporated into the
TEGLs have worked well for decades and that change is unnecessary.
These commenters noted that special procedures--separate from the
regular H-2A standards--are necessary because of the recognized unique
nature of the herding occupation, including that herders tend to the
herd all day, every day, and that their remote location makes their
work hours difficult to record. Finally, the Worker Advocates' Joint
Comment pointed out that even though separate regulatory standards may
be required because of the nature of herding work, those variances from
the standard H-2A requirements must apply only to herders working on
the range and not to livestock workers on the ranch. They further note
that the variances must be consistent with the statutory command to
protect against adverse effect on U.S. workers' wages and working
conditions. As with the proposal in the NPRM, we have taken into
account the unique nature of herder work and its long history with
respect to the employment of foreign workers as we developed this Final
Rule.

D. Requests for Extensions of Time to Submit Comments

We published the NPRM on April 15, 2015 and originally requested
that comments be submitted within 30 days, by May 15, 2015. We received
100 comments requesting an extension of the public comment period. A
plurality of requests to extend the comment period (48) did not
identify the specific time period sought for an extension. However, 38
requests sought an extension of the comment period for 90 days. The
remainder of the requests sought additional time variously in a range
between 30 and 180 days.
On May 5, 2015, we extended the comment period an additional 15
days, to June 1, 2015. 80 FR 25663. We received a few additional
comments (counted in the 100-request total mentioned above) seeking
time beyond the new June 1, 2015 deadline. However, because of the
Mendoza court scheduling order, we were not able to extend the public
comment period beyond June 1, 2015 to submit comments.\8\ However, as
noted, we

[[Page 62962]]

received 506 unique comments during the allotted comment period,
addressing all aspects of the NPRM, which is a robust response given
the 45-day comment period.
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\8\ The original scheduling order, dated October 31, 2014,
required DOL to issue an NPRM by March 1, 2014, and a final rule by
November 1, 2015, with an effective date no later than December 1,
2015. The revised scheduling order, dated February 25, 2015,
required DOL to issue an NPRM by April 15, 2015, but maintained the
requirement that we issue a final rule by November 1, 2015, with an
effective date no later than December 1, 2015.
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IV. Section-by-Section Summary of the Final Rule, 20 CFR Part 655,
Subpart B

This preamble sets out ETA's interpretation of the new regulations
in Subpart B, section by section, and generally follows the outline of
the regulations. Within each section of the preamble, the Department
has noted and responded to those comments that are addressed to that
particular section of the rule. The Department notes that, in the NPRM,
we had proposed to place these new rules in a new Subpart C. In order
to ensure that there is no confusion regarding the Department's
continued authority to enforce requirements relating to herding and
range livestock workers pursuant to 29 CFR part 501, we have decided to
place the new rules at the end of existing Subpart B, the standard H-2A
requirements, rather than in a new Subpart. Therefore, ministerial
conforming modifications have been made throughout the regulation to
accommodate this non-substantive change. Such minor modifications are
not addressed individually below.

A. Introductory Sections

1. Section 655.200--Scope and Purpose of Herding and Range Livestock
Regulations
As stated in the NPRM, the standard H-2A regulations in existing 20
CFR part 655, subpart B (Sec. Sec. 655.100--655.185) govern the
certification of employers' temporary employment of nonimmigrant
workers in temporary or seasonal agricultural employment. Because of
the unique nature of the herder occupations, employers who seek to hire
temporary agricultural foreign workers to perform herding or production
of livestock on the range, as described in Sec. 655.200(b), are
subject to certain standards that are different from the regular H-2A
standards and procedures. These new regulations, found at Sec. Sec.
655.200-655.235 (hereinafter generally referred to as the herding and
range livestock regulations), are intended as a comprehensive set of
regulations governing the certification of the temporary employment of
foreign workers in herder or production of livestock occupations on the
range.\9\ However, to the extent that a specific variance from the
standard H-2A requirements is not set out specifically in the new
herding and range livestock provisions, the standards and procedures
set forth in the standard H-2A regulations apply.
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\9\ Some States have set employment standards governing
agriculture employment generally, or herder employment more
specifically, and those standards may differ from the standards set
in this Final Rule. The terms and conditions of herder employment
established in this Final Rule are intended as a floor and not a
ceiling. See, e.g., 29 U.S.C. 218(a). Accordingly, where a State
sets employment standards applicable to herders that are higher
(more protective) than those set in this Final Rule, DOL intends
that the State standards should apply.
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Prior to this Final Rule, the standards and procedures governing
sheep, goat and cattle herders were set separately in two different
TEGLs, as noted above. Although there were some differences in the TEGL
standards as they applied to the different industries (sheep and goat
herding were covered by one TEGL and cattle herding by the second
TEGL), the standards and procedures were largely the same. We proposed
in the NPRM to set the same certification standards and procedures for
employers employing foreign sheep and goat herders as employers
employing foreign cattle herders. We received two comments on this
issue. The first was included in the Worker Advocates' Joint Comment,
which concurred that a single set of rules is needed to protect goat
herders, sheep herders, and range production of livestock workers
efficiently and effectively. The second comment, submitted by
Maltsberger Ranch, opposed applying the same standards to sheep and
goat herding, and open range production of livestock.
Maltsberger Ranch indicated that the rules should be different
because the animals' ``husbandry, needs and handling standards are
different, [and an] area's geographic location may dictate the need of
different ranching practices. . . . The rule should not be rewritten in
a manner that changes the scope of, or redefines the application of
special procedures historically granted [to] Range Producers of
Livestock.'' We are adopting the position taken in the NPRM, which sets
common procedures and other standards for sheep and goat herding, and
open range production of livestock. The common standards and procedures
will improve the requirements' clarity and readability, streamline
application processing, and improve compliance, all without hindering
variations in employer practices or impairing employee rights or
employer obligations. Accordingly, as proposed in the NPRM, the herding
and range livestock regulations apply to employers seeking
certification of applications to employ foreign herders to tend sheep,
goats and cattle on the range.
2. Section 655.200(b)--Jobs Subject to Herding and Range Livestock
Regulations
a. Background
In order to use the herding and range livestock regulations, an
employer's job opportunity must possess all of the characteristics
described in this provision. The TEGL for sheep and goat herding
occupations and the TEGL for open range production of livestock
repeatedly refer to the unique characteristics of these occupations as
the bases for the special procedures. The TEGL for sheep and goat
herding occupations describes the unique characteristics of herding as
``spending extended periods of time with grazing herds of sheep in
isolated mountainous terrain; being on call to protect flocks from
predators 24 hours a day, 7 days a week . . .'' TEGL 32-10, 3. The TEGL
for open range livestock production also states that these occupations
``generally require workers to live in remote housing of a mobile
nature, rather than `a fixed-site farm, ranch or similar
establishment.' '' TEGL 15-06, Change 1, Appendix B, I. Both TEGLs
require that the Form ETA-790 submitted to the SWA include that the
anticipated hours of work are ``on call for up to 24 hours per day, 7
days per week.'' TEGL 32-10, Attachment A, I(C)(1); TEGL 15-06, Change
1, Attachment A, I(C)(1). Both TEGLs also require that employers
provide effective means of communication with workers ``due to the
remote and unique nature of the work to be performed.'' TEGL 32-10,
Attachment A, I(C)(4); TEGL 15-06, Change 1, Attachment A, I(C)(4). As
discussed more fully in Sec. IV.A.3. of the preamble related to Sec.
655.201, both TEGLs also provide descriptions of job duties that
employers may use when submitting their Form ETA-790 to the SWA.
Section 655.200(b) of the NPRM proposed to limit the scope of jobs
subject to these rules by requiring that: (1) the work activities
involve the herding or production of livestock and any additional
duties must be ``minor, sporadic, and incidental to the herding or
production of livestock''; (2) the ``work is performed on the open
range requiring the use of mobile housing'' for ``at least 50 percent
of the workdays in the work contract period'' and ``[a]ny additional
work performed at a place other than the range . . . that does not
constitute the production of livestock must be minor, sporadic and
incidental

[[Page 62963]]

to the herding or production of livestock;'' and (3) the ``work
activities generally require the workers to be on call 24 hours per
day, 7 days per week.'' 80 FR at 20339. The NPRM also proposed to
require that job orders include ``a statement that the workers are on
call for up to 24 hours per day, 7 days per week and that the workers
are primarily engaged (spend at least 50 percent of the workdays during
the contract period) in the herding or production of livestock on the
open range.'' Id. Proposed Sec. 655.210(b) also provided that duties
``may include activities performed at the ranch or farm only if such
duties constitute the production of livestock or are closely and
directly related to herding and the production of livestock. Work that
is closely and directly related to herding or the production of
livestock must be performed on no more than 20 percent of the workdays
spent at the ranch in a work contract period. All such duties must be
specifically disclosed on the job order.'' Id.\10\
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\10\ The Department is addressing here the NPRM provisions in
Sec. 655.200(b) as well as the corresponding proposed job order
disclosures found in Sec. 655.210(b), as these issues and comments
overlap. The remainder of the provisions of proposed Sec. 655.210,
``Contents of job orders,'' are addressed below in a separate
discussion.
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In the Final Rule, the Department eliminates the 50 percent mobile
housing requirement, and requires that herders spend more than 50
percent of their workdays on the range, which is more consistent with
the exemption in the Fair Labor Standards Act (FLSA) for range
production of livestock, as discussed below. We have also retained the
requirement that the work activities generally require the workers to
be on call 24 hours per day, 7 days a week. As discussed in more detail
below in Sec. IV.A.3., in which we address Sec. 655.201, ``Definition
of terms,'' we have deleted the definition of ``minor, sporadic and
incidental'' duties and removed the 20 percent cap on such closely and
directly related duties.
b. Comments
A number of commenters addressed the requirement that the work be
performed on the open range requiring mobile housing for at least 50
percent of the work days in the contract period. Some commenters
addressed the 50 percent requirement directly and others provided
information regarding the times of year workers typically spend on and
off the range or in mobile housing.
Commenters directly addressing the 50 percent range requirement
primarily raised concerns with the combined effect of the 50 percent
range requirement and the proposed definition of ``open range'' (which
generally included the absence of fencing as a required element of open
range, which is discussed further below); they stated that many
operations currently using the TEGLs would no longer qualify for the
program because of the prevalence of fencing on the range. That is,
commenters explained that it is almost impossible to spend at least 50
percent of the contract period away from fences. For example, the
Garfield County Farm Bureau (GCFB) commented that the 50 percent range
requirement ``simply does not work for many of our members.'' The GCFB
explained that many producers run their operations on private fenced
and unfenced parcels, and are only using ``large acre non-fenced
permits'' for late spring and summer, thus not meeting the 50 percent
range requirement. Silver Creek Ranch explained that fences are
prevalent throughout their herding operations, so to regulate the time
herders are in contact with fences or enclosed areas would be
impractical and could impair the quality of the care provided to the
livestock. The Wyoming Livestock Board explained that many producers
graze on crop residue, private leases, vineyards and other parcels near
populated areas, and that if ``herding can only take place where no
fences exist, for at least 50 [percent] of the work time[,] a majority
of range sheep operations would not be eligible for H-2A herders.''
\11\
---------------------------------------------------------------------------

\11\ We received a substantial number of comments addressing the
proposed definition of ``open range'' and describing the prevalence
of fencing in modern herding. Those comments are discussed in
further detail below, in Sec. IV.A.3. of the preamble related to
Sec. 655.201, ``Definition of terms.''
---------------------------------------------------------------------------

Several commenters, including the Idaho Wool Growers Association,
stated that the NPRM's dual requirements of no fencing and that the
herders must spend half of the year away from headquarters and
livestock facilities would disqualify many herders from using these
regulations. These commenters primarily discussed the fencing issue and
did not elaborate on whether herders typically spend more than 50
percent of the work contract at a fixed site on a ranch or farm. For
example, the Texas Sheep & Goat Raisers' Association (TSGRA) stated
that ``the proposal suggests that no fences would be allowed in
connection with sheepherders and, further, half of the herders' year
must be away from the ranch headquarters and livestock facilities.''
TSGRA further explained that ``private grass, supplemental hay and crop
aftermath are the available options to maintain year-round feed for the
animals and that does not fit the Department's apparent view of grazing
out of sight of fencing or facilities.''
Some commenters stated that the 50 percent rule is ``unworkable''
or an ``administrative nightmare'' and does not allow for flexibility
in cases of bad weather, emergencies, or other circumstances. For
example, Henry Etcheverry, a sheep rancher, described the recordkeeping
associated with the 50 percent rule as ``impossible'' and explained
that each operation varies and thus requires different times spent in
mobile housing or at the ranch. Brian Clark, an employee of the Wyoming
State Workforce Agency representing his own views, stated that using
percentages to determine how much time is spent on the range could
create an ``administrative and enforcement nightmare,'' does not
reflect reality, and does not reflect the FLSA criteria. Peter and Beth
Swanson, commercial sheep producers, commented that many of their
grazing locations are neither a ``ranch site'' nor ``open range'' (as
defined in the NPRM) and that time spent on the ``open range'' depends
on range forage availability, which varies due to a number of
circumstances, such as rainfall, weather conditions, and land owner
decisions. Mountain Valley Livestock stated that time spent in mobile
housing versus at headquarters can be completely dependent on the
weather.
Mountain Plains and Western Range, in a comment adopted by several
other commenters, specifically addressed the 50 percent mobile housing
requirement, calling the rule ``arbitrary and unworkable.'' In their
view, a sheepherder spending 182 days of the year in mobile housing but
the rest in a bunk house during other livestock production work would
not be eligible under either the special procedures or the standard H-
2A program. Mountain Plains and Western Range further commented that,
as mobile housing was defined in the NPRM, a limited number of range
cattle operations in Montana and Texas currently using the special
procedures may not be eligible for the new herding and range livestock
regulations, as they use non-mobile range housing on the range for
livestock workers. However, they acknowledged that virtually all
employers use mobile housing except for this small subset.
Mountain Plains and Western Range recommended that instead of the
50 percent range/mobile housing and 20 percent minor, sporadic, and
incidental limitations, the Department adopt the FLSA range production
exemption from minimum wage and overtime ``principally engaged'' rule.
See 29

[[Page 62964]]

U.S.C. 213(a)(6)(F), 29 CFR 780.325. Under the FLSA, a worker spending
more than 50 percent of his or her time on the range is exempt, even if
the employee performs some duties on the ranch not closely or directly
related to herding or the production of livestock. 29 CFR 780.325.
Mountain Plains and Western Range commented that the FLSA exemption is
``less confusing and more workable'' than the ``arbitrary'' percentage
limitations in the NPRM, as well as more ``holistic and flexible,''
and, in their view, focuses on the duties of the worker rather than the
location of the work. They commented that the FLSA test would be better
understood and more likely complied with by employers.
The Department received a small number of additional comments
specifically addressing the requirement to spend 50 percent of the work
contract period in mobile housing; however, none of these comments
supported the proposed requirement. As Mountain Plains and Western
Range explained, a small number of their members use non-mobile range
housing rather than mobile housing and thus would be ineligible to
apply under these regulations. The Worker Advocates' Joint Comment
commented that the 50 percent mobile housing requirement is
unnecessary, and that this requirement could have the unintended effect
of inducing employers to house workers in mobile housing when fixed
site housing is otherwise available.
Several commenters provided detailed information regarding time
typically spent on the ranch versus the range. These comments,
considered together, demonstrate that herding and production cycles
vary greatly among operations, and a certain amount of flexibility is
warranted to allow for differing amounts of time spent at the ranch.
However, despite many the commenters expressing concern with a 50
percent range requirement (largely due to the issue of fencing), these
comments demonstrate that most operations appear to be spending more
than 50 percent of the work contract period on land considered
``range,'' if fencing is permissible. For example, W.F. Goring & Son
commented that they run their sheep on the open range about 80 percent
of the time and the remaining 20 percent of the time is ``spent on
private lambing grounds where our animals are divided into large fenced
pastures.'' The Siddoway Sheep Company spends approximately two to
three months at the ranch for lambing, then spring and fall grazing are
conducted on BLM-permitted lands, state lands and private lands, and
summer grazing is in the high mountain meadows. Larson Livestock stated
that it grazes sheep on the open range for twelve months of the year.
In contrast to the above comments, the Worker Advocates' Joint
Comment agreed that the ``Department's attempt to specifically
delineate the kinds of jobs that fall under [the proposed rule] is long
overdue and sorely needed.'' However, they expressed concern with the
50 percent threshold, asserting that this provision will adversely
impact the wages and working conditions of U.S. workers because it
allows too much time off the range and creates a loophole allowing
employers to pay the herding and range livestock wage for up to six
months of work on the ranch. The advocates explained that ``H-2A and
comparable U.S. workers, who do not work on the range (ranch hands),
would otherwise be classified as `Farmworker, Livestock . . . They
would not fall under [these rules] and would be entitled to be paid at
the hourly AEWR rate . . . That work, if offered apart from the on the
range herding work is more likely to attract U.S. workers.'' They
recommended that the Department revise the rule to require that 70
percent of the work contract period be spent on the range.
A number of commenters also addressed the requirement that the work
activities generally require workers to be on call up to 24 hours per
day, 7 days per week. These comments overwhelmingly support the
conclusion that these occupations require herders and range livestock
production workers to be on call at all times while on the range to
protect and manage the herd, one of the unique characteristics of these
occupations. The Texas Sheep & Goat Raisers' Association emphasized the
on call nature of the job as central to herding, stating, ``[s]heep
ranching on rangeland throughout the United States has always been an
industry that has at its roots sheepherders, which are on call 24 hours
a day, 7 days a week, to protect livestock from predation and natural
disasters.'' The Washington Farm Bureau similarly stated that ``the
open range sheep and livestock herding industry is unique and requires
special treatment'' and that herders are constantly on call to protect
the herd. However, some commenters stressed that although workers are
on call ``24/7,'' they are not required to work every hour of the day.
As Helle Livestock stated, ``while herding doesn't require constant
attention to the sheep it does require a constant presence.'' Southern
Cross Ranches commented that ``it is imperative for herders to be
available on a 24/7 `on call' basis for maintaining herd integrity and
predator control'' but herders are ``not expected to and don't work 24/
7.'' Mountain Plains and Western Range commented that the term ``on
call'' may be misleading and suggested that instead the Department use
the term ``available.'' Although not specifically commenting on the 24/
7 provision, the Worker Advocates' Joint Comment stated that
``[w]orkers must also be given time off at least every six months and
as required for other H-2A workers, who cannot be required to work more
than 6 days per week, while at the ranch.''
c. Discussion
As in the TEGLs, these NPRM provisions recognized that herding and
range livestock production occupations are unique and distinguishable
from other H-2A occupations because they are conducted primarily in
remote areas away from headquarters, require workers to be on call 24
hours per day, 7 days a week, and require certain unique job duties.
Specifically, the Department included in the NPRM a requirement that at
least 50 percent of the work contract period be spent on the range and
in mobile housing. The purpose of this provision was to provide a
sufficient threshold to confirm the unique, remote characteristics of
these occupations, because herding and range livestock regulations are
intended only to apply to workers who attend the herd as it grazes on
the range, while also allowing for a realistic and workable amount of
time at the ranch. The Department concluded that some delineation with
respect to ranch versus range time was necessary because it has found
in its investigations that some workers are spending extended amounts
of time at the ranch while being paid the wage rate intended for range
workers under these rules. The Department viewed the 50 percent
threshold as a reasonable requirement, as it requires workers to be
primarily on the range, is consistent with the FLSA range production of
livestock exemption, and allows for flexibility in the cases of
emergencies and changing circumstances.
The NPRM further proposed that if an employer violated the 50
percent range requirement, the employer would be in violation of its
obligations under this part. 80 FR at 20303. Depending on all the facts
and circumstances, the employer would have been responsible for
compliance with all of the regular H-2A requirements, including the
payment of the highest applicable wage rate for all hours worked, and
the Department could have sought other remedies for the violation. Id.

[[Page 62965]]

Upon consideration of the all comments received on these issues,
the Final Rule removes the requirement that workers be in mobile
housing for at least 50 percent of the work contract period. The
Department received no comments in support of this provision. We agree
with the Worker Advocates' Joint Comment that this requirement is not
essential to the 50 percent range requirement to confirm that workers
being paid the herding and range livestock worker wage are engaged in
work performed on the range, and could have an unintended consequence
of employers housing their workers in mobile housing when fixed site
housing is otherwise available. Further, the Department did not intend
to exclude operations currently using the TEGLs who use non-mobile
range housing on the range from using these rules (assuming they are in
compliance with the remainder of the requirements under this Subpart),
as pointed out by Mountain Plains and Western Range. The issue of non-
mobile range housing is addressed in greater detail below, in Sec.
IV.E. of this preamble related to the discussion of Sec. 655.230,
``Range Housing.'' However, we conclude that the need for range housing
is relevant to whether a particular area is considered range and have
addressed this issue in the definition of ``range,'' as discussed in
greater detail below.
The Final Rule requires that workers spend a majority, meaning
``more than 50 percent,'' rather than ``at least 50 percent'' as
provided in the NPRM, of the workdays in the work contract period on
the range, as range has been defined in the Final Rule. This change is
intended to be more consistent with the range production of livestock
exemption from minimum wage and overtime under the FLSA. However, the
Department concludes that fully adopting the FLSA range production of
livestock exemption ``principally engaged'' rule is inappropriate here,
because it would allow these workers to perform duties at the ranch or
farm beyond those duties constituting the production of livestock. The
Department's consideration of the FLSA exemption, permissible duties
and the 20 percent cap are further addressed below in Sec. IV.A.3. of
the preamble related to the discussion of Sec. 655.201.
The record demonstrates that a rule requiring a majority of the
workdays under the contract to be spent on the range is appropriate and
necessary to confirm that occupations under the herding and range
livestock regulations, earning the required wage rate, are indeed
uniquely remote and thus distinguishable from other H-2A occupations.
As discussed above, the use of these special procedures is contingent
on these occupations posing unique challenges and circumstances, one of
which is the remote nature of the job. We conclude that allowing
employers to pay the herding and range livestock wage to workers who
are spending more time on the ranch than on the range would be
inappropriate and would have an adverse effect on U.S. workers, as this
work would otherwise be offered at the standard hourly AEWR for all
hours worked and thus be more likely to attract U.S. workers.
The Department concludes that a majority range requirement is
sufficient to confirm the unique, remote nature of these occupations
and distinguish herders from other H-2A occupations, such as ranch
hands, while also allowing for necessary flexibility in modern herding
to allow for changing circumstances on the range. Thus, the Department
declines to increase the threshold of time required on the range to 70
percent, as suggested by worker advocates. The Department also
concludes that a majority range requirement is reasonable and
practical. It is consistent with the FLSA range production exemption,
as proposed by Mountain Plains and Western Range (a suggestion adopted
by several other commenters) and, as discussed above, many comments
received on this issue provided evidence that operations currently
using the TEGLs are spending more than 50 percent of the contract
period on grazing areas considered range, as now defined in the Final
Rule. As discussed in detail below, the Department has revised the
definition of ``open range'' to ``range'' and removed the presence of
fencing as an indicator of whether land is ``range.'' The Department
concludes that the revised definition of ``range'' will address the
majority of the comments received regarding the 50 percent range
requirement, as they focused largely on the issue of fencing.
Although some commenters expressed concern with setting a certain
required percentage of time on the range, we consider the majority
range requirement to provide adequate flexibility to address changing
circumstances due to weather, forage availability, and other factors.
Allowing more than half of the work contract to be spent at locations
other than the range while still being paid the herding and range
livestock wage would be contrary to the Department's statutory mandate
to determine whether U.S. workers are available for the job
opportunity, and to provide that there is no adverse effect on
similarly employed U.S. workers. Of course, if there are employers who
cannot meet the majority range requirement, they may still use the
standard H-2A program to obtain workers. Moreover, such employers might
be able to use these procedures for some portion of the year that meets
the majority range requirement, and use the standard H-2A program for
the remainder of the year; this would require filing at least two
certification applications.
Additionally, the Final Rule retains the requirement that the work
activities generally require the workers to be on call 24 hours per
day, 7 days a week. The record fully supports that herding and range
livestock production occupations continue to require constant
attendance to the herd so that workers are on call 24/7. This is one of
the unique characteristics of these occupations that distinguish these
jobs from other H-2A occupations, and we conclude that it is
appropriate to require that this be a characteristic of such jobs. With
respect to the commenters who underscored that ``on call'' does not
mean actively working, the Department agrees that ``on call'' does not
mean working for 24 hours per day, seven days per week, and the current
terminology, which has been used consistently in the TEGLs for many
years and is used in this final rule, reflects this distinction.
We decline to adopt the Worker Advocates' Joint Comment
recommendation to require that workers must be given time off at least
every six months and while at the ranch. The NPRM did not include any
provisions requiring time off at certain intervals or while on the
ranch, and the Department did not seek comment on any issues relating
to mandatory time off. Therefore, the public has not had sufficient
notice that such a provision was contemplated for the Final Rule and
has not had the opportunity to comment on such provisions.
Additionally, as discussed above, an essential characteristic of these
job opportunities is that they require workers to be on call up to 24
hours per day, 7 days per week. However, the Department understands
from its enforcement experience that workers often do receive days off
while at the ranch and some comments indicate that some workers receive
paid vacation time. We encourage employers to adopt or continue these
practices.
As provided in the NPRM and noted above, where the job opportunity
does not fall within the scope of herding and range livestock
production, the employer must comply with all of the standard H-2A
procedures. If an

[[Page 62966]]

employer submits an application containing information and attestations
indicating that its job opportunity is eligible for processing under
the herding and range livestock procedures, but it is later determined,
as a result of an investigation or other compliance review, that the
worker did not spend more than 50 percent of the workdays on the range,
or that the worker's duties at the ranch do not constitute the
production of livestock (as discussed more fully below), the employer
will be in violation of its obligations under this part and, depending
upon the precise nature of the violation, may owe back wages or be
required to provide other relief. Depending upon all the facts and
circumstances, including but not limited to factors such as the
percentage of days the workers spent at the ranch, whether the work was
closely and directly related to herding and the production of
livestock, and whether the employer had violated these or other H-2A
requirements in the past, the employer will be responsible for
compliance with all of the standard H-2A procedures and requirements,
including payment of the highest applicable wage rate, determined in
accordance with Sec. 655.122(l) for all hours worked. In addition, the
Department may seek other remedies for the violations, such as civil
monetary penalties and potentially debarment from use of the H-2A
program.
3. Section 655.201--Definition of Herding and Range Livestock Terms
a. Definitions of ``Herding,'' ``Production of Livestock,'' and
``Minor, Sporadic, and Incidental Work''
i. Background
The TEGL for sheep and goat herding occupations provides a standard
description of job duties that employers may use when submitting their
Form ETA-790 to the SWA. TEGL 32-10, Attachment A, I(C)(1). That job
description includes duties such as: Attending the animals on the range
or pasture; using dogs to herd the flock and round up strays; guarding
the flock from predatory animals and from eating poisonous plants;
examining the animals for signs of illness; administering vaccines,
medications and insecticides; and assisting with lambing, docking, and
shearing. It also provides that the workers ``may perform other farm or
ranch chores related to the production or husbandry of sheep and/or
goats on an incidental basis.'' The TEGL does not define
``incidental.'' The TEGL also states that any additional duties must be
normal and accepted for the occupation.
The TEGL for the open range production of livestock also contains a
standard job description listing similar duties related to the animals.
TEGL 15-06, Change 1, Attachment A, I(C)(1). It also states that the
worker may assist with irrigating, planting, cultivating, and
harvesting hay, and that workers must be able to ride and handle horses
and maintain their bearings in grazing areas. Finally, it provides that
any additional job duties must be normal and accepted for the
occupation. The TEGL does not place any limitation on the amount of
time workers may perform these duties.
Section 655.201 of the NPRM proposed to define ``herding'' as the
``[a]ctivities associated with the caring, controlling, feeding,
gathering, moving, tending, and sorting of livestock on the open
range.'' 80 FR at 20339. The NPRM proposed to define the ``production
of livestock'' as the ``care or husbandry of livestock throughout one
or more seasons during the year, including guarding and protecting
livestock from predatory animals and poisonous plants; feeding,
fattening, and watering livestock, examining livestock to detect
diseases, illnesses, or other injuries, administering medical care to
sick or injured livestock, applying vaccinations and spraying
insecticides on the open range, and assisting with the breeding,
birthing, raising, weaning, castration, branding, and general care of
livestock.'' Id. The NPRM further proposed that any duties performed at
the ranch or farm must either constitute the production of livestock or
be closely and directly related to herding and/or the production of
livestock, and that any such closely and directly related work must be
minor, sporadic, and incidental. Id. Section 655.201 of the NPRM
proposed to define ``minor, sporadic, and incidental work'' as ``[w]ork
duties and activities that are closely and directly related to herding
and the production of livestock and are performed on no more than 20
percent of the workdays spent at the ranch in a work contract period.''
Id.
Because the proposed definitions of herding, the production of
livestock, and minor, sporadic, and incidental work operated together
to define the scope of permissible job duties for a worker employed
under these regulations, the commenters generally discussed them
together; similarly, we are addressing them together. The Final Rule
retains the definition of herding as proposed; modifies the definition
of the production of livestock to include duties that are closely and
directly related to herding or the production of livestock; and
eliminates the 20 percent cap on such closely and directly related
duties. To provide further guidance, the Final Rule also includes
examples of duties that qualify as closely and directly related and
duties that do not qualify under these rules.
ii. Comments
A substantial number of commenters addressed the proposed
intertwined definitions of permissible herder duties. Almost all of the
commenters that addressed the proposed 20 percent cap were opposed to
it. Some commenters expressed their opposition directly in commenting
on the 20 percent cap, while others provided a more generalized
opposition to the proposed definitions' limitations on permissible
duties.
Mountain Plains and Western Range stated (in a comment adopted by
numerous other commenters) that the proposed definitions ``are
inappropriately restrictive and are not a realistic reflection of the
industry's labor needs.'' They specifically stated that the 20 percent
limit on days spent performing incidental work was ``arbitrary'' and
``unworkable.'' They suggested that the Department use ``a more
holistic and flexible approach'' as in the regulations implementing the
FLSA's minimum wage and overtime exemption for agricultural employees
``principally engaged in the range production of livestock.'' 29 U.S.C.
213(a)(6)(E). Those FLSA regulations look to whether the employee's
``primary duty'' is range work. 29 CFR 780.325(a). Under the FLSA, a
worker ``who spends more than 50 percent of his time'' on the range
performing range production duties is exempt from minimum wage and
overtime. 29 CFR 780.325(b). Thus, under the FLSA, such an exempt
``employee may perform some activities not directly related to the
range production of livestock, such as putting up hay or constructing
dams or digging irrigation ditches.'' Id. The Mountain Plains and
Western Range comment stated that we should similarly recognize that
``other work has historically been connected to that work and must be
included in the definition of the job.'' They asserted that the NPRM
did not explain how the 20 percent rule would help U.S. workers or how
H-2A workers were harmed by its absence. They also asserted that the
wording of the 20 percent cap on the number of days that could be spent
on such incidental work was confusing, and they thought it might mean
that only one day out of five at the ranch could be spent working and
the other four spent had to be spent resting.

[[Page 62967]]

Cunningham Sheep Company and Dufurrena Sheep Company both commented
that ``[l]imits on incidental work related to herding would
unnecessarily burden our operation'' because ``herders need to remain
flexible and be able to perform husbandry-type jobs without
unrealistically mandated rules.'' Another sheep rancher stated that the
definition of incidental work ``needs to be more clearly defined and
broadened. Fences need to be repaired to hold the sheep in,
supplemental feed fed, and a host of associated jobs that do not
necessitate the need for additional job descriptions and employees.''
Another rancher asserted that, while ``H-2A workers should not be
diverted to work such as construction,'' they should be permitted to
perform ``related livestock tending duties, such as the building of
lambing jugs.'' Etchart Livestock similarly stated that incidental work
related to sheep production should be allowed, such as ``[f]ence
repair, corral repair, or other limited tasks,'' but did not want a
percentage cap; this commenter also stated that if the work does not
involve sheep production, it should not be permitted. The Wyoming Farm
Bureau Federation stated that the 20 percent ``is too low a cap given
the nature of the industry.''
Some comments revealed that the ranchers essentially want the
workers to be able to perform any chore required (although a number of
the examples they gave are animal husbandry duties that fall within the
definitions of herding or the production of livestock). One sheep and
cattle rancher, Kelly Sewell, noted that workers perform a variety of
duties at the ranch base and thus wanted a general agricultural
classification because these ``valuable employees irrigate crops, fix
fences, and many other jobs necessary to run a ranch.'' Similarly,
Indart Ranch stated that, in ``addition to caring for the sheep and
husbandry duties, our herders are constantly building and taking down
fence, driving pickups and water trucks, fixing and maintaining
equipment, amongst many other ranch type duties.'' Another sheep
rancher commented that, ``[a]s long as the workers are working on the
ranch . . . there should not be such a thing as a 50-20 rule.'' The
Rocky Mountain Sheep Marketing Association acknowledged that ranchers
sometimes employ extra workers as insurance against an H-2A worker
falling ill or going home due to a family need, and stated that under
the current regulations ``this extra help can be put to productive work
on non-herding, necessary work on other aspects of the ranching
operation.'' The Colorado Wool Growers Association commented that there
are many chores associated with maintaining the herd, including
``fixing a sheep pasture fence or irrigating a field that is grazed by
sheep.'' The Association suggested that such activities should not
necessitate a separate job or pay rate, but rather that the permissible
job duties should include all such chores. CLUB 20 also recommended
expanding the job description ``to include all chores that are in
direct support of maintaining livestock managed in a grazing livestock
production system.'' Similarly, Mountain Plains and Western Range
suggested replacing all of the definitions with a comprehensive
``grazing livestock production system'' definition.
A number of other comments contained the same theme--that the H-2A
workers should be permitted to perform any duty at the ranch, including
some activities that would constitute herding or the production of
livestock and some that would not. For example, the John Espil Sheep
Company comment noted that the livestock workers spend time at the
ranch when weaning the calves before they are sold, and that feeding
the calves may only take a couple of hours a day. Therefore, they also
may perform other duties such as: repairing corrals or the feedlot
fence; cleaning the shop, the bunkhouse and the tack room; and
harvesting hay for winter feed. The company stated that this is all
part of livestock production, and that keeping track of their time
hourly or daily would be extremely difficult or impossible, both on the
range and at the ranch, because every day is different. Similarly,
another sheep rancher, Katie Day, commented that the workers irrigate
pastures, harvest livestock feeds, maintain fences, clean corrals,
doctor sheep and feed them, and it would be ``absurd'' to limit how
long a job can be performed or to require recordkeeping for the
incidental work. Finally, the Garfield County Farm Bureau similarly
stated that ``[w]hat is defined as incidental work is vital to the day-
to-day operations of their ranches. Without the upkeep of fences,
pasture irrigation, mitigation of noxious weeds and production of
livestock feed, their operations cannot exist. As ranchers, they must
be able to perform whatever job needs done at any given time and would
expect their employees to do the same. . . In short, there is no such
thing as incidental work on a livestock ranch.''
Many employer commenters seemed to object to the 20 percent cap on
directly and closely related duties while at the ranch based, at least
in part, upon their concerns regarding the associated recordkeeping
requirements and, in some cases, a misunderstanding of those
requirements. Those specific concerns are addressed in Sec. IV.B.2. of
the preamble related to the recordkeeping provision in Sec.
655.210(f).
Numerous employer commenters and their representatives, including
American Sheep Industry Association (ASI), Mountain Plains and Western
Range, California Wool Growers Association, Colorado Wool Growers
Association, Texas Sheep & Goat Raisers Association, Vermillion Ranch
and Midland Livestock Company, and John Espil Sheep Company, suggested
that the Department adopt a much broader definition of permissible
sheepherder duties. They generally labeled their preferred definition
as the ``Grazing Livestock Management System.'' That definition permits
``the utilization of herbage or forage on a piece of land via grazing
or supplementation'' and turns inputs into goods (protein, wool, etc.)
through practices that:

include but are not limited to: animal husbandry, temporary fencing,
permanent fencing, management of urban interface, transport of water
for animal use, use of structures and corrals to facilitate
production practices, assistance with production of feed sources for
animals being cared for, assistance with repair and maintenance of
equipment and facilities used in production practices, trailing
livestock and/or assistance in loading and unloading animals into
livestock trucks for movement.

Mountain Plains and Western Range stated that this definition would
make clear that feedlots and similar operations are not covered, while
focusing on the critical component of the job--the grazing of
livestock. In a joint comment, Vermillion Ranch and Midland Livestock
Company (Vermillion and Midland) stated that it would be ``general
enough to encompass multiple open range occupations without creating
arbitrary line-drawing that is impossible to follow.'' They opined that
this definition and the FLSA regulatory definitions would be
``sufficient to protect the integrity of the special procedure
regulations'' while not replacing established occupational practices.
The Wyoming Wool Growers Association stated that this definition would
reflect that herding goes beyond just controlling animal movement and
includes animal care and husbandry and natural resource management. The
Association commented that the suggested definition of sheepherder
duties recognizes the totality of the process. Finally, the California
Wool Growers Association stated that this definition would ``more
accurately

[[Page 62968]]

reflect current industry practices and requirements.''
In contrast to most employer commenters, Billie Siddoway, on behalf
of the Siddoway Sheep Company, submitted a detailed description of the
specific activities performed during various months of the year and did
not object to the proposed 20 percent cap. Billie Siddoway stated that
if an employee undertakes minor, sporadic or incidental work outside
the definition of herding, such as by performing tasks as erecting
temporary pens and corrals in anticipation of the lambing season, the
employer could track those hours and job duties in order to allow the
Department to evaluate compliance with the 20 percent rule. Billie
Siddoway requested clarification that the 20 percent limitation applies
only to work performed on the ranch (so that, for example, if a pair of
workers divide up their chores on the range with one primarily
responsible for tending the sheep and the other primarily responsible
for caring for the camp and the dogs and horses, there is no need to
evaluate that range time).
In further contrast to the vast majority of the employer comments,
the Worker Advocates' Joint Comment agreed that the definitions of the
terms ``herding'' and ``livestock'' are accurate, but stated with
respect to the proposed definition of ``minor, sporadic, and incidental
work'' that the 20 percent rule ``is a critically important element of
the proposed rule.'' They emphasized that sheep herders have alleged in
litigation that they often are assigned work outside the permissible
duties and spend significant time performing duties such as irrigating
fields, harvesting crops, and maintaining ranch buildings, vehicles,
and equipment. Nonetheless, the workers have been paid the monthly wage
required under the TEGL rather than the higher hourly AEWR, which could
lead to displacement of domestic workers employed as ranch hands. The
Worker Advocates' Joint Comment requested that the Department give more
examples of work that would be minor, sporadic and incidental
(repairing a fence or corral) as well as examples of work that falls
outside the permissible job duties (e.g., constructing fences or
corrals, reseeding, haying, operating and repairing heavy equipment,
and constructing dams, wells, and irrigation ditches). They further
suggested that the Department expressly prohibit such other work. As
noted, the suggestions related to recordkeeping are discussed in Sec.
IV.B.2. of the preamble with regard to Sec. 655.210(f).
iii. Discussion
The NPRM recognized that employers using these procedures to hire
workers for the range production of livestock may, at times, require
the workers to bring the herd to the ranch or farm for certain periods
to perform work that constitutes the production of livestock, such as
lambing or calving, shearing, branding, culling livestock for sale, or
tending to a sick animal. The NPRM further recognized that, during such
periods at the ranch, the workers could also perform other work that is
closely and directly related to herding or the production of livestock.
The NPRM proposed to limit to 20 percent the number of ranch days that
could be spent performing such directly and closely related work, and
it required that the other directly and closely related ranch duties be
included in the job order. See 80 FR at 20303.
The purpose of including the proposed 20 percent cap was to require
that workers being paid the herding and range livestock wage not be
used as general ranch hands, who are entitled to the standard H-2A
hourly AEWR for all hours worked, because these provisions are only
intended for workers who attend the herd as it grazes on the range. 80
FR at 20301. The Department determined that some limit on the scope of
duties such workers could perform was essential because, in the course
of its investigations, it found that some workers are stationed at the
ranch for extended portions, if not all, of the job order and are
performing general ranch hand work rather than work closely and
directly related to the range production of livestock. Therefore, the
NPRM identified tilling the soil for hay and constructing an irrigation
ditch as examples of work not closely and directly related to herding
or the production of livestock. The inspection and repair of the corral
was given as an example of work that is closely and directly related.
80 FR at 20303, 20306.
After considering all the comments received, we have decided to
remove the 20 percent limitation on the number of ranch days that can
be spent on work that is closely and directly related to herding or the
production of livestock, because such work is inextricably linked with
those primary tasks. Where such work is, indeed, closely and directly
related, it comprises an essential part of the work that employees who
are engaged in herding and the production of livestock perform.
Further, allowing workers to perform work that is closely and directly
related to herding and the production of livestock on only one out of
every five days at the ranch unnecessarily limits the ranchers'
flexibility in dividing tasks among their H-2A workers.
For example, herders may be at the ranch for two months during
birthing season. During that time, the workers may remain responsible
for caring for the dogs they use on the range to help herd and guard
the sheep or goats; they also may remain responsible for the care of
the horses they use on the range to pull their camps or to assist with
herding. The proposed 20 percent cap on the number of ranch days that a
worker could perform such closely and directly related work would have
required the employer to divide the animal care sequentially among five
herders, so no one worker performed it more than 20 percent of the
days. The employer would have violated the cap if it instead had
required that one herder do the animal care every day, even if the task
only took one or two hours to perform. Smaller ranchers with fewer than
five H-2A workers would have found it very difficult to comply with the
proposed limitation on the percentage of days such work can be
performed at the ranch. When the work is closely and directly related
to herding or the production of livestock, there is no need to limit
its performance in this way. Therefore, we are including closely and
directly related work within the definition of the production of
livestock, which provides employers with sufficient flexibility to
assign appropriate tasks to workers when they are not on the range. The
Final Rule makes conforming changes to delete references to the 20
percent cap in Sec. Sec. 655.200(b)(1) and (2), 655.210(b), and
655.230(d).
However, we continue to conclude that it is inappropriate to
provide employers with the unlimited latitude that some requested by
allowing them to require workers employed pursuant to these rules to
perform any ranch duties that are necessary to meet the day-to-day
needs that arise in ranch operations. Accordingly, the Final Rule does
not adopt the revised Grazing Livestock Management System definition of
permissible duties, as recommended by a number of employers and their
representatives. That definition is overly broad and vague, with
undefined terms, such as ``management of urban interface,'' which make
it unsuitable for the Final Rule. That definition would allow ranchers
virtually unfettered discretion to assign workers any duties, unrelated
to herding and the production of livestock, particularly because it
states that the permissible duties ``include, but are not limited to''
the listed tasks. More specifically, under

[[Page 62969]]

that definition, workers could perform additional tasks such as
assisting with the production of feed sources for animals being cared
for, which could include planting crops like hay or alfalfa, irrigating
the crops, applying pesticides to the crops, harvesting the crops, and
drying and storing the crops. That definition also would allow workers
to assist with the repair and maintenance of any equipment and
facilities used in production practices, which could include work
repairing a harvesting machine or maintaining a grain silo. The
Department concludes that allowing such general ranch hand work to be
performed by herding and range livestock workers, rather than by
corresponding U.S. ranch hand workers who would earn the standard
hourly AEWR, would have an adverse effect on U.S. workers similarly
employed.
For similar reasons, the Department also is not adopting the FLSA's
regulatory definition, as some commenters suggested. The FLSA
regulation, 29 CFR 780.325, is tied to the FLSA's statutory language,
which exempts an employee ``principally engaged'' in the range
production of livestock. Therefore, that regulation allows a tolerance
for non-herding work so long as it is less than 50 percent of the work
hours. However, such a tolerance would be overbroad in the context of
these H-2A rules, which create a special exception from the standard H-
2A wage requirements.
Therefore, in order to fulfill our original purpose of providing
that workers employed pursuant to the herding and range livestock
regulations are not working as general ranch hands when they are not on
the range, and to provide the requested guidance and clarity to both
workers and the regulated community, the Final Rule includes several
additional examples both of duties that qualify as directly and closely
related to the production of livestock and duties that do not qualify.
The Final Rule identifies the following as examples of work on the
ranch that is closely and directly related: repairing fences used to
contain the herd; assembling lambing jugs; cleaning out lambing jugs;
feeding and caring for the dogs that the workers use on the range to
assist with herding or guarding the flock; feeding and caring for the
horses that the workers use on the range to help with herding or to
move the sheep camps and supplies; and loading animals into livestock
trucks for movement to the range or to market. Furthermore, we note
that many of the duties that the commenters stated should be
permissible (caring for sick animals at the ranch, providing
supplemental feed, and assisting with lambing) already are included
within the definition of the production of livestock. The Final Rule
identifies the following as work that is not closely and directly
related: Working at feedlots; planting, irrigating and harvesting
crops; operating or repairing heavy equipment; constructing wells or
dams; digging irrigation ditches; applying weed control; cutting trees
or chopping wood; constructing or repairing the bunkhouse or other
ranch buildings; and delivering supplies from the ranch to the herders
on the range. Several of these examples are taken from the FLSA
regulations implementing the exemption for the range production of
livestock, which a number of commenters identified as a model for this
rule. See 29 CFR 780.325(b), 780.327, 780.329(c).
Further, the Final Rule provides employers adequate flexibility in
the use of H-2A workers, while still requiring that the work be
agricultural and herd-related in nature. Thus, although workers
employed pursuant to the herding and range livestock provisions may not
engage in work that falls outside the scope of these rules, the
Department does not intend to debar an employer who in good faith has
H-2A workers perform an insubstantial amount of herding work not listed
in the Application. In exercising our enforcement discretion when an
employer has had an H-2A worker perform work outside the scope of the
activities listed on the job order due to unplanned and uncontrollable
events, the Department will consider the employer's explanation, so
long as the activities are within the scope of H-2A agriculture, have
been occasional or sporadic, and the time spent in total is not
substantial. Moreover, the debarment regulations require that the
violation be substantial, and that a number of factors must be
considered in making that determination, including: An employer's
previous history of violations; the number of workers affected; the
gravity of the violation; the employer's explanation, if any; its good
faith; and its commitment to future compliance. Under these criteria,
the good faith assignment of a worker to work not listed in the
Application for a small amount of time would not result in debarment.
The Department concludes that this improved clarity of the scope of the
rules for herding and range livestock workers will lead to improved
compliance and more effective enforcement by the Wage and Hour
Division. As we explained in the NPRM, 80 FR at 20303, where employers
violate this limitation on duties, they may owe back wages and DOL may
seek other relief depending upon the precise nature of the violation.
b. Definitions of Livestock and Range Housing
i. Livestock
Livestock is not defined in the TEGLs. The NPRM defined livestock
as ``[a]n animal species or species group such as sheep, cattle, goats,
horses, or other domestic hooved animals. In the context of this
subpart, livestock refers to those species raised on the open range.''
80 FR at 20339. As explained in the NPRM, the proposed definition of
livestock described the type of animals, when managed on the range,
covered by these rules. 80 FR at 20303-04. As mentioned above, Mountain
Plains and Western Range suggested replacing all of the definitions
with a ``grazing livestock production system'' definition, but this
would not address the type of animals covered by these rules. The
Worker Advocates' Joint Comment agreed that the definition of the term
livestock is accurate. Because the Department received no comments
opposing the proposed definition of livestock or otherwise suggesting
modification, the Final Rule retains the proposed text without any
modification.
ii. Range Housing\12\
---------------------------------------------------------------------------

\12\ As noted in Sec. IV.E. of the preamble, and for the reasons
discussed there, we have discontinued the use of the phrase,
``mobile housing,'' and instead refer to housing on the range as
``range housing.''
---------------------------------------------------------------------------

The TEGLs set standards for, but do not define, range housing. The
NPRM defined ``mobile housing'' as ``[h]ousing meeting the standards
articulated under Sec. 655.235 that can be moved from one area to
another area on the open range'' and explained that this definition
``focuses on the movable nature of the housing used on the open range
and specifies the provision in the regulation that sets forth the
standards such housing must meet.'' 80 FR at 20304. The Worker
Advocates' Joint Comment agreed with the NPRM definition of range
housing. While the Department received comments regarding the standards
for such housing and SWA inspection requirements, those comments are
discussed in Sec. IV.E. of the preamble related to Sec. Sec. 655.230
and 655.235. Because we received no comments opposing the definition of
range housing or otherwise suggesting modification, the Final Rule
reflects the definition proposed in the NPRM, with two modifications.
First, we now refer to housing on the range as ``range

[[Page 62970]]

housing'' rather than ``mobile housing,'' as discussed further below in
Sec. IV.E. Second, for the same reasons, we have deleted the
requirement that the housing must be capable of moving from one area to
another.
c. Definition of Range
i. Background
The TEGL for sheep and goat herding provides that the special
procedures were established in recognition of the unique
characteristics of sheepherding, which requires ``spending extended
periods of time grazing herds of sheep in isolated mountainous terrain;
being on call to protect flocks from predators 24 hours a day, 7 days a
week.'' TEGL 32-10, ]3. The TEGL provides that the SWA may rely on a
standard job description of the duties to be performed and this
description refers to ``sheep and/or goat flock grazing on range or
pasture,'' but the terms ``range'' and ``pasture'' are not further
defined. Id. at Attachment A, I(C)(1).
The TEGL for the open range production of livestock procedures
similarly were established in recognition of the ``unique
characteristics of the open range production of livestock.'' TEGL 15-
06, Change 1, ]3. The SWA may rely on a standard description of the job
duties for a job opportunity in the open range livestock production
industry, which refers to tasks performed ``on the open range'' and
states that the workers also must ``occasionally live and work
independently or in small groups of workers in isolated areas for
extended periods of time.'' Id. at Attachment A, I(C)(1). No definition
of ``open range'' is included in the TEGL.
The NPRM defined open range as ``[u]nenclosed public or private
land outside of cities and towns in which sheep, cattle, goats, horses,
or other domestic hooved animals, by ownership, custom, license, lease,
or permit, are allowed to graze and roam. Animals are not meaningfully
enclosed where there are no fences or other barriers protecting them
from predators or restricting their freedom of movement; rather a
worker must actively herd the animals and direct their movement. Open
range may include intermittent fencing or barriers to prevent or
discourage animals from entering a particularly dangerous area. These
types of barriers prevent access to dangers rather than containing the
animals, and therefore supplement rather than replace the worker's
efforts.'' 80 FR at 20339. The Department specifically sought comment
on whether the definition of open range should include a minimum
acreage of the land on which the animals roam; under what circumstances
(e.g., state requirements related to the ``open range'') the regulation
may take into account barriers, fences, or other enclosures on this
same land; and other factors that should be considered in the
definition of open range. 80 FR at 20304.
The Final Rule removes the qualifier ``open'' and revises the
proposed definition, using a multi-factor test based on a modified
version of the definition of ``range'' used in the FLSA range
production of livestock exemption. It sets forth the following factors
that indicate the range: The land is uncultivated; it involves wide
expanses of land, such as thousands of acres; it is located in remote,
isolated areas; and range housing is typically required so that the
herder can be close to the herd to fulfill the requirement to be
constantly ready to attend to the herd. No one factor is controlling
and the totality of the circumstances is determinative. The definition
also specifies what is not considered range--specifically, that the
range does not include feedlots, corrals, or any area where the stock
would be near headquarters. The term also does not include any other
areas where a herder is not required to constantly be available to
attend to the livestock to perform tasks such as ensuring they do not
stray off, protecting them from predators, and monitoring their health.
ii. Comments
The Department received a substantial number of comments addressing
the proposed definition of open range. The comments addressed a number
of issues, including: Fencing on the range; the changing nature of the
landscape of the West and the feed used for sheep, including crop
stubble; the necessity of herders regardless of fences and barriers;
``open range'' state laws; and the definition of ``range'' used in the
FLSA range production exemption. The comments are addressed below
according to the questions presented in the NPRM: (a) Whether the
definition of open range should include a minimum acreage of the land
on which the animals roam; (b) under what circumstances (i.e., state
requirements related to the ``open range'') the regulation may take
into account barriers, fences, or other enclosures on this same land;
and (c) other factors that should be considered in the definition of
open range. 80 FR at 20304.
(1) Comments on Minimum Acreage
The NPRM requested comments on whether the definition of open range
should include a minimum acreage of land. Mountain Plains and Western
Range, along with a handful of other commenters, opposed a minimum
acreage test. Mountain Plains and Western Range reasoned that an
employer may not be aware of the acreage. Commenter Billie Siddoway
supported modifying the definition to include ``remote areas more than
fifty miles from the base ranch that require delivery of water by
truck.''
(2) Comments on Barriers, Fences, or Enclosures
Many commenters explained that livestock grazing varies
substantially among operations, depending on the particular ranch owner
and/or the geographic location. As indicated by the SBA Office of
Advocacy, the practice of herding has changed since the 1950s and
herders must graze on lands that are less ``open.'' Diamond Sheep
Company explained that urban sprawl has changed herding patterns, as
well as the availability and type of food consumed by sheep. Because
the West is no longer an open area, sheepherding in its modern form has
changed; according to the Idaho Wool Growers Association and other
commenters, it increasingly includes ``a mix of native grass on
federal, state and/or private leases, hay and alfalfa grazing, crop
aftermath grazing, feeding under power lines and in vineyards and even
small parcels in residential areas for fuel load management.''
The comments almost unanimously opposed using fencing as a defining
factor for ``open range.'' Commenters indicated that the prohibition on
fencing was one of the two most problematic aspects of the NPRM. The
comments explained that fencing is common on the range; Mountain Plains
and Western Range stated that there is ``no such place'' that contains
such unenclosed land as the Department had described in the NPRM.
Stephany Wilkes stated that the idea that grazing only takes place away
from fences is ``unrealistic, magical thinking.'' Mountain Plains
conducted a survey of its members and of the 140 employer-members who
responded, 45 percent of respondents indicated that their operation
would not qualify as ``open range'' according to the definition in the
NPRM. The opposition can generally be described as deriving from the
realities of the modern landscape in the West where fences appear for
many reasons, including on federal land managed by the Forest Service
and the BLM, as well as the proposition that sheepherding requires a
herder to be present regardless of whether the area has

[[Page 62971]]

fencing. Numerous ranchers explained that fences are necessary for a
variety of reasons, including to mark boundaries, separate plant or
animal species, protect crops or property, keep sheep from eating
poisonous plants, manage grazing, protect animals from predators and
keep them safe from traffic on public roads. They also stated fences
are used for rangeland improvement, riparian or riverbank zones
protection, and sustainability of rangelands.
The employer comments indicated that fencing may be used on both
small and large acreages; the size of fenced land varies, and sheep may
be within fences but within thousands of acres of private land. For
example, Etchart Livestock, Inc. stated that its private pasture is
fenced and varies in size from 4 acres to 4,000 acres. The Washington
State Sheep Producers described large bands of sheep that are herded on
unfenced open range from early spring to fall and are also herded
across 500+ acre rangelands that are fenced for cattle containment, not
sheep containment. Rangeland described by D.A. Harral was fenced around
the exterior and broken up into 2,000 to 10,000 acre tracts of semi-
arid land.
A common theme throughout the comments submitted by ranchers and
their associations was that fencing does not replace the need for
herders. Julie Hansmire expressed the view that regardless of whether a
fence is a quarter of a mile from the sheep or 20 miles, a herder is
still required. As explained in the comments, if a fenced area is very
large, a herder may keep the sheep in a manageable area, and a herder
also keeps the animals moving to graze on different areas for
controlled grazing. For example, Hansen Ranch pointed out that its
sheep are grazed on Forest Service land to control the noxious weed
``Leafy Spurge,'' and the sheep herders are needed to keep the sheep
grazing on this weed within a fenced area. Many commenters, such as
John Parker and the Washington State Sheep Producers, pointed out that
sheep cannot be left alone on the range because they may stray from the
band of sheep and become lost, or be attacked by predators. Commenters
also noted they used temporary fencing as well.
The employer commenters expressed particular concern about
predators, explaining that sheep herders are critical to protecting
sheep from attack regardless of whether the sheep are in a fenced area.
As Pauline Inchauspe described, ``[c]oyotes and mountain lions are a
constant threat and though the herders are equipped with livestock
guardian dogs, there is no substitute for the watchful eye of a
sheepherder. Their 24 hour presence is a necessity . . . throughout the
entire year.'' For example, Detton Fawcett put a herd on private ground
with fences and lost 40 percent of his herd over the summer; on another
piece of land he lost multiple lambs (stating that losing 50 or more
lambs in three weeks is common). Yet, with a herder present, Mr.
Fawcett stated that he only loses approximately five percent of the
herd.
Commenters also pointed out that the term ``open range'' refers to
state laws that require property owners to build and maintain fences
sufficient to keep livestock off their property. For example, William
Ashby Maltsberger, a Texas rancher, submitted information on the Texas
livestock laws explaining this concept. He pointed out that the NPRM
definition of open range would prevent range producers of livestock,
who are required by Texas open range law to fence their properties,
from using the special procedures. Similarly, Tom Thompson explained
that ``[o]ur understanding of open range is that if you want to keep
other people's livestock off your property you have to put up fences,
making fences required in areas where there are other ranchers.''
(3) Comments on Other Factors That Should Be Considered in the
Definition of Range
(a) The FLSA Range Production Exemption
Both industry and worker advocates suggested using the FLSA range
production of livestock exemption definitions in some form for the
purposes of the H-2A rule, some suggesting adopting them in full and
some emphasizing different portions. Mountain Plains and Western Range
and the Worker Advocates' Joint Comment generally encouraged the
Department to align the definition of ``range'' with the FLSA
regulations, as discussed further below.
The FLSA range production of livestock exemption regulation defines
the term ``range'' at 29 CFR 780.326(a) and (b). That regulation
describes the range generally as land that is not cultivated and
typically is not suitable for cultivation because it is rocky, thin,
semiarid, or otherwise poor. It is land that produces native forage for
animal consumption, and it includes land that is revegetated naturally
or artificially to provide a forage cover that is managed like range
vegetation. The range need not be open. The regulation provides that
many acres of range land are required to graze one animal unit (five
sheep or one cow) for 1 month; therefore, by its nature, the range
production of livestock is most typically conducted over wide expanses
of land, such as thousands of acres.
The FLSA regulation at 29 CFR 780.329 provides that an employee is
exempt if his primary duty is the range production of livestock and
that this duty necessitates his constant attendance on the range, on a
standby basis, for such periods of time so as to make the computation
of hours worked extremely difficult. The fact that an employee
generally returns to his place of residence at the end of each day does
not affect the application of the exemption. However, exempt work must
be performed away from the headquarters, which is the place for the
transaction of the business of the ranch; the headquarters does not
include large acreage, but only the ranchhouse, barns, sheds, pen,
bunkhouse, cookhouse, and other buildings in the vicinity. The FLSA
exemption does not apply to feed lots or to any area where the stock
involved would be near headquarters. Rather, it applies only to those
employees principally engaged in activities requiring constant
attendance on a standby basis, away from headquarters, such as herding,
where the computation of hours worked would be extremely difficult.
Although Mountain Plains and Western Range indicated a preference
for eliminating an independent definition of range altogether and
instead using the alternative ``grazing livestock production system,''
(discussed more fully above with regard to the ``production of
livestock'' definition) they alternatively recommended replacing the
definition of open range in the NPRM with the FLSA definition of range.
Specifically, Mountain Plains and Western Range stated that the use of
the phrase ``range'' as defined in the FLSA is a better fit than ``open
range,'' as nothing is truly ``open'' land anymore.
The Worker Advocates' Joint Comment emphasized that the rule should
specify that the land must be uncultivated so that the H-2A procedures
for sheep herders are not more encompassing than the FLSA definition.
The Worker Advocates' Joint Comment also supported using a worker's
proximity to the ranch as an indication of whether the work is on the
open range. Their comment stated that ``ranch or farm signifies a place
where crops are cultivated or where livestock are enclosed. Proximity
to a location where livestock must be enclosed or where land is
cultivated is an indication that such a place is not the open range.''
They suggested a slight modification to the FLSA definition, stating
that work

[[Page 62972]]

activity performed ``near a ranch or farm used by the employer'' is not
done on the range.
Other comments echoed similar elements about the topography of
range or rangeland, which are factors found in the FLSA definition. For
example, Lyle McNeal stated that range has native forages of grasses,
forbs, and shrubs and that ``range is also defined as uncultivated
land, including forest land, which produces forage suitable for
livestock grazing.'' However, this rancher also noted that herders are
needed on other types of land. McNeal further explained that the term
``improved range'' involves ``reseeding and replacing the native range
plants with a specific improved forage plant, i.e., crested wheat
grass, forage kochia, etc. Improved range might also refer to water
developments, springs, or wells, including reservoirs or guzzlers.''
Similarly, according to the sources attached to the comment submitted
by Vermillion and Midland, ``rangeland'' is defined as ```land on which
the native vegetation (climax of natural potential) is predominantly
grasses, grass-like plants, forbs, or shrubs suitable for grazing or
browsing and present in sufficient quantity to justify sufficient
grazing or browsing use,' [including] non-native vegetation which was
either planted for reclamation purposes or has since invaded the
rangeland.'' ``Range'' is defined by these sources as ``an open region
over which animals (as livestock) may roam and feed.''
(b) Crop Residue and Stubble
The ASI represented that 46 percent of their sheep spend part of
the year on federal grazing permits or allotments, but noted that the
availability of federal grazing land is on the decline and private
grass, supplemental hay, and crop aftermath are the other available
grazing options. The Idaho Wool Growers Association identified the
primary times crop residue or stored crops (baled hay and corn) are
used for feed is during the fall when the sheep are coming down off the
mountain, in the winter when native food cannot be found, and in times
of drought. The Washington State Sheep Producers indicated that the
sheep graze for part of the year on crop aftermath in irrigated crop
circles of 100-150 acres in size, and that herders are necessary to
move the sheep among the crop circles. The Wyoming Livestock Board
stated that ``[m]any producers graze also on crop residue, private
leases, vineyards and other parcels near fixed ranch sites and
populated areas'' and that these areas still require managed herding.
Eph Jenson Livestock explained that they have been desperate to find
feed for the sheep and that allowing sheep to feed on crop residue is
an economical means of clearing the field for the farmer. Cunningham
Sheep Company stated that crop residue grazing is healthy for the sheep
and the agricultural economy because it allows producers to remove
residue without burning or using another destruction method.
The distance crop residue grazing takes place from the ranch, and
from urban areas, may vary by operation and by geographic location. For
example, numerous commenters, including the Utah Farm Bureau
Association, the American Farm Bureau and the Sublette County
Conservation District, noted that sheep are used for fire prevention
close to urban areas, especially in California. Comments indicated that
California's sheep industry relies on crop residue grazing near urban
areas anywhere from 6 months a year (Roswell Wool) to year-round
(California Wool Growers Association). Elgorria Livestock characterized
grazing on crop residue as a ``large part'' of the production cycle in
California.
(c) Mobile Housing
Although not directly discussing the definition of ``range,'' many
commenters, such as the Wyoming Wool Growers Association, noted that
mobile housing is necessary for range work because it enables the
herder to remain with the herd. As the Colorado Wool Growers
Association explained, mobile housing is necessary because ``livestock
is often grazed far from the nearest town, or the ranch headquarters.
It would be illegal to build fixed housing on U.S. Forest Service,
Bureau of Land Management grazing allotments, as well as numerous other
locations that livestock are grazing. It is not feasible to drive
herders back and forth to work every day, leaving sheep unattended and
vulnerable to predator attacks, straying too far from water sources, or
being exposed to poisonous plants. While a lot of predator attacks
happen at night, it is not unusual for predators to attack in broad
daylight. This is why there has been the historic recognition of the
necessity for mobile housing to keep herders near the sheep.'' However,
the Wyoming Farm Bureau Federation noted that many livestock workers do
not need mobile housing for even 50 percent of the workdays in a
contract. Further, as explained by Mountain Plains and Western Range,
there are a limited number of employers who use stationary bunkhouses
on the range rather than mobile housing at points throughout the ``vast
areas of land'' where cattle are grazing, particularly in Montana and
Texas. Finally, the Worker Advocates' Joint Comment indicated that
requiring the use of mobile housing would have the unintended effect of
inducing employers to house workers in mobile housing when fixed site
housing is available; they stated that the nature and location of work
should be the focus instead.
iii. Discussion
Based on the comments received, it is apparent that herding
practices have evolved significantly over the last 50 years and the
proposed definition of ``open range'' in the NPRM did not reflect these
changes. The Final Rule, therefore, adopts a multi-factor test for
defining what constitutes the ``range.'' As explained below, the Final
Rule's definition allows more flexibility than the NPRM and offers more
guidance than the TEGLs by drawing on the FLSA regulatory definition
suggested by many commenters as a starting point. The definition
maintains a nexus to the longstanding purpose of the special
procedures, to provide that herders can be available to tend to the
flock in remote locations 24 hours a day, 7 days a week. In response to
the information received in the comments, the Department will no longer
use the term ``open range,'' will not use a set minimum number of acres
in the definition of range, and will not use fencing as a defining
feature of the range. We will, however, continue to consider the number
of acres as a relevant factor in the determination of range. We address
these considerations below.
First, the definition of ``open range'' in state law has limited
use for the purposes of determining special procedures for herders, and
the use of the term ``open range'' in these rules may cause unnecessary
confusion in ``open range'' states. Therefore, as a result of the
concerns raised by commenters, the Department no longer uses the NRPM
phrase ``open range,'' and instead the Final Rule defines ``range.''
Second, in response to comments, the Department has not included a
minimum number of acres in the definition of range. However, the amount
of acreage is relevant as a factor in determining whether the area is
considered the range, as discussed further below.
Third, the Department understands and appreciates the serious
concern raised by commenters regarding the use of fencing as a proxy
for open range as proposed. The comments demonstrate that using the
NPRM definition is untenable for many ranchers due to the

[[Page 62973]]

extensive presence of fencing across many of the lands used for
grazing, including the fencing present on BLM and Forest Service lands.
Therefore, the Department is eliminating fencing as an indicator of
range. For similar reasons the Department also declines to adopt a test
using the ``enclosure of livestock'' as the indicator of range, or, as
proposed by the Worker Advocates' Joint Comment, as an indicator of
ranch.
Rather, based on the comments, when assessing whether the work
takes place on the range or off of the range, the Department will
consider the following factors that indicate the range: The land is
uncultivated; it involves wide expanses of land, such as thousands of
acres; it is located in remote, isolated areas; and range housing is
typically required so that the herder can be close to the herd to
fulfill the requirement to be constantly ready to attend to the herd.
No one factor is controlling and the totality of the circumstances is
determinative. The question of whether any area on the ranch (beyond
the headquarters, discussed below) is considered on the range, and
therefore counts toward the 50 percent threshold requirement, or off of
the range must be determined by looking at the factors established in
this Final Rule. It is worth noting that when we use the term ``ranch''
as distinguished from the ``range'' in this Final Rule, we are
referring to that portion of the ranch that does not qualify as range
after analyzing it under the multi-factor test.
The range specifically does not include feedlots, corrals, or any
area where the stock would be near headquarters, which is consistent
with the FLSA range production of livestock exemption. The term also
does not include any other areas where a herder is not required to
constantly be available to attend to the livestock to perform tasks
such as ensuring they do not stray off, protecting them from predators,
and monitoring their health.
The work must be performed away from the headquarters used by the
employer to qualify as range work. The term ``ranch'' is distinct from
the term ``headquarters.'' The term headquarters is limited and does
not embrace large acreage. The headquarters is the place where the
business of the ranch occurs and is often where the owner resides. The
term headquarters only includes the ranchhouse, barns, sheds, pen,
bunkhouse, cookhouse, and other buildings in the vicinity, meaning that
anything beyond this immediate area is not considered the headquarters.
Any work performed at or near the headquarters would not qualify as
work on the range for purposes of the requirement for herders to spend
more than 50 percent of their time on the range.
The Department maintains the requirement that the work must be done
away from the headquarters in order to preserve the longstanding
purpose of the special procedures--that the unique occupational
characteristics require workers to spend extended periods of time in
isolated, mountainous, remote areas to be available to attend to the
herd's needs on a 24/7 basis, making tracking of the hours worked
exceedingly difficult. This situation does not exist when workers are
stationed, for example, in a cultivated field near the headquarters
where hours could be easily tracked (and where U.S. workers may be more
interested in working). This fundamental historical purpose of the
special procedures, and DOL's statutory obligation to certify that
there are not sufficient U.S. workers who are able, willing, and
qualified to perform herding jobs on the range, require the Department
to maintain geographic parameters for range work. For this reason the
Department cannot allow for use of the Mountain Plains and Western
Range definition of ``grazing livestock production system,'' because it
does not account for the location where the work occurs.
Although the FLSA definition of range provides a useful starting
point, the Final Rule does not fully adopt the FLSA definition of range
in three key respects. First, for the reasons identified by the
Colorado Wool Growers Association and other commenters, range housing
typically is necessary for the workers covered under this Rule. The
Final Rule contemplates that range housing is almost always a
requirement of range work because the workers must be on call 24 hours,
7 days a week to tend to the needs of the animals, and range work
cannot take place near the headquarters. Housing with the herd and away
from the headquarters is therefore essential. However, the Department
does not intend to provide an incentive to use range housing when it is
not appropriate, as noted by the Worker Advocates' Joint Comment.
Further, the Department acknowledges the comments received about a
small subset of workers who use a series of remote, stationary
bunkhouses on the range while traveling with the herd, while it is
grazing over vast areas of land; this practice would not disqualify
their employers from using the these regulations.
The second modification from the FLSA definition is for grazing
that occurs on crop residue. Many of the descriptions of the land used
for herding submitted by commenters would easily fall within the FLSA
range production exemption's regulatory definition of the range as
generally uncultivated land and land not suitable for cultivation;
however, areas where sheep are grazing on crop residue may not always
qualify as ``range'' under the FLSA definition. Therefore, to
accommodate the comments that many sheep are feeding on crop residue
during certain months of the year, often on leased lands at a distance
from the rancher's property as the herd trails to or from BLM or Forest
Service allotments, the Department is establishing the multi-factor
test, as well excluding the FLSA regulation's language, ``land that is
not suitable for cultivation because it is rocky, thin, semiarid, or
otherwise poor.'' 29 CFR 780.326(b). Allowing for some work on
cultivated land, depending on the other factors, is consistent with the
purpose of this variance (that the work is unique because it is remote
and requires 24/7 availability, which makes the hours difficult to
calculate) from the standard H-2A rules. The modern reality of herding,
which the commenters indicate occurs on crop residue during certain
seasons, does not necessarily disqualify herders who are operating
remotely from the ranchers. However, we note that the FLSA regulation
provides that ``generally'' the land is not cultivated and
``typically'' is not suitable for cultivation; therefore, the deletion
of the language is not a significant modification, as the Final Rule
still asks whether the land actually is cultivated as an indicator of
the range. The Department recognizes that, depending on an analysis of
the factors, the test established in the Final Rule may in certain
cases encompass more land as ``range'' than under the FLSA, as
indicated in the Worker Advocates' Joint Comment. Additionally, in
other cases, an area considered range under the FLSA may not be
considered range under the test set forth in the Final Rule, depending
on an analysis of the factors.
Third, the Department is intentionally omitting the sentence in the
FLSA regulation stating that ``[t]he balance of the `headquarters
ranch' would be the `range.''' 29 CFR 780.329(b). As discussed above,
determining which portions of the balance of the ranch that is away
from headquarters are considered on the range, and therefore count
toward the 50 percent threshold requirement, or off the range will be
assessed using the multi-factor test set forth in the Final Rule.

[[Page 62974]]

B. Pre-Filing Procedures

The Final Rule establishes pre-filing procedures for employers
seeking workers to engage in sheep, goat and cattle herding jobs. These
provisions assist employers in understanding their pre-filing
obligations.
1. Section 655.205--Herding and Range Livestock Job Orders
The two TEGLs do not provide a variance from the standard rules for
Form ETA-790 filing time frame or location, with one exception.
Therefore, under the TEGLs, the standard Form ETA-790 filing
requirements in 20 CFR 655.121(a) through (d) apply, except where an
agricultural association submits a Form ETA-790 for a ``master'' job
order (i.e., a Form ETA-790 submitted by agricultural association as a
joint employer with its employer-members) for range sheep or goat
herder positions. Although, under the TEGLs, all Forms ETA-790 for
standard H-2A job orders must be submitted to the appropriate SWA no
more than 75 calendar days and no less than 60 calendar days from the
employer's start date of need, the TEGL applicable to sheep and goat
herding employment permits a Form ETA-790 for a ``master'' job order
for range sheep or goat herder positions to be submitted directly to
the National Processing Center (NPC) once annually.
In the NPRM, the Department proposed variances from the job order
filing requirements in 20 CFR 655.121(a) through (d) for all range
herding and livestock production job orders. Specifically, the NPRM
proposed requiring an eligible employer to submit the, Agricultural and
Food Processing Clearance Order, Form ETA-790, directly to the NPC,
rather than to the SWA. As proposed, the employer would submit the Form
ETA-790 to the NPC at the same time it submits its H-2A Application for
Temporary Employment Certification, Form ETA-9142A, as outlined in 20
CFR 655.130 (as modified by Sec. 655.215 of the NPRM). Also as
proposed, an employer submitting its labor certification application
electronically using the iCERT Visa Portal System would be required to
scan and upload the Form ETA-790 as well as all other supporting
documents. The NPRM addressed the TEGL's ``master'' job order annual
Form ETA-790 submission allowance, available to associations filing
master applications for sheep or goat herding or production
occupations, in the proposed provision about variances from filing
procedures at Sec. 655.215.
The Department did not receive comments addressing the job order
filing requirements proposed in Sec. 655.205, and we therefore adopt
the proposed Sec. 655.205, with one minor change. As proposed and
adopted, this provision essentially requires that all employers,
whether filing as an individual, an association, or and H-2A Labor
Contractor (H-2ALC), submit Form ETA-790, directly to NPC together with
a completed H-2A Application for Temporary Employment Certification,
Form ETA-9142A. As we explained in the NPRM, processing of these
applications will be improved if we establish consistent filing
requirements for employment of all herders in range herding and
livestock production occupations. Allowing employers to file the Form
ETA-790 with the NPC at the same time as the H-2A Application for
Temporary Employment Certification, Form ETA-9142A, as proposed, will
streamline the application process for both the filers and the agency.
The only change we have made to the regulatory text of this provision
is the deletion of the phrase ``as required in Sec. 655.130[,]'' which
is a reference to the standard H-2A regulations. We conclude that it is
more helpful to the regulated public to substitute, ``as required in
Sec. 655.215[,]'' which is a reference to the applicable herding and
range livestock filing requirements.
2. Section 655.210--Contents of Herding and Range Livestock Job Orders
Provisions in Sec. 655.210 establish certain content requirements
for job orders covering the employment of all herders in range herding
and livestock production occupations. Section 655.210(a) reminds
employers that if a requirement of the standard H-2A regulations is not
addressed in the herding and range livestock regulations (such as
workers' compensation, among other requirements), then employer-
applicants must comply with the standard regulation. We did not receive
any comments from the public on this provision and are adopting it
unchanged from the NPRM.
a. Section 655.210(b)--Job Qualifications and Requirements
Section 655.210(b) establishes the standards associated with job
qualifications and requirements included in the job offer. Many of the
standards contained in this provision have been addressed above, in
Sec.IV.A.2., related to the nature of herding and range livestock jobs,
and in Sec. IV.A.3., related to definitions. As a result, for the
reasons discussed above in Sec. IV.A.2., we are adopting the standard
unchanged from the NPRM that the job offer must include a statement
that the hours of work are ``on call for up to 24 hours per day, 7 days
per week.'' In addition, for the reasons discussed in the same section
above (Sec. IV.A.2.), we are clarifying the proposed standard that
workers must spend ``at least'' 50 percent of their workdays during the
contract period on the range. Instead, under the Final Rule, the job
offer must reflect that workers spend a majority, meaning more than 50
percent, of the workdays during the contract period on the range.
Finally, for the reasons discussed above in Sec. IV.A.3. related to
definitions, we have decided to eliminate the 20 percent limitation on
the number of ranch days that can be spent on work that is closely and
directly related to herding or the production of livestock, because
such work is inextricably linked with those primary tasks. Where such
work is, indeed, closely and directly related, it comprises an
essential part of the work that employees who are engaged in herding
and the production of livestock perform. The Final Rule requires that
all such duties must be specifically disclosed on the job order.
i. Background
Apart from the issues discussed in the paragraph immediately above
and in the prior preamble sections referenced in that paragraph,
several issues related to job qualifications and requirements contained
in Sec. 655.210(b), including worker experience requirements, are
addressed here. Under the H-2A program generally, including under the
TEGLs for sheep and goat herding and the range production of livestock,
``job offers may not impose on U.S. workers any restrictions or
obligations that will not be imposed on the employer's H-2A workers.''
29 CFR 655.122(a). Additionally, each qualification and requirement
included in the job offer must be ``bona fide and consistent with the
normal and accepted qualifications'' required by employers not using H-
2A workers for those occupations, and the Certifying Officer or the SWA
may require supporting documentation to substantiate the
appropriateness of any job qualification specified in the job order. 29
CFR 655.122(b).
The TEGLs provide additional information regarding permissible
duties, qualifications and requirements. Both TEGLs mandate that the
Forms ETA-790 submitted to the SWA provide descriptions of required job
duties. TEGL 32-10, Attachment A, I(C)(1); TEGL 15-06, Change 1,
Attachment A, I(C)(1). The TEGLs provide that any additional job duties
``must be normal

[[Page 62975]]

and accepted for the occupation'' and that the SWA and NPC have the
authority to request supporting documentation to substantiate the
appropriateness of any the duties. Id. The TEGLs also provide that,
``due to the unique nature of the work to be performed,'' the job offer
may specify that applicants possess up to 6 months of experience in
similar occupations to sheepherding or the range tending or production
of livestock (as appropriate to the specific TEGL) and employers may
require reference(s) to verify such experience. Id. Applicants must
provide the name, address and telephone number of any employer used as
a reference. Id. Both TEGLs note that the ``appropriateness of any
other experience requirement must be substantiated by the employer and
approved by the Chicago NPC.'' Id.
The NPRM similarly provided that the ``job offer may also specify
that applicants possess up to 6 months of experience in similar
occupations involving the herding or production of livestock on the
open range and require reference(s) for the employer to verify
applicant experience.'' 80 FR at 20339. The NPRM further proposed that
an employer may specify other appropriate job qualifications and
requirements. Id. The preamble to the NPRM explained that these
qualifications ``could include the ability to ride a horse, use a gun
for occupational safety to protect the livestock herd from predators,
or operate certain motorized vehicles.'' 80 FR at 20304. The NPRM also
specified that any qualification or requirement listed in the job offer
must be bona fide, and that the Certifying Officer may require the
employer to submit supporting documentation. 80 FR at 20339-20340. The
NPRM further provided that any such qualifications or requirements must
be applied equally to U.S. and H-2A workers, in order to maintain
compliance with the prohibition against preferential treatment of
foreign workers under the H-2A program. 80 FR 20304. As discussed
further below, the Final Rule retains these provisions.
ii. Comments
The Department received very few comments directly addressing these
provisions. Mountain Plains and Western Range commented that ``the job
qualifications continue over from the TEGLs and are essential for
identifying and hiring workers who possess the requisite skills for
this special work.'' As they explained, ``it would be a disaster'' to
send a new worker to the range with a herd only to have that worker
decide they do not in fact enjoy the work or they do not know how to
care for and protect the animals. Vermillion and Midland stated that
``[e]stablished job descriptions and requirements for various open
range livestock occupations should be deemed `bona fide' and
`appropriate' under [these provisions] and should not be questioned.''
Although not addressing this provision directly, several commenters
discussed the need for skilled herders and the length of time needed to
become skilled in this work. For example, Rocky Mountain Sheep
Marketing Association commented that their shepherds must be able to
manage guard dogs and sheep dogs, horses, and, often, pack mules,
``have a thorough grasp of basic veterinary medicine,'' and must have
the ``skills and maturity to protect themselves in remote landscapes,''
in addition to many other skills. They further commented that skilled
herding is ``essential for modern range management.'' Peter and Beth
Swanson commented that fencing must be done correctly to protect the
herd; they stated that herders know what fencing is needed, and how to
troubleshoot and correct problems. Mantle Ranch explained that their
workers ``know how the livestock is handled and where the livestock
belong at any given time'' and they are ``capable of moving,
containing, [and] watching over [the herd] for predatory problems,
sickness'' and the general welfare of the animals. Mantle Ranch further
noted that there are many miles of fence and watering facilities that
must be ``continually monitored, repaired, and updated.'' Kelly
Ingalls, a sheep ranch manager, stated that ``[m]ore animals are saved
because of the [H-2A] herder's experience in healing sick and injured
animals.''
John & Carolyn Espil stated that ``[a] master of sheep husbandry
generally has years of experience and an exceptional aptitude for his
work.'' The Texas Sheep and Goat Raisers' Association similarly
commented that it takes years to adequately train a worker, and loss of
a seasoned employee could set a business back. Hilger Hereford Ranch
commented that a herder with only six months of experience may not
understand or be experienced in all of the skills needed, as different
tasks and skills are needed throughout the year.
In contrast, the Worker Advocates' Joint Comment opposed the
provisions allowing employers to require up to six months of experience
and references to verify this experience. They stated that ``the
experience requirement often serves more as an exclusionary mechanism''
rather than a ``legitimate job qualification.'' As they explained,
``experience requirements are often used as a barrier to exclude U.S.
workers who may be qualified but do not have experience working with
the particular [animal].'' Additionally, the ```verifiable' experience
requirement is an undue burden on U.S. workers, as employers often
require an official reference on the company letterhead of the former
employer.'' As they explained, ``migrant workers often do not maintain
records of whom they worked for in the past'' and may not have the
names, locations or up-to-date contact information for those employers.
Furthermore, they stated that verifiable experience requirements are
not equally imposed on H-2A foreign workers. Similarly, Brian Clark
commented that requiring six months of experience is unnecessary. Mr.
Clark stated that three months of experience should be sufficient and
that qualified U.S. workers could be found with three months of
experience. Additionally, he noted that employers could allow for
training in lieu of experience.
iii. Discussion
As set out in the TEGLs, the provision allowing job offers to
require up to six months of experience and verifiable references is due
to the unique nature of the work to be performed, which often involves
working alone for extended periods of time in remote locations where
the herder is responsible for the safety of a herd, which the comments
indicate is typically made up of approximately 1,000 ewes. The comments
received on the NPRM demonstrate that these occupations require workers
with experience in these jobs and the skills necessary to protect the
animals and themselves. As explained in the preamble to the NPRM, these
skills may include the ability to ride a horse, use a gun to protect
the herd from predators, or operate certain motorized vehicles. As
noted by Western Range and Mountain Plains, given the remote and unique
nature of the work, it would be untenable to hire a worker with little
to no occupational experience, who may decide quickly that this work is
unsuitable or realize that he or she is unprepared to care for the
animals. Additionally, as noted by several commenters, for the safety
of the animals and the worker, it is important that workers be able to
protect the animals and themselves while on the range. Therefore, the
Final Rule retains the provisions from the NPRM allowing job offers to
specify that applicants must possess up to six months of experience in
similar occupations involving herding or range livestock production,

[[Page 62976]]

and require reference(s) for the employer to verify such experience.
The Department concludes that ``up to six months'' is a reasonable
and appropriate limitation on the experience requirement. The six-month
experience requirement is a longstanding requirement from the TEGLs,
based on the unique characteristics of these occupations. As
demonstrated by the comments, herding and range livestock production
involve changing conditions throughout the year depending on grazing
location, weather, predators, animal health, and other evolving
circumstances. As these conditions change, different skills may be
necessary, as noted by Hilger Hereford Ranch. For some employers,
requiring workers to possess up to six months of experience in these
occupations is reasonable, as a worker with less experience may have
only encountered certain, limited range conditions and may be
unprepared for different grazing locations, predator concerns, and
weather conditions. Some commenters noted that it may take years of
experience to become a skilled herder. The Department concludes that a
maximum of six months of experience in similar occupations involving
herding or production of livestock on the range, in light of the
changing needs and conditions throughout the year, is a normal and
accepted job requirement for these unique occupations to ensure that
workers are sufficiently experienced in these unique occupations, while
preventing unduly burdensome experience requirements that may prevent
otherwise qualified U.S. workers from obtaining these positions.
However, as underscored by the Worker Advocates' Joint Comment,
experience and qualifications requirements must be bona fide and
equally required of U.S. and foreign workers. For example, if an
employer requires less than six months experience of U.S. workers (for
example, three months of experience), at least the same experience
requirement must be required of foreign applicants.
Additionally, while employers may require ``reference(s) for the
employer to verify applicant experience,'' such reference requirements
must be reasonable and may not be used as a barrier to hiring U.S.
workers. Requiring the type of formal, written reference on employer
letterhead, as described by the Worker Advocates' Joint Comment, is
inappropriate under the Final Rule. Employers who want to verify
previous employment must make reasonable efforts to locate and contact
the previous employer where an applicant provides basic information
such as that required under the TEGLs--the prior employer's name,
address and telephone number--or similar information facilitating
contact, such as an email address, or social media account. As noted
above, any reference requirements for U.S. workers must be no more
stringent than those imposed on foreign workers.
b. Section 655.210(c)--Range Housing
i. Background
The TEGLs required the inclusion of several statements in a job
order about the unique aspects of range herder employment, including
housing. The TEGLs set forth specific requirements, including an
employer's obligation to provide mobile housing for range workers.
In the NPRM, the Department proposed that the employer disclose in
the job order seeking workers for range herding positions that mobile
housing would be used to satisfy the employer's housing obligation
under 20 CFR 655.122(d) (requiring an employer to provide sufficient
housing to workers, at no cost to the workers, where their work does
not allow them to reasonably return to their residence within the same
day). As proposed, the job order would state that mobile housing,
meeting the requirements of Sec. Sec. 655.230 and 655.235, would be
provided to workers.
ii. Comments and Discussion
The Department only received a few comments applicable to this
requirement. The comments from Mountain Plains and Western Range
discussed the use by some employers of fixed-structures in remote areas
to temporarily house range workers as they move a herd along its
grazing trail. These comments are addressed below in connection with
section 655.230. As discussed further in Sec. IV.E. with regard to
range housing, the Department's use of the term ``mobile housing'' was
intended to distinguish between permanent, fixed-site housing subject
to the standards in 20 CFR 655.122(d) standards and the temporary
housing provided workers in different locations, usually in remote
areas, as their herds move from one grazing area to another, and does
not to preclude the use of alternative housing structures for range
workers. The Department has modified the regulation in the Final Rule
to enable an employer to accurately indicate the nature of the housing
in the job order.
The Department, however, received numerous comments on the use of
mobile housing, inspection requirements for such housing, and minimum
standards for the mobile housing, including those relating to heating,
lighting, cooking, sleeping and personal hygiene while occupying such
housing and the provision of food, water, and waste removal to workers
while using mobile housing. These comments are discussed below in Sec.
IV.E. of the preamble in connection with Sec. Sec. 655.230 and
655.235.
c. Section 655.210(d)--Employer Provided Items
i. Background
All H-2A employers, including employers currently utilizing the
TEGLs for sheep, goat and cattle herding, must provide to their
workers, free of charge, all tools, supplies and equipment required to
perform their assigned duties. 20 CFR 655.122(f). The TEGLs further
specify that, due to the remote and unique nature of the work to be
performed, employers must ``specify in the job order and provide at no
cost to workers an effective means of communicating with persons
capable of responding to the worker's needs in case of emergency.''
TEGL 32-10, Attachment A, C(4); TEGL 15-06, Change 1, Attachment A,
C(4). As recognized by the TEGLs, communication means are necessary to
perform the work and can include, but are not limited to, satellite
phones, cell phones, wireless devices, radio transmitters, or other
types of electronic communication systems. Except for those
requirements that relate to mobile housing standards, the TEGLs do not
identify any additional tools, supplies or equipment that must be
provided by the employer under 20 CFR 655.122(f).
The NPRM proposed that employers must provide to workers, without
charge, all tools, supplies and equipment that are required by law, the
employer, or the nature of the work to perform the job safely and
effectively. 80 FR at 20340. The NPRM also proposed that employers must
disclose in the job order which items it will provide to the worker.
Id. The NPRM preamble explained that the required tools, supplies, and
equipment will depend on a number of factors, such as the terrain,
weather, or size of the herd, and provided a number of examples of such
items, such as binoculars to monitor the herd, a gun to protect the
herd and the herder, boots, rain gear, and a horse. 80 FR at 20305. The
NPRM also noted that, as provided in proposed Sec. 655.235 regarding
mobile housing standards, protective clothing and bedding may be
provided as an alternative to heating equipment in certain conditions,
and this alternative

[[Page 62977]]

bedding and clothing is required by the job and must be provided free
of charge or deposit charge. Id. The Department invited comments on
other tools, supplies and equipment that may be required and whether it
would be helpful to include in the regulation a list of items typically
required by law or the nature of the work.
The Department also proposed requiring employers to provide
workers, at no cost, an effective means of communicating with persons
capable of responding to worker's needs in case of an emergency. 80 FR
at 20304-20305. The NPRM provided the same non-exclusive list of
acceptable communication devices as in the TEGLs. 80 FR at 20305.
Accordingly, the proposed provisions in Sec. 655.210(d) would require
employers to specify in the job order the electronic communication
devices that will be provided to workers. Id. However, the Department
also noted that a worker's location may be so remote that electronic
communication devices may not operate effectively at all times. Id. To
address this concern, the Department proposed to require that employers
arrange for workers to be located in geographic areas where electronic
communication devices can operate effectively on a regular basis,
unless the employer will make contact in-person with the worker
regularly. Id. The Department noted that the definition of
``regularly'' could vary, but a worker must be able to communicate with
the employer at intervals appropriate for monitoring the health and
safety of the worker. Id. We explained in the NPRM that such contact is
in the best interest of both the employer and the worker in the event
that there are problems with the herd, the worker suffered a medical
emergency, or the worker's safety is threatened. Id. Last, the proposed
provision also would require employers to include a statement in the
job order specifying that it will make contact with the worker in-
person or using electronic communication devices regularly. Id.
Based on the comments received, which we discuss below, the Final
Rule retains the NPRM provisions requiring employers to provide, free
of charge or deposit charge, all required tools, supplies and equipment
and to disclose which items will be provided in the job order, but does
not include a list of typically required items in the regulatory text.
The Final Rule maintains the requirements that employers must disclose
and provide to workers, free of charge or deposit charge, an effective
means of communicating with persons capable of responding to the
worker's needs in case of an emergency, including, but not limited to,
satellite phones, cell phones, wireless devices, radio transmitters, or
other types of electronic communication systems. The Final Rule also
revises Sec. 655.210(d) to address situations in which workers are
stationed in locations where electronic communication devices will not
operate effectively. In such cases, the employers must either make
arrangements for workers to be located in geographic areas where
electronic communication devices can operate effectively on a regular
basis, or provide for regular, pre-scheduled, in-person contact. The
Final Rule also revises job order disclosure provisions to require the
employer to specify the means and frequency with which the employer
plans to make contact with the worker when the workers are stationed in
locations where electronic communication devices may not operate
effectively. Finally, the Department has divided subsection 655.210(d)
in the Final Rule into two paragraphs, the first addressing tools,
supplies, and equipment generally, and the second specifically
addressing communication. We will address each topic separately below.
ii. Communication Devices
(1) Comments
The Department received a number of comments about the proposal to
require employers to provide electronic communication devices to range
herders and livestock production workers free of charge or deposit
charge. The Worker Advocates' Joint Comment and the Western Watershed
Project expressed concern that range herders and livestock production
workers often work in remote locations with no means of communication
in case of emergency. Western Watershed Project specifically noted that
workers are exposed to various hazards in these remote locations,
including exposure to disease and attacks from predators. Some
employers, and employer associations Mountain Plains and Western Range,
also agreed that electronic communication devices can help employers
monitor the health and well-being of workers and the herd. One private
citizen also suggested that workers should have access to a computer
with Skype or similar communication that would allow the workers to
contact a trusted person who speaks the workers' language. At least one
employer also expressed concern about language barriers.
Only one comment, submitted by the Office of the Governor of Utah,
urged the Department to eliminate the requirement that employers
provide an electronic form of communication, stating that the
Department failed to provide adequate justification for the requirement
and asserting that the requirement would create an excessive
encumbrance on employers. This comment also suggested that, because
``there is no apparent history of safety incidence to cause alarm,''
the Department should allow employers to develop their own action plans
to provide means of communication to workers during emergencies. Other
comments from employers noted that workers often use their employer-
provided cell phones to contact their families abroad and suggested
that workers should be responsible for the cost of such calls, as well
as the cost of providing different devices that the workers may choose
that are beyond what is necessary to effectuate emergency contact with
the employer and emergency first responders.
We also received comments about workers' access to satellite
phones. A comment from the Western Watershed Project urged the
Department to require employers to provide workers access to satellite
phones where in-person or cell phone contact is not available, as well
as working batteries or rechargeable batteries and a solar charger to
power the device for the amount of time spent in areas with limited or
non-existent communication. This commenter also suggested that
employers be required to maintain subscriptions for messaging services
in cases of emergency and to provide proof of satellite coverage and
appropriate equipment with respect to each worker on an annual basis.
Some employer commenters indicated that they currently provide
satellite phones to their workers for communication in geographic areas
where there is no cellular service coverage and believed this was an
effective way of providing contact in the event of an emergency.
The Worker Advocates' Joint Comment urged the Department to require
employers to provide workers with a satellite phone for communication
at all times. They suggested that, without access to satellite phones,
workers who are out on the range with no cellular service coverage will
have to depend solely on more frequent contact with the employer as the
only means of obtaining aid in the event of an emergency, and that in-
person contact with the employer, unless it occurs daily, is not a
reliable way of providing access to assistance in cases of emergency.
They also stated that the Department's proposal creates a potential
conflict of interest for employers in responding to

[[Page 62978]]

worker emergencies because workers' compensation is triggered in the
event of a work-related injury, and the comment alleged that many
workers who have reported such injuries have been denied medical care
by their employers. This comment, however, also acknowledged several
alternatives to requiring employers to provide satellite phones.
According to the Worker Advocates' Joint Comment, the Department could
also give employers the option of providing workers with a mobile phone
for everyday use and a satellite phone for times when the workers are
out of cell phone service range. The Worker Advocates' Joint Comment
further suggested, as a potentially inexpensive alternative to
providing workers a satellite phone for everyday use, that employers
could station workers in pairs while in areas with unreliable or no
cell phone service. They indicated that because there are usually two
herders working during the winter season, employers would only incur
the cost of a second worker during the summer months on the range. They
noted that while this arrangement would be less advantageous than
having direct access to emergency responders via a satellite phone, the
presence of a second worker would ultimately benefit both the workers
and the employer by allowing workers to locate emergency service sooner
while providing for continued care of the livestock in the interim.
Comments received from employers and employer associations
reflected general agreement that a satellite phone is not an adequate
substitute for in-person communication between employers and their
workers, and urged the Department to adopt a flexible approach in the
Final Rule. Mountain Plains and Western Range acknowledged that
electronic communication devices can help employers track the health
and well-being of workers, but noted that electronic communication
cannot replace face-to-face communication. One employer stated that he
had successfully used satellite phones as an effective alternative
means of communicating with workers outside cellular service coverage
areas, but stressed that employers should be allowed to find solutions
that best serve their needs. Other commenters expressed concern about
the cost of providing satellite phones and service plans, and one
commenter reported that satellite phone service plans would cost $300
to $2,000 per year.
The Department received comments, from workers and employers,
agreeing that employers should be required to establish work locations
where electronic communication devices will work effectively so that
workers' safety and health can be monitored. One commenter stated that
it was critical for employers to establish locations where a cell
phone, satellite phone, or other device will work, or where workers can
stop at a nearby ranch in the event of an emergency. Some employers
indicated that they already provide their workers with cell phones with
consistent coverage in the areas where workers are stationed, and that
they intentionally station workers, as much as possible, in areas that
provide cell phone coverage, allowing the workers to regularly contact
the employer, as well as family and friends abroad.
The Department also received comments about minimum allowable
intervals between contacts initiated by the employer. One commenter, a
private citizen, expressed concern that in some cases, it may be over a
month before workers have contact with their employer. Comments from
Mountain Plains, Western Range, and other trade associations stated
that establishing minimum intervals for employer-employee contact is
unnecessary and infeasible given the unpredictable nature of the
terrain, weather, and cellular telephone signals, and employers
currently strive to maintain regular communication with their workers.
Several employers pointed out that they have every economic incentive
for maintaining regular contact with their workers because they are
concerned with both the welfare of the workers and the welfare of the
livestock. Other employers commented that they currently have practices
in place that provide for regular contact with their workers, including
three employers who reported maintaining contact with workers by
designating ``camp tenders,'' who are responsible for resupplying
workers' camps and monitoring the health and the well-being of workers
and the herd. One employer suggested that employer-employee contact
every two to three days should be sufficient. Another employer
suggested that as long as workers have the ability to contact the
employer at any time, employer initiated contact every ten days is
reasonable and sufficient. The employer further explained that some
employers arrange for workers to work in pairs during the summer when
the workers are in remote areas, and in such cases the employer may
only have in-person contact with one of the workers in the working
pair. They suggested that, to the extent that minimum contacts are
imposed, contact with one member of the working pair of employees in
such arrangements should be sufficient. The Worker Advocates' Joint
Comment suggested that in-person contact could not be relied upon for
emergency purposes unless it is daily. They also stated that, for
purposes of defining a reasonable amount of time between in-person
visits to deliver necessities (e.g., food and water, hygiene products,
first aid supplies, and clothing), workers should not go more than
seven days without in-person contact with the employer.
The Worker Advocates' Joint Comment also emphasized that because
workers must rely on their employers for delivery of mail, the
Department should promulgate a rule prohibiting employers from opening
workers' mail. They also reported that employers sometimes deny workers
access to healthcare professionals, and prohibit workers from allowing
visitors, using a radio, and possessing reading materials.
(2) Discussion
Based on the comments received, the Department has decided to
maintain the proposed requirement, now located in Sec. 655.210(d)(2),
that employers must provide to their workers, free of charge or deposit
charge, an effective means of communicating with persons capable of
responding to the worker's needs in case of an emergency, including,
but not limited to, satellite phones, cell phones, wireless devices,
radio transmitters, or other types of electronic communication systems.
We found overwhelming agreement among the commenters that this
requirement is needed due to the isolated nature of sheep, goat and
cattle herding on the range. As the Western Watershed Project comment
accurately noted, workers in these occupations often work in remote
locations without sufficient access to medical facilities or means of
communication in cases of emergency. Without proper communication
equipment, range herders and livestock production workers would be
unable to seek and obtain assistance in cases of emergency. A majority
of employers and employer associations agreed that electronic
communication devices can help employers monitor the health and well-
being of workers and the herd. Even when working in pairs, a
communication device remains necessary because in the event that one
worker needs emergency assistance on the range, the second worker would
not likely be able to cause EMTs to arrive quickly without a
communication device. Furthermore, we interpret the phrase ``persons
capable of responding to the worker's needs in case of an

[[Page 62979]]

emergency'' in paragraph 655.210(d)(2) as necessarily including first
responders and other emergency personnel, in addition to the employer.
Thus, workers must be free to use the electronic communication device
to contact directly, without first contacting the employer, first
responders or others capable of responding to the worker's needs in an
emergency. We also interpret the phrase ``effective means of
communicating'' in paragraph 655.210(d)(2) to mean that employers must
have the ability to address language barriers in the event of an
emergency. Employers can address language barriers by having on staff
or otherwise making available, such as through a conference call, a
person capable of speaking the worker's language and communicating the
worker's needs, or by using translation technology (e.g., computer
software, translation devices, etc.). However, the Department has
declined to prescribe a specific type of communication device, since
the conditions, terrain, and particular circumstances will influence
the feasible types of communication. Finally, although employers may
choose to do so, we clarify that this Final Rule does not require an
employer to pay for workers' personal calls to friends or family or to
supply or pay for communication devices beyond what is necessary for
emergency contact with the employer and emergency first responders.
After considering all the comments on this subject, the Department
also revised and added two subparagraphs in paragraph 655.210(d)(2) to
clarify the employer's obligations. First, subparagraph
655.210(d)(2)(i) requires employers to include in the job order a
simple statement specifying the type of electronic communication
device(s) that the employer will provide, free of charge or deposit
charge, to the worker during the entire period of employment. Second,
under subparagraph 655.210(d)(2)(ii), the employer must specify in the
job order the means and frequency with which the employer plans to make
contact with the worker to monitor the worker's well-being if there are
periods when the worker is stationed in locations where electronic
communication devices may not operate effectively. Subparagraph (ii)
also clarifies that such contact must include either (1) arrangements
for workers to be located in geographic areas where electronic
communication devices can operate effectively on a regular basis, or
(2) arrangements for regular, pre-scheduled, in-person visits between
workers and the employer, which may include visits between workers and
other persons designated by the employer to resupply the workers' camp
(e.g., ``camp tenders''). The Department concludes that this provision
provides a suitable solution to the concern--acknowledged by many
commenters--that range sheep, goat and cattle herders often work in
isolated areas where electronic communication devices will not function
at all times. Comments from employers also indicated that many
employers are currently complying with this requirement and that this
practice is effective in providing workers regular contact with the
employer. One commenter suggested that employers that station workers
in pairs while in areas with unreliable or no cell phone service should
be required to make in-person contact with only one worker in the
working pair. The Department concludes that in such instances, in-
person contact with only one member of the working pair is sufficient
for purposes of establishing an alternative means of communication for
the second worker, but only if in making in-person contact with the
first worker, the employer verifies the health and safety of the second
worker. This rule adequately protects each worker employed, while
responding to the employers' need for efficiency and flexibility.
Additionally, the disclosure requirements in the Final Rule will serve
to inform workers on how best to seek help in the event of an
emergency, and provide a suitable solution to the concern--acknowledged
by all--that range herders and livestock production workers often work
in isolated areas where electronic communication devices will not
function at all times.
In light of the comments from numerous employers and employer
associations about the need for flexibility in determining the best
method for providing workers access to emergency services, the Final
Rule does not mandate the use of a specific electronic communications
device. The Department has also decided not to require employers to
provide workers access to satellite phones as a substitute for in-
person employer-initiated contacts. Comments received from employers
overwhelmingly rejected this approach, citing the costs and reliability
of satellite phones, as well as the need for flexibility. The
Department, however, clarifies that employers should consider and keep
up with advances in technology when selecting appropriate electronic
communication devices. A comment from the Western Watershed Project
asserted that employers must provide workers with working or
rechargeable batteries to power electronic communication devices for
the amount of time spent in remote areas. In response, we clarify that
the requirement to provide an effective means of electronic
communication means that the device must be operable at all times.
Therefore, the employer must provide the worker with an adequate power
source for the device.
The Department will require the standards set out above without
defining ``regular'' contact or imposing minimum in-person contacts,
but, as mentioned above, will require the employer to disclose the
frequency of contact in the job order. In the absence of evidence
demonstrating pervasive issues with worker access to emergency
services, a specific frequency requirement for in-person contacts is
unnecessary. This choice strikes a suitable balance between the
Department's legitimate interest in protecting H-2A sheep, goat and
cattle herders with the employers' need for flexibility in determining
the appropriate method for providing workers access to emergency
services.\13\
---------------------------------------------------------------------------

\13\ The Worker Advocates' Joint Comment urged the Department to
prohibit employers from opening workers' mail, which we note is
otherwise prohibited under federal law. See 18 U.S.C. 1702. They
also stated that employers sometimes prohibit workers from allowing
visitors (including healthcare professionals); using a radio, or
possessing reading materials. We conclude that there is no
reasonable basis upon which an employer should restrict a worker's
use of a radio or possession of reading material obtained at the
worker's own expense. With regard to access to visitors, this Final
Rule requires the employer to permit access to emergency personnel
to respond to worker illness or injury. We decline to set specific
federal standards here governing access other than to emergency
personnel. In accordance with the requirement to comply with all
applicable Federal, State, and local laws and regulations, employers
are reminded of obligations to adhere to local laws providing such
access.
---------------------------------------------------------------------------

iii. Tools, Supplies and Equipment
(1) Comments
Employers and their associations generally commented that employers
provide all the tools, supplies and equipment needed for the job, at no
cost to the workers. Some employer commenters listed examples of items
that are provided for their herders. For example, F.I.M. Corporation
commented that they provide free of charge ``clothes, medicine,
blankets, rain coats, boots, etc.'' Mule Head Growers commented that
their herders have ATVs and herding dogs, and that they provide all
other supplies requested by the herders. Cindy Siddoway of Siddoway
Sheep Company's comment listed the following items as necessary

[[Page 62980]]

to perform the work safely and effectively, ``[h]orses, tack equipment,
rain gear, guns, shovels, ax, various tools, sheep hooks, protective
clothing and eyewear, gloves, binoculars, flashlights, batteries,
lanterns, wood, and fuel.'' Another ranching operation buys what the
herders need including clothes, boots, and tools. Paul Nelson of Nelson
Bros. Farm stated that they make sure the herders have good clothes to
wear, warm hats and gloves, and tools needed to maintain the fences.
The Wyoming Farm Bureau Federation commented that ``[w]e believe that
it is important to have proper tools and equipment provided for the
worker as well as the necessary supplies for the work that needs to be
done. For instance, a saddle for the horse or leather to repair the
saddle or dog food for the herding and guard dogs.'' They requested
further clarification on the type of boots referred to in the preamble
to the NPRM. Larson Livestock commented their herders provide them with
a list of the supplies they want, and that the employer purchases the
items at no cost to the workers, ``with the exception of any personal
items they may order such as cigarettes, DVD players, etc.'' and
deliver the supplies to the workers at their sheep camps.
Employers and their associations commenting on this issue
emphasized that required tools, supplies and equipment will vary among
ranches due to differing climates, weather conditions, and assigned
duties. Items required by the employer on one ranch may be completely
unnecessary on another ranch due to the nature of the work. For
example, Eph Jensen Livestock commented that ``[w]ith the diversity of
size, location, and management practices of sheep ranches, it would be
impossible to make a checklist of items that need to be provided. This
is already monitored by the WHD and penalties are imposed for
violations.'' The employer further commented that, in its view, the
trouble is a lack of practical understanding in DOL investigations, and
recommended that in enforcement actions, employers should be allowed
the opportunity to explain why certain items were or were not provided.
Due to variety in the items required, several commenters opposed
including a list of typically required items in the regulation or in
the job order. For example, Billie Siddoway of Siddoway Sheep Company
commented that ``[b]ecause the provision of equipment varies among
ranches and among employees on each ranch, it would be preferable to
modify the proposed rule so that an exhaustive list of equipment is not
required. Rather, an employer should be able to state generally that
the equipment necessary to carry out the job duties will be provided.''
Ms. Siddoway further commented that ``[i]f the Department deems certain
equipment to be significant (e.g., horse, herd dog, guard dog, gun,
mobile telephone), then the employer could identify those specific
items in addition to the more general statement that necessary
equipment will be provided.'' Kay and David O. Neves, who own a sheep
operation, commented that they ``do provide items necessary for [the]
job'' but they ``do not think all these items need to be specified in
the job order. The statement that employers provide needed items should
be enough.''
Mountain Plains and Western Range commented that the tools,
supplies and equipment required to do the work safely and effectively
depends on the time of year or location of the work. They explained
that ``[t] he items suggested in the NPRM are among those used on the
range, binoculars, firearm, boots, rain gear, an ATV or four-wheeler,
and/or a horse, but this list should not be considered exhaustive nor
mandatory. During different times of the year or in different parts of
the West, some or all of these items would be strictly necessary while
others would be entirely useless.'' Mountain Plains and Western Range
further commented that including specific requirements of items to be
provided ``will not increase job safety or efficiency but would simply
provide a `gotcha' opportunity for ambitious plaintiffs lawyers.''
Additionally, some employer commenters noted that items provided
should be ``within reason'' and that the Department's proposal does not
take into account personal preferences or other factors. Sheep ranchers
John and Carolyn Espil stated that ``[i]t is doubtful that the DOL
investigators could, in the scope of their investigation, determine
whether the charge was for an item requested by the herder for his
personal possession or if it was an item that the employer should
provide.'' They gave the example of ``boots'' as a required item,
stating that the Department gives no variance for price of items,
personal preference or frequency of purchase. They commented that they
already provide all bedding, clothing and boots within reason, but that
the Department's proposal would eliminate all expense for the worker.
Eph Jensen Livestock commented that ``there has been no accountability
placed on the worker for neglect of tools or equipment that employers
provide.''
On the other hand, the Worker Advocates' Joint Comment suggested
that the regulation ``include an explicit non-exclusive list of such
items that are typically required by the nature of the work under [this
rule] to avoid employers circumventing this requirement with their own
interpretation'' of what is required by the job. As they explained,
foreign herders and range workers often bring little with them to the
United States because they have been assured that ``everything will be
provided.'' The Worker Advocates' Joint Comment stated that because the
TEGLs have never ``described the precise items that need to be provided
. . . there has never been a consistent understanding among the workers
and the industry of what this promise truly encompasses,'' so that upon
arrival in the United States, foreign workers learn that, while the
employer will purchase many of the items needed for the job, the cost
of the items is often deducted from the worker's pay. The Worker
Advocates' Joint Comment listed several items that they find are
required by the nature of the work to perform the job safely and
effectively and should be provided free of charge, including
binoculars, a rifle/gun, a knife, a trained horse, lighting, bedding,
outer wear to protect the worker from the elements, and disposable
gloves and disinfectant. They further recommended that, at a minimum,
the Final Rule should specify ``those categories of items that the
Department considers necessary for these jobs, such as `bedding' and
`outerwear to protect worker from elements.' '' The Worker Advocates'
Joint Comment also supported the NPRM provision requiring employers to
list the items that will be provided in the job order, as this will
``help employers clarify with the Department the kind of tools that
must be provided'' free of charge and ``the Department can then review
whether an employer's job order specifies many of the common items
discussed above and require clarification or correction of any
deficiencies.'' They further recommended that the job order include the
list they suggested of specific items and blank lines for any
additional items.
(2) Discussion
As explained in the NPRM, although the H-2A regulations currently
require employers to provide, free of charge, all tools, supplies and
equipment necessary to complete the duties assigned, Departmental
investigations have found instances where employers have failed to
supply the necessary tools, supplies and equipment for the job, such as

[[Page 62981]]

boots, raingear or an ATV. 80 FR at 20304. The Department has also
found instances where employers charged the workers for such tools,
supplies or equipment, bringing the workers below the required wage.
Id. To address these issues, the NPRM proposed that employers must
provide tools, supplies and equipment required by the law, the
employer, or the nature of the work to perform the job safely and
effectively, and these items must be provided free of charge or deposit
charge. Id. The NPRM also proposed to require employers to disclose in
the job order those items that will be provided and inquired whether it
would be helpful to include a list of typically required items in the
regulations. Id.
Based on the comments received, the Final Rule retains the NPRM
provisions as proposed, and does not include a specific list of
typically required items in the regulations. The Department concludes
that it is appropriate to specify in the Final Rule that employers must
provide, free of charge or deposit charge, all tools, supplies and
equipment required by law, the employer, or the nature of the work to
perform the job safely and effectively and to list which items will be
provided free of charge or deposit charge in the job order. The
comments reflected that although many employers provide all necessary
items and provide them free of charge or deposit charge, it is helpful
to include in the Final Rule the requirement that the employer must
provide all tools, supplies and equipment free of charge, because it
provides clarity to workers and employers on the types of items
considered required for herding and range production of livestock
occupations. If items are only required at certain times of the year,
the employer is only required to provide those items during those
periods. However, DOL concludes that it is necessary for the employer
to disclose that those items will be provided in the job order so that
workers are aware of which items will be provided prior to accepting
the job. If an employer wishes to further specify in the job order that
certain items will be supplied only during specific periods, DOL would
not object to this. Additionally, while the standard H-2A regulations
require employers to provide, free of charge, all tools, supplies and
equipment necessary to complete the duties assigned, the language ``by
law, by the employer, or by the nature of the work to perform the
duties assigned in the job offer safely and effectively'' provides
additional guidance on the type of items that must be provided free of
charge or deposit charge. This provision does not require employers to
provide items for the worker's entertainment, such as magazines, CDs
and DVDs, or other items that are not required by the job, but
employers may choose to do so. As many employers noted, they already
supply all items requested by their workers; the Department encourages
ranchers to continue to these practices. Some charge the worker for
personal items that the workers request, while others do not.
We further conclude that requiring employers to list which items
will be provided free of charge or deposit charge in the job order will
ensure that workers are aware of what items to expect to be provided,
in advance of accepting the job. Additionally, including this list will
serve to notify the Department of the types of items required in these
occupations, and, as noted by the Worker Advocates' Joint Comment, the
Department may review those items and ask for clarification or
correction of any deficiencies. In the event of an investigation, the
Department may review those items included in the job order; however,
the Department is not precluded from determining that additional items
not included in the job order were required for a particular worker
under the terms of the Final Rule. Additionally, we note that we
currently allow, and will continue to allow, an employer in an
investigation to provide its explanation of why certain items were or
were not provided.
Finally, as noted, we decline to include a list of typically
required items in the Final Rule. As demonstrated by the comments
received, the tools, supplies and equipment required by employers or by
the nature of the work will depend on a number of circumstances, such
as the terrain, the season, and the climate. As discussed above, the
requirement that employers list in the job order those specific items
that will be provided to herders will meet the goal of providing
information to workers and to the Department, while avoiding the risk
that specifically mandated requirements may become outdated,
unnecessary or irrelevant. We note that the term ``required'' in Sec.
655.210(d)(1) means all tools required by law, by the employer, or by
the nature of the work to perform the work safely and effectively. The
Department further notes that the preamble discussions here and in the
NPRM provide examples of items that may be required by the nature of
the work, such as boots, binoculars, a gun, an ATV, or a horse.
Additionally, Sec. 655.230 addresses range housing standards, and as
fully discussed in preamble Sec. IV.E., certain items are required to
be provided to meet those housing standards, such as bedding and
heating equipment (or protective clothing where appropriate). As with
all required tools, supplies and equipment, these items must be
provided to the worker free of charge or deposit charge and listed in
the job order.
d. Section 655.210(e)--Meals
i. Background
Currently, as required under the sheep and goat herding TEGL, and
pursuant to industry practice for the range production of cattle, H-2A
employers employing workers in these range occupations must provide
food, free of charge, to their workers.\14\ The TEGL for sheep and goat
herding established requirements for meals, and the cattle herding TEGL
was silent on the issue of meals, leaving the issue to be covered by
the standard H-2A regulations. The NPRM generally adopted the
requirements from the sheep and goat herding TEGL for all range
employers; we proposed to require all these employers to specify in the
job order and provide to the worker, without charge or deposit charge,
either three sufficient meals per day, or convenient kitchen facilities
and adequate food provisions to enable the worker to prepare his own
meals.\15\ The terms ``sufficient'' and ``adequate'' were new
introductions from the requirements in TEGL 32-10.\16\ The Department
also sought comment on what constitutes a sufficient meal for range
workers, given the physically demanding nature of their work, as well
as what constitutes adequate food given the remote location of these
workers. 80 FR at 20305.
---------------------------------------------------------------------------

\14\ Additional background and comments received about the
proposed requirement that food be provided without charge to workers
are discussed in Sec. IV.C. of the preamble related to setting the
herders' wage in Sec. 655.211 of the Final Rule.
\15\ Cooking and eating facilities are discussed in Sec. IV.E.2.
of the preamble, which addresses housing standards set in Sec.
655.235 of the Final Rule.
\16\ Additionally, we proposed to require that employers provide
workers with an adequate supply of potable water, or water that can
be easily rendered potable, and the means to do so, when working on
the range. The potable water requirement is discussed in Sec. IV.E.
of the preamble related to Sec. 655.235(b) of the Final Rule, which
establishes the requirements that employers must follow in supplying
water for range workers. We have added a cross-reference in Sec.
655.210(e)(2), which governs meal standards, to Sec. 655.235(b),
related to water standards.
---------------------------------------------------------------------------

The Final Rule maintains the requirement that employers must
provide either three sufficient meals a day, or furnish free and
convenient

[[Page 62982]]

cooking facilities and adequate provision of food to enable the worker
to prepare his own meals free of charge or deposit charge. The
Department is also revising the proposed rule to provide additional
guidance to employers on what constitutes ``sufficient'' and
``adequate'' meals and food. Under paragraph 655.210(e)(1) of this
Final Rule, to be considered ``sufficient'' or ``adequate,'' the meals
or food provided to range workers must include a daily source of
protein, vitamins, and minerals.
ii. Comments
Comments received from worker advocates, private citizens, an
industry magazine editor, a State government office, employers, and
employer associations reflect general agreement that employers should
provide range workers with ``adequate'' meals or ``sufficient''
provisions of food to prepare healthy, nutritious meals. For instance,
in their joint comment, Mountain Plains and Western Range stated that,
``[t]he physical demands of the job call for a protein-rich diet for
the hearty men that perform this work. . . .'' Billie Siddoway of
Siddoway Sheep Company, Inc. also stated that ``[d]elivering food is a
necessary part of range employment because employees do not have ready
access to shopping markets.'' Other employers agreed that range workers
``need and deserve good food'' and should be ``adequately fed.'' One
employer, in expressing his support for the proposal to require
sufficient and adequate food, opined that ``if the workers are happy,
well-nourished and content, they will properly care for our animals and
properties.''
Commenters disagreed, however, on whether employers are currently
providing adequate meals or sufficient food to range workers. Several
employers stated that they provide a variety of food, including meat
and fresh produce, and accommodate worker preferences for specific
foods and quantities. Billie Siddoway of Siddoway Sheep Company, Inc.
described their practice of providing hot meals and food to workers as
follows:

During the winter lambing season, we employ[] a cook who
prepares three hot meals each day. When the [workers] are on the
range, they prepare their own meals. On our ranch, each [range
worker] provides us with a grocery list. Every eight to ten days,
depending on terrain and conditions, we purchase the items on the
list and deliver them to the requesting [range worker].

This comment also noted that Siddoway provides meat to range workers,
such as lamb, mutton, elk, and buffalo, which are raised on the
Siddoway ranch. Other employers described having similar practices of
supplying food that is selected by the range workers and delivered by
the employer at intervals that vary depending on the season, terrain,
and other factors. At least one other employer indicated that he
employed a cook who delivered fresh, hot meals to workers three times a
day.
On the other hand, the Worker Advocates' Joint Comment reported
instances when food is not delivered to range workers in a timely
manner, and provides accounts of workers ``being sent by employers to
steal fruits and vegetables from the nearby orchards for their own
consumption.'' A private citizen also recounted instances where
employers have forgotten to deliver food supplies to range workers and
where employers have supplied food unfit to eat. One other private
citizen noted that she visited with range workers who reported going
over a month without receiving food from the employer.
The Department also received a number of comments about how and to
what extent the Final Rule should specify the employer's food provision
obligation. The Worker Advocates' Joint Comment emphasized that range
workers need sufficient quantities of food for health maintenance,
disease prevention, and preventing vitamin deficiencies. They stated
that the terms ``sufficient'' and ``adequate'' used in the proposed
rule do not provide clear guidance on the amount and kind of food
necessary for workers engaged in physically demanding work. Thus, they
requested that the Department require in the Final Rule ``a daily
source of protein and vitamins and minerals'' and that employers
provide range workers with ``fresh food when possible.'' They suggested
meats, beans, and eggs as permissible sources of protein, and fruits,
vegetables, and oils as examples of the remaining vitamins and
nutrients. The Worker Advocates' Joint Comment also requested that we
set minimum daily calorie requirements, variety recommendations, and
food safety standards using federal guidelines, including guidelines
from the National Institutes of Health and the U.S. Department of
Agriculture. Specifically, they stated employers should provide to each
range worker enough food to meet a minimum daily calorie requirement of
3,000 to 4,000 calories (or 21,000 to 32,000 calories per week), and
provide range workers with more food during periods when they are
engaged in higher levels of activity. One private citizen also
suggested that, given the difficulty with refrigeration on the range,
the Department should consider requiring employers to provide extra
food in order to take spoilage into account.
Comments from employers and employer associations, on the other
hand, requested that the Department adopt a flexible, case-by-case
approach in defining the employer's food provision obligations.
Mountain Plains and Western Range stated that food provision
requirements involving calorie counts or menus are unnecessary,
arbitrary, and would create ``a logistical nightmare'' for the
Department to enforce and for employers to comply with. They also noted
that each worker has his own preference for food, and a ``one size fits
all'' approach mandating a particular diet for range workers would
violate those preferences. One employer suggested that imposing calorie
requirements and food delivery is beyond the Department's purview. A
comment from the Wyoming Farm Bureau Federation suggested that the
Department should simply provide clear language about what the employer
is not required to provide (e.g., soda pop), rather than listing what
it must provide.
iii. Discussion
Based on the comments received, the Final Rule retains the proposed
standard, now found at paragraph 655.210(e)(1), requiring employers to
specify in the job order and to provide to range workers, without
charge or deposit charge, either three sufficient meals a day, or free
and convenient cooking facilities and adequate provision of food to
enable range workers to prepare their own meals. Comments from worker
advocates, private citizens, employers, and employer associations
revealed general agreement that, given the unique and isolated nature
of range herding, employers should be required to provide range workers
with adequate and sufficient meals and food.
The Final Rule also revises the proposed regulation by adding a
clause at the end of paragraph 655.210(e)(1), stating that to be
``sufficient'' or ``adequate,'' meals or food provided by the employer
must include a daily source of protein, vitamins, and minerals. The
Final Rule reflects a basic nutritional framework and also retains
employers' flexibility to accommodate workers' preferences, as well as
delivery and storage realities. Such a requirement is appropriate given
that range workers are often in isolated locations and entirely
dependent upon their employers for adequate food to meet their
nutritional needs. This provision also establishes a more objective
standard for employers to

[[Page 62983]]

evaluate the type of food that they must provide to range workers.
Having established the general parameters for minimum food
requirements, we conclude that further regulating food provisions by
mandating a specific calorie count or specific food delivery intervals
is unnecessary. In addition, a one-size-fits-all approach would create
significant difficulties given that workers' preferences may vary and
food delivery schedules may depend upon the location of work.
Nonetheless, we clarify that employers are encouraged to consult and
may rely on existing federal guidelines for minimum calorie counts,
variety requirements, and/or food safety standards when making
decisions about food provision, taking into account the physical
conditions and requirements of this work. We further clarify,
consistent with the proposal from the Worker Advocates' Joint comment,
that acceptable sources of protein include, but are not limited to,
meats, beans, and eggs, and acceptable sources of vitamins and minerals
include, but are not limited to, fruits, vegetables, and oils.
Furthermore, in meeting the food provision requirements under this
Final Rule, employers should strive to provide range workers with fresh
food when possible.
e. Section 655.210(f)--Hours and Earnings Statements
i. Background
The TEGLs for employers engaged in sheep, goat and cattle herding
require job orders to comply with the standard H-2A requirements,
``unless otherwise specified'' in the TEGLs. TEGL 32-10, 4; Attachment
A, I(B), (C); TEGL 15-06, Change 1, 4; Attachment A, I(B), (C). Both
TEGLs provide, with regard to earnings records and statements, that an
employer must keep accurate and adequate records with respect to
workers' earnings and furnish workers a statement of earnings on or
before each pay day (a requirement consistent with the standard H-2A
requirement, see 20 CFR 655.122(k)). The TEGLs further provide that,
because ``unique circumstances'' (i.e., on call 24/7 in remote
locations) prevent the monitoring and recording of hours actually
worked each day as well as the time the worker begins and ends each
workday, the employer is exempt from reporting on these two specific
requirements at 20 CFR 655.122(j) and (k). However, all other
regulatory requirements related to earnings records and statements
apply.'' TEGL 32-10, Attachment A, Section I(C)(7); TEGL 15-06, Change
1, Attachment A, Section I(C)(5).
The NPRM proposed to limit the special exemption from the standard
recordkeeping requirements to the days ``when the worker is performing
duties on the open range.'' 80 FR at 20340. The NPRM also proposed to
require employers to keep daily records indicating whether the employee
worked on the open range or on the ranch or farm, and to require
employers to ``keep and maintain records of hours worked and duties
performed over the course of the day when the worker is performing work
on the ranch or farm.'' 80 FR at 20340. Finally, the NPRM proposed to
require employers who chose to prorate a worker's wage, based upon the
worker's voluntary absence for personal reasons, to keep a record of
the reason for the worker's absence. Id.
The NPRM stated that, because the proposal requires a monthly wage,
keeping and maintaining records of hours worked was not necessary for
days spent on the range. 80 FR at 20305. The daily record of where the
work was performed would be sufficient for the Department to assess
compliance with the requirement that at least 50 percent of the
worker's days be spent on the range. The preamble clarified that, where
an employee spends some portion of the day on the range and some
portion on the ranch, the day would count as a range day or a ranch day
depending upon where the employee spent a majority of the hours worked
during the workday. 80 FR at 20306. The NPRM explained that the
proposed requirement to keep a record of the hours the employees worked
and the duties performed for days spent on the ranch or farm would
allow the employer and the Department to determine whether work that
did not fall squarely within the definition of the production of
livestock satisfied the proposed requirement that it be minor,
sporadic, and incidental (i.e., occurring during no more than 20
percent of the workdays spent at the ranch). The proposed requirement
to record the duties performed at the ranch similarly was intended to
allow ``the Department to distinguish herder- or livestock production-
related ranch work from unrelated ranch work to determine whether the
work performed at the ranch is in compliance with the job order and the
applicable wage rate.'' Id.
As discussed in Sec. IV.A.3. of the preamble related to Sec.
655.201, the Final Rule eliminates the 20 percent cap on the
performance of minor, sporadic, and incidental duties while workers are
on the ranch or farm; therefore it also eliminates the requirement to
maintain records of hours worked and duties performed while on the
ranch or farm. The Final Rule retains the NPRM's other requirements to
record whether each day is spent on the range or the ranch and, if the
employer chooses to prorate the required wage, to record the reason for
the worker's absence.
ii. Comments
Many employer commenters objected to the recordkeeping requirements
associated with the proposed 20 percent cap on directly and closely
related duties while at the ranch. In some cases their concerns were
based upon a misunderstanding of those requirements. For example, some
commenters thought the proposed rule required them to keep track of the
number of hours that workers performed each individual duty while at
the ranch, or at least to track the time spent on directly related work
versus actual livestock production work, rather than simply to record
the total hours worked each ranch day and a description of the duties
performed during the day. Thus, one herding employer, Martinez
Livestock, stated that requiring the employer to individually itemize
each of the incidental chores and the time spent would be time
consuming. The Colorado Wool Growers Association commented that the
performance of additional related chores should not ``require the ranch
to keep an onerous set of records, parsing out every single activity.''
Another rancher stated that ``[k]eeping track of time an employee works
in a particular situation or site makes no sense!'' Other commenters
specifically opposed any additional requirement to keep records of work
performed on the range, stating that the added burden would be
unnecessary and impractical.
Other commenters addressed the proposed recordkeeping requirements.
For example, the American Farm Bureau stated that keeping ``hourly
records for work performed at the ranch and daily records of the work
performed on the range'' was burdensome and the Department ``has
presented no evidence that farmers have been using herding workers on
the ranch more than the allowed 20 percent time.'' The Utah Farm Bureau
Federation and the Michigan Farm Bureau agreed and further concurred
with the statement that the proposal would be particularly burdensome
for small ranchers; they stated that such family businesses do not have
a human resources department for support, and they may not be familiar
with the FLSA recordkeeping requirements because one H-2A worker may be
their only employee. Another

[[Page 62984]]

ranch owner stated that trying to regulate hours and document what
workers do every day is not practical, because animals can become sick
and then ``the next 2 days is spent setting up corrals, treating
animals along with all the normal daily chores . . . 20 different
unexpected events can happen in one day!'' Another owner stated that
the requirement to quantify hours spent on actual livestock tending,
and the need for extensive record-keeping, is not practical or
productive.
Many other commenters agreed. For example, John Espil Sheep Company
stated that keeping track of their workers' time hourly or daily would
be extremely difficult or impossible, both on the range and at the
ranch, because every day is different. Another sheep rancher commented
that the workers irrigate pastures, harvest livestock feeds, maintain
fences, clean corrals, doctor sheep and feed them, and it would be
``absurd'' to require recordkeeping for this work.
In contrast, Billie Siddoway, on behalf of the Siddoway Sheep
Company, stated that it ``would not be unreasonable to track the days
each employee works on the range or the ranch,'' but that it would be
onerous to track hours of work and duties performed every day when
workers are on the ranch. This commenter suggested that if an employee
undertakes minor, sporadic or incidental work outside the definition of
herding, ``the employer could track those hours and job duties only''
in order to allow the Department to evaluate compliance with the 20
percent rule. This commenter further stated that it ``would not be
unreasonable to track the hours and duties associated with'' such
incidental tasks as erecting temporary pens and corrals in anticipation
of the lambing season, and that limiting the reporting requirement to
only incidental work would likely lead to more accurate reporting.
In contrast to the comments by employers or their representatives,
the Worker Advocates' Joint Comment suggested that the normal
recordkeeping requirements should be extended to these workers,
regardless of where the work is performed, so that start and stop times
(including for responses to emergencies), total daily hours, and duties
would be recorded even for work on the range. They stated that this
would allow a more accurate assessment of the appropriate number of
hours per workweek to use for the monthly wage computation, and it
would allow for enforcement of the hourly AEWR if workers perform
duties that fall outside the scope of these regulations, such as if
workers are required to repair irrigation ditches or harvest hay. They
stated that relieving employers of the standard requirements to
maintain ``records reflecting daily hours and job duties for open range
work incentivizes misclassification.'' They also asserted that
``[w]ithout recordkeeping requirements, the Department cannot monitor
compliance with those requirements,'' and that workers ``face the
daunting task of having to reconstruct covered and uncovered work hours
and of having to convince a judge or jury that they are telling the
truth'' when they seek to recover back wages at the higher hourly AEWR
rate. In the alternative, they sought clarification that the exemption
from normal recordkeeping applies only when the worker spends an entire
day on the range and not when both range and ranch duties are performed
during a single day. The Worker Advocates' Joint Comment also noted
that any burden from the extra recordkeeping would fall on the
employees, not the employers, but that it could involve a simple daily
timesheet or calendar that the employer collected each month. Finally,
they stated that employers already have timekeeping systems for their
other employees, and that the new requirements would add little cost
but would provide records important for monitoring and enforcement. The
Western Watershed Project concurred that records of actual hours worked
should be required.
iii. Discussion
The Final Rule retains the proposed requirement to track days at
the ranch versus days on the range because that is essential to
allowing the employer, and the Department if necessary, to assess
compliance with the requirement that a majority (more than 50 percent)
of the workers' days be spent on the range in order for these rules to
apply. Moreover, that requirement imposes only a minimal recordkeeping
burden. We understand from the comments that employees generally will
work on the range for several months at a time, and then they may be on
the ranch for two months, such as for lambing, before again leaving for
months on the range. Because the employer simply needs to record (by,
for example, checking a box) where the employee worked each day, and
because that response will be the same for months at a time, the burden
is inconsequential. Moreover, the employer commenters did not object to
this aspect of the proposal.
The Final Rule also retains the NPRM's requirement to record the
reason for a worker's absence, if the employer chooses to prorate the
required wage. The required wage may be prorated only if an employee
voluntarily is unavailable for work for personal reasons, such as to
return home due to a family member's illness. The notation of the
reason for the worker's absence will allow the Department to verify
whether any deduction that the employer chooses to make from the
worker's required wage was made for appropriate reasons. The need to
make such an entry is likely to arise only very rarely and for very few
workers; therefore, the burden is minimal. Moreover, employer
commenters did not object to this requirement. Accordingly, the
Department retains the requirement so that it will have available for
later review a contemporaneous explanation for any deductions from the
required wage.
The Final Rule eliminates the proposed requirement to maintain
records of hours worked and duties performed while on the ranch or
farm, because the Final Rule eliminates the proposed 20 percent cap on
the performance of minor, sporadic, and incidental duties while workers
are on the ranch or farm. The proposed requirement to track duties
performed at the ranch was intended to allow the Department to monitor
compliance with the 20 percent cap, by preserving a record of the tasks
performed each day, so it could be determined whether the tasks were
solely those that fell squarely within the definition of the production
of livestock or also included some tasks that simply were closely and
directly related to herding or the production of livestock. The
proposed requirement to track the hours worked while at the ranch was
intended to provide the basis for a remedy for a violation when workers
exceeded the 20 percent cap. In light of the decision to remove the
proposed 20 percent cap from the Final Rule, the associated
recordkeeping requirement is no longer necessary for these purposes.
The Department recognizes that records regarding the duties
performed and the hours worked would be relevant if the rancher
violates the rules by assigning duties to the workers that fall outside
the scope of the herding and range livestock regulations during periods
when they are not working on the range. Thus if an employer assigned a
worker general ranch hand work rather than work that falls within the
definition of the production of livestock (which includes all duties
that are closely and directly related to the herding or production of
livestock), records of the hours worked would be relevant to
determining the appropriate

[[Page 62985]]

remedy for such a violation. That benefit has to be weighed against the
burden imposed on all employers by mandating such daily record-keeping
regarding both total hours and the length of time various duties were
performed. Imposing that burden does not seem necessary because, if
such a violation occurs, the Department's enforcement experience
demonstrates that it can obtain the information necessary to prove such
violations, including the information necessary to reconstruct hours to
compute back wages, via worker and employer interviews during an
investigation. For example, a broad variety of routine business records
could provide an indication whether the worker and the herd were at the
ranch or the range during various periods (depending upon the
particular rancher's production methods), such as contracts with wool
shearers, contracts with truck drivers or those purchasing lambs,
veterinarian bills, water bills, gasoline bills, electric bills, and
cell phone records. The Department's experienced investigators use all
relevant records, as well as the results of their interviews, when
evaluating the facts of cases in which time records do not exist or are
inaccurate.
f. Section 655.210(g) and (h)--Rates of Pay and Frequency of Pay
i. Background
The wage rate required by the standards in Sec. 655.210(g) of this
Final Rule is also discussed in Sec. IV.C. of the preamble related to
the wage methodology standards in Sec. 655.211, which also governs the
applicable wage rate. In addition to the many comments received on the
wage methodology, we received a handful of comments on paragraphs
655.210(g) and (h) related to commissions, bonuses, and other
incentives, and pay frequency and access.
The TEGLs do not address the issue of whether an employer may pay a
wage rate based on commissions, bonuses, or other incentives. Under the
standard H-2A rules, at 20 CFR 655.122(l)(1), employers are barred from
offering or paying a wage rate based on commissions, bonuses, or other
incentives unless the employer guarantees and pays at least the
required wage for each pay period. Section 655.210(g)(1) of the
proposed rule departed from the standard H-2A requirement, and barred
pay rates based on commissions, bonuses, or other incentives entirely.
The proposed rule further clarified that all payments must be made free
and clear without any authorized deductions. Recognizing that herders
are often paid through direct deposit or wire transfer given the remote
nature of the work, the preamble further provided that if the employee:

voluntarily requests that the employer deposit the wages into a bank
account or send a wire transfer back to the worker's home country,
for example, the employer is still responsible for ensuring that
wages are paid when due. The employer may not derive any benefit or
profit from the transaction and must be able to demonstrate that the
wage payment was properly transmitted to and deposited in the
designated bank account or recipient on behalf of the employee.

80 FR at 20306. On the issue of pay frequency, Sec. 655.210(g) and (h)
of the NPRM continued a long-standing practice based on the TEGLs and
required workers to be paid not less frequently than monthly. We
specifically invited comment on the issue of how frequently workers
should be paid. Id.
ii. Comments
A few employers commented on the prohibition of wage rates based on
commissions, bonuses, or other incentives in the NPRM. The joint
comment from Vermillion and Midland opposed this requirement. This
comment pointed out that a flat prohibition was inconsistent with the
rule in the rest of the H-2A program and stated that such payments
should be permitted, provided that the employer guaranteed the required
wage. Siddoway Sheep recommended that DOL permit employers to withhold
a portion of wages as an incentive for the employee to complete the
contract period and to discourage workers from leaving to work in other
industries. A third employer, Lava Lake Land & Livestock, stated that
it was ``the American way'' to pay for performance and stated that such
payments should be permitted if disclosed in the job order and
advertised. This employer stated that the required wage should be
assessed on an annual basis so that any bonuses could be counted toward
compliance with the wage requirement.
We received only a few comments on the issue of pay frequency. Both
Edward Tuddenham, an attorney who represents workers, and the Worker
Advocates' Joint Comment stated that DOL should require workers to be
paid at least twice monthly, consistent with the requirements in the
rest of the H-2A program. See 20 CFR 655.122(m). They expressed the
view that payment no less than twice monthly was preferred by workers.
One individual employer stated that its herders had never requested to
be paid more frequently than monthly but had sometimes asked for
advances on wages. This employer asserted that it did not object to
paying its workers more frequently than monthly if they would prefer
that.
Both the Worker Advocates' Joint Comment and the Tuddenham comment
further requested that DOL take additional steps to provide workers
with ``real access to their wages.'' These commenters expressed
concerns that workers are not provided with the means or time off to go
to the bank or check cashing facility and thus are overly dependent on
their employers in accessing wages. The Worker Advocates' Joint Comment
noted that workers typically either receive wages by direct deposit or
have wages sent directly to their families in their home countries.
This comment recommended that DOL require by regulation that employers
offer the worker the option to receive wages by check, cash, or direct
deposit, and asked that DOL require employers to provide workers with
physical access to banking facilities. Both comments asked DOL to
impose additional regulatory standards, such as requiring by regulation
that, if direct deposit is used, all banking information be provided to
the worker, and that the worker be provided with the necessary bank
cards or other items needed to withdraw these funds.
iii. Discussion
On the issue of bonuses, commissions, and incentives, we agree that
the standard H-2A rule should apply. See Sec. 655.122(l)(1).
Accordingly, under this Final Rule, employers may make payments based
on bonuses, commissions, and incentives provided that the full rate
required by Sec. 655.211 of this Final Rule is guaranteed and paid
when due. In addition, we agree that the full offered wage rate,
including any commissions, bonuses, or incentives, must be included in
the job order and advertised to U.S. workers, because U.S. workers must
be apprised of the full wage offered through the job opportunity.
We decline to adopt the other recommendations suggested by
commenters regarding commissions, bonuses, and incentives. As explained
in the preamble to the NPRM, the requirement to pay the required wage
necessarily means that payments must be made when due to the worker (in
this case, twice monthly, as discussed below). 80 FR at 20306.
Authorizing employers to withhold a portion of the workers' pay after
work has been performed would be wholly inconsistent with this
requirement and with the standard H-2A regulation. The

[[Page 62986]]

recommendation that DOL only examine whether the required wage rate has
been met at the end of the year would have the similar effect of
permitting employers to withhold wages due for work performed and is,
therefore, rejected.
We agree with the comments recommending that we use the standard H-
2A pay frequency, and the Final Rule requires that payments be made at
least twice monthly. See Sec. 655.122(m). No employers objected to
more frequent intervals beyond a single monthly payment, and
calculating the twice-monthly payment can be easily accomplished by
evenly dividing the required monthly rate into two payments.
On the issue of access to wages, we note that generally payment
must be in the form of cash or instrument negotiable at par (i.e., cash
or cash equivalent). See 29 CFR 531.27. WHD has interpreted this
requirement to provide that payment may only be made through direct
deposit with the worker's consent and only if the workers have the
alternate option of receiving payment through cash or check. See WHD
Field Operation Handbook 30c00(b) (June 30, 2000). The same requirement
would apply to the voluntary assignment of wages through wire transfers
to a designee of the worker. See WHD Field Assistance Bulletin 12-3
(May 17, 2012). Neither these general rules nor the regulatory
requirements of the general H-2A and H-2B programs require that the
employer provide workers with options for how to receive their pay,
provided that the worker receives payment either in cash or through an
instrument negotiable at par.
We decline to accept the invitation to develop special rules for
the types of payments required to be made to workers in these
occupations or to set intervals at which workers must be provided
physical access to banking facilities, which would go beyond DOL's
obligation to set standards that will protect against adverse effect to
U.S. workers. However, given the remoteness of the physical location of
work covered by this rule, we encourage employers to continue what
appears to be the widespread practice of providing the option for
workers to receive payments through wire transfers to a designee or
through direct deposit. We further clarify that, because direct deposit
may only be used where the worker elects it, an arrangement under which
the worker's pay is deposited into a bank account but the worker does
not have the information needed to access the bank account, such as the
account number, suggests that the worker has not consented to receive
payment through direct deposit. Therefore such an arrangement is not
permitted.

C. Section 655.211 Herding and Range Livestock Wage Rate

1. Background: The TEGLs and the NPRM Proposals
Under the standard H-2A program, an employer must pay the higher of
the hourly Adverse Effect Wage Rate (AEWR), which is based on the
combined wage rate for field and livestock workers reported in the Farm
Labor Survey (FLS) conducted by the U.S. Department of Agriculture
(USDA); the prevailing wage rate or piece rate; the State or federal
minimum wage; or an agreed-upon collective bargaining wage rate.\17\ 20
CFR 655.120(a).
---------------------------------------------------------------------------

\17\ The AEWR is established in order to neutralize any adverse
effect on U.S. workers resulting from the influx of temporary
foreign workers. Employment and Training Administration, Labor
Certification Process for the Temporary Employment of Aliens in
Agriculture and Logging in the United States, 52 FR 20496, 20502
(June 1, 1987); see also 75 FR 6884, 6891-6895 (Feb. 12, 2010). The
AEWR provides that the wages of similarly employed U.S. workers will
not be adversely affected by bringing in foreign workers.
---------------------------------------------------------------------------

Under the TEGLs, the AEWR for herder occupations is set at the
prevailing wage rate of U.S. workers based on surveys conducted by the
State Workforce Agencies (SWAs). For these herding occupations, the
wage rate from the prevailing wage survey has most often been a monthly
wage rate.
The NPRM proposed significant changes to the wage methodology
governing H-2A workers engaged in sheep, goat, and cattle herding. As
discussed in the NPRM, the dearth of information on the wages of U.S.
workers in these occupations has made setting the AEWR based on the SWA
surveys unsustainable. 80 FR at 20306-20308. Few employers provide U.S.
worker wage information in response to prevailing wage survey requests
for these occupations, making it difficult for SWAs to submit
statistically valid prevailing wage findings to OFLC. Under the TEGLs,
the SWAs use ETA Handbook 385 to collect prevailing wage results.
Employers are not required to report data in response to the survey
data request. Often, and almost always more recently, the SWAs
determine that there are no survey results or the survey does not yield
statistically valid results. Thus, for many years, the Department has
been unable to determine a statistically valid prevailing wage rate in
each State in which one is needed, requiring the OFLC Administrator to
use the survey results from another area or State to set the wage, or,
under earlier guidance, to set the wage based on a previous year's wage
rate. See Field Memorandum 24-01, TEGL 32-10, TEGL 15-06, and TEGL 15-
06, Change 1.
Because almost every State experienced years in which no wage
report could be statistically verified, wage stagnation across these
occupations has been the inevitable result in all but two States.\18\
Under the current procedures, wage rates are currently set at $750 per
month for sheep and goat herders in most States and $875 per month for
cattle in all States.\19\ The current minimum salary for sheep herders
in California is $1,600.34 per month, and, effective January 1, 2016,
the minimum monthly salary for sheep herders will be $1,777.98. Under
Oregon's minimum wage law, the required rate is $1,603.33 per month for
range workers (calculated based on the State minimum wage multiplied by
2,080 hours and divided by 12 months) and is adjusted annually based on
increases to the State minimum wage that are based on the CPI-U. Or.
Rev. Stat. 653.025(2).
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\18\ California and Oregon each have established wage rates
applicable to these occupations. See Cal. Labor Code 2695.2(a) (West
2003); Or. Rev. Stat. 653.020(1)(e), 653.010(9); see also Technical
Assistance for Employers in Agriculture, available at http://www.oregon.gov/boli/TA/pages/t_faq_taagric.aspx. Oregon's sheep and
goat herder wage rate for the H-2A program was, until recently, set
by a legal settlement in Zapata v. Western Range Association, Civ.
N. 92-10-25, 244L (Ore. 1994). However, Oregon's current
interpretation of its minimum wage law, which is applicable to these
occupations, requires a payment higher than that required by the
Zapata settlement. See http://www.oregon.gov/boli/TA/pages/t_faq_taagric.aspx.
\19\ Although the most recent determination for cattle herders
in Oregon was $875/month, the current wage rate required by the
application of the State minimum wage law in Oregon, see footnote
directly above, requires a significantly higher wage.
---------------------------------------------------------------------------

Unlike the requirements in the standard H-2A program, sheep and
goat herding employers are required to provide food to the workers free
of charge under TEGL 32-10. Although the current cattle production TEGL
15-06, Change 1, does not prohibit employers from deducting the cost of
food in accordance with the standard H-2A program regulations, since
2013 employers have been required to provided food free of charge based
on the wage surveys from the SWA. Labor Certification Process for the
Temporary Employment of Aliens in Agriculture in the United States:
Prevailing Wage Rates for Certain Occupations Processed Under H-2A
Special Procedures; Correction and Rescission, 78 FR 19019, 19020 (Mar.
28, 2013).
Section 655.211(a) of the NPRM proposed to require employers to

[[Page 62987]]

advertise, offer, and pay a wage that is the highest of the monthly
AEWR, an agreed-upon collective bargaining wage, or the applicable
minimum wage imposed by Federal or State law or judicial action. We
proposed to continue to use a monthly AEWR for these occupations
because of the difficulties in tracking and paying an hourly wage rate
to workers engaged in the herding or production of livestock on the
range due to the remote location of the work and the sporadic and
unpredictable nature of the duty hours on any given day.\20\ If the
AEWR was increased during the work period, and the new rate is higher
than the other wage sources considered, paragraph (a) of this provision
proposed that employers adjust the wage rate they pay based on the new
wage effective on the date of its publication in the Federal Register,
consistent with the approach in the standard H-2A program, and with
current requirements for these occupations. See 20 CFR 655.122(l)
(requiring the applicable AEWR or other wage rate to be paid based on
the AEWR or rate in effect ``at the time work is performed''); TEGL 32-
10, App. A at p. 1.
---------------------------------------------------------------------------

\20\ Employers are similarly exempt from the hourly minimum wage
and record-keeping requirements of the Fair Labor Standards Act for
these workers. 29 U.S.C. 213(a)(6)(E).
---------------------------------------------------------------------------

Paragraphs (b) and (c) of Sec. 655.211 set the proposed
methodology for establishing the monthly AEWR for these occupations.
Due to the challenges in obtaining valid SWA wage results and the
resulting wage stagnation from the existing methodology, we proposed to
use a different wage source to set the monthly AEWR--the combined
hourly wage rate for field and livestock workers from the FLS (``FLS-
based AEWR'') used for all other H-2A occupations. In order to derive a
monthly wage from this hourly rate, we proposed to use an estimate of
44 hours worked per week, which was a compromise between the pre-NPRM
submissions of an attorney representing worker interests, Edward
Tuddenham, and the three primary employer associations, Mountain
Plains, Western Range, and ASI.\21\ The 40-hour proposal from the
employer associations was based on the Zapata settlement, in which
employer associations agreed to pay sheep herders in Oregon on a
monthly salary basis, adjusted annually. The 48-hour estimate from Mr.
Tuddenham was based on a review of information provided by employers on
Form ETA-9142A about the number of hours employers expected herders to
work per week. Consistent with the approach in the sheep and goat
herding TEGL and the current SWA prevailing wage determinations for
cattle, the NPRM proposed that employers be required to provide food
free of charge.
---------------------------------------------------------------------------

\21\ These pre-NPRM submissions were included on the rulemaking
record and were available for public inspection and comment.
---------------------------------------------------------------------------

The NPRM further proposed a four-year transition of the new wage
rates, with full implementation at the beginning of year five (the NPRM
referred to this as a five-year phase-in). In many States in which the
current monthly wage rate for sheep and goat herders is $750, the NPRM
methodology would result in a required wage rate that triples (or more)
the current rate at the end of the transition period. See 80 FR at
20318, Exhibit 6.
For the reasons discussed below, and as we proposed in the NPRM,
this Final Rule requires covered employers to pay a wage that is the
highest of the monthly AEWR, an agreed-upon collective bargaining wage,
or the applicable minimum wage imposed by Federal or State law or
judicial action. However, based on a review of all the comments on the
rulemaking record, and for the reasons set out below, we have concluded
that it is more appropriate and consistent with the Department's
obligations under the INA to use the current federal minimum wage of
$7.25/hour, rather than the FLS-based AEWR, as the basis upon which to
set the monthly AEWR for these occupations. In addition, for the
reasons discussed below, we have made an upward adjustment of the
estimate of hours that herders work in a week, based on a review of
data collected from Form ETA-9142A. Accordingly, we will calculate the
monthly wage rate as: $7.25/hour multiplied by the revised 48-hour
estimate of hours worked per week. Under the Final Rule, the wage rate
for these occupations will be adjusted annually based on inflation, and
implementation will be transitioned over two years, with full
implementation at the beginning of year three. Finally, the Final Rule
requires employers to provide three adequate meals without charge to
the range workers.
2. The Wage Methodology: Review of Comments and Discussion
a. Comments and Discussion of Section 655.211(a)
DOL received only a handful of comments on proposed paragraph
655.211(a) of the wage methodology. We received no comments on the
requirement that an employer pay the collective bargaining agreement
wage only if it is the highest applicable wage, which is consistent
with the standard requirement governing the H-2A program, and no
commenters objected to the requirement that the employer pay a higher
applicable State or Federal minimum wage. In addition, Western Range
and Mountain Plains incorporated the requirement to pay a higher
applicable State wage into their joint wage proposal, which was
supported by the ASI and many individual employers, which is discussed
in greater detail below. Therefore, we retain these requirements as
proposed in Sec. 655.211(a) with only three clarifying edits. First,
the proposed rule stated that the State or Federal minimum wage applied
only if the wage was ``specific to the occupation(s).'' Because that
text might be read overly narrowly to exclude workers from a State or
Federally required wage if the wage was generally applicable to workers
(including herders engaged in the range production of sheep, goats, or
cattle), this Final Rule deletes that text from Sec. 655.211(a).\22\
Second, for clarity, we have removed from Sec. 655.211(a)(2) the
requirement to pay the adjusted monthly AEWR if it is ``higher than the
highest of the monthly AEWR.'' Because adjustments will now be based on
the Employment Cost Index for wages and salaries, as discussed below,
this provision is no longer necessary. Third, we deleted the statement
that the AEWR would be adjusted ``under the FLS'' because that survey
will not be the basis of the wage, as proposed. This paragraph requires
the application of State or Federal minimum wage law, if applicable,
but as discussed below, employers employing workers in these
occupations are currently exempt from application of the Fair Labor
Standards Act (FLSA) Federal minimum wage.
---------------------------------------------------------------------------

\22\ We have made the corresponding deletion of the phrase,
``specific to the occupation[,]'' in Sec. 655.210(g) as well.
---------------------------------------------------------------------------

Vermillion and Midland objected to the inclusion of the requirement
that a higher wage required by judicial action be paid because that
requirement is not included in the standard H-2A regulations, or in the
H-2B regulations. In their view, this requirement is unnecessary, would
encourage litigation, and creates the possibility of unpredictable wage
obligations. This requirement that a higher wage required by judicial
action be paid is consistent with ETA's years-long application of the
legal settlement from the Zapata case as the required wage for sheep
and goat herders in Oregon. Based on our experience with the Oregon
settlement, we disagree that this requirement will incentivize
litigation. In addition, we

[[Page 62988]]

note that even if the application of a settlement in a legal case
related to the applicable wage was not required by our regulation, an
employer would nevertheless be required to pay a higher wage if
required by a court order. Accordingly, we retain this requirement as
proposed.
We received a comment from one employer objecting to the
requirement that the new AEWR rate be paid upon announcement in the
Federal Register. Apparently not recognizing that this is a current
program requirement, this employer questioned how employers would make
immediate adjustments to the new wage rates when their contracts
required a specified wage rate over a certain period. As discussed
below, the required wage will be adjusted annually based on inflation,
and following the transition period, we do not expect there will be
significant adjustments in wage rates required from year to year as
might have occurred under the TEGLs. As a result, we conclude that it
will not be unduly difficult for employers to adjust to the annual
changes. Because this requirement is our current practice, and
presently applies both to range herding employers and employers
governed by the standard H-2A regulations, we have decided to retain
this existing requirement. Accordingly, we maintain this requirement as
proposed.
b. Use of the Farm Labor Survey-Based AEWR To Set the Monthly Wage Rate
i. Comments Opposing Use of the FLS-Based AEWR
Generally, we received hundreds of comments opposing the use of the
FLS as the basis of the wage proposal from individual herding
employers; employer associations including Mountain Plains, Western
Range, and ASI; State and local government officials, including
Governor Mead of Wyoming and Representative Jaggi of the Wyoming House
of Representatives; others from Western States with a business interest
in the sheep industry, such as accountants for sheep herding employers
and wool processors; and SBA Advocacy. These comments primarily
provided objections based on the size of the proposed increase, which,
as noted previously, see 80 FR at 20318, Exhibit 6, would triple the
current wage rate in many States. These comments stated that the
proposed wage rate would jeopardize the entire herding industry. They
asserted that the wage increase would cause many employers to either go
out of business entirely or to downsize and greatly reduce the number
of workers employed. Many commenters stated that wages lower than those
proposed, and those required under the standard H-2A rules, were
appropriate to reflect other costs paid by the employer, including
food, housing, work supplies and protective clothing, and
transportation. Commenters expressed the view that current wages were
sufficient because H-2A workers continue to accept work at current
rates. Some commenters stated that low wages for these occupations were
justified, given that workers were not required to engage in productive
labor at all times while on the range, and had time for relaxation and
personal pursuits. The vast majority of comments were from commenters
affiliated with the production of sheep; few comments were received
specific to cattle herding, a much smaller part of the program compared
to sheep and goat herding.
The Colorado Wool Growers Association and others asserted that the
wage proposal was ``not grounded in the market realities'' of the
industry. Many employers stated that the wages proposed were too high,
given that the result would be payment of higher wages for herders than
for other workers in the U.S. economy, including ranch managers, or
that the wages paid substantially exceed what H-2A workers would earn
for the same work in their home countries. Some commented that because
food and housing are paid by the employer, foreign workers are able to
send their paychecks in full back to their home countries.
SBA Office of Advocacy reported that, based on its discussions with
small livestock and sheep herding operations in California, Colorado,
Oregon, Montana, Utah, and Wyoming, every business contacted predicted
that it would reduce its operations or close operations within a few
years. SBA Office of Advocacy cited a Mountain Plains Survey, in which
nearly every one of the association's 214 member respondents commented
that it would downsize or shut down operations because of the high wage
rates proposed. Individual employers and associations provided similar
reports. The following comment from one sheep herding employer, F.I.M.
Corporation, is illustrative:

For the period 2006 to 2013 our gross income from sales of wool,
lambs, sheep, and hay averaged about $1,100,000 per year. After our
operating expenses our net income averaged about 2.5% to 3% of gross
or approximately $35,000 per year. This proposed tripling of
sheepherder wages will require approximately $250,000 per year in
additional wage payments . . . . That much money is simply not
available so the Dept of Labor will force FIM Corp and most other
sheep producers that employ sheepherders to send the sheepherders
home and sell the sheep.

Some individual employers also submitted their profit-and-loss
statements in support of their comments that the wage increases in the
proposal could not be absorbed.
The Texas Sheep and Goat Raisers Association provided estimates
based upon the Idaho enterprise sheep budget \23\ showing that hired
labor comprises 24 percent of total operating costs for these
employers, and that a three-fold wage increase would result in an 80
percent reduction in profitability (from $83,000 in profit to less than
$17,000). Similarly, Mountain Plains and Western Range submitted an
analysis based on the Wyoming enterprise sheep budget and an analysis
of lamb and wool market trends for the past 20 years, which, in their
view, demonstrated that using the wage rate proposed would allow the
average sheepherding employer to break even only 30 percent of the
time, concluding ``[t]hat is an extinction scenario for employers . .
.'' The American Farm Bureau used data from the Utah enterprise budget
in its analysis, which similarly purported to show that the proposed
wage increase would result in a loss of $16,444. The Texas Sheep and
Goat Raisers Association and others commented that impacts from the
wage proposed would not be felt only by ranchers but also through
``multiplier'' effects in related industries, including by lamb
processors, wool warehouses, textile mills, trucking and feed
companies, veterinarians, and fencing businesses.
---------------------------------------------------------------------------

\23\ An enterprise budget is a listing of all estimated income
and expenses associated with a specific enterprise (i.e., single
crop or livestock commodity), which will provide an estimate of its
profitability and break-even values. Enterprise budgets are
developed and published on an irregular basis by university-based
agriculture extension services with inputs from ranchers on price,
yield, and costs.
---------------------------------------------------------------------------

Multiple commenters, including Mountain Plains and Western Range,
stated that because American wool and lamb represent a small fraction
of the world market (less than one percent of wool and meat production
worldwide, according to an analysis from Dr. Stephen Bronars submitted
with the Mountain Plains and Western Range comment), producers are
unable to pass increased labor costs on to consumers. In addition, the
Bronars analysis similarly provided that range cattle account for only
eight percent of world beef production.
Vermillion and Midland provided an economic analysis of the impact
of the

[[Page 62989]]

wage increases under the proposal performed by a national resource law
and economic policy analyst at the Linebery Policy Center for Natural
Resource Management. Largely relying on data from the NPRM, this
analysis contained little new data, but rather determined that the
total overall wage costs under the proposal would be greater for
employers with a larger number of workers than those employing the
three workers estimated in the proposal. The analysis asserted that
``[w]ith fluctuating prices for livestock products, and ever increasing
input costs, the cattle and sheep industries struggle to break even,
much less expect a profit.'' The analysis further concluded that the
wage increases would raise production costs to ``untenable levels'' and
stated that even in the highest price years ``the price volatility of
the livestock product market could make it difficult to absorb the
added wage increase.'' The analysis cited an earlier report for the
proposition that livestock operations are marginal, with net ranch
income per acre of $.55.\24\
---------------------------------------------------------------------------

\24\ See Seawolf, R., Fowler, J., & Schickedanz, J., The Legacy
of New Mexico Property Tax, RITF Report 81 (Jan. 11, 2011),
available at: http://aces.nmsu.edu/pubs/_ritf/RITF81.pdf.
---------------------------------------------------------------------------

In addition, in opposing the wage increase, the American Farm
Bureau Federation (American Farm Bureau) submitted an analysis of the
effect of the proposed wage rates based on historic price data from
2000-2014. That comment stated that prices for wool and lamb over the
past five years ($1.70/lb for lamb and $1.45/lb for wool) are
significantly higher (63 percent for lamb and 113 percent for wool)
than averages over the 10 preceding years ($1.04/lb for lamb and $.68/
lb for wool). Although the comment acknowledged that a wage increase of
the size set out in the proposal was ``manageable'' at current prices,
it provided alternate scenarios to evaluate the ability to absorb the
wage increase given average prices for the 2000-2014 period, as well as
the lowest prices for the 15-year period ($.80/lb for lamb and $.53/lb
for wool). At the 15-year average prices, the comment projected
significantly reduced profits in all States if the FLS-based AEWR was
paid as compared to the profits that would be achieved with current
wage rates; at the lowest prices for this period, the comment
forecasted a loss in all States if the full rate proposed in the NPRM
was paid compared to a slim profit with current wage rates. Further,
the Utah Governor's Office submitted a comment asserting that because
prices per lamb have increased from $67.94 in 1994 to $157.15 in 2014
(an inflation-adjusted increase of $48.61 according to the comment)
based on analysis from the Iowa State University Extension and Outreach
Program, the wage increase proposed could not be absorbed by
employers.\25\
---------------------------------------------------------------------------

\25\ See Schulz, Lee, Ag Decision Maker: Historic Hog and Lamb
Prices, File B2-10 (Feb. 2015), at Table 6, available at: https://www.extension.iastate.edu/agdm/livestock/pdf/b2-10.pdf.
---------------------------------------------------------------------------

Commenters opposing the use of the FLS-based AEWR used varying
economic data and budget sources in attempting to demonstrate that the
wage increase would force ranches to close and the industry to contract
significantly. Overall, DOL received comments reflecting significant
variation in estimates of wage costs through the American Farm Bureau,
the Wyoming and Idaho budgets provided by commenters, and the estimates
of individual commenters. Some provided analysis of wage costs compared
with overall revenue to show the impact. Others used ``labor costs,''
for purposes of comparison, which may include other expenses such as
housing or food, making any analysis of the impact of the wage increase
necessarily imprecise. Further, while it also opposed the wage
increase, the American Farm Bureau comment provided less dire
predictions than other commenters or the Wyoming and Idaho analyses.
In addition to economic objections, many of these employers and
associations further objected to the wage increase based on their view
that the limited number of U.S. workers in these occupations foreclosed
the need to provide for any adverse effect. According to Western Range,
in 2012 twenty-two U.S. workers applied for 1,000 openings. Western
Range stated that only two U.S. workers were ``qualified'' and were
hired, and neither completed the job contract. Mountain Plains stated
that in more than 1,000 openings in 2014, only two qualified U.S.
workers applied. According to Mountain Plains, one U.S. worker was not
interested in the job and the other was hired but quit before
completing his contract.
Further, Mountain Plains and Western Range commented that, based on
their experiences, higher wages in California have not resulted in
increased numbers of U.S. workers applying for jobs in these
occupations. According to these associations, since 2011, Mountain
Plains has received 18 applications for approximately 400 sheepherder
or goat/sheepherder positions in California. No similar data was
provided for Western Range. The comment stated that of those 18
prospective workers, 10 were not qualified for the work and the
remaining eight withdrew their applications because they were not
interested in the job. According to these commenters, in their
experience, there are actually fewer applicants in California and fewer
U.S. workers who take the jobs advertised there as compared to states
like Wyoming or Colorado.
Many employers and associations expressed the view that U.S.
workers are unwilling to perform this work due to the remote nature of
the work rather than because of low wages, and some expressed
disappointment with what they view as the unreliability of the few
qualified U.S. workers who apply, stating that they often do not
complete the work contract. Other commenters, such as the Utah Farm
Bureau Federation, misunderstood the data in the proposal, and stated
that the Department ``concedes'' that there are only 18 U.S. workers in
range herding occupations because 18 U.S. workers were included in the
2014 SWA sheep herding surveys and worked in States with a
statistically reportable wage. On the other hand, one SWA employee
expressed the view that ``[q]ualified job seekers often give low wages
as one of the reasons they do not apply for these jobs, even though
housing and meals are also provided. The number of U.S. job applicants
has decreased over the past few years. Increased wages could help to
encourage more worker interest in the jobs.'' In addition, several
employers noted that they have hired U.S. workers, with varying degrees
of success. Further, one herding employer admitted that it could not
attract U.S. workers because ``Americans don't like the conditions or
low pay.''
Finally, some commenters also objected to the FLS-based AEWR based
on their view that it was inappropriate as a wage source for these
occupations.\26\ For example, the New Mexico Department of Agriculture
and Wyoming Department of Workforce Services objected to the use of the
FLS-based AEWR on the view that the rate is based on ``generic
agricultural operations'' and not specific to range herding. Similarly,
Western Range and Mountain Plains expressed the view that the FLS is
``a survey of aggregated farmworker positions except herders. Those
positions pay by the hour, and do not provide housing or food, making
those rates of pay completely inapposite to the range production of
livestock.''

[[Page 62990]]

Mountain Plains and Western Range asserted that the AEWR was a measure
of ``take home pay'' from which U.S. agricultural employees need to pay
a number of expenses not applicable to workers in these occupations.
One herding employer stated that it has provided wage data on its
workers for purposes of the FLS ``for many years'' but nevertheless
objected to the FLS-based AEWR because, in its view, DOL had not
properly consulted with USDA before proposing use of the FLS for these
occupations and because H-2A workers receive additional ``benefits''
not paid to other workers. Siddoway Sheep stated that the use of the
FLS-based AEWR was arbitrary because in its view sheepherder wages have
always been ``well below average,'' and instead asked DOL to conduct a
comparison of the wage rate from the FLS with the monthly herding AEWR
from a point ``when adequate information regarding sheepherders was
available'' and set the current wage based on that historic but, in
their view, valid differential.
---------------------------------------------------------------------------

\26\ Some employers also objected to the proposed wage based on
the misunderstanding that the proposal required payment for all
hours worked and tracking of hours on the range.
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ii. Comments Supporting Use of the FLS-Based AEWR
We received only a few comments in support of the wage proposal in
the NPRM, and most of the supportive comments were from individual
commenters, including a former SWA employee responsible for surveys
from the 1980s until 2005. We also received comments generally
supporting the wage proposal from groups such as Public Citizen, a
public interest group, and Western Watersheds Project, a project that
works to protect and conserve the public lands of the American West.
Most group comments, including the comment from Public Citizen, were
undetailed and expressed only general support. These commenters
asserted that the wage methodology was appropriate and necessary to
protect against adverse effect on U.S. workers. Similarly, while he did
not comment on the NPRM, Edward Tuddenham, an attorney representing
workers, submitted a comment before publication that is part of the
administrative record. That comment recommended either that workers be
paid for a set estimate of hours multiplied by the FLS-based AEWR rate
for time on the range and at the FLS-based AEWR for each hour spent in
non-range work, or be paid the FLS-based AEWR for all hours actually
worked regardless of location.
The Worker Advocates' Joint Comment was by far the most detailed
comment supporting the use of the FLS-based AEWR to set the monthly
rate. That comment characterized using the FLS-based AEWR to set the
monthly rate as a ``practical and commonsense approach.'' However, this
comment expressed the view that DOL's use of a transition to the FLS-
based AEWR in the proposed rule was misguided, and that requiring
anything less than immediate implementation would have an adverse
effect on U.S. workers performing work as ranch hands, who, like
workers covered by this rule, may also perform work that is closely and
directly related to the production of livestock.
This comment provided an analysis of purported data flaws in the
SWA survey methodology and asked that DOL take into account the
``immense losses'' from prior SWA survey use to immediately implement
the FLS-based AEWR as the base wage source. The comment attributed wage
stagnation to DOL's ``outdated'' methodology and to DOL's settlement of
various employer lawsuits over past wage increases, which in the
commenters' view has been ``strongly pro-employer to the detriment of
workers in this area and justifies immediate ameliorative action.''
In support of the view that the FLS-based AEWR should be
immediately effective, the Worker Advocates' Joint Comment pointed to
several examples of jobs that, in their view, demonstrated that the
ranching industry already supports workers earning the full FLS-based
AEWR who perform similar work, particularly citing ``Sheep, Farmworker
General'' in Wyoming, ``Closed Range Herders'' in Texas, and ranch
hands performing livestock as well as other tasks. They further cited
wage rates paid by employers ``in states without large herder
populations,'' such as for Maine sheep farmers and sheep farm workers
in North Dakota (both paid on an hourly basis). Further, they noted
that California has a wage rate significantly higher than the current
TEGL wages in other States. Finally, the commenters conclude ``the
sustained scarcity'' of U.S. workers in these occupations:

is no doubt in large part a function of the fact that U.S. workers
have the freedom to earn at least the federal minimum wage of $7.25
per hour, which is substantially higher than the herder minimum
wage.

Several of these commenters asked DOL to require payment for all
hours worked, or at least for all hours worked when not on the
range.\27\ Western Watersheds asked that workers either be paid for all
hours worked or not be required to work longer than the hours estimated
by DOL. The Worker Advocates' Joint Comment stated that workers should
be paid the AEWR for all hours worked while living ``at or near the
ranch,'' based on the view that the exception to payment for all hours
worked should be limited to the circumstances animating the FLSA
exemption for this work, namely, that hours worked be extremely
difficult to calculate. Edward Tuddenham similarly supported that
workers should be paid for all hours at the ranch.
---------------------------------------------------------------------------

\27\ A single employer also stated that an hourly wage would be
appropriate during the shed lambing season.
---------------------------------------------------------------------------

iii. Discussion and Decision--Change in Wage Rate
After reviewing all of the comments, we conclude that using the
FLS-based AEWR to set the monthly wage for these occupations, which
would triple the wage costs of many employers, is likely to result in
adverse effect on U.S. workers by causing a substantial number of
herding employers to close or significantly downsize their operations--
leaving fewer herding jobs available to U.S. workers. Accordingly, we
select a different wage source in this Final Rule, as discussed in
greater detail below.
In reaching this conclusion, we do not base our analysis on a
single comment or set of comments, but on the record as a whole,
including data from budget documents submitted, reports from individual
employers and associations, and historic pricing data. We recognize
limitations on the data provided by employers, their associations, and
their other supporters. For example, in some instances, employers used
``labor costs'' to attempt to demonstrate the impact of a wage
increase, although labor costs may include more than just wages. In
addition, enterprise budgets, which we examined carefully, typically
include a line item for payment to the owner/operator, so that even
with reduced or eliminated profits, there is still some payment to the
owner. In addition, we cannot assume, as some commenters have done,
that all labor in the enterprise budgets is paid at the TEGL wage
levels. This is particularly true given that some H-2A employers noted
in comments that they pay workers more than the current TEGL wages. We
further recognize that only sparse data was provided on the impact of
the proposed increase for cattle employers, which comprise a small
subset of H-2A herding employers. However, despite these limitations,
based on the size of the proposed increase and the data provided, the
record provides a reasonable basis to conclude that the proposed wage
increase is too great to be borne by the industry, and thus will result
in adverse effect on U.S. workers

[[Page 62991]]

because fewer herding jobs will be available.\28\
---------------------------------------------------------------------------

\28\ Although the American Farm Bureau comment characterized the
proposed wage increase with prices at the current levels as
manageable, that is not determinative. We agree with the commenter
that it is more reasonable to look to data assessing historic swings
in prices. Examining those historic price swings helped guide our
conclusion that adverse effect on U.S. workers likely would result
from using the FLS-based AEWR.
---------------------------------------------------------------------------

As discussed further below, this Final Rule imposes a significant
wage increase on the industry as compared to the current, stagnated
wages required under the TEGLs, albeit of a magnitude lower than the
wage originally proposed. However, for several reasons we disagree with
worker advocates' comments that setting the wage based on anything
other than the Farm Labor Survey is inconsistent with DOL's obligation
to protect against adverse effect. First, although we acknowledge that
wages under the SWA survey methodology have been stagnant for some
time, we are concerned, based on the comments received, that the three-
fold wage increase in the proposal would, if implemented, likely result
in a significant number of employers choosing to down-size or close
their herding operations, resulting in adverse impact on U.S.
workers.\29\ Second, although worker advocates cite in support of the
proposed FLS-based wage other ranch jobs they view as similar and that
are paid the FLS-based AEWR, those occupations do not appear to be
primarily engaged in range work. To the extent that the worker
advocates cited range jobs in Texas to support the proposition that
ranchers overall can absorb a wage increase in the magnitude of the
FLS-based AEWR, the data provided either reflects a prevailing wage
rate significantly below the FLS-based AEWR or it is of such a small
sample size to be unreportable under existing guidelines. In addition,
we disagree with the suggestion that practices in sheep production ``in
states without large herder populations'' and without range workers are
relevant to the determination of whether employers using the current
special procedures can absorb an increase of the scope proposed. Nor
are we persuaded by the fact that some individual employers voluntarily
provide higher wage rates than will be required under this Final Rule
demonstrates that most employers will be able to absorb increases on
the scale proposed. Third, we agree that the California sheep herding
wage rates provide evidence that some employers can viably pay a higher
wage, as discussed further below, but it does not support setting wage
rates across the United States based on the FLS-based AEWR. Finally, we
conclude that although we use a lower wage rate than is required for
ranch hands, this will not have an adverse effect for U.S. workers
similarly employed. As discussed in Sec. IV.A.2. in the preamble, we
have further defined what work may be performed at the ranch under this
Final Rule to prevent herders from being used to perform general ranch
hand work. Given this protection, we conclude that the lower wage
established for herders will not displace U.S. ranch hands.\30\
---------------------------------------------------------------------------

\29\ We note that in its analysis of the SWA survey data, the
Worker Advocates' Joint Comment appeared to misunderstand data
presented in the NPRM. The comment stated that in the NPRM, 80 FR at
20314, DOL ``admitted'' that surveys with results of between 18 and
30 workers were insufficient. However, the NPRM was discussing the
total number of U.S. sheep herders identified in the SWA surveys
with reportable results located in the mountain plains/western
regions. This passage was not a discussion about the minimum sample
size for any individual State. For these occupations, a survey of as
few as six U.S. workers is consistent with the methodological
requirements of ETA Handbook 385, provided a sufficient number of
employers is represented by the sample.
\30\ Although we have decided not to use the FLS-based AEWR as
the basis for the wage in this Final Rule, we must clarify the
record with respect to two objections to its use for these
occupations. First, we note that the FLS does, in fact, survey the
wage of herding workers engaged in work on the range, though it is
likely that, because there are few workers in these occupations,
they may be a small portion of the sample in any State. Indeed, one
herding employer expressly acknowledged that it reports its workers'
wages to the FLS. In addition, while some commenters asserted that
the FLS-based AEWR is inappropriate for range occupations because it
fails to account for items such as meals, housing, transportation,
workers' compensation, and work supplies, we note that (with the
exception of meals), these items are also required to be provided
without charge by H-2A employers paying the FLS-based AEWR and
therefore do not support herding employers paying a lower wage. See
20 CFR 655.120(d)(1) (requiring housing to be provided to H-2A
workers and any U.S. workers in corresponding employment not
reasonably able to return to their residence within the same day);
20 CFR 655.120(e) (workers' compensation); 20 CFR 655.120(f) (tools,
supplies, and equipment); 20 CFR 655.120(h) (governing
transportation payment requirements). The reasons for applying these
requirements throughout the H-2A program are set out in the 2010 H-
2A rule, Temporary Agricultural Employment of H-2A Aliens in the
United States, Final Rule, 75 FR 6884 (Feb. 12, 2010) and earlier H-
2A regulations.
---------------------------------------------------------------------------

We further decline to require payment of the FLS-based AEWR for all
hours herders work while at the ranch. We note that this decision is
consistent with the FLSA exemption, which permits the exemption to be
taken for the entire year provided that the worker is ``principally
engaged in the range production of livestock.'' 29 U.S.C. 213(a)(6)(E).
Given the limitation on duties that may be performed by range workers
when they are working at the ranch as discussed in Sec. IVA.2., we
conclude that this is not likely to have an adverse effect on U.S.
workers at the ranch because ranch hands can perform a much broader
array of work duties. This is particularly true given that range sheep
and goat herders have traditionally been granted certifications for a
364-day period to tend the herd throughout the production cycle,
including times at the range and on the ranch. This practice is
continued in this Final Rule, which specifically provides that it
applies only to workers who spend more than 50 percent of the job order
period working on the range, further distinguishing these workers from
general ranch hands.
Finally, we decline to adopt Siddoway Sheep's suggestion that DOL
conduct a comparison of the wage rate from the FLS with the TEGL wage
from a point ``when adequate information regarding sheepherders was
available'' and set the current wage based on that differential. In the
absence of underlying records from historic SWA surveys, which are
unavailable, we cannot pinpoint the year when adequate information may
have been available. However, we reiterate that the TEGL wages have
suffered significant stagnation when compared to the FLS-based AEWR for
more than 20 years.\31\ Given this significant wage stagnation compared
to other H-2A occupations, it is appropriate to require a wage rate
under this Final Rule that is well above the TEGL levels in most
states. As discussed below, this Final Rule accomplishes that result.
---------------------------------------------------------------------------

\31\ For example, the Nevada TEGL wages were $700 in 1994 and
are currently $800, an increase of approximately 14 percent over two
decades. By comparison, the FLS-based AEWR for Nevada in 1994 was
$5.57 per hour, and the 2015 rate is $11.37, a greater than 100
percent increase. Labor Certification Process for the Temporary
Employment of Aliens in Agriculture in the United States: 2015
Adverse Effect Wage Rates, 79 FR 75839 (Dec. 19, 2014); Whittaker,
William G., Farm Labor: The Adverse Effect Wage Rate, CRS RL32861
(Apr. 14, 2005). Similarly, the 1994 sheep TEGL wage in Wyoming was
$700 and is currently $750, an increase of approximately seven
percent. By contrast, the hourly AEWR in Wyoming in 1994 was $5.59
per hour in 1994, and is now $11.14, nearly a 100 percent increase.
Id.
---------------------------------------------------------------------------

We are mindful of our statutory obligation to protect against
adverse effect to U.S. workers, even in cases where the number of U.S.
workers may be small. As a result, we are not persuaded by employer
comments suggesting that U.S. workers will not be qualified or
available for this work, regardless of the wage required.\32\

[[Page 62992]]

Although we agree that the remoteness of the job and skills required
are significant factors influencing availability of U.S. workers, it
would be unreasonable to conclude that wages are without any influence
on U.S. worker availability. As we have noted before with respect to
our certification of temporary foreign workers, a basic principle of
economic supply-and-demand theory is that in market economies,
shortages signal that adjustments should be made to maintain
equilibrium. Therefore, compensation should rise to attract more
workers where employers are experiencing a shortage of available
workers in a particular region or occupation. Wage increases may not
occur as expected because of the availability of foreign workers for
certain occupations, thus preventing the optimal allocation of labor in
the market and dampening increased compensation that should result from
the shortage.
---------------------------------------------------------------------------

\32\ Though several commenters viewed the data in the NPRM as
evidence that DOL had ``conceded'' there were at most 18 U.S.
workers in these occupations, this is a misinterpretation of the
data. The 2014 survey identified 18 U.S. sheep herders among the
States with a statistically reportable wage result located in
mountain plains/western regions of the United States. However,
overall in 2012, 25 workers were included in surveys of sheep
herders across those States. In addition, SWA surveys in other years
included a higher number of workers, including in 2015. In 2015, 19
U.S. sheep herders were identified in SWA surveys across the
mountain plains/western regions. In addition, because completion of
the SWA survey is not mandatory, there are likely a significant
number of additional U.S. workers not reported in the survey. For
example, in California in 2015, the SWA survey included 10 U.S.
sheep herders, and the SWA received a response from approximately 36
percent of sheep herding employers in the State. There are almost
certainly additional U.S. workers among the remaining 64 percent of
employers in that State. Finally, employers may have had an
incentive to not report wages of U.S. workers in some circumstances
because the TEGLs permit a different (and often lower) State wage to
be used in the event that the SWA survey did not report a wage
finding.
---------------------------------------------------------------------------

The experience cited by Mountain Plains and Western Range in
California (and by employers and others in other States)--that few U.S.
workers are available for these jobs--does not undermine this basic
economic theory for a number of reasons. First, we note that the Worker
Advocates' Joint Comment indicated that some employers are using
experience requirements as a basis to require references on letterhead
of a previous employer. Such a requirement would be difficult for U.S.
workers in many occupations, and this is even more true of U.S. workers
seeking work in herding occupations.\33\ In addition, though Mountain
Plains and Western Range state that, in their experience, fewer U.S.
workers apply for jobs in California than in other States even though
the wage is higher in that State, the evidence they provide is contrary
to the evidence from the SWA surveys, which suggest that higher wages
in California may, in fact, be attracting greater numbers of U.S. sheep
herders than in other states in the mountain plains/western regions of
the United States. In fact, California is consistently among the states
with the largest number of U.S. sheep herders identified in SWA surveys
in these regions. In 2012, California had the largest number of sheep
herders who were U.S. workers included in the SWA survey (10 in
California out of 31 overall); in 2013, it was tied for the largest
number of U.S. sheep herders in the SWA survey (13 in California out of
38 overall); in 2014, it was tied for the second largest number of U.S.
sheep herders in the SWA survey (three out of 25 overall); and in 2015,
it had the third largest number of U.S. sheep herders in the SWA survey
(10 out of 52 overall).\34\
---------------------------------------------------------------------------

\33\ We have clarified in Sec. IV.B.2.A. of this preamble that
such a written reference requirement cannot be imposed because it
may result in U.S. workers who are otherwise qualified being
rejected for work.
\34\ In addition, the SWA surveys suggest that a significant
percentage of California employers are hiring U.S. sheep herders. In
2012, approximately 13 percent (6/45) of sheep herding employers in
California responding to the SWA survey hired at least one U.S.
sheep herder; in 2013, that percentage was 16 percent (5/32); in
2014, that percentage was seven percent (2/29); and in 2015, that
percentage was 13 percent (4/30).
---------------------------------------------------------------------------

Further, that the TEGL wages are higher than those H-2A workers
could receive in their home countries should not have any bearing on
the wage set by DOL. This will ordinarily be the case with foreign
temporary workers. This fact supports, rather than refutes, DOL's
obligation to require that wages are set at a rate that will not
undercut the wages of U.S. workers, who have different economic
incentives than foreign workers and must support themselves in this
country, not abroad.
Finally, we have considered the commenters' anecdotal concerns
about the unreliability of the domestic workforce. However, even if
those concerns had been supported by more substantial evidence, the
potential costs that may be incurred as a result of U.S. workers
leaving before the end of the job order period are outweighed by the
benefit to U.S. workers, and by our statutory responsibility to provide
that U.S. workers continue to have access to these jobs.
c. Alternatives To Use of the FLS-Based AEWR To Set the Base Wage Rate
i. Comments on Alternatives
Where specific wage proposals were made by those opposed to using
the FLS-based AEWR as part of the formula to set the base wage, these
commenters generally either recommended that DOL not set any wage
minimum for these occupations, that DOL continue to use the TEGL
methodology, or that DOL adopt one of the two counter-proposals
submitted jointly by the three primary employer associations (Mountain
Plains, Western Range, and ASI), discussed further below. For example,
several ranchers asserted that the federal government should have no
role in setting wages for these occupations, but instead wages should
be based on the agreement between the worker and employer based on the
``market.'' Although some comments opposed any increase to current wage
rates, many, including ASI and a number of individual employers,
acknowledged that it was important for DOL to adopt a methodology to
address wage stagnation in these industries.
Mountain Plains and Western Range recommended that DOL either set
the monthly AEWR for these occupations based on an inflation-adjusted
value from the 1994 sheep TEGL wages cited in the NPRM or based on the
current FLSA minimum wage multiplied by a set estimate of hours,
recommendations that were endorsed by ASI and a number of individual
employers. This comment selected $800/month as the appropriate wage to
index, stating that it was the highest wage in the 1994 survey.\35\ In
support of using an inflation-adjusted TEGL methodology, the comment
asserted that the single problem identified in the NPRM with the TEGL
methodology was the lack of usable wage results from SWA surveys, which
has resulted in wage stagnation. The comment further cited the 1994
sheep wage data cited in the NPRM as data identified by DOL ``as the
last year for which such surveys were conducted with statistically
valid results.'' The comment clarified that its proposal would set a
national rate for herders, except that if a State had a higher required
rate, the State rate would apply. The associations justified a national
rate on the basis that given that living expenses would be paid by the
employer, differences in the cost of living in various states need not
be considered.
---------------------------------------------------------------------------

\35\ Arizona had the highest wage in 1994, and it was $820/
month. 80 FR at 20307.
---------------------------------------------------------------------------

For this approach, the associations recommended adjusting the 1994
TEGL wages using a capped version of the Bureau of Labor Statistics'
Employment Cost Index for wages and salaries (ECI), with a three year
transition followed by full implementation in year four.\36\ The
comment stated that the ECI is ``the

[[Page 62993]]

most accurate measure of inflation in wages and salaries.'' \37\ The
comment suggested that, in each year, the 1994 wage rate should be
adjusted by 1.5 percent if the percentage increase in the ECI during
the previous calendar year was less than 1.5 percent; by the percentage
increase in the ECI if such percentage was between 1.5 percent and 2.5
percent, inclusive; or by 2.5 percent if the percentage increase in the
ECI exceeded that amount.\38\
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\36\ In a pre-NPRM comment submitted by ASI, Western Range, and
Mountain Plains, the associations recommended using the ECI for
total compensation and capping it at 2 percent.
\37\ See, e.g., Russer, John W., The Employment Cost Index: What
is it?, Monthly Labor Review (Sept. 2001), available at http://www.bls.gov/opub/mlr/2001/09/art1full.pdf.
\38\ The commenters borrowed this formula from the W-agriculture
visa program proposed in Section 2232 of the Border Security,
Economic Opportunity, and Immigration Modernization Act, S. 744,
113th Congress (2013), passed by the Senate in 2013. The
associations note that that program, including the wage rate
applicable to that program, was the result of negotiations between
employer representatives and farmworkers.
---------------------------------------------------------------------------

As further support for this approach, the associations noted that
the wage rate in 2019 under this recommendation, which would be above
$1,350 per month, would be consistent with the wage that one of the
Mendoza plaintiffs stated in court filings would be acceptable in order
to permit him to resume herding. The named plaintiff, Reymundo Mendoza,
stated that he would ``be willing to work as a herder if the employer
paid $1,300 to $1,500 per month,'' along with other benefits not
required by this Final Rule, including paid vacation. Other plaintiffs
in that litigation quoted higher rates necessary in order for them to
return to herding, such as the minimum wage for all hours worked, or
$12.50 per hour. All of the plaintiffs in that action requested
additional benefits in excess of those required by this Final Rule in
order to resume herding.
The second alternative recommended by these associations, which was
also endorsed by ASI and many individual employers, was to use the
Federal minimum wage, multiplied by the estimate in the NPRM of 44
hours per week, to establish a monthly required wage. This alternative
was also presented with a three-year transition period, with full
implementation in year four. As with its first recommendation, if a
higher State wage was required, it would apply. This comment states:

If DOL is determined to transition away from a survey-based
monthly salary in favor of a monthly salary using the 44-hour week
estimate and a base wage rate, Commenters submit that the Federal
Minimum Wage of $7.25/hour is a more reasonable starting point than
the Farm Labor Survey based AEWRs. . . . Since many of these herds
and workers travel across state lines, because food, housing, and
clothing are already provided for free, and in order to create a
more uniform process, Commenters would propose this single monthly
rate in all states, except to the extent that the California or
Oregon state statutes or judicial settlements require a higher rate
already. While this will place a greater burden on employers in some
states more than others, the FLSA wage rate applies uniformly across
the nation and serves as a model for this proposal.

As with their first recommendation, the associations cited an
affidavit from the Mendoza litigation, in which one of the plaintiffs
stated that he would return to herding if a wage rate of $1,300-1,500
per month, plus other benefits, was offered. As with their first
proposal, the associations recommended use of the same ECI methodology
to adjust future wage rates if DOL remained concerned about the
potential for wage stagnation.
In addition to these two primary recommendations, two commenters
suggested that DOL use the California herder wage to set wages in the
program. An electric fencing supplier for commercial sheep ranches
expressed the view that California's wage ``leads the trend'' in wages
and asked DOL to use California's wage for all employers. The Chairman
of ASI's Legislative Action Council similarly stated that Oregon and
California wages provided useful ``reference'' points. The Worker
Advocates' Joint Comment similarly used the California wage as evidence
that herding employers could remain viable while paying a wage
significantly above those currently required under the TEGLs.
Other commenters viewed the California wage rate less favorably.
Without offering evidence in support, one individual employer stated
that the higher California wage rate had been ``detrimental'' to the
herding industry. Western Range and Mountain Plains asserted, again
without evidence to support the assertion, that the California wage
rate had forced employers to reduce the size of their businesses, hire
fewer U.S. and foreign workers, and ask remaining workers to take on
additional duties. These associations stated that proposed wage rates
in the NPRM would be even more problematic because workers would be
required to be paid significantly more but permitted to perform fewer
duties.
We also received several alternate recommendations from individual
commenters, which were not supported by other comments. One sheep
herding employer stated its operation could afford a wage rate of up to
$2,500/month, although no methodology or data was provided in support
of the $2,500 figure. Based on the employer's belief that U.S. workers
will not apply for herder jobs, another employer recommended that DOL
set a higher wage rate for domestic workers as compared to foreign
workers, stating that this ``would address the Secretary's statutory
responsibility to consider the domestic workers without challenging the
viability of the businesses offering employment.'' Finally, a
documentary filmmaker recommended that DOL compare the wage rates in
States where large numbers of foreign workers abandon H-2A work with
wage rates in States with lower levels of abandonment to determine the
appropriate wage.
ii. Discussion of Alternatives and Decision To Use Federal Minimum Wage
as Base
As discussed above, DOL received a number of comments asking DOL to
retain the current TEGL methodology for setting wages or to let the
market establish wage rates for these occupations. Neither of these
recommendations is viable or consistent with the Department's statutory
obligation to protect against adverse effect on U.S. workers. As
explained in detail above and in the NPRM, SWA surveys no longer
provide sufficient information to permit DOL to use their results to
set the AEWR for these occupations, and the persistent lack of wage
results has led to wage stagnation that may result in adverse effect to
U.S. workers. Nor can the ``market'' set wages for these workers. The
requirement that DOL protect against adverse effect is based on
Congressional recognition that bringing in foreign labor has the
potential to distort the market for these occupations, and a
negotiation between a foreign worker with little bargaining power and a
U.S. employer would invariably lead to a wage below what a U.S. worker
would accept. For similar reasons, we will not base the wage rate in
this Final Rule on whether wages are so low that even foreign workers
abandon employment, because such a rate would still be substantially
below that which a U.S. worker could be expected to accept. Further, we
decline to adopt a two-tiered system by which U.S. workers must be
offered a higher wage rate than that offered to foreign workers. To do
so would disincentive the hiring of U.S. workers, and would
institutionalize a second tier of foreign workers willing to accept
wages below that required for U.S. workers, thus creating the adverse
effect on U.S. workers we must avoid.
Further, the three primary employer associations have proposed
setting the wage based on a methodology that will result in wages
significantly above the current TEGL rates. The employer

[[Page 62994]]

associations' proposals acknowledge that employers in livestock
production can absorb a substantial wage increase, which we view as
compelling evidence that the industry will remain viable even where
employers pay a significantly higher wage rate to employees in these
occupations. This acknowledgment is consistent with the fact that
employers in Oregon and California are currently paying higher wages,
and the industry remains viable at those rates in those States. This
conclusion is further consistent with the historic pricing data
provided by the Utah Governor's Office and American Farm Bureau, which,
overall and considering variations from year to year, reflect that
increases in the prices of livestock commodities (e.g., wool and lamb)
have outpaced any increases wages.
For several reasons, we decline to adopt the associations' first
recommendation to index the 1994 TEGL data. First, this recommendation
was based on a mischaracterization of the 1994 TEGL data as the ``last
year for which such surveys were conducted with statistically valid
results.'' The NPRM cited the 1994 TEGL data not because it was the
last year that the SWA survey produced statistically valid results, but
rather because it was the earliest year for which there was documented
wage data when we published the NPRM.\39\ In any event, the Department
no longer has access to the underlying wage survey data for any of
these historic wage rates to determine how many U.S. workers were
included in any of these early surveys or otherwise assess their
validity. Given that many commenters discuss the persistent lack of
U.S. workers in these occupations for decades, and the absence of any
data to assess an appropriate year and wage rate to index, we are
concerned that continued reliance on the TEGL wages, even in indexed
form, would be inconsistent with DOL's obligation to protect against
adverse effect on U.S. workers.\40\
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\39\ Since publication of the NPRM, we have located additional
data for 1990, and Vermillion and Midland submitted partial data for
1981 with their comments.
\40\ We also view a single employer's statement that it could
afford to pay $2,500/month as an insufficient basis to set the AEWR
at that rate.
---------------------------------------------------------------------------

In addition, we decline to adopt the alternate recommendations to
use the California wage rate to set the national AEWR. We agree,
despite differing opinions of some commenters, that the California and
Oregon wage rates provide evidence that employers can afford a
significantly higher wage rate for these occupations than is currently
paid, and can do so without job losses. Despite Mountain Plains and
Western Range's assertion that the salary paid by California has led
employers to reduce the number of U.S. and H-2A workers employed, this
assertion not supported by any evidence. Labor certification data from
2013 and 2014 shows that California remains the second largest user of
the herding special procedures. In any event, the California sheep
herder wage rate is set through State law, Cal. Labor Code
2695.2(a)(2), and undoubtedly reflects local considerations that may
not be appropriately applied across the other States where employing
sheep, goat, and cattle herders typically are employed, which generally
have lower wage rates than California.\41\
---------------------------------------------------------------------------

\41\ See http://www.bls.gov/oes/current/oessrcst.htm.
---------------------------------------------------------------------------

Instead, in view of the necessity to exercise our discretion in
setting the wage rate, we view using the current Federal minimum wage
rate of $7.25 per hour (which will be adjusted annually based on the
ECI), multiplied by an 48 hours per week, to be a more reasonable basis
on which to set the AEWR for several reasons.\42\ First, we agree with
the Joint Worker Advocates' Comment that the persistent lack of workers
in these occupations is likely due in part to the fact that U.S.
workers can earn at least the federal minimum wage elsewhere, so if the
new herder wage at least meets the hourly Federal minimum wage, more
U.S. workers will likely be available.\43\ We further note that,
although requesting additional non-wage benefits, three of the four
Mendoza plaintiffs, all U.S. workers, stated that they would return to
herding if offered either the wage that results from our methodology or
the minimum wage rate (although one qualified that he was seeking the
minimum wage for all hours worked). Second, we agree with Mountain
Plains and Western Range that because many of these workers travel
across State lines, and because most living expenses are required to be
provided from the employer free of charge, a single national rate is
appropriate, unless a higher State wage applies. We view the hourly
wage requirement of the current Federal minimum wage as the logical,
non-arbitrary starting point on which to base the calculation of a
national monthly wage rate, which sets the herder hourly wage no lower
than the hourly minimum wage required for all other jobs in the U.S.
economy is consistent with DOL's obligation to protect against adverse
effect. Although $7.25 for each hour worked is generally a floor, using
the $7.25 wage rate multiplied by 48 hours is reasonable in this
circumstance because of the necessity of setting a monthly wage and
because employers must provide housing and food without charge to
workers in these occupations. Thus it is a reasonable exercise of DOL
discretion and consistent with DOL's obligation to protect against
adverse effect to set the wage rate as $7.25 times 48 hours.
---------------------------------------------------------------------------

\42\ The hourly calculation is discussed below.
\43\ Although they did not support the use of the Federal
minimum wage to set the herder wage, the Worker Advocates' Joint
Comment attributed the scarcity of U.S. workers in these occupations
to the availability of the minimum wage in other occupations
stating, ``the sustained scarcity is no doubt in large part a
function of the fact that U.S. workers have the freedom to earn at
least the federal minimum wage of $7.25 per hour, which is
substantially higher than the herder minimum wage.''
---------------------------------------------------------------------------

We are borrowing the current federal minimum wage rate for these
occupations as the starting point for part of the new wage methodology,
which will be indexed, as discussed below, and we do so with full
recognition that workers ``principally engaged in the range production
of livestock'' are not required to be paid the Federal minimum wage
under 29 U.S.C. 213(a)(6)(E). We note that, in recommending use of the
Federal minimum wage as the starting point for these calculations, the
three primary employer associations and many individual commenters have
accepted the use of this wage rate as appropriate for calculating the
wage rate for these occupations. Further, it is clear from the
legislative history that the exemption from the Federal minimum wage
for these occupations is based not upon the wage rate itself, but
rather on the remoteness of these occupations and the difficulty of
tracking hours worked. See Hodgson v. Elk Garden Corp., 482 F.2d 529,
531-33 (4th Cir. 1973); Hodgson v. Mauldin, 344 F. Supp. 302, 313 (N.D.
Ala. 1972), aff'd by Brennan v. Mauldin, 478 F.2d 702 (5th Cir. 1973).
Therefore, using the $7.25 per hour rate, multiplied by an
approximation of hours to set a monthly salary, is consistent with the
exemption or its purposes because it is not an hourly wage that
requires hourly recordkeeping. This approach is also consistent with
the way Oregon has interpreted its own State laws for these
occupations, which requires the State minimum wage to be multiplied by
a set number of hours (the equivalent of approximately 40 hours per
week) to establish the herder's minimum required salary. Or. Rev. Stat.

[[Page 62995]]

653.020(1)(e), 653.010(9).\44\ Similarly, the California monthly sheep
herder wage is adjusted each time the State hourly minimum wage rises
by the same percentage as the minimum wage increase. See Cal. Labor
Code. Sec. 2695.2(a)(2). The current California wage rate requires
workers to be paid for the equivalent of approximately 41 hours per
week based on the California minimum wage.
---------------------------------------------------------------------------

\44\ See also Technical Assistance for Employers in Agriculture,
available at http://www.oregon.gov/boli/TA/pages/t_faq_taagric.aspx.
---------------------------------------------------------------------------

In order to prevent wage stagnation from again occurring, we have
determined that the new base wage rate should be subject to an
adjustment methodology. We agree with those commenters who recommended
that we use the ECI for wages and salaries to address the potential for
future wage stagnation. Our primary concern in setting the adjustment
methodology for these occupations is to confirm that the wages for
these occupations will continue to rise apace with wages across the
U.S. economy. Although the Department has previously used the Consumer
Price Index for All Urban Consumers (CPI-U) in other circumstances
where adjustment for inflation is warranted, we conclude that it is
reasonable to use the ECI for these occupations, given that housing and
food must be provided by the employer under this Final Rule, making the
cost of consumer goods less relevant than under circumstances in which
workers are paying these costs themselves.
However, we decline to adopt the minimum and maximum ECI
calculations provided by Western Range and Mountain Plains, which did
not provide any economic rationale for the imposition of a cap, and we
will instead use the uncapped ECI to adjust wages, beginning with the
rate for calendar year 2017. The 1.5 percent minimum adjustment
recommended by the employer associations is illusory, because the ECI
has very rarely fallen below 1.5 percent since it was first used in
1981. On the other hand, the ECI has often been above 2.5 percent.
Accordingly, the methodology recommended by the employer associations
would typically be relevant only in circumstances where the ECI exceeds
2.5 percent. Placing a cap on the ECI-based adjustment has the
potential to produce wage stagnation; thus, to protect against adverse
effect to U.S. workers, we will not use a capped ECI to adjust wages
because herders' wages should not be outpaced by changes to the wages
of workers across the U.S. economy in order to avoid adverse effect for
U.S. workers.
d. Estimate of Number of Hours per Week That Herders Work
i. Comments on the Proposed Estimate of 44 Hours per Week
In order to set the monthly salary, the NPRM proposed a wage based
on the estimate that herders work approximately 44 hours per week. This
estimate was an average of the 40-hour-per-week estimate suggested by
ASI, Western Range, and Mountain Plains, and the 48-hour-per-week
calculation submitted by Edward Tuddenham, an attorney representing
workers, both of which were submitted before publication of the NPRM.
The 40-hour calculation submitted by the employer associations was
based on the calculation in the Zapata settlement. The Tuddenham
comment based the 48-hour calculation on estimates of hours submitted
by employers on the Form ETA-9142A, which the comment characterized as
a ``conservative'' estimate.\45\ This comment stated that the 48-hour
weighted average of employer-reported data from Form ETA-9142A is ``the
most diverse data set available'' on the number of hours worked by
herders. The data reported hourly estimates from the two primary
employer associations, Mountain Plains (60 hours) and Western Range (40
hours), and is the only data source identified by any commenter that
includes data collected across States.
---------------------------------------------------------------------------

\45\ Tuddenham collected data from 195 applications for
certification on which employers stated the number of hours per week
that herders were expected to work. Data supplied in the Worker
Advocates' Joint Comment replicated the Tuddenham analysis. Based on
employer-reported hours on the Form ETA-9142A from sheep and goat
herder applications filed between October 2013 and October 2014, the
Worker Advocates' Joint Comment also concluded that the average
number of worker hours was 48.
---------------------------------------------------------------------------

Employers essentially agreed to the 44-hour estimate from the
proposal. Although the pre-NPRM submission from Mountain Plains,
Western Range, and ASI used a 40-hour calculation, Western Range and
Mountain Plains used DOL's compromise 44-hour calculation in their
comment submitted in response to the NPRM, and that proposal was
endorsed by ASI and many commenters. We received no other concrete
estimate of hours from employers or their representatives, nor did
these commenters suggest an alternative data source for an estimation
of herders' work hours. Employers generally stated that the exact
number of hours varied based on a number of factors, such as seasons
and weather. Where they did provide estimates of hours, they were
imprecise (for example, stating that herders generally work 4-6 hours
per day).
On the other hand, the Worker Advocates' Joint Comment objected to
the 44-hour calculation from the proposal. While acknowledging that ``a
monthly AEWR based on average hourly totals will never be completely
accurate,'' this comment pointed out that the 40-hour calculation from
the Zapata settlement did not appear to be based on any judicial
finding that workers are actually engaged in work 40 hours per week,
but rather was likely calculated as a salary derived from a standard
40-hour workweek. They asserted further that employers have an
incentive to under-report hours on the Form ETA-9142A in order to
recruit workers, so that basing an hourly calculation on only employer-
submitted data would be arbitrary and inconsistent with DOL's
obligation to protect against adverse effect. In the commenters' view,
DOL must therefore either directly survey workers or, if that is not
feasible because gathering data from remotely-located employees is
difficult, include data from existing worker surveys in establishing an
estimate. Commenters cited only a single worker survey, Overworked and
Underpaid: H-2A Herders in Colorado, conducted by Colorado Legal
Services, in which Legal Services surveyed 90 H-2A Colorado sheep
herders about their pay.\46\ This study found that 62 percent of
herders actively worked at least 81 hours per week. Two individual
employers expressly disputed the methodology in the Colorado study,
stating that it was not a reliable source and was based on biased
questions from interviewers. In addition, a SWA employee commented that
the 44-hour estimate was unrealistic given the requirement to be
available up to 24 hours a day, seven days per week, but did not offer
an alternative recommendation.
---------------------------------------------------------------------------

\46\ The Colorado study was attached to the comment, and is also
available online at https://www.creighton.edu/fileadmin/user/StudentServices/MulticulturalAffairs/docs/OverworkedandUnderpaidReport.pdf.
---------------------------------------------------------------------------

ii. Discussion and Decision To Use 48-Hour Week
Employers have been exempt from FLSA and H-2A recordkeeping
requirements, so we agree with the Worker Advocates' Joint Comment that
any estimate of hours worked will necessarily be imprecise. We further
agree with the worker advocates that we should not base the hourly
projection in any part (as we did in the NPRM) on the 40-hour estimate
from the Zapata settlement. As discussed above, based

[[Page 62996]]

on data supplied in comments, employers across States have indicated
through their Form ETA-9142A filings that herders work on average 48
hours, and so it would be improper to require them to pay for fewer
hours.
We concur with the assessment from Edward Tuddenham that the 48-
hour estimate from ETA's own data is based on the most comprehensive
and detailed data source from which to establish an hourly calculation.
Accordingly, we will use that 48-hour calculation, which was also
replicated in the submission by the Worker Advocates' Joint Comment, to
set the number of hours for the monthly salary formula. Given the
challenges with collecting data for these occupations, we conclude that
it would be very difficult and resource-intensive for DOL to collect
from sources outside ETA data on hours worked. Further, the Colorado
study on herder wages, hours and working conditions submitted by worker
advocates is informative, but very limited because it is data from a
single State and thus not representative of the industry as a whole.
Finally, we disagree that employers are likely to under-report hours on
the Form ETA-9142A to make the job appear more attractive because
employers already advertise in their job orders that herders must be
available up to 24 hours per day, 7 days per week.
We recognize that this 48-hour estimate will result in a higher
wage than the industry-consensus proposal. However, we conclude that
requiring payment for four hours a week in excess of the calculation
proposed by the primary employer associations, and supported by many
employers, is unlikely to have a substantial effect on the ability of
employers to absorb the wage increase required by this Final Rule.
Moreover, we conclude that, because it more accurately reflects the
likely actual hours worked, it also more accurately reflects the wage
that will prevent adverse effects on U.S. workers. Indeed, it would be
inconsistent with DOL's obligation to protect against adverse effect to
allow employers to pay for fewer hours than is indicated on their own
Form ETA-9142A.
e. Food Deductions
i. Comments
In the NPRM, we invited comment on the issue of whether employers
should be permitted to deduct some food costs from the required wage
rate ``in light of the proposed increase in wages,'' and, if a food
deduction was to be permitted, the appropriate amount of the deduction.
80 FR at 20305. Under the standard H-2A program regulations, employers
are permitted to deduct the actual cost of meals up to a rate set each
year (which is annually adjusted based on the CPI-U) to offset costs
for providing the worker with three meals, unless a higher amount is
authorized by the Certifying Officer. 20 CFR 655.173. The maximum
standard deduction is currently $11.86 per day ($355.80 for a 30-day
month). Labor Certification Process for the Temporary Employment of
Aliens in Agriculture in the United States: 2015 Allowable Charges for
Agricultural Workers' Meals and Travel Subsistence Reimbursement,
Including Lodging, Notice, 80 FR 9482 (Feb. 23, 2015).
Under both of the primary wage recommendations from Mountain Plains
and Western Range, employers would be responsible for paying for food,
which is consistent with the NPRM, the existing sheep and goat herding
TEGL, and the current cattle wage rates. But while neither of these
recommendations proposed a food deduction, Mountain Plains and Western
Range ``encourage[d] the Department to consider permitting one, or at
least permitting a deduction reflecting the difference between the more
extensive and more expensive food provided to these workers compared to
the subsistence and meal charges that the Department uses for other
workers.'' These commenters stated that both the California State wage
and the Zapata settlement in Oregon permit employers to take a food
credit.
In addition, Mountain Plains and Western Range asked DOL to
consider the pre-NPRM letter from these associations (and also from
ASI) in addition to the two new proposals in its comment. That pre-NPRM
letter, included in the administrative record, asked DOL to set the
wage rate at the FLSA minimum wage multiplied by 40 hours with a
deduction for food based on the USDA ``liberal'' meal plan for a male,
aged 19-50 years, which they stated would ``best reflect the protein-
rich diet appropriate for active young to middle-aged men working
outdoors in high-altitude environments.'' \47\ The pre-NPRM letter also
requested that the 20 percent increase for a single individual--rather
than a family--in the USDA plan be used, even though, in most
instances, the employer would be purchasing food for multiple
workers.\48\ Based on the April 2015 USDA release, the permissible
deduction under this proposal would be $448.80 per month.
---------------------------------------------------------------------------

\47\ See Official USDA Food Plans: Cost of Food at Home at Four
Levels, U.S. Average, April 2015, available at http://www.cnpp.usda.gov/sites/default/files/CostofFoodApr2015.pdf.
\48\ Under the USDA plan, the costs given are for individuals in
4-person families. For individuals in other size families, the
following adjustments are suggested: 1-person--add 20 percent; 2-
person--add 10 percent; 3-person--add 5 percent; 4-person--no
adjustment; 5- or 6-person--subtract 5 percent; 7- (or more)
person--subtract 10 percent. To calculate overall household food
costs, (1) adjust food costs for each person in household and then
(2) sum these adjusted food costs. See footnote directly above.
---------------------------------------------------------------------------

Other employers and associations supported some type of food
deduction. For example, the comment from Siddoway Sheep suggested three
alternatives for food deductions: (1) Deducting the cost of purchasing
food on each employee's grocery list from that employee's wages, (2) a
standard ranch-specific deduction based on annualized actual
expenditures from the prior three year period, \49\ or (3) a standard
industry-wide deduction equal to 128 percent of the liberal USDA Food
Plan Cost, which the employer states is ``comparable to the actual
amount that we spend on meals.'' This employer stated that workers
sometimes waste food and that requiring workers to pay for food might
reduce this incentive. Other commenters, including the Wyoming Farm
Bureau Federation, offered more general support for the concept that
either food costs should be deducted or wages should be set at a level
that reflects employer costs, including food and housing.
---------------------------------------------------------------------------

\49\ The comment cited two different amounts for its cost per
worker: $476 per worker per month and $467 per month.
---------------------------------------------------------------------------

Vermillion and Midland stated that a food deduction should be
permitted for several reasons. The employers cited two legal
``precedents'' for its position that a food deduction should be
allowed, an administrative case \50\ and Section 3(m) of the FLSA, 29
U.S.C. 203(m), which generally permits deduction of the ``reasonable
cost'' of ``board, lodging, or other facilities, if such board,
lodging, or other facilities are customarily furnished by the employer
to his employees.'' 29 CFR 531.2.\51\ The Wyoming Farm Bureau
Federation and an individual employer asked DOL to clarify that
employers were not required to pay for items like soda and tobacco.
---------------------------------------------------------------------------

\50\ In the Matter of Western Range Association, 95-TLC-4 and 5
(1995).
\51\ In addition, this comment stated that SWA surveys
demonstrated that whether meals are required to be provided has a
significant impact on the wage rate, stating that the 2010 Wyoming
range rate was $1600, with deduction of board permitted, but in
2013, it was $875 with board required to be provided free of charge.
We note that this change was actually based on a change in the State
that was used to set the wage rate. The 2010 survey was based on a
Wyoming survey, while the wage rate was later based on the Colorado
survey due to insufficient data in a later year.

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[[Page 62997]]

On the other hand, several individual employers opposed a food
deduction. For example, one noted that payment of food by the employer
is a ``longstanding practice of the industry.'' Another stated that it
would be difficult to calculate the cost of food provided to an
individual worker when food is delivered to a sheep camp containing
multiple workers. Similarly, the Worker Advocates' Joint Comment stated
that food deductions should be permitted only if employers paid the
full FLS-based AEWR required by the proposal at the end of the
transition period, reasoning that once the wages of these workers were
aligned with the wages in the rest of the H-2A program, the workers
could afford their own food. This comment recommended that the
deduction be limited to the ordinary H-2A wage deduction. The Western
Watersheds Project opposed any food deductions.
ii. Discussion
This Final Rule maintains the current practice under the TEGLs for
these industries, and does not permit employers to deduct the cost of
food from workers' wages. The decision to use the $7.25 per hour rather
than the full FLS-based AEWR, we think it is reasonable to disallow
deduction from wages for the costs of providing food to these workers.
This is particularly true given that sheep and goat herding employers
have continually been required under the TEGLs to provide food without
cost to the workers, and cattle herding employers have been required to
pay these costs due to the wage finding in the SWA survey since 2013.
In addition, as the pre-NPRM comment from ASI, Western Range, and
Mountain Plains demonstrates, in adopting a lower base wage rate than
the FLS-based AEWR, a food deduction would prevent DOL from fully
addressing the wage stagnation in these occupations. Allowing a food
deduction would offset a substantial amount of the benefit to the
workers of the increase in the wage rate and result in setting
effective wages not significantly above the rates required two decades
ago.
The legal precedents cited by commenters do not suggest a different
result. The administrative case cited by Vermillion and Midland only
states that those employers providing meals without charge should be
separately surveyed from those that do not, but takes no position on
whether a food deduction should or should not be permitted. Further,
Section 3(m) of the FLSA applies only where the FLSA applies. Although
a few commenters stated that California law permits a food deduction
from its sheep herder wage, this is incorrect. California Industrial
Welfare Commission (IWC) Order No. 14-2001, Sec. 4(E), 10(F) (amended
Jan., 1 2002) expressly bars employers of sheep herders from offsetting
the required wage by meals or lodging and incorporates by reference the
requirement under the H-2A special procedures for employers to pay for
meals.\52\ In addition, Oregon does not appear to authorize a food
deduction for workers exempt from the minimum wage. Or. Rev. Stat.
Sec. Sec. 653.020(1)(e), 653.010(9).\53\
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\52\ Available at: http://www.dir.ca.gov/Iwc/IWCArticle14.pdf;
see also State of California, Department of Industrial Relations:
Minimum Wage FAQ, available at http://www.dir.ca.gov/dlse/faq_minimumwage.htm.
\53\ See also Technical Assistance for Employers in Agriculture,
available at http://www.oregon.gov/boli/TA/pages/t_faq_taagric.aspx.
---------------------------------------------------------------------------

As discussed above, applying a food deduction would substantially
erode the wage increases in this Final Rule after decades of wage
stagnation, and is therefore inconsistent with DOL's statutory
obligation under the INA. Finally, in response to comments, we clarify
that the employer is only required to pay for sufficient and adequate
food, and water, as discussed in Sections IV.B. and E. in the preamble
related to Sec. Sec. 655.210(e) and 655.235, and is not required to
provide workers with other items, such as tobacco or soda, free of
charge, although the employer is free to do so.
f. The Transition Period
i. Comments
Given the size of the wage increase in the NPRM, we proposed a
four-year transition with full implementation in year five. 80 FR at
20310. Under the proposal, wages would have been set at 60 percent of
the full wage rate in year one, 70 percent in year two, 80 percent in
year three, and 90 percent in year four. In proposing this approach in
the NPRM, we reasoned that a transition period was needed in order to
avoid the unintended consequence of significant job losses that could
be prevented by a gradual implementation.
Both the primary Mountain Plains and Western Range recommendations
supported a transition, mirroring DOL's concerns in the NPRM about
significant job losses if the wage increase were implemented
immediately. For each proposal, Mountain Plains and Western Range
recommended a three-year transition, with full implementation in year
four. For their proposal to use an indexed TEGL wage rate, they
proposed to start at 80 percent of the fully adjusted wage; for their
proposal to use the FLSA minimum wage, they proposed to start at 75
percent of the adjusted wage. The comment did not provide for any
inflation adjustments to the FLSA-based wage until after full
implementation, and did not explain the basis of that recommendation.
Several individual employers and associations, including the Colorado
Wool Growers Association, asked for a longer transition period than
proposed if the FLS-based AEWR was used to establish the monthly rate.
Conversely, the Worker Advocates' Joint Comment stated that a
transition to a new wage could not be squared with DOL's statutory
obligation to protect against adverse effect. This comment asserted
that no transition of new wage rates was appropriate given the long
history of wage stagnation, which, as discussed above, they attributed
to DOL's policy of using SWA survey results and implementation of those
results. As discussed above, they cited wage rates for several
occupations that do not primarily involve range work, were below the
FLS-based AEWR, or were based on sample sizes too small for the SWA to
report a wage. They also cited the current California sheep herder wage
rate for the proposition that employers could immediately adjust to the
full FLS-based AEWR. This comment stated that a transition would cause
adverse effect to U.S. workers employed as ranch hands by permitting a
much lower wage to be paid for similar work. It further asserted that
DOL provided no ``empirical support'' for the need for a transition in
the NPRM, and asked DOL to consider the scope of previous wage
stagnation from the SWA surveys as the basis to reject any transition
period, or at least in deciding what percentage level to set the wage
during a transition period. Several other comments from the Western
Watersheds Projects and a few individual commenters stated, without
additional elaboration, that the proposed wage rates should apply
immediately.
ii. Discussion
The wage increase under this Final Rule is less than under the
proposal, but it remains significant; the final wage rate approximately
doubles the current required wage rate for sheep herders in a number of
States. For the reasons discussed above, consistent with our decision
to use an alternative to the FLS-based AEWR to set the monthly AEWR, we
conclude that the data submitted in the Worker Advocates' Joint Comment
does not require immediate implementation of the new wage. Although the
California wage

[[Page 62998]]

provides some evidence that a higher wage can be tolerated, we note
that the current California rate was implemented over a number of
years, and therefore does not provide strong evidence that employers
outside of California can absorb a significant increase quickly without
job losses.\54\ As discussed above, we disagree with several of the
conclusions raised by the Worker Advocates' Joint Comment about DOL's
conduct in administering the SWA surveys, but agree that the lack of
wage results from U.S. workers in the surveys has led to wage
stagnation for these occupations.
---------------------------------------------------------------------------

\54\ The California wage rate was first established in 2001 at a
rate of $1050 per month. See California IWC Order No. 14-2001, Sec.
4(E). Adjustments are now made to the California monthly sheep
herder wage rate each time the State hourly minimum wage increases
(with the monthly wage increased by the same percentage as the State
hourly minimum wage increase). Cal. Lab. Code 2695.2(a)(2).
---------------------------------------------------------------------------

In light of the scope of the increase and the economic data
provided by commenters, we conclude that a limited transition period to
the new wage is necessary. However, we recognize that any transition
must not be longer than necessary to prevent adverse effect. As a
result, this Final Rule requires a two-year transition (rather than the
four years proposed, or the three years recommended by Mountain Plains
and Western Range) with full implementation in year three. A transition
is particularly needed given that the new wage rate must be paid by all
employers one month after publication of the Final Rule, even if the
employer is operating under a current certification, as provided in the
discussion above related to paragraph 655.211(a). In addition,
consistent with the consensus proposal submitted by Mountain Plains and
Western Range, we will require the wages to be set at higher percentage
levels during the transition years than those proposed, with 80 percent
of the full wage rate required in year one and 90 percent in year two.
This methodology requires employers to pay more than half of the
required increase in in the first year of implementation.
The Western Range and Mountain Plains proposal did not apply any
inflation adjustment until after the transition period in their
proposal. We conclude that this is inconsistent with DOL's obligation
to protect against adverse effect, because it would result in wage
rates in future years being lower than if no transition had been
applied. Accordingly, after setting the wage rate in year one, we will
begin to apply the ECI adjustment in year two so that wages in future
years will not be reduced by DOL's decision to apply a transition
period.

D. Filing, Processing and Post-Acceptance Procedures

1. Sec. 655.215 Procedures for Filing Herding and Range Livestock
Applications
a. Geographic Scope, Who May File, What To File
The TEGLs provide a variance from the geographic scope limitations
applicable to Applications for Temporary Employment Certification filed
under the standard H-2A regulations, specifically the geographic
limitations of 20 CFR 655.132(a) for H-2ALCs and 20 CFR 655.131(b) for
master applications. The variance set out in the TEGLs permits an
employer (whether an individual, an association, or an H-2A Labor
Contractor) engaged in range herding or livestock production to file an
application and Form ETA-790 covering work locations in multiple areas
of intended employment and within one or more States. The TEGLs require
those employers to include an attachment listing the locations,
estimated start and end dates, and the names and contact information of
all employers where work will be performed under the job order when
filing an H-2A Application for Temporary Employment Certification.
Employers are expected to identify the locations with as much
geographic specificity as possible in order to apprise potential U.S.
workers of where the work will be performed and to ensure recruitment
in all areas of intended employment. The NPRM proposed continuing the
TEGLs' approach to the geographic scope of work permitted in
Applications for Temporary Employment Certification, which would allow
applications for both range herding and production of livestock
positions to encompass work in multiple areas of intended employment
and in more than two contiguous States, and require the employer to
submit a work location list with its application.
The Department did not receive any comments directly addressing the
proposal related to geographic scope limitations for job orders and
applications. However, we continue to recognize the transient nature of
range herding and livestock production work, as was apparent in other
comments received and has been long recognized by the Department.
Accordingly, we have adopted this provision in the Final Rule without
change.
For master applications, the TEGL covering sheep and goat herding
range workers, but not the TEGL for range livestock production workers,
allows an association filing as a joint-employer with its members to
submit annually a single Form ETA-790 for a master job order directly
with the NPC that identifies all included employer-members, dates of
work, and work locations and will remain open year-round, unless
modifications are required. The employer-members included in the sheep
or goat herding master job order are not required to have the same date
of need, which is a variance from the date of need requirement in the
standard H-2A regulations, at 20 CFR 655.131(b). Because the TEGL
covering range workers engaged in livestock production does not include
this variance, an agricultural association filing a master application
seeking range livestock production workers must submit a new Form ETA-
790 to the appropriate SWA in advance of filing each H-2A Application
for Temporary Employment Certification, and that job order may only
include employer-members who share the same date of need. In the NPRM,
we proposed to allow an agricultural association filing a master
application for a range occupation eligible for processing under these
rules to include employer-members with different dates of need in a
single application and job order. This proposal would expand current
practice for sheep and goat herding employers to livestock production
employers. We also proposed to retain as a variance only for sheep and
goat herding positions the allowance for an association to submit a
single Form ETA-790 for a master job order annually.
The Department did not receive comments addressing the filing
procedures in proposed Sec. 655.215, and we adopt the provision
largely as proposed. Specifically, the Final Rule adopts without change
the proposed provisions identifying the forms and documents range
employers must submit to the NPC and allowing employer-members with
different dates of need to be included in a single master application,
regardless of whether the job order and application involves range
sheep or goat herding or other range livestock production. The Final
Rule also adopts without change the provision allowing annual
submission of Form ETA-790 for master application job orders for range
sheep and goat herding occupations, unless the job order requires
modification. We conclude that these filing procedures

[[Page 62999]]

will increase consistency of processing job orders and applications for
range occupations. For greater clarity, however, we have made a minor
deletion from proposed Sec. 655.215(b)(2); we have removed the word
``total'' in both places that it appeared in this provision regarding
the period of need identified on an H-2A Application for Temporary
Employment Certification and Form ETA-790 submitted for processing. The
dates of need identified on all Applications for Temporary Employment
Certification and job orders must be continuous, making the ``total''
term unnecessary.
As we have stated above, this section of the Final Rule contains
the only variances the Department is making from the general H-2A
filing procedures for eligible employers seeking workers in range
herding and production of livestock occupations. Unless specifically
addressed in these provisions, employers must comply with the
processing procedures in the standard H-2A regulations, at 20 CFR
655.130-655.132.
b. Period of Need
i. Background
The range livestock production TEGL does not address the period of
need an employer must identify on its H-2A Application for Temporary
Employment Certification. As a result, these employers must demonstrate
that the period of need identified on the application satisfies the
temporary, seasonal need standard in the standard H-2A regulations, at
20 CFR 655.103(d). The range sheep and goat herding TEGL, however,
permits an employer seeking temporary range sheep or goat herders to
identify a period of need of up to 364 days and provides for year-round
posting of master job orders.
The NPRM proposed continuing the TEGLs' distinction between sheep
and goat herder employers' period of need and the period of need
allowed for the range production of livestock. Thus, the NPRM proposed
allowing employers of range sheep and goat herders to identify a period
of need of up to 364 days on the H-2A Application for Temporary
Employment Certification and for the Form ETA-790 for a master job
order to be submitted once annually. In addition, the NPRM proposed
allowing employers of range livestock production workers to identify a
period of need of up to 10 months and proposed to require a separate,
application-specific Form ETA-790, including those associated with
master applications, to be filed with each H-2A Application for
Temporary Employment Certification, Form ETA-9142A, as described in
proposed Sec. Sec. 655.205 and 655.215. Also as set out in the NPRM,
the proposed continuation of this distinction between range occupations
for the purposes of the period of need was intended to maintain overall
consistency with the standard H-2A regulations, at 20 CFR 655.103(d),
and at the same time preserve the unique history of and experience with
range sheep and goat production employers.
The NPRM sought comment specifically on the issue of the temporary
and seasonal nature of herder work, including the amount of time spent
on the open range during a year. 80 FR at 20311. We asked about whether
the unique characteristics of herding work exist year-round. Id.
Specifically, we sought comment about ``whether sheep and goat herding
involve distinct temporary positions at different times of the year
that require more than one certification to reflect distinct temporary
and/or seasonal needs under the INA.'' 80 FR at 20303. The NPRM noted
that we would consider the application of a similar 10-month limitation
to sheep and goat herders, to reflect more appropriately their
temporary or seasonal need as required by the INA. Id. We asked several
specific questions about seasonal or cyclical variations in herder
work, worktime spent on the range versus the ranch, and duties
performed during the different periods, among other questions. 80 FR at
20303.
ii. Comments on Temporary Need
Many comments by employers of sheep and goat herders indicate that
they use the 364-day maximum period of need permitted under current
practice. Several employer comments indicate that they re-employ the
same H-2A workers over the years. Mountain Plains and Western Range
urged the retention of the 364-day limit on sheep and goat herding, and
suggested the extension of the cattle herding limit from 10 to 12
months, because ``[a]ll of these animals require year-round care[.]''
However, this comment was somewhat vague about any particular seasonal
demands of the work:

The general response [to the NPRM questions about the seasonal
nature of the work] is that the work is performed on an ``as the
need arises'' basis, and there is no single description of a
worker's typical day. The work is defined first and foremost by the
needs of the animals in the herder's care. During lambing, kidding,
and calving season, the days are longer and the work is focused on
the healthy birthing of new animals. Those duties occur at certain
times of the year according to the natural cycles of the seasons and
the animals. In parts of the West, employers use fixed structures
(known as ``sheds'') to keep livestock and their offspring safe and
healthy during the birthing process. Other ranches perform birthing
in open-air pastures. The amount of time spent assisting with this
phase depends on the natural conditions of the male and female
livestock.

The associations explain that the work is not only performed on an
```as needed'' basis, but it is also highly dependent on the weather
conditions.
The Worker Advocates' Joint Comment included a brief statement
supporting separate certifications for the range production of sheep
and goats over the 364-day period of need:

We applaud DOL for requesting comments on whether more than one
H-2A labor certification period should be necessary for workers who
tend sheep and herd goats. The best way to protect the wages and
working conditions of U.S. workers is to have two separate
certification periods, one for the birthing period in the spring,
which takes place on the ranch, and one for the open range season
which lasts from summer through winter. Because the spring birthing
period involves no open range tasks, jobs during this season should
fall under the normal H-2A regulations, not the proposed special
regulations for open range herders.

One of the most informative comments on the nature of herder work
and its seasonality was from Siddoway Sheep Company. This comment
clearly delineated the seasonal aspects of herder work, at least with
respect to this particular ranch. In the winter, the work on the ranch
is devoted to lambing (some ranches conduct lambing operations later in
the spring, sometimes on the open range, and others conduct it in sheds
on or by the base ranch). The Siddoway Ranch conducts lambing in sheds.
In January, herders bring the flock closer to the base ranch, and as
the herders move down from the winter range, they move into the
bunkhouse. Lambing begins in mid-February. Workers are engaged in
lambing activities at the base ranch for eight to ten weeks. During the
next season--spring grazing--herders move into mobile housing, also
called a ``sheep camp.'' During the spring grazing season, herders move
the sheep away from the base ranch toward the summer range, and this
period lasts for eight to ten weeks. By the first day of summer, the
herders begin to move the sheep to the high mountain meadows for summer
grazing. During summer grazing, herders move from the ``sheep camps''
into outfitter tents. By mid-September, herders begin to move the sheep
down from the mountains for fall grazing, and to separate the market
sheep from the rest of the herd. The herders move back into the sheep
camps. The sheep are bred in October, during the fall grazing period.
Once the

[[Page 63000]]

sheep are bred, the herders and the flock return to the base camp for
the winter. The lambing preparations begin again in January. According
to Siddoway's practice, the fall grazing period, which is approximately
20 weeks, is the least labor intensive and is the best time for
employees to return to their home abroad or otherwise take an extended
vacation.
iii. Discussion
We have decided to retain the limitations on period of need
contained in the TEGLs and proposed in the NPRM. As a result, Sec.
655.215(b)(2) requires that the period of need for the range production
of cattle must be no more than ten months, which is consistent
generally with the standard H-2A maximum period of need, and the period
of need for range production of sheep and goats must be no longer than
364 days.
We make this decision after considering several factors. First,
Section 101(a)(15)(H)(ii)(a) of the INA permits aliens to obtain H-2A
visas to come ``temporarily to the United States to perform
agricultural labor or services . . . of a temporary or seasonal
nature.'' 8 U.S.C. 1101(a)(15)(H)(ii)(a). Section 101 does not define
``temporary'' work for purposes of H-2A visas, nor does it indicate how
long a position may last and still qualify as ``temporary'' work. The
legislative history of the INA is silent about the expected duration of
``temporary'' work. Under current regulations issued by the U.S.
Citizenship and Immigration Services (USCIS), a component of the
Department of Homeland Security (DHS), in order to obtain an H-2A visa,
an employer must establish that employment is either seasonal or
temporary, which, except in extraordinary circumstances, should last no
longer than one year. 8 CFR 214.2(h)(5)(iv)(a). DOL's H-2A regulation
on this point is consistent with the DHS regulation. 20 CFR 655.103(d).
Therefore, neither the statute nor the agencies' regulations proscribe
the 364-day period of need applicable to the range production of sheep
and goats.
Second, we have relied for decades on the unique history and
experience of sheep herding in the U.S. to support the 364-day period
of need for sheep ranchers. This history was discussed in great detail
in both the NPRM, 80 FR at 20301-20302, and the TEGL governing sheep
and goat production, and we see no reason to rescind our reliance on
this aspect of these jobs to shorten the period of need.
Finally, we have reviewed and considered all the comments on this
subject, and it is clear that both the ranchers and the herders they
employ are well accustomed to the longer period of need for range
production of sheep and goats, and that shortening it would be
disruptive to the livelihoods of employers and employees alike.
c. Comments on Filing Procedures Addressing Issues Outside the Scope of
the Rulemaking
We received several comments on post-certification procedures that
were beyond the scope of this rulemaking. First, Mountain Plains and
Western Range requested clarification about the post-certification
ability of an agricultural association filing a master application to
transfer workers between employer-members as needed during the
certified period. Similarly, Eph Jensen Livestock, LLC also commented
on the value of an association's ability to transfer workers among
employer-members on a master application job order. As the Mountain
Plains and Western Range comment pointed out, the INA allows a master
application certified under the H-2A program to be used for the job
opportunities of any of the employer-members that were disclosed in the
master job order, and hired workers may be transferred among the
employer-members to perform the services for which the certification
was granted. 8 U.S.C. 1188(d)(2). This statutory authority, which has
not changed, applies to all master applications filed under the H-2A
program, not only those for range sheep and goat herders. Although the
range sheep and goat herding TEGL included discussion of this INA
provision, and explained the Department's expectations where an
agricultural association engages in worker transfers, the allowance is
not a variance from standard rules. As it is not a variance applicable
only to the applications eligible for filing under the herding and
range livestock regulations, it is outside the scope of this
rulemaking.
The Department also received comments from two employers,
Maltsberger Ranch and Cherry Ranch, suggesting changes to H-2A visa
duration and the Department's general processing timeline for H-2A
applications. McPherrin Damboriena Sheep Co. also expressed the
difficulty of aligning visas with actual employment dates. The
Department considers these comments beyond the scope of the proposed
rule, because they raise issues that cannot be resolved through this
regulatory process, which addresses only H-2A range applications, and
are therefore not within the scope of this rule.
2. Section 655.220--Processing Herding and Range Livestock Applications
for Temporary Employment Certification
The TEGLs do not provide variances from the processing procedures
in the standard H-2A regulations at 20 CFR 655.140-655.145, except as
necessary to accommodate the variances provided for master job orders
for range sheep and goat herding occupations, which are submitted
annually to the NPC and posted with the SWA year-round, unlike other
job orders. Because the Department proposed in the NPRM to shift the
timing and location of filing the Form ETA-790 for range occupation job
orders from a pre-filing submission to the SWA to concurrent filing to
the NPC, we also proposed variations to the standard processing
procedures to the extent necessary to reflect the NPC's processing of
Forms ETA-790 received with Applications for Temporary Employment
Certification for these occupations. The Department proposed that, when
the Certifying Officer (CO) determines that an application and job
order meet all regulatory requirements, the CO would notify the
employer and transmit a copy of the Form ETA-790 to any one of the SWAs
with jurisdiction over the anticipated worksites so that recruitment
can begin. When an agricultural association filed a master application
and Form ETA-790 on behalf of its employer-members, the NPRM proposed
the CO would transmit a copy of the Form ETA-790 to the SWA with
jurisdiction over the association's location. The CO's notification
would also direct the SWA receiving the Form ETA-790 copy to place the
job order promptly in intrastate and interstate clearance, including
forwarding the application to all States where work will be performed.
In addition, the NPRM included a proposed provision intended to
clarify how the electronic job registry requirement at 20 CFR
655.144(b) (i.e., H-2A job orders must be posted in OFLC's electronic
job registry until 50 percent of the work contract period has elapsed)
would apply to a job order approved for an agricultural association
filing a master application, given the different dates of need the NPRM
proposed be permitted for individual employer-members within a single
master job order. Specifically, the Department proposed that we would
keep the master job order posted on the electronic job registry until
50 percent of the work contract period had elapsed for all employer-
members identified on the job order (i.e., the 50 percent period

[[Page 63001]]

would be measured based on the employer-member with the last date of
need).
The Department did not receive comments addressing these proposed
provisions, and we are adopting them unchanged in the Final Rule. These
provisions establish a clear, consistent processing framework for
applications and job orders for eligible range employers. This section
of the Final Rule contains the only variances the Department is making
from the general H-2A processing procedures for eligible employers
seeking workers in range herding and production of livestock
occupations. Unless specifically addressed in these provisions,
employers must comply, as they do currently, with the processing
procedures in 20 CFR 655.140-655.145.
3. Section 655.225--Post-Acceptance Requirements for Herding and Range
Livestock
The TEGL for range livestock production occupations provides no
variances from the standard rule's post-acceptance procedures in the
standard H-2A regulations, at 20 CFR 655.150-655.158. The TEGL for
range sheep and goat herding occupations, however, provides a variance
from the newspaper advertisement requirement in the standard H-2A
regulations, at 20 CFR 655.151, and clarifies the Department's
expectations for an agricultural association's handling of referrals
and U.S. applicants responding to master job orders involving multiple
employer-members.
In the NPRM, the Department proposed to expand almost all of the
range sheep and goat herding TEGL's variances to encompass range
livestock production occupations as well. The proposed rule waived the
requirement for the placement of an advertisement on two separate days
in a newspaper of general circulation as provided in the standard H-2A
regulations, at 20 CFR 655.151. The NPRM also included a proposed
provision intended to clarify that master application job orders for
herding and range livestock employers would be handled in the same way
OFLC handles other job orders approved for an association of
agricultural employers filing a master application as a joint employer
on behalf of its employer-members; the CO would direct the SWAs to keep
the job order on its active file until 50 percent of the period of the
work contract has elapsed for all employer-members identified on the
approved job order. Moreover, the NPRM proposed to expand and codify an
association's obligation to accommodate U.S. workers' worksite location
preference to all master job orders for range occupations eligible for
processing under this rule. Finally, the NPRM included a proposed
provision intended to clarify that an association handling the
recruitment requirements for its employer-members must maintain a
recruitment report containing the information required by 20 CFR
655.156 in a manner that allows the Department to see the recruitment
results for each employer-member identified on the H-2A application and
approved job order.
We received several comments on these issues. Mountain Plains,
Western Range and the SBA Office of Advocacy commented that employers
engaged in range herding and livestock production cannot find qualified
and available U.S. workers to fill their positions despite employers'
efforts. ASI indicated that the labor demographics changed in the 1980s
and 1990s, after which time the industry has not been able to find U.S.
workers who were interested or had a background in herding. Western
Range stated that in 2012 only 22 U.S. workers applied for
approximately 1,000 sheepherder positions with its employer-members,
and of those 22 applicants, only 2 were considered qualified and
ultimately hired. However, Western Range reported that neither of the
two U.S. workers hired completed the work contract period. Mountain
Plains stated that, in 2014, its employer-members sought to hire
workers for more than 1,000 range sheep and goat herding, range
livestock production, sheep shearing, and wool grading positions. Of
the two qualified U.S. workers who applied, one was not interested in
the job and the other was hired but didn't complete the work contract.
The Department also received a number of comments from other employers,
professional associations, and private citizens generally noting the
unavailability of U.S. workers. These comments noted that despite
recruitment efforts, U.S. workers are not interested in range herding
and production of livestock jobs, and that those who do express initial
interest tend to not complete a season. One commenter indicated that
U.S. workers are not willing to work more than 40 hours a week. A
different commenter indicated that the shortage of both sheep shearers
and shepherds is not just limited to the United States, but is
worldwide. Another commenter indicated that the domestic labor force is
drawn instead to higher paying job sectors, such as oil and gas, where
jobs are prevalent in the West. Another employer noted low unemployment
rates in her State, and indicated that her business hires interns
through a trade association, the Navajo Nation, and from local
colleges, but that these workers are available only on an ad hoc basis,
and do not provide a stable and consistent labor force. In addition, a
number of commenters generally urged the Department to maintain the
status quo and keep the existing special procedures for these
occupations without change, expressing satisfaction with the existing
program variances.
The Department also received a comment from a SWA employee
commenting as a private citizen, stating that employers should be
required to engage in maximum recruitment efforts and affirmatively
request a referral report from the SWA. The commenter also asked the
Department to address the commenter's perceived employer preference for
foreign workers, the experience requirements in the job order, and the
difficulty U.S. workers have to predict their availability a month or
two in advance of the employer's start date. The commenter thus raised
obligations applicable to all H-2A employers (including the prohibition
against preferential treatment of foreign workers and the timing of
recruitment in advance of the employer's start date of need). All
employers seeking H-2A workers are required to conduct at least the
recruitment activity the Department requires, and to cooperate with the
SWA referring U.S. applicants. These obligations are not new or
specific to these range employers. The commenter did not suggest
specific additional recruitment activity or suggest that newspaper
advertisements should be retained as a requirement. We note that we
address acceptable experience requirements for these range occupations
in Section IV.B.2.a. of this preamble.
None of the commenters disagreed with the Department's proposed
position that newspaper advertisements are impractical and ineffective
recruitment tools for these range occupations. Accordingly, the Final
Rule adopts the proposal to expand the current variance to newspaper
advertisements to all range occupations eligible for processing under
this rule.
After considering all the comments received on this section, we
have decided to retain the original Sec. 655.225 as proposed. Because
both range herding and livestock production cover multiple areas of
intended employment in remote, inaccessible areas within one or more
States, and where fewer communities have newspapers, the newspaper
advertisement is impractical

[[Page 63002]]

and ineffective for recruiting domestic workers for these types of job
opportunities. The CO will direct the SWAs to keep the job order on its
active file until 50 percent of the period of the work contract has
elapsed for all employer-members identified on the approved job order.
The SWA will refer all qualified U.S. workers to the association, and
the association has an obligation to make every effort to accommodate a
U.S. worker's worksite location preference (e.g., the location with an
opening nearest to his or her place of residence). In addition, this
Final Rule clarifies that an association handling the recruitment
requirements for its employer-members must maintain a recruitment
report containing the information as required under the standard H-2A
regulation, at 20 CFR 655.156, in a manner that allows the Department
to see the recruitment results for each employer-member identified on
the H-2A application and approved job order. As we have done above, we
note again that this section of the Final Rule contains the only
variances the Department is making from the general post-acceptance
procedures in the standard H-2A regulations for eligible employers
seeking workers in range herding and production of livestock
occupations. Unless specifically addressed in these provisions,
employers must comply with the post-acceptance procedures in 20 CFR
655.150-655.158.

E. Range Housing

1. Section 655.230 Range Housing \55\
---------------------------------------------------------------------------

\55\ The title to this section, which was ``Mobile Housing'' in
the NPRM, has been changed to ``Range Housing'' in the Final Rule
for the reasons discussed in this section of the preamble.
---------------------------------------------------------------------------

a. Background
The TEGLs require employers to provide free housing to H-2A and
corresponding U.S. workers who are not reasonably able to return from
their work location to their residence within the same day. Because of
the transient nature of the work--going where the herd goes, often in
remote areas at some distance from the employer's ranch or farm--the
TEGLs recognize that permanent housing is not feasible. Instead, the
TEGLs recognize the need for housing that could be moved from one area
on the range to another. Under the practice permitted under the TEGLs,
most workers were provided a mobile camper that would be towed from one
location to another as housing. Tents and other shelters were also used
for this purpose, typically where there was no practical alternative
given limited accessibility by vehicle because of remoteness and
terrain.
In the NPRM, the Department proposed to include in this section the
following basic requirements that were established under the TEGLs: (1)
Employers subject to this rule may use mobile housing where more
permanent housing is not practicable because of the remote and changing
location of the employment or its terrain, or the worker is engaged in
the production of livestock or activities minor, sporadic, and
incidental to herding or production of livestock; (2) OSHA standards
for range workers, if promulgated, must be followed; (3) the mobile
housing must be inspected by state officials at least every three
years, and, if certified as meeting established standards, annually by
the employer until the next scheduled state inspection; (4) if a worker
is working on or near the employer's ranch, farm, or other central
facility (defined as within a reasonable distance for a worker to
travel each night), the employer must provide the worker access to a
toilet, kitchen, and a cleaning facilities for the worker and his or
her clothing, including showers with hot and cold water under pressure;
and (5) where a worker is residing temporarily at the employer's fixed-
site housing, rather than using his/her mobile housing for this
purpose, the fixed-site housing must meet the requirements of 20 CFR
655.122(d) (the housing standards generally applicable to H-2A
employment).
The Department explained in the NPRM that since there are no
specific OSHA standards for mobile housing on the range, employers were
required to follow the requirements established by the TEGLs and that
the Department proposed to include these requirements, with some
modifications, in this section and section 655.235. The Department
invited specific comment on whether an employer should be required to
provide a range worker a sleeping facility in fixed-site housing when
the worker is working at or nearby the employer's ranch, farm, or some
other central location.
b. Comments and Discussion
A few commenters stated that a range worker's housing should meet
the same or similar standards applicable to H-2A workers or other
workers engaged in agriculture. Most commenters, however, recognized
the unique nature of range employment and addressed various aspects of
proposed section 655.230, including inspection of mobile housing, and
access to kitchen, toilet, washing, and laundry facilities when a
worker is at or nearby an employer's ranch or farm. Worker advocates,
employers, and their associations responded to the Department's
invitation for comment on whether an employer should be required to
provide sleeping accommodations (other than the worker's mobile camp)
when a worker is performing work at or near an employer's ranch, farm,
or some other central location. Additionally, a few commenters noted
that the Department's proposal should be clarified to address temporary
bunkhouse-type structures used in remote areas in Texas and Montana,
and possibly other areas, to house workers when working in these areas.
The comments on these particular issues and the Department's resolution
are discussed immediately below by issue.
i. Inspection
Several employers and a State agency stated that the current
inspection system is working and that there is no need to change the
system. They explained that SWA inspection of mobile housing is
occurring as often as once or twice a year in some places. One
employer, Eph Jensen Livestock, however, noted the application of the
standards by inspectors and investigators sometimes varies drastically,
and asked the Department to better ensure clarity and consistency in
inspections. In contrast, worker advocates asserted that the mobile
units used by employers often failed to meet the existing standards.
They stated that the Department should better monitor and track mobile
housing by requiring annual inspections and instituting a system to
track the units inspected, and create an ombudsman position to ensure
compliance. They recommended the elimination of the self-inspection
process, and stated that if the system was continued there should be
more detailed requirements for the self-certification system. In their
view, some employers require workers to use uninspected, unsafe units,
sometimes in place of those that had been presented for inspection. The
worker advocates stated, as a general rule, that the mobile housing is
not adequately maintained, especially given the rigors of climate and
terrain.
As stated in the preamble to the NPRM, mobile housing must comply
with the established standards in order to provide a worker with
adequate shelter in circumstances where the climate may be harsh and
the terrain is often rough. Regular maintenance and inspection of the
mobile units are necessary for a worker's wellbeing. In the
Department's view, the proposed inspection system--properly applied--
including the denial of certification

[[Page 63003]]

where a mobile unit is deficient and the assessment of an appropriate
penalty for failing to maintain standards, provides sufficient remedies
to protect workers. SWAs are encouraged to review their inspection
procedures and to increase the frequency of inspections where they deem
appropriate. As noted by some commenters, some states require at least
annual inspections, and we encourage other states to do so. SWAs are
encouraged to share best practices to improve inspection procedures,
develop checklists to assist employers in conducting self-inspections,
and take steps to prevent the alleged fraudulent practice in which some
employers ignore the inspection process by providing uninspected mobile
units to workers under the guise that they have been inspected.
ii. Providing Kitchen, Toilet, Shower, Laundry and Sleeping Facilities
for Workers Performing Work at or Near a Ranch or Farm
No commenters directly opposed the Department's proposal regarding
provision of kitchen, toilet, shower, and laundry facilities where a
worker is performing work at or near an employer's ranch, farm, or
other location where these facilities are already available to other
workers. Some commenters stated that they routinely provide these
services to the workers. The worker advocates did not oppose the idea
that these services must be provided to workers, but, as discussed
below, they favored requiring employers to provide fixed-site housing,
meeting the usual standards for H-2A housing, for any range worker who
was at or nearby a ranch or farm for more than one week.
In responding to the Department's inquiry whether employers should
be required to provide living facilities separate from the mobile
housing while the herder is working at or near the ranch, several
employers and employer associations, including Mountain Plains and
Western Range, Lava Lake Land and Livestock, and the Siddoway Sheep
Company, voiced strong opposition to the idea. Many stated that such a
requirement would be unreasonable because it would require them to
construct a structure that would have to meet all the OSHA requirements
for fixed-site housing, even though the structure would be used only a
few weeks per year. They instead supported the Department's proposal to
allow range workers to continue to live in their assigned mobile
housing unit when located near a fixed-site ranch location. As
mentioned above, however, worker advocates disagreed, asserting that
workers should be provided fixed-site housing that meets all the OSHA
standards, whenever a worker is at or near the ranch or other location
for more than a week. In their view, providing access to running water,
toilets, and bathing facilities does not replace an employer's
requirement to provide housing meeting the normal standards for H-2A
workers.
The Department is adopting its proposal without change. We
recognize that there are times when the mobile housing is located at or
near the ranch or a central location for certain operations that are a
normal part of the herding cycle, such as birthing, shearing, or
branding. In such instances, the practice has been for workers to use
mobile housing, even where access to fixed housing exists. Under the
Final Rule, an employer may continue this practice so long as it
provides the workers with access to the other facilities required by
this section. However, the Department encourages employers to make
appropriate housing available at the ranch, if they have it and if the
workers prefer to stay in that housing.
iii. Remote, Stationary Range Housing
A few commenters, including Mountain Plains and Western Range, the
Texas Sheep and Goat Raisers Association, and an employer, William
Ashby Maltsberger, expressed concern about the use by employers of
remote, but not mobile, housing in their range operations. The
commenters stated that these operations, located in Montana and the
southern plains states, use strategically located wooden bunkhouses in
remote areas as they move herds through their grazing routes. The
commenters stated that in light of this practice, it would be
inaccurate for these employers to include a statement about ``mobile
housing'' in the job order, as would be required under the Department's
proposal. They expressed concerns, too, that unless the Department
modified its proposal, these employers could be denied use of range
workers under the H-2A program.
The Department's use of the term ``mobile housing'' in TEGLs and
the NPRM was intended to distinguish remote housing provided to workers
engaged in range work from fixed-site housing at a ranch or farm. The
term's usage was not designed to preclude employers from using remote,
but stationary, housing. Accordingly, the title to this section has
been changed to ``Range Housing,'' not ``Mobile Housing,'' and the
regulatory text for Sec. Sec. 655.230 and 655.235 has been revised to
clarify that such housing may be used to house range workers under this
rule while they work in remote areas so long as such housing meets all
the requirements of this section and the minimum standards established
under Sec. 655.235.
2. Section 655.235 Range Housing Standards.\56\
---------------------------------------------------------------------------

\56\ The title to this section, which was ``Mobile Housing
Standards'' in the NPRM, has been changed to ``Range Housing
Standards'' in the Final Rule for the reasons discussed in the prior
section of the preamble.
---------------------------------------------------------------------------

a. Background
The NPRM, in large measure, proposed to codify the minimum
standards historically applied by the Department to mobile housing used
by sheep, goat, and cattle herders while working on the range. These
proposed standards, which closely track the requirements in both TEGLs,
were generally consistent with the housing rules for temporary
agricultural workers published under 20 CFR part 654, subpart E, as
adapted to the unique circumstances of range workers. Providing
suitable housing for workers on the range presents unique challenges,
given the continuing movement of the range workers as they lead their
herd to new grazing areas, often in remote locations at considerable
distance from the herd's starting or interim locations, and the
relatively small number of workers engaged in this work. In most
instances, the housing, which is defined to include tents, moves along
with the worker and the herd to the next grazing location. The housing
standards, although providing general requirements regarding their
physical structure and inspection (see also Sec. 655.230), also
specify requirements relating to the provision of facilities (e.g., for
sleeping, heating, and cooking) and services (e.g, water supply and
refuse disposal). These standards are often flexible; a particular
standard typically allows an employer to select from various options
and to make adjustments for particular location, terrain, and other
circumstances. The standards necessarily differ, sometimes
significantly, from the requirements for less temporary, fixed-site
housing used by other workers engaged in agricultural duties. Thus,
while the Department has standard H-2A regulations governing fixed-site
housing for other temporary workers engaged in agriculture, these
regulations cannot be readily applied to the range.
The term ``mobile housing'' suggests a structure capable of being
transported from one location to another. The housing provided to
herders most often

[[Page 63004]]

is a wheeled-structure, varying from recreational type-vehicles seen
every day on highways, to other vehicles, more rustic in appearance
(``campers''), trailed behind cars or trucks. The proposed rule, like
the TEGLs, established requirements for these vehicles, but it also
included requirements, as did the TEGLs, applicable to tents, which may
be used in limited circumstances to house herders working on the range.
These standards were not intended to prohibit the use of other
structures used to temporarily house workers on the range simply
because they were not moved or could not be moved. Provided a structure
satisfied the ``mobile housing'' standards, the fact that it was not
moved would not exclude its use. In the Final Rule, this point is made
explicitly, in order to resolve concerns about the use of remote fixed
structures in some areas of the country, situated along grazing trails,
to temporarily house the herders.
The Department proposed to continue the requirement under both
TEGLs that each worker must have his or her own comfortable bed, cot,
or bunk, along with a mattress, to sleep. As noted in the NPRM,
however, the Department recognizes that where the housing is a one-
person unit, occasionally range work requires that two workers must
share or use the same bed, because terrain, remote location, or demands
of the herd, prevent the employer from bringing a separate housing unit
to the site, and the camper is a one-person unit. These situations are
intended to be rare and the Department proposed to continue to restrict
an employer from requiring workers to share a bed for more than three
consecutive days. The Department proposed to continue the requirement
that the employer must provide each worker with a separate sleeping bag
or other bedding when sharing a bed temporarily.
b. Comments and Discussion
i. General
Worker advocates asserted that the proposed minimum standards too
closely mirror the existing housing requirements, which they criticized
as outdated, too general, and inadequate to meet the workers' basic
needs for shelter, sleeping, cooking, cleaning, and personal hygiene.
Worker advocates urged the Department: To forbid the use of kerosene
lanterns and other items using combustible fuel; to require newer,
safer heating, lighting, cooking and refrigeration facilities,
including solar-powered items, LED lights, and battery packs; to
require emergency, hand-cranked generators; to require portable camp
toilets, and in areas such as corrals, where several individuals may be
working, outhouses; and, on at least a monthly basis, to provide each
worker the opportunity to take a hot shower and use a washing machine.
The worker advocates took particular issue with the proposed
heating standard. Under the NPMR's standard, an employer was not
required to provide heating unless the outside temperature remains
below 50 degrees for 24 hours. They stated that this standard ignores
the wide temperature fluctuations in some locations on the range and
exposes range workers to altitude- and cold-related medical conditions,
such as frostbite, chilblains, and trench foot. They asserted that the
Department should establish a requirement that an employer must equip
each housing unit with a heater that can maintain at least a minimum
prescribed temperature inside the unit, advocating for heaters capable
of keeping the temperature at or above 68 degrees.
In their comments, the worker advocates included a thumbnail sketch
of their view of the herders' working and living conditions on the
range:

[Herders part] of the year work and live on the valley floor.
During the rest of the year they tend sheep in the mountains and
deserts. Living alone, they have no contact with other humans for
days or weeks. They live in small, dilapidated, one room trailers,
called sheep camps, or tents. Most trailers have no form of heating
or air conditioning. They become unbearably hot in the summer and
intolerably cold during the winter. There are no bathing facilities.
There's no running water. No field toilets are provided.

Acknowledging that the workers traverse many different locations in
performing their sometime strenuous herding duties, often in remote and
rugged areas that require the use of mobile housing, including tents,
the employers paint a different picture than the worker advocates. From
the employer's perspective, the nature of range work, especially in
areas where terrain is mountainous or otherwise not easily accessible,
limits their ability to provide housing that exceeds the existing
standards. Work is often performed on land managed by federal agencies,
including the BLM and the Forest Service, which forbid more permanent
housing and regulate such things as waste removal and food storage. At
the same time, the employers indicated that where the location of the
herders' work permits, workers enjoy conditions better than required by
the standards, that the mobile housing meets established certification
requirements, and that the herders find their housing suitable and
appropriate for their line of work. The employers stated that the
workers are resupplied on a regular basis, prefer their mobile housing
to alternative structures, and are treated no less well than other
employees whose work is essential to an employer's business success. As
stated by the Texas Sheep and Goat Association: ``The ranchers treat
the herders . . . in many cases, as family.'' A similar sentiment was
expressed by the I & M Sheep Company: ``[The H-2A workers] have worked
very hard for our family and have become more than just employees to
us,'' adding that ``[w]ithout these individuals, our sheep operation
would cease to exist.'' To the extent there are problems with
compliance, the employers stated that better enforcement, rather than
more stringent standards, is the approach that should be taken.
No commenter directly stated that the existing standards,
established under the TEGLs, were too stringent; however, as will be
discussed, some comments demonstrated that some employers appeared
uncertain about some of these requirements. In general, several
employers and their associations suggested that the existing standards
are just about right, protecting workers' health and safety without
imposing excessive or unnecessary costs on employers. As stated by an
employer, Theressa Dalling: ``The special procedures . . . have worked
for [our industry] over the past 35 years. There is no reason to change
what has worked.''
Although the worker advocates and employer commenters disagree
about the degree to which employers comply with the existing
requirements, they agree that some employers fail to comply with the
requirements and that compliance can and should be improved. The
Department agrees. Compliance can be achieved not only through better
enforcement but also through outreach efforts to educate employers and
workers about the applicable requirements. In the Department's view,
this rulemaking has brought focus to the difficult circumstances under
which herders work, the unique features of their employment, and the
difficulties confronted by them and their employers, as they perform
their work, conduct their business, and attempt to earn a just wage and
profit.
Although we conclude that the existing standards, overall,
adequately protect the health and safety of the herders, some
adjustments and clarifications to the standards are appropriate. These
adjustments can be

[[Page 63005]]

made without imposing any unreasonable or unnecessary costs or burdens
on employers. In its proposal and the Final Rule, the Department has
sought to help employers understand and comply with their housing-
related obligations, without sacrificing simplicity and flexibility,
and to better inform workers and their advocates about the workers'
housing-related rights. The comments received on housing-related issues
have been informative and have helped the Department to shape the Final
Rule, revising the proposed regulatory text, as needed, to address
particular concerns raised by commenters. Each change is discussed
below with regard to each standard as set forth in the individual
paragraphs of Sec. 655.235.
ii. Particular Standards
(1) Change to Title and Opening Paragraph
Both TEGLs and the NPRM stated generally that an employer may
satisfy its housing obligations by providing workers use of a mobile
unit, camper, or similar mobile vehicle that meets the prescribed
standards. The NPRM proposed ``Mobile Housing'' as this section's
title. As discussed in Sec. IV.E.1. of the preamble in connection with
Sec. 655.210, the term ``mobile housing'' fails to include remote
fixed-site structures that have been used in Texas, Montana, and other
areas to temporarily house range workers. These bunkhouse-type
structures are not mobile, but are placed at strategic locations on
grazing trails to provide housing for workers as they proceed with a
herd along the trail. In the Final Rule, we have revised the title to
read ``Standards for Range Housing'' and made plain that any structure
used to temporarily house workers on the range must meet the standards
prescribed by Sec. Sec. 655.230 and 655.235. Further, as discussed
below, the Department received several comments that suggest confusion
about the use of tents to house workers on the range and how the
particular requirements set forth in Sec. Sec. 655.230 and 655.235
apply to tents. For added clarity, we have revised the regulatory text
to specify that tents are structures covered by these sections.
(2) Paragraph (a)--Housing Site
Both TEGLs and the NPRM provide that a housing site must be well
drained and without depressions that would allow stagnant water to
collect. No comments were received on this point and the Final Rule
adopts the proposal without change.
(3) Paragraph (b)--Water Supply
(a) Background
Both TEGLs require employers to provide workers an adequate and
convenient supply of water that meets standards established by the
State health authority. The TEGLs require that the employer provide an
amount sufficient for the normal drinking, cooking, and bathing needs
of each worker. The TEGLs also require an employer to provide an
adequate supply of potable water, or water that can be easily rendered
potable, and to provide individual drinking cups to each worker. In the
NPRM, the Department included these requirements. It clarified that the
supply of water must be enough for the worker's normal cooking,
consumption, cleaning, and laundry needs. Under the proposal, the
employer was required to provide the worker with the means to make the
water potable. This section overlaps with section 655.210(c), which
requires an employer to specify in the job order that it will provide
potable water or ``water that can be easily rendered potable and the
means to do so.''
The preamble to the NPRM explained: ``Potable water is water that
meets the water quality standards for drinking purposes of either the
state or local authority having jurisdiction over supplies of drinking
water or the U.S. Environmental Protection Agency's National Primary
Drinking Water regulations, 40 CFR part 141.'' 80 FR at 20313. The
Department explained that this definition mirrors the OSHA field
sanitation regulations that define potable water for agricultural
establishments, 29 CFR 1928.110. Id. It further explained that the
supply of readily available, potable water is necessary to ensure that
water is available for cooking and consumption by the worker, and that
OSHA requires that drinking water always be available in amounts needed
to satisfy thirst, cooling, waste elimination, and metabolism. As
proposed by the Department:

An adequate and convenient supply of water that meets the
standards of the state or local health authority must be provided.
Water used for drinking and cooking must be potable or easily
rendered potable, and the employer must provide the worker with the
means to make the water potable. The amount of water provided must
be enough for normal cooking, consumption, cleaning, laundry and
bathing needs of each worker; . . . and [i]ndividual drinking cups
must be provided.

80 FR at 20342.
The Department specifically invited comment on (1) how much of the
water should be potable (or easily rendered potable) for cooking and
consumption; (2) how much water is sufficient for cleaning, laundry,
and bathing requirements; (3) what alternative water supplies may be
used when exigent circumstances preclude the employer from transporting
water to the worker; and (4) what means are available to make alternate
water sources potable for cooking and consumption. 80 FR at 20313.
As discussed further below, we received many comments on whether it
was necessary to establish a standard other than to simply require that
an employer provide an ``[a]dequate and convenient supply of water that
meets the standards of the state health authority . . . [in an] amount
. . . enough for normal drinking, cooking, and bathing needs of each
worker,'' as required under the TEGLs. In the Final Rule, the
Department, as proposed in the NPRM, specifically requires that the
water used for drinking and cooking must be potable or easily rendered
potable with the means to make it potable, consistent with the TEGL
requirement referring to the State health authority standards.
The Department only received a few comments, discussed below, on
the amount of potable water needed for consumption and cooking. The
Final Rule requires that employers on a regular basis must supply,
i.e., transport to the workers' housing locations, enough water to
ensure that each worker has at least 4.5 gallons of potable water
available for the worker's use, per day, until resupplied. The Final
Rule provides a limited exception for situations where terrain prevents
the delivery of supplies by motorized vehicle. In those circumstances,
an employer must identify alternative sources of water, such as
springs, streams, or snow, that may be used by workers, and provide the
workers the means to test and, by filtering, chemical purification or
other methods, to easily render the water potable.
The Department only received a few comments on the amount of non-
potable water required to meet the cleaning, laundry, and bathing needs
of workers, which are discussed below. The NPRM did not specify an
amount of water needed for these purposes, nor preclude an employer in
exigent circumstances from requiring that workers rely on alternate
sources of water, where available, for these purposes. The Final Rule
adopts the approach taken in the proposal.
The Department received several comments on what would constitute
an exigent circumstance that would permit

[[Page 63006]]

an employer to require workers to rely on alternative sources of water,
set out below. Worker advocates urged the Department to limit the
exception to emergencies, such as where a forest fire prevented the
delivery of potable water. Employers and their associations urged the
Department to provide a broader exception, many asserting that they
should not be required to transport any water to any housing locations
where alternate sources of water are available. In the Final Rule, the
Department takes a middle course, allowing an employer to use the
exception where housing is located in areas that are not accessible by
motorized vehicle. As discussed below, there will be emergency
situations where an employer may encounter some delay in providing
supplies. We have decided that it is better to address those situations
on a case-by-case basis, rather than by attempting to define their
scope. In our view, it is difficult to anticipate the particular
situations that might arise. Stating that such an exception is
available, without precisely defining its scope, could be used by some
employers to circumvent their obligation to supply enough water to meet
the range workers' needs.
The Department received several comments, which we address below,
on the means by which water for drinking and cooking may be rendered
potable. The Final Rule does not require that any particular method or
device must be used for these purposes. The Final Rule, like the
proposal, simply requires that the employer--in those limited
circumstances where it is not required to transport potable water for
these purposes to a range worker -must provide the means by which the
worker may easily render the water potable and clarifies that the
employer must provide a worker with the means to test the physical,
chemical, and bacteria content of the alternate water sources available
so that the worker is able to determine whether it is necessary to
treat the water and the most suitable means of making the water
potable.
The Department received no comments on its proposal to continue the
requirement that an employer must provide individual drinking cups to
each worker, and the Department, without further discussion, is
including this requirement in the Final Rule.
(b) Comments
The worker advocates generally supported the Department's proposal,
but suggested that the Department should require employers to provide
potable and non-potable water in amounts, prescribed by the Department
to meet the workers' minimum daily needs. They stated that employers
should be required to deliver this water to the worker and should not
be permitted to require a worker to rely on alternative sources of
water to meet any of the worker's needs. They asserted that the use of
alternate sources of water should be strictly limited to emergency
situations such as forest fires or other disasters that temporarily
prevent employers from reaching the workers.
Although the employers and their associations generally supported
the proposed standard, they strongly opposed any limitation on their
use of natural sources of water to satisfy this obligation. They
acknowledged that workers should always have enough water for drinking,
cooking, bathing, and laundry, but were offended by the suggestion that
any legitimate employer would ignore this obligation. They expressed a
fear that the Department would ``over-regulate'' and, in doing so,
would significantly impair their ability to successfully operate their
businesses.
Mountain Plains and Western Range stated that employers regularly
supply their herders with water for drinking, cooking, and bathing
unless the herders are working in remote locations that have natural
sources of water. Several employers and two state agencies (New Mexico
and Utah) explained that workers' needs and the means of providing
water vary depending on the season, location, and particular herding
operations. Two employers, Henry Etcheverry and Siddoway Sheep Company,
described the particular difficulties involved in transporting heavy
materials, including water, to herders working in high mountain areas
where access is only by horse. Siddoway Sheep Company estimated that it
would need an additional eight pack horses per herd to supply workers
if natural sources of water could not be used for these purposes.
Mountain Plains and Western Range and two employers, Cindy Siddoway
and Henry Etcheverry, explained that there has been no history of
workers becoming sick from using natural water sources. Another
employer, Sharon O'Toole, noted that range workers are careful with
water because it is often not potable in their native countries.
The comments included a variety of cost-effective methods and
devices that they stated could be used to make natural sources of water
potable, including boiling water, straining melted snow through coffee
filters, iodine tablets, ultraviolet purification, bottles, osmosis
filters, water purification bottles, and germicidal tablets. One
employer, the Siddoway Sheep Company, recommended the use of hand-held
bottles designed for water purification, because, its experience has
been that workers will risk drinking water without testing or treatment
if the only method available leaves an unpleasant taste in the water.
The Department received only a few comments in response to its
request for input about the minimum amount of water that should be
provided to workers on a daily or weekly basis. Relying on a statement
prepared by an expert on the nutritional requirements of rural
populations and immigrant workers, the worker advocates asserted that
at least 32 gallons of potable water was needed weekly for each worker,
for consumption and dishwashing, a daily average of a little more than
4.5 gallons. The only employer to comment directly on this point,
Sharon O'Toole, estimated that workers need about 40 gallons per week
(5.7 gallons per day) for these purposes. The worker advocates
recommended that the employers be required to provide an additional 50
gallons of water (non-potable) for cleaning, bathing and laundry.
The worker advocates submitted short statements from three herders,
one of whom stated that about 35 gallons would be the minimum amount of
potable water required for each range worker per week (5 gallons per
day). One herder stated that his employer had only provided him with a
total of 40 gallons of per week (suggesting this amount was intended
for the all the worker's drinking, cooking, dishwashing, bathing, and
laundry needs). He explained that sometimes he would run out of water
before he was resupplied, forcing him to ask other herders, if any were
nearby, for water, and that for bathing he had to get water from the
sheep's water tank or ponds. Two of the herders said that they were
forced to continue wearing dirty clothes if they were not located close
to a natural water source.
Worker advocates requested the Department to clarify that separate
water supplies should be provided to workers, apart from any supplied
for the use of dogs or horses. One commenter, Sims Sheep Co LLC, noted
that potable water should be stored in a container appropriate for that
purpose. This employer also noted the difficulty of keeping water from
freezing, recommending that employers be required to provide containers
small enough to be kept inside the worker's housing to prevent the
water from freezing.
Mountain States and Western Range requested that the Department not
require employers to provide water for

[[Page 63007]]

clothes washing, if an employer offers laundry services and the worker
expresses no preference to do the laundry on his own. Two employers,
Carl and Katy Day and Warren Roberts, stated that they regularly pick
up the workers' dirty clothes and return the clothes after washing,
often weekly, when they resupply the camp. A Utah state agency stated
that requiring employers to provide water for laundering places an
unnecessary burden on employers.
(c) Discussion
After reviewing and considering all the comments on this provision,
we first determined that workers' health and safety are unnecessarily
put at risk by requiring an employee, on his or her own, to secure
water for essential needs. While working on the range, a worker is
always there at the convenience of the employer; thus, it is our view
that, at the most fundamental level, it is the responsibility of the
employer to ensure the worker's safety while he or she is serving the
employer's business interests. The provision of water, no less so than
providing a shelter to sleep in, or food to eat, is properly an
employer's responsibility where the worker's ``residence'' is the
range, and all his paid and unpaid time there is spent serving the
employer's interests. We acknowledge that most employers are
responsible and, as such, try to ensure their worker's safety, and that
most employers regularly, even in difficult circumstances, extend their
best efforts to keep their workers safe. Unfortunately, some employers
are not so responsible, and the Department must keep this in mind in
setting standards for a workplace, whether it is a factory or the
range. Our determination that an employer must provide workers with
necessary potable water--the only alternative to leaving the worker to
obtain it on his or her own--rests on the need to regulate the actions
of noncompliant employers, as well as because the alternative leaves
the range workers at too much risk. They work in a place where weather
conditions may be severe, temperatures are extreme, drought or near
drought conditions may exist, and they are often at considerable
distance from their employers and without any ready alternative if
their water runs dry.
We next determined that setting a recommended minimum amount of
water to satisfy an employer's obligation would benefit both workers
and employers. Setting a minimum amount should prompt immediate action
by an employer whose practice has been to provide significantly less
than this amount, thereby endangering, knowingly or not, the health and
safety of its workers. In reviewing the comments, it became clear that
many employers, especially in some locations and during certain
seasons, have relied on natural sources of water primarily, if not
exclusively, to meet or attempt to meet the workers' needs. Thus,
having determined that it should be the employer's responsibility to
provide the water, not one to be borne by the worker, there was a need,
in our view, to establish a ready benchmark to enable these employers
to estimate the amount of water they will now have to provide workers,
information that it would need to know in order to establish a plan for
transporting this water to their workers.
The comments submitted by the worker advocates helped inform the
Department about setting the standard at an appropriate amount. Our
consideration was guided by a statement included in the worker
advocates' comment on this point. The statement was prepared by Sarah
A. Quandt, Ph.D., a member of Wake Forest University's Department of
Epidemiology and Prevention. She is a recognized expert on issues
relating to food and nutrition among rural populations. She has
conducted research involving immigrant workers, including crop and
construction workers.\57\ Based on her experience and considering
research published by the U.S. Departments of the Army and Air Force,
she estimated that workers would require about 2.5 to 3 gallons of
water per day for consumption to which she added .5 gallon per day for
cooking and 1 gallon per day for washing dishes.
---------------------------------------------------------------------------

\57\ A list of Dr. Quandt's publications may be located at
http://www.ncbi.nlm.nih.gov/pubmed?cmd=PureSearch&term=Quandt%20SA%5BAuthor%5D.
---------------------------------------------------------------------------

The employer's estimate, too, was helpful. Although its recommended
weekly amount was about 8 gallons higher (by about one gallon a day)
than Dr. Quandt's estimate, the two were close enough to suggest there
might be a shared understanding among stakeholders about the amount of
water required to meet the essential needs of an in individual engaged
in range work. In further considering the issue, the Department
consulted two reference guides: The U.S. Army Water Planning Guide,
2008 (Army Water Guide) \58\ and the Water Guide for Emergency
Situations, prepared by the U.N. High Commissioner for Refugees (U.N.
Water Guide).\59\ The Army Water Guide provides various standards for
estimating the per capita water need for troops, depending upon the
particular operations in which the troops are engaged. The estimates
vary by climate: hot-tropical, hot-arid, temperate, and cold. The Army
Water Guide also provides an overall, per capita estimate for sustained
operations, again setting standards by climate. We focused on the
estimates for hot-arid, temperate, and cold climates. Herding in the
United States primarily occurs under those conditions. For drinking and
food preparation, the various estimates follow: 5.23 gallons for hot-
arid conditions; 3.58 gallons for temperate conditions, and 4.13
gallons for cold conditions. Water Guide, Chart of Standard Planning
Factors, at II-A-2. The U.N. Water Guide recommended a daily allocation
of 15 liters (nearly 4 gallons). Finally, we considered the water
standards prescribed by the State of California for various industries,
including agriculture.\60\
---------------------------------------------------------------------------

\58\ The Army Water Guide is available at http://www.quartermaster.army.mil/pwd/publications/water/Water_Planning_Guide_rev_103008_dtd_Nov_08_(5-09).pdf.
\59\ The U.N. Water Guide is available at http://helid.digicollection.org/en/d/Junr01/5.html.
\60\ See State of California, Department of Industrial
Relations, Guidance for Employers and Employees on the New
Requirements of the Heat Illness Prevention Regulation Amendments,
California Code of Regulations, Title 8, Section 3395 (discussing
changes, effective May 1, 2015, concerning employer requirements
relating to work performed under hot conditions and continuing the
State's requirement that covered employers must make available 2
gallons of drinking, per worker, for each 8-hour shift).
---------------------------------------------------------------------------

Based upon our review of the comments and the authoritative sources
noted, we conclude that 4.5 gallons is reasonable as a recommended
daily minimum amount of potable water that an employer should provide
for each range worker for drinking and cooking. In setting this amount,
we have balanced the need to provide workers a sufficient amount of
potable water to meet their essential needs and the practical ability
of employers to supply the appropriate amount of water without undue
burden. Setting the minimum recommended standard at 4.5 gallons per day
for drinking and cooking, rather than at the employer's higher
estimated level, frees space on an employer's trailer or truck to
transport supplies and other items to locations that may be distant
from the employer's ranch or farm. Further, we conclude that a more
conservative estimate is reasonable for setting this standard. It
reduces the initial burden on employers, while providing greater
protection to workers than is provided by the existing standard, which
does not specify a recommended minimum amount. Some of the employers
under this standard

[[Page 63008]]

will be delivering--for the first time--a large supply of potable water
to their workers who previously relied upon natural sources of water as
their sole or primary source of water for drinking and cooking. The
employer may take into account the worker's current supply of potable
water when replenishing the water. For example, if an employer
resupplies workers on a weekly basis and the worker has consumed only
25 gallons of a week's supply of 31.5 gallons, the employer may choose
to provide only 25 additional gallons of water until its next resupply.
Thus, to meet its obligations, an employer must deliver potable
water on a regular basis so that its workers will have the requisite
daily amount available during the supply and resupply cycle (except in
exigent circumstances where alternative sources may be used to satisfy
this requirement). It deserves emphasis that, even if the employer
provides the daily recommended minimum amount of potable water, it
remains its overriding duty to provide an adequate amount for each
worker, based on the needs of a particular worker. This need will vary
from individual to individual, and the appropriate amount is affected
by many factors, including temperature, humidity, wind, the
availability of shade, an individual's weight, and the length and
intensity of physical activity. In other words, particularly in a dry
or hot climate, employers may well be required to provide more than the
4.5 gallon general minimum.
We have determined not to set a minimum amount of non-potable water
that an employer must supply for bathing, washing clothes, or other
uses. We have less confidence in estimating an amount for these
additional purposes, given that bathing, showering, and laundering
practices may vary considerably because they involve matters of
personal choice that are affected by the availability of particular
facilities. These purposes may require significantly more water than
needed for consumption and food preparation and cleanup. Based on day-
to-day experience, obtained in providing water for their workers,
employers should be able to readily estimate the amount of water
actually needed by workers for all their needs, and, where natural
water sources are not available, they should be able within a
relatively short time to estimate the additional amount of water they
will need to provide their workers for bathing and washing their
clothes. This approach addresses the concern that if water for laundry
is not needed, the employer need not provide water for this purpose.
Moreover, this approach allows employers to rely on the worker's use of
alternate sources of water for cleaning, bathing and laundry, where
such sources are readily available.
The text of the rule also addresses other concerns raised by the
commenters, including a clarification that this standard establishes a
supply of water strictly for the worker's own use, not a source that
may be used to provide water for dog, horses, or the herd. We have also
retained and clarified the limited exception under which an employer,
for exigent circumstances, may require workers to rely on alternate
water sources to provide potable workers to employees. We have been
persuaded that requiring potable water to be carried on pack horse
would impose an unreasonable burden on employers. The regulatory text
has been clarified so that an employer will qualify for this exception
only where terrain would prevent delivery of water by motorized vehicle
and the employer satisfies the additional conditions described below.
In our view, the worker advocates' suggestion that exigent
circumstances be limited to emergency situations, such as a forest
fire, that would prevent the delivery of supplies to workers, is too
restrictive and would impose an unreasonable burden on employers.
We have concluded that the interests of range workers and employers
are better served by not providing for a broader exception for exigent
circumstances. There will be some occasions, such as a fire or a severe
storm, which may temporarily prevent an employer from providing
supplies. In those instances, an employer will not be held noncompliant
so long as it has been prudent in preparing for such a possibility,
such as by providing a reserve supply of water for emergencies, having
developed a plan for the extrication of their employees in such
circumstances, and having available contact information for government
and private agencies that are able to provide rescue services.
As pointed out by commenters, winter conditions may present
particular difficulties because freezing temperatures may prevent the
easy and immediate consumption of water. Therefore, we have revised the
text of the rule to require that wherever and whenever the temperature
can reasonably be expected to drop below freezing, the employer must
provide containers, appropriate for potable water, that are small
enough to be stored in the range housing to prevent freezing.
Regarding the requirement that employers must provide water
sufficient for bathing and cleaning, we are clarifying that this water
must be clean and free from anything harmful that could be absorbed by
the skin or clothing, but the water provided does not need to be
potable or easily-rendered potable. For these purposes, an employer may
always rely on natural sources of water (springs, streams, fresh snow),
when these sources available at the location of the worker's housing.
Where the alternate water source is the same source that will be used
to water the herd, the herder's dogs and horses, or may collect runoff
from areas in which herd excretes, the employer must undertake special
precautions to protect the worker's health from risk.
As discussed above, the Final Rule permits an employer, in limited
circumstances, to completely rely on natural sources of water to meet
the worker's needs, including drinking and cooking. The Final Rule
establishes the following conditions to rely on natural sources of
water for worker consumption:
The terrain or weather conditions of the area in which the
worker's housing is located prevents the delivery of potable water by a
motorized vehicle.
The employer has identified natural sources of water that
are potable or may be easily rendered potable in the area in which the
housing will be located and these sources will remain available during
the period the worker will be at that location.
The employer provides the worker with the means to test
whether the water is potable and, if not potable, the means to filter
out contaminants and treat the water to render it potable.
The employer must provide this information when it files
its H-2A Application for Temporary Employment Certification.
In the Department's view, these conditions carry special importance
given the presence of drought and near-drought conditions in parts of
the United States, particularly in the Southwest, as well as the
significant health risks posed if water sources become contaminated
with harmful pathogens because of the presence of nearby herds.
Where the employer seeks to use this exception, it must provide the
worker with a device that can test the physical, chemical, and bacteria
content of the water and the means to render the water potable.
Employers may choose from various approved methods and devices to
satisfy this requirement. Potential choices for means to render water
potable would include, among others, water purification tablets,
portable water purification systems, water

[[Page 63009]]

purification bottles, and filtering systems. Whatever method or device
is selected to test and make water potable, the employer must ensure
that the worker is adequately trained in the proper use of the method
or device, so that when necessary, the method or device is used
correctly.
(4) Paragraph (c)--Excreta and Liquid Waste Disposal
Both TEGLs and the NPRM require that facilities must be provided
and maintained for effective disposal of excreta and liquid waste in
compliance with state or Federal requirements. Where disposal pits are
permitted, the TEGLs and the NPRM state that the pits must be ``fly-
tight'' and maintained in compliance with State and local sanitation
requirements.
A few commenters expressed concern about the facilities employers
provide to range workers for the disposal of excreta and liquid waste.
A few commenters, including worker advocates, stated that employers
should be required to provide camp-type portable toilets or outhouses
for workers to use on the range. Another commenter stated that
employers do not always provide a shovel with which to bury such waste.
We have revised the regulation to address this concern.
The rulemaking record does not reflect what particular toilet
facilities, if any, are provided workers. The Department would expect
that an employer would choose to provide a portable, camp-like toilet
for use by its workers. A strictly functional device, shielded from
view if the herder is working with others, would appear to be
relatively inexpensive and compatible with any State or Federal
requirements concerning the disposal of excreta and liquid waste. The
Department, however, is less convinced about the suggestion that
employers should be required to provide an outhouse, which the
Department interprets to mean a permanent or semi-permanent structure
constructed of wood or similar material. Obviously, it would be
impractical unless workers routinely used the same location to
establish a ``camp,'' and even in these situations, it would entail
construction and maintenance costs and would increase, perhaps
substantially, an employer's disposal costs. The Department assumes
that similar costs would be entailed in the rental, purchase, use, and
transportation of a construction-type ``porta-john.'' Further, the
construction of an outhouse would likely be subject to land use
restrictions on many parcels of land used for grazing, including
Federal lands. Given the absence of information about current employer
practices in this area and uncertainty about legal and cost
considerations, the Department declines the suggestion to revise the
standard to require camp toilets or more substantial structures of this
nature, notwithstanding the benefit they would provide for workers.
(5) Paragraph (d)--Housing Structure
Both TEGLs and the NPRM required that employers provide structures
that are structurally sound, in sanitary condition, and in good repair
to protect workers from the elements. Beyond this general duty, the
TEGLs also specified a few particular requirements regarding the
structure of the housing. The general and particular requirements were
included in the NPRM.
Earlier, in the Sec. IV.E.1. of the preamble related to Sec.
655.230, and throughout this section, we discussed various general
comments and comments specific to particular requirements. Many of
these bear on the structural suitability of a housing unit, but the
Department received no comments specifically directed to this
subsection and therefore the Final Rule adopts the proposal on this
point without change, except to clarify that the requirements relating
to housing, including the standard for structure, also apply to tents,
except as discussed below.
Some employer comments suggested that there may be some confusion
about the application of standards to tents. The proposal did not
modify an employer's obligations under the TEGLs to generally apply the
same requirements to tents as apply to other range housing. The TEGLs
and the NPRM require that an employer may use a tent to house workers
only if the terrain or land use regulations prevent the use of more
substantial housing and the tent is appropriate for the weather
conditions. Further, where tents are used, they are subject to the same
requirements that apply to campers or other structures, unless the
standards provide otherwise. If it is feasible to provide electricity
and mechanical refrigeration at a location, an employer must do so,
even if the worker is housed in a tent. While such opportunities will
be limited, the obligation remains. If the use of the tent is required
by land use restrictions prohibiting more permanent structures, but
electric service is available, the employer must provide it. See Sec.
655.235(f). The TEGLs and the NPRM, however, specifically exempted
tents from the requirements applicable to other structures--that they
have rigid flooring and a second means of egress for escape (unless the
tent is large and has rigid walls), see Sec. 655.235(e)(5). Further,
the TEGLs and the NPRM prohibited the use of heaters in tents unless
the heater was approved for such use and the tent is fireproof. The
Final Rule contains these same requirements and exceptions.
(6) Paragraph (e)--Heating
Both TEGLs and the NPRM required that stoves or heaters using
combustible fuels be safely vented and be shielded by fireproof
material. They required that if a heater has automatic controls, it
must be of the type that interrupts the fuel supply when the flame
fails or a predetermined safe temperature is exceeded.
Neither the TEGLs nor the NPRM, however, required that each housing
unit be equipped with a heater or a heating system, nor did either
require the employer to ensure that the temperature inside the housing
could be maintained at or above a certain level. The NPRM continued the
existing standard under which employers could choose not to provide
heated units. Under that standard, no heating is required for housing
located in mild-climate areas unless the temperature is reasonably
expected to drop below 50 degrees and remain continuously below that
temperature for 24 hours. To maintain worker safety, however, employers
that choose not to provide heating were required to provide the workers
with proper protective clothing and bedding.
The worker advocates contended that the Department's proposal
ignored the wide temperature fluctuations in some locations where range
workers are employed, and that the proposal would continue to expose
range workers to altitude- and cold-related conditions that could lead
to injury and illness. They asserted that the Department should instead
require an employer to provide heating whenever the temperature inside
the housing facility falls below a prescribed temperature, advocating
in favor of setting this temperature at 68 degrees. The worker
advocates also requested the Department to require that any devices
that use combustible fuels (which would include those for lighting,
heating, and cooking) should have fuel sources stored outside the
housing structure. They further requested that the Department require
that heating devices should be inspected annually by fire departments
or heating specialists. No comments were submitted by employers or
their associations on this point. However, as noted throughout this
section of the preamble, employers and their associations generally
opposed

[[Page 63010]]

any requirements that would go beyond those required by the TEGLs.
The worker advocates have presented a persuasive argument that the
Department's proposed heating standard does not adequately protect the
health and safety of the workers. It is widely known that the hourly
temperatures in the mountainous and desert areas in which herding is
common can dramatically fluctuate over the course of a day. Even in
areas where temperature changes over the course of a day generally
fluctuate within a narrower range--areas that could be fairly described
as mild and whose usual daily temperature reaches 50 degrees or
higher--it is not for uncommon for the temperature to drop below
freezing or to feel as if it has when the weather is windy, rainy, or
both. In these circumstances, a range worker should be able to obtain a
heated shelter from the elements. Accordingly, the Final Rule revises
the threshold at which heating must be provided. As revised, an
employer must provide heating for a housing unit if the low temperature
for any day in the work contract period is reasonably expected to drop
below 50 degrees. If the low temperature for any day in which the
housing unit is being used is not reasonably expected to drop below 50
degrees Fahrenheit, no separate heating equipment is required as long
as proper protective clothing and bedding are made available, free of
charge or deposit charge, to the workers.
The Department recognizes that this may require some employers--for
the first time--to equip their range housing with heaters. The existing
standard is simply inadequate to protect the health and safety of the
range workers. The extra clothing and bedding is a poor substitute for
a heater on a day when the temperature may remain below 50 degrees.
The Department is unpersuaded by the argument that it should
require employers to provide housing units that will maintain a
specified inside temperature. The Department has no present information
that would allow it to set such a standard, particularly given the wide
variety in the design of the housing units used by range workers and
the uncertainty that a particular temperature could be achieved without
undue expense to employers.
The Department is not convinced that it is necessary to add either
a requirement that heating or heating system be inspected annually by a
fire department or heating specialist, or a requirement that an
employer can only provide a device in which the fuel source is stored
outside the housing unit, particularly because the type of device and
fuel storage must fit the variety of current and future housing
structures. The Final Rule retains the existing requirement under the
TEGLs that the units in which workers sleep must be constructed and
maintained according to applicable state and local fire and safety
laws. Moreover, the housing unit, including any heating equipment,
would have to meet whatever inspection requirements are established by
the SWA. In our view, this standard adequately ensures the safety of
the workers. Accordingly, except for revising the proposed standard to
limit the ability of an employer to provide an unheated housing unit,
the Final Rule adopts the standard as proposed. Finally, as discussed
above in Section IV.B.2.c., heating equipment and, where permitted,
protective clothing and bedding, must be listed in the job order along
with other required tools, supplies and equipment that will be provided
free of charge or deposit charge.
(7) Paragraph (f)--Lighting
Both TEGLs and the NPRM require that electrical service must be
provided if feasible. Both TEGLs and the NPRM required that where
electric service is not provided, the employer must provide at least
one lantern for each worker. Kerosene lamps were permitted.
The worker advocates, as previously noted, have broadly criticized
the Department for not incorporating modern technology in its range
housing standards. They have objected to the permitted use of kerosene
lamps in the range housing, asserting instead that the Department
should require battery or solar-powered devices. Although some
employers mentioned that they provided solar power sources for some
purposes, none indicated whether they were used to supply power for
lighting. As noted throughout this section of the preamble, employers
and their associations generally opposed any requirements that would go
beyond those required by the TEGLs.
In the Department's view, it is unnecessary and inappropriate to
mandate, or categorically forbid, the use of any particular device.
Kerosene lanterns have long been used by campers and other outdoors
enthusiasts to provide lighting in temporary structures similar to
range housing. On the present record, there is nothing that would
justify the Department from banning their use. As discussed previously,
employers are required to construct and maintain units that comply with
applicable state and local fire and safety laws. Where such laws forbid
the use of particular kinds of lanterns or impose conditions on their
use, an employer would be obliged to follow those laws. Moreover, it is
in employers' interest to provide safe lighting options.
There were no comments received on the requirement that an employer
must provide at least one lantern for each worker. The Final Rule
adopts the proposed lighting standard without change.
(8) Paragraph (g)--Bathing, Laundry, and Hand Washing
Both TEGLs and the NPRM require employers, if feasible, to provide
hot and cold water under pressure in range housing. Where not feasible,
employers were required to provide movable facilities for bathing,
laundry, and hand washing. Only a few concerns were raised in comments
on this provision.
Worker advocates requested the Department to provide workers with
sun-shower devices when work is being performed in warm climates. They
also asserted that employers should be required to provide workers with
at least monthly access to facilities where they can have a hot shower
and use of a washing machine. A few employers asserted, as discussed in
connection with the minimum standard for water, Sec. 655.235(b), that
laundry facilities are unnecessary where an employer picks up and
launders a worker's dirty clothes and exchanges the laundered clothes
for dirty ones when it resupplies the worker. The Department is not
persuaded that these suggested changes are necessary.
While the suggested use of a camp-type ``sun shower'' may be an
economical means of allowing a worker to bathe, it is only one of
several potential options that may be available to meet the employer's
obligation to provide movable facilities for bathing, and there is no
basis in the record for the Department to conclude that this device is
superior to other methods. Allowing a range worker to obtain a hot
shower and access to a washing machine each month could prove costly to
an employer. We assume that the employer would have to pay for the
services of a substitute worker to watch the herd in the first herder's
absence, and the time and distance between the herder's work location
and the available facilities might be considerable. Given that under
the Final Rule's standard, the workers are provided movable washing and
bathing facilities, imposing such a requirement seems unnecessary and,
depending upon the time and expenses involved, could impose an
unreasonable economic expense on the employer.

[[Page 63011]]

With regard to the suggestion that the standard should be revised
in recognition that some employers launder their workers' clothes, the
Department has determined that the standard should remain unchanged. It
is important, in the Department's view, that workers be provided the
means--tub, scrub bush, soap, and a line for clothing to dry, and a
sufficient amount of water with which to launder all or some of their
clothing on an as needed basis. Of course, if an employer chooses to
provide laundered clothing regularly, the worker's needs are likely to
be minimal.
(9) Paragraph (h)--Food Storage
Both the TEGLs and the NPRM required that employers must provide
housing with mechanical refrigeration where feasible. Where mechanical
refrigeration is not feasible, the standard provided the employer the
choice to either provide a propane or butane-powered refrigerator or
provide an alternate means by which food can be used or stored to
prevent or avoid spoilage. The TEGLs mentioned salting as method to
avoid spoilage. In the NPRM, the Department proposed ``dehydration'' as
another example of an acceptable alternative. The Department invited
comment on food preservation options in keeping with food safety and
nutrition concerns. These concerns have been addressed in Sec.
IV.B.2.d. of this preamble, in connection with Sec. 655.210.
As discussed with regard to the meal requirements established by
Sec. 655.210(e), commenters agreed that employers should be required
to provide range workers with ``adequate'' meals or ``sufficient'' food
to prepare healthy, nutritious meals and appropriate means for food
storage. Insofar as food storage methods are concerned, commenters
disagreed as to whether mechanical refrigeration should be required.
The worker advocates suggested that the Department adopt a hierarchy of
food storage methods, so that alternatives to refrigeration (e.g.,
salting and dehydration) could only be used where such refrigeration is
not possible. The worker advocates stated that advances in power
options (propane located outside the unit, battery packs, and solar
equipment) make refrigeration available in most instances and that
their use to maintain a temperature at or below 45 degrees would allow
the storage of fresh produce, thereby improving the variety and
nutritional value of the workers' diets.
Employer and employer association commenters stated that while
refrigeration is provided by some employers in some locations, it
cannot be provided in some remote locations (e.g., in the ``summer high
range'') where workers must live in tents and all supplies must be
transported by pack horses. Further, several commenters indicated that
they must comply with Forest Service and BLM regulations, noting that
in some locations the Forest Service requires food be stored in trees
to minimize encounters with potentially dangerous animals. In those
locations, employers stated that they provide food appropriate to the
available food storage options.
Mountain Plains, Western Range and some employers, including
Siddoway Sheep Company and Henry Etcheverry, read the proposal to
require refrigeration units when tents are being used, an undue and
likely impossible burden, because an employer's use of tents, in their
view, means that the herd is located in an area where the terrain is
rugged and supplies and equipment must be transported by pack horses.
The Siddoway Sheep Company proposed that the purpose served by
refrigeration--to ensure that workers receive nutritious meals--could
be achieved by providing the workers with fresh meat and fresh produce
for consumption in the short term, supplemented by a variety of canned
meats, fruits, and vegetables.
The Department recognizes that range work is performed throughout
the year in a wide variety of locations, including some that are remote
and not accessible by motorized vehicle. Yet it remains appropriate to
establish a minimum standard that is flexible enough to apply to the
variety of situations on the range. The historical approach, embodied
in the TEGLs and the NPPRM, achieves this purpose. It allows
flexibility, while at the same time ensuring that employers provide
adequate and sufficient meals to workers, which cannot be met without
ensuring that appropriate methods of storage are also provided.
Under the proposal and as adopted in the Final Rule, where
mechanical refrigeration is not feasible, an employer may choose among
alternative means to eliminate or reduce spoilage of food and thereby
meet its obligations under the standard, established in Sec. 655.210,
to provide workers with sufficient and adequate meals. While the
provision of a butane or propane refrigerator, obviously, would best
replicate mechanical refrigeration, we conclude that requiring such use
would be impractical in many instances. The Department also recognizes
that in some instances, regulations by other government agencies,
including those designed to protect people from potentially dangerous
encounters with wild animals, will determine appropriate storage
methods. Further, as noted below in connection with Sec. 655.235(k),
employers are required to provide sealed containers for storing food
where there is a risk of contamination of the food by insects, rodents,
or other vermin.
(10) Paragraph (i)--Cooking and Eating Facilities
Both TEGLs and the NPRM required that if workers were permitted or
required to cook in their housing, the employer must provide a space
with adequate lighting and ventilation for this purpose. The TEGLs and
the NPRM required that the wall surfaces next to the areas for food
preparation and cooking must be non-absorbent and easy to clean. They
further required that the wall surface next to cooking areas must be
made of fire-resistant material. No substantive comments were received
on these particular points and the Final Rule adopts the proposal
without change.
(11) Paragraph (j)--Garbage and Other Refuse
Both TEGLs and the NPRM required employers to provide clean,
durable, and fly-tight containers for each housing unit. If refuse and
garbage cannot be buried, the employer was required to collect the
garbage twice weekly or more often if necessary. The Department
received only a single comment on this standard. The Siddoway Sheep
Company stated that the garbage disposal requirements should be
clarified because a twice-weekly schedule for removal is impractical in
mountain areas, where resupply occurs only once every 8-10 days.
In the discussion above related to Sec. 655.235(b), the Department
recognized the impracticality of moving supplies in areas that are not
accessible by vehicle. Similar problems are involved with the disposal
of refuse and garbage by packhorse or other means. Accordingly, the
Final Rule has been revised to provide a limited exception to the
general requirement where garbage and other refuse cannot be buried. In
those situations, the employer must collect and remove the garbage and
other refuse on the return leg of its supply run. The Department
reminds employers that other agencies may regulate the storage and
disposal of garbage and refuse, and employers are required to comply
where such regulations are applicable.
Accordingly, the text has been revised as discussed. Apart from
this revision,

[[Page 63012]]

the Final Rule adopts the proposal without change.
(12) Paragraph (k)--Insect and Rodent Control
Both TEGLs and the NPRM required the employer to provide
appropriate materials, including sprays, to combat insects, rodents,
and other vermin. The Department received no comment directly on this
point and the Final Rule adopts the proposal without change. A private
individual, worker advocates, and employers submitted comments on
protecting food from insects, rodents, and other wildlife. A private
citizen, noting the difficulty of keeping insects away even in private
residential areas of the country, recommended that the Department
require employers to provide sealed containers to prevent insect
contamination. While the Department construes its food storage and
insect and rodent control standards to require this practice, the
Department has determined that worker health would be better protected
by making this requirement explicit. Accordingly, in the Final Rule,
the Department has revised the proposal to provide: ``Appropriate
materials, including sealed containers for food storage, must be
provided to aid housing occupants in combating insects, rodents, and
other vermin'' (adding underscored text).
(13) Paragraph (l)--Sleeping Facilities
The NPRM retained, with minor clarifying edits, the requirement
under the TEGLs that each worker have his or her own comfortable bed,
cot, or bunk with mattress. The NPRM also continued the existing
variance from this requirement for temporary situations of up to three
days, in which two workers could share a mobile housing unit with a
single bed, provided each worker was provided his or her own sleeping
bag or bedding.
Even though the Department's intent was only to maintain the
existing standard, many commenters, including Mountain Plains, Western
Range, Wyoming Wool Growers, and the Texas Sheep & Goat Raisers
Association, perceived the proposal as a new requirement. For example,
the Colorado Wool Growers Association stated that this standard would
require employers to transport a second mobile unit whenever they have
two workers herding the same flock. An employer, Kay and David O.
Neves, expressed the concern that the proposed standard would prevent a
new herder from living in a two-bed unit with an experienced herder,
denying the worker and the employer the benefit of the seasoned
worker's experience. Other commenters, including the Texas Sheep & Goat
Raisers Association also expressed concern about how the standard
should be applied, i.e., whether employers must provide a physically
separate area for a second herder to sleep in the housing, only
separate cots or beds, or only separate bedding (blanket, other linen,
or sleeping bag). Mountain Plains, Western Range, and Wyoming Wool
Growers requested that we remove the three-consecutive day limit on two
workers sharing a unit with a single bed, stating that winter
conditions and safety considerations often require two workers to care
for the herd, and practical considerations prevent moving a second
camper every few days. They argued in favor of revising the rule to
allow two workers to share a single camper as long as there is space
for two sleeping bags.
The associations and several other commenters stated that the
phrase ``sleeping facility'' was confusing, leaving them guessing
whether it refers only to a bed or the entire camp structure. The
confusion caused alarm among several commenters who read the proposal
to require that they must have two separate mobile housing units
whenever two herders would be staying overnight at the same location.
Several mentioned that this requirement would force them to purchase
new units at a cost of $20,000 per vehicle.
To remedy the concerns noted, Mountain Plains and Western Range
suggested that a ``sleeping unit'' should be defined as ``a comfortable
bed, cot, or bunk with a clean mattress.'' On a separate point, the
worker advocates recommended that the Department revise the standard to
require that mattresses and pads not sit on the floor of a housing
structure and to require that if foam pads are provided, they must be
thicker than two inches and covered completely with a washable
material. On a related point, the Siddoway Sheep Company requested
modification of the sleeping facilities standard to relieve employers
of the requirement to provide mattresses or cots when workers are
living in tents. It stated that its experience has been that range
workers do not use the cots it has provided, preferring instead to use
pine boughs.
The Department has determined that its use of the term ``sleeping
facility'' rather than a term such as ``sleeping arrangement'' or even
more simply ``a separate bed,'' to describe this standard has
contributed to unnecessary confusion. ``Sleeping facility,'' even as
defined in the TEGLs and the proposal, carries with it the idea of a
physical structure, such as a camper or bunk. As such, the standard can
be read to require that whenever an employer assigns a second range
worker for longer than three days to work with a another herder, it
must provide a separate structure, a separate area within a single
structure, or separate bed or cot, or some combination of such
requirements, for each worker.
We have revised the requirement to make plain that an employer is
not permitted to require workers to use or share a single bed for more
than three consecutive days. It should be emphasized that the sleeping
standard establishes the general requirement that each worker, on a
nightly basis, must be provided his or her own separate bed. The shared
sleeping exception is limited to infrequent and temporary (no longer
than 3 days) situations where it is impractical to provide a worker
with a separate bed, mattress, or cot. The exception cannot be used in
other situations to circumvent the requirement of one worker, one bed.
Of course, if the camper is designed and certified for occupancy by two
people, and has two beds, two workers may occupy it.
In the Final Rule, we have revised the proposed standard to better
distinguish the general requirement from the limited three-day
exception.
Each worker must be provided housing (including a camper or tent,
when permitted or required) that contains, except in a family
arrangement, his or her own comfortable bed, cot, or bunk with a clean
mattress. An employer may be permitted to require workers to use or
share a single bed only where:
The employer makes the request when filing an application
for certification;
demonstrates to the satisfaction of the CO that it would
be impossible or impractical to provide each worker with a separate
bed; and
the employer provides the second worker a sleeping bag or
bed roll free of charge or deposit charge.
With regard to the comment that the Department should revise the
standard to relieve employers from providing a cot and mattress when
workers are staying in tents, the Department disagrees. In doing so,
the Department would be removing a basic measure of sleeping comfort.
At the same time, it should be clear that the standard does not require
a worker to use a mattress and cot if he or she prefers to sleep on
pine boughs or some alternative foundation. An employer meets its
obligations under the standards by making available the mattress and
cot to the worker and allowing him or her to

[[Page 63013]]

freely choose whether or not to use these items.
As a final matter, the Department is not persuaded that it should
mandate a specific thickness or covering for a sleeping pad or require
an employer to modify its housing to ensure that no worker may be
required to sleep on mattresses and pads that sit on the floor of the
housing structure. The standard requires that the employer provide a
comfortable bed, a standard that admittedly allows room for
interpretation, but ensures that a worker must be provided a mattress
or its equivalent, which must be clean and which provides some comfort
from the alternative of sleeping directly on a hard surface. The
rulemaking record does not provide sufficient information that would
allow the Department to establish a particular thickness for pads,
their covering, or similar particulars for bedding.
(14) Paragraph (m)--Fire, Safety, and First Aid
The NPRM continued the requirements established under the TEGLs
that:
An employer must provide housing that must be constructed
and maintained in compliance with applicable state or local fire and
safety laws;
the storage of flammable or volatile liquids or other
materials in living areas is prohibited, except for those needed for
current household use;
the housing provide two safe means by which a worker may
escape the unit without difficulty, excepting tents from the
requirement of a second means of escape unless they are large and their
walls are constructed of rigid material; and
the employers must provide a first aid kit and provide
adequate fire extinguishers in good working condition.
The worker advocates commented on three aspects of the proposal,
requesting the Department to require employers: To install smoke
detectors in housing and to provide easily accessible fire
extinguishers; to require that there be an emergency exit, with egress
at rear, of each housing structure; and to include particular items, as
identified by the Department, in first aid kits. The worker advocates
did not suggest the inclusion of any particular items, but asked the
Department to consider the need for items to treat illnesses related to
exposure to cold temperatures.
In the Department's view, the proposed standard adequately meets
these concerns. The worker advocates have provided no evidence that the
standards are inadequate or that workers have been put at risk by the
application of the standards. The proposed standard requires compliance
with applicable fire and safety laws, including a second means of
escape, and requires the unit to have a fire extinguisher in good
working condition. The proposed language does not explicitly state that
the fire extinguisher must be accessible. We have added this
requirement to the standard.
Where state and local authorities have determined that smoke or
fire detectors are required for the type of housing provided workers,
employers must comply with those requirements. Where such laws do not
apply to such housing, without any demonstration that the lack of such
devices has caused injury to workers the Department is ill-equipped to
mandate their use. Similarly, local and state fire departments,
nongovernmental organizations, such as the Red Cross or organizations
comprised of camping, hiking, or wilderness exploring enthusiasts, or
their worker's compensation insurers, are better suited than the
Department, at present, to recommend the items to be included in first
aid kits, especially for treating injuries caused by exposure to the
elements. However, we would expect that employers in stocking the
required first aid kit will take into account the conditions under
which range work is performed, including the risks posed by insects,
wildlife, and the worker's exposure to extremes of heat, cold, storms,
and rugged terrain.
We decline the worker advocates' suggestion that the Department
should require employers to provide a hand-cranked generator for
emergencies. They have not provided any evidence that would allow the
Department to properly consider this request. With regard to their
comment on first aid kits, they again have not provided sufficient
evidence that would allow the Department to properly consider this
request.
The Final Rule adopts the proposal on fire, safety, and first aid
without substantive change. The Final Rule makes three minor changes.
We have clarified that an employer must comply with both state and
local fire and safety laws and that the standards apply to all housing
covered by Sec. 655.235, a change, as discussed earlier in connection
with Sec. 655.230, to make plain that stationary housing used by some
employers on grazing trails must comply with the standards, which were
previously referred to ``mobile housing.'' Finally, we have clarified
that employers must ensure the accessibility of fire extinguishers.

V. Administrative Information

A. Executive Order 13563 and Executive Order 12866

Executive Order (E.O.) 13563 directs agencies to: Propose or adopt
a regulation only upon a reasoned determination that its benefits
justify its costs; tailor the regulation to impose the least burden on
society, consistent with achieving the regulatory objectives; and in
choosing among alternative regulatory approaches, select those
approaches that maximize net benefits. E.O. 13563 recognizes that some
benefits are difficult to quantify and provides that, where appropriate
and permitted by law, agencies may consider and discuss qualitatively
values that are difficult or impossible to quantify, including equity,
human dignity, fairness, and distributive impacts.
Under E.O. 12866, the Office of Management and Budget's (OMB's)
Office of Information and Regulatory Affairs (OIRA) determines whether
a regulatory action is significant and, therefore, subject to the
requirements of the E.O. and OMB review. Section 3(f) of E.O. 12866
defines a ``significant regulatory action'' as any regulatory action
that is likely to result in a rule that: (1) Has an annual effect on
the economy of $100 million or more or adversely affects in a material
way the economy, a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or state, local, or
tribal governments or communities (also referred to as ``economically
significant''); (2) creates serious inconsistency or otherwise
interferes with an action taken or planned by another agency; (3)
materially alters the budgetary impacts of entitlement grants, user
fees, or loan programs, or the rights and obligations of recipients
thereof; or (4) raises novel legal or policy issues arising out of
legal mandates, the President's priorities, or the principles set forth
in the E.O.
OIRA has designated the Final Rule a significant regulatory action
under sec. 3(f) of E.O. 12866 but not an economically significant rule.
The economic effects of the costs and transfers that would result from
the changes in this Final Rule, above and beyond the impacts of the
program as it is currently implemented, are not economically
significant. The largest impact on employers will result from
implementation of the wage setting methodology. The Final Rule will
result in average annual transfers from employers to employees due to
increased wages of $17.46 million between 2016 and 2025, which includes

[[Page 63014]]

a two-year transition period during 2016 and 2017, with full
implementation in 2018.61 62 For those employers engaged in
the range production of livestock other than sheepherding and goat
herding, the Final Rule requires employers to provide food or meals,
free of charge, to workers at an average annual cost of $1.78 million
(employers engaged in sheepherding and goat herding must already
provide free food under the TEGL, so it is part of the baseline;
although employers engaged in the range production of livestock
currently must provide free food based on the SWA wage survey, that
could change, so we accounted for the cost). The special procedures
guidance currently in place for the range production of livestock and
sheepherding and goat herding require the provision of an adequate and
convenient supply of water that meets the standards of the state health
authority in sufficient amount to provide for drinking, cooking, and
bathing. The Final Rule clarifies the required water supply by
generally requiring the supply of at least 4.5 gallons of potable water
per day for drinking and cooking, and modifies it by including water
for laundry (with certain exceptions). The additional costs incurred by
employers resulting from these requirements in the Final Rule average
$2.36 million annually and include the cost of the potable water,
utility trailers, vehicle mileage, and labor to deliver the water and
food to workers.\63\ The Final Rule also includes a requirement that
employers provide access to cooking and cleaning facilities when
workers are located at or near a fixed-site ranch or farm. As the
Department anticipates existing cooking facilities will accommodate
that requirement, the estimated average annual cost to employers for
costs related to the provision of cleaning facilities is $0.75 million.
The additional cost incurred by employers for recordkeeping is $0.19
million per year and $0.10 million for the heating equipment per year,
respectively. Finally, the cost for the time required to read and
review the Final Rule is $0.01 million per year. The Final Rule
involves some cost reductions for employers, primarily for those who
will no longer be required to place newspaper advertisements, which
amount to $0.06 million per year. Therefore, the average annual cost of
the Final Rule is $5.13 million.
---------------------------------------------------------------------------

\61\ Some part of these increased wages will be paid to foreign
workers. Following Circular A-4, these payments may potentially be
considered costs from the perspective of the U,S. economy, but
should be considered transfers if these workers can be considered
``residents'' of the U.S. or if the global effects of the regulatory
change are analyzed.
\62\ To determine the new required monthly wage rate for 2016,
the Department first multiplies $7.25 per hour times 48 hours per
week times 4.333 weeks per month. For years after 2016, the
Department calculates the average change in the quarterly wages and
salaries Employment Cost Index (ECI) for each year from 2012 through
2014. We then take the average year-over-year ECI growth rate and in
2017 apply the resulting value to the 2016 monthly wage, and we
apply the ECI growth rate to the prior year's result again for each
subsequent year. There is a transition period during 2016 and 2017,
when the resulting monthly wage is multiplied times .8 and .9,
respectively. This methodology is described in detail in Section 4:
Subject-by-Subject Analysis. The $17.46 million in increased wages
likely is an overestimate of the impact as several employer
commenters stated that they already pay wages in excess of the
currently required wages (as well as for other reasons addressed in
Section 4).
\63\ The estimate of $2.36 million is likely an overestimate
based on the fact employers are already required to provide water
for drinking, cooking, and bathing that meets state health
standards, and it presumes delivery 50 weeks of the year when
workers are only required to be on the range for a majority of the
job order period.
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1. The Mendoza Litigation and Need for Rulemaking
In Mendoza, et al. v. Solis et al., U.S. workers filed a lawsuit in
the U.S. District Court for the District of Columbia challenging the
special procedures for sheepherding, goat herding, and occupations
involved in the production of livestock on the range, asserting that
the Department violated the Administrative Procedure Act (APA) by
adopting ``special procedures'' without first providing notice and an
opportunity for public comment. The district court granted a motion to
dismiss for lack of standing, but the Court of Appeals for the DC
Circuit reversed the district court's dismissal and held that the
Department's Training and Employment Guidance Letters (TEGLs)
containing special procedures for herding and production of livestock
occupations on the range constituted legislative rules subject to the
APA's procedural notice and comment requirements.
Through this rulemaking, the Department is complying with an order
issued by the district court on remand to remedy the APA violation
found by the DC Circuit. The lawsuit, however, is only one of the
reasons for the promulgation of this Final Rule. The unique on-call
nature (up to 24 hours a day, 7 days a week) of the work activity in
isolated areas associated with these occupations, coupled with the
sustained scarcity of U.S. workers employed in herding, has made
determining an appropriate prevailing wage increasingly difficult under
the current methodology for determining wages for these occupations. In
these occupations, the prevailing wage serves as the Adverse Effect
Wage Rate (AEWR). Few employers provide U.S. worker wage information in
response to prevailing wage survey requests for these occupations,
making it difficult for State Workforce Agencies (SWAs) to submit
statistically valid prevailing wage findings to the OFLC Administrator.
For example, based on a review of employer surveys conducted over the
last four years by approximately 10 states located in the mountain
plains/western regions of the United States, all of the SWAs with
reportable wage results under ETA's guidelines reported a combined
total of only 30 (2012), 26 (2013), 18 (2014), and 52 (2015) domestic
workers performing sheepherding; these numbers are insufficient to
report statistically reliable wage results by state. Therefore, through
this rulemaking, the Department plans to establish a more effective
methodology for determining and adjusting a monthly wage rate for these
unique occupations that adequately protects U.S. and H-2A workers in
these occupations. In addition, the Department has received complaints
concerning housing conditions and has found violations of the housing
standards in both complaint and directed (non-complaint)
investigations. In addition, several cases have been litigated in which
workers' health and safety were at question. See Ruiz v. Fernandez, 949
F. Supp. 2d 1055, 1060 (E.D. Wash. 2013) (denying defendants' motion
for summary judgment where plaintiff-sheepherders alleged mistreatment,
including denied breaks, threats of deportation, inadequate food, and
housing that did not meet the minimum health and safety standards);
Camayo v. John Peroulis & Sons Sheep, Inc., No. 10-CV-00772-MSK-MJW,
2012 WL 4359086, at *1 (D. Colo. Sept. 24, 2012) (denying defendant's
motion to dismiss where plaintiff-sheepherders alleged severe
mistreatment, including lack of food); In the Matter of: John Peroulis
& Sons Sheep, Inc., ALJ Case No. 2012-TAE-00004 (appeal pending before
ARB) (ALJ upheld the Department's charges against employer for multiple
violations, including lack of adequate housing).
2. Regulatory Alternatives
In the Notice of Proposed Rulemaking (NPRM), the Department
proposed to set the monthly AEWR for these occupations based on
forecasted AEWR values from the Farm Labor Survey conducted by U.S.
Department of Agriculture USDA (FLS-based AEWR) multiplied by an
estimate of 44 hours per week, with a four-year transition and full
implementation in year five (referred to in the NPRM as a five-year

[[Page 63015]]

phase-in). In addition, DOL considered the following two alternatives:
(1) Base the monthly AEWR on the FLS-based AEWR multiplied by 44 hours
with a two-year transition and full implementation in year three; or
(2) base the monthly AEWR on the FLS-based AEWR multiplied by 44 hours
with no transition.
The Department received numerous comments related to the
alternatives considered in the NPRM's EO 12866 analysis. Many
commenters, including Mountain Plains Agricultural Services and Western
Range Association (Mountain Plains and Western Range) and the Texas
Sheep & Goat Raisers Association, as well as Brent Espil, Cunningham
Sheep Co., and Siddoway Sheep Company, Inc. (individual employers)
asserted that the alternatives were not ``true'' alternatives in that
the Department did not consider other ways to determine the AEWR for
occupations involving the herding or production of livestock on the
range. For this reason, some commenters stated that the Department
failed to meet the requirements set forth in the Regulatory Flexibility
Act (RFA). They characterized the three alternatives presented by the
Department as one alternative with three transition periods methods,
and stated that in their view the alternatives therefore do not satisfy
the requirements of Section 603(c) of the RFA to describe ``any
significant alternatives to the proposed rule which accomplish the
stated objectives of applicable statutes and which minimize any
significant economic impact of the proposed rule on small entities.''
The U.S. Small Business Administration (SBA) Office of Advocacy
similarly asserted that the Department did not analyze any regulatory
alternatives that may minimize the economic impact of the proposed rule
on small businesses, and suggested that the Department publish a
Supplemental Initial Regulatory Flexibility Analysis (IRFA). The
Wyoming Farm Bureau Federation--a trade association--questioned why the
Department did not consider longer phase-in alternatives. In the Final
Rule, the Department analyzes a different set of alternatives that
utilize different wage rate sources, including the Fair Labor Standards
Act (FLSA) current minimum wage of $7.25/hour, the 1994 TEGL monthly
wage rates indexed by the Employment Cost Index (ECI) for wages and
salaries as published by the Bureau of Labor Statistics (BLS), and the
FLS-based AEWR.
The Department carefully reviewed the comments related to the
proposed wage setting methodology and to the alternatives laid out in
the E.O. 12866 analysis and the IRFA. After considering the comments,
the Department has decided to set wage the monthly AEWR for range
herders of sheep, goats, and other livestock using a formula based on
the current FLSA minimum wage of $7.25/hour as a starting point,
multiplied by a revised weekly estimate of 48 hours per week, with
annual adjustment based on inflation from the ECI for wages and
salaries beginning in year two. This base wage source is generally
consistent with the second of two alternative proposals set forth by
Mountain Plains and Western Range, which was endorsed by the ASI and
many individual employers. DOL adopts a weekly hour estimate of 48,
which is greater than that proposed by these commenters, and a
transition period (two years with full implementation in year three)
shorter than that favored by these commenters. As under the proposal,
the employer is required to pay an applicable Federal or State minimum
wage if higher than the monthly AEWR. As discussed in detail in the
preamble, the Department concludes that this wage rate is both
necessary to provide a meaningful test of the labor market for
available U.S. workers and to protect against adverse effect on workers
in the United States similarly employed.
As discussed in the Final Regulatory Flexibility Analysis (FRFA)
that follows, in addition to the wage methodology adopted in this Final
Rule, the Department considered three alternative methods to set the
monthly AEWR: (1) To set the monthly AEWR based on the 1994 TEGL wage
adjusted for inflation using the capped ECI,\64\ and a three-year
transition period with full implementation in year four; (2) to set the
monthly AEWR based on an hourly rate of $7.25 multiplied by an estimate
of 44 hours per week and adjusted using the capped ECI beginning in
year five, implemented with a three-year transition period with full
implementation in year four; and (3) to set the monthly AEWR using the
FLS-based AEWR multiplied by an estimate of 65 hours per week without a
transition and permitting food deductions based on the methodology used
in the rest of the H-2A program.
---------------------------------------------------------------------------

\64\ Mountain Plains and Western Range recommended indexing past
wages based on the ECI with a 1.5 percent adjustment if the
percentage increase in the ECI during the previous calendar year was
less than 1.5 percent; by the percentage increase in the ECI if such
percentage was between 1.5 percent and 2.5 percent, inclusive; or by
2.5 percent if the percentage increase in the ECI exceeded that
amount. We refer to this methodology throughout as the ``capped
ECI''.
---------------------------------------------------------------------------

The selected methodology will most effectively enable the
Department to meet its statutory obligations to determine that there
are not sufficient workers available to perform the labor or services
requested and that the employment of foreign workers will not adversely
affect the wages and working conditions of workers in the United States
similarly employed before the admission of foreign workers is
permitted. The new wage methodology will begin to address immediately
and substantially the wage stagnation concerns discussed earlier in the
preamble. The transition period recognizes that the full wage increase
in a single year could lead to disruptions that could be avoided by the
more gradual implementation period. In determining where to set the
monthly AEWR so that it will not result in adverse effect, it was
appropriate for the Department to consider whether a significantly
higher wage could be immediately absorbed by employers or might have
the unintended consequence of reducing the availability of jobs for
U.S. workers because the wage would result in some employers going out
of business or scaling back their operations, as a substantial number
of comments demonstrated.
3. Economic Analysis
The economic analysis presented below covers employers engaged in
the herding or production of livestock on the range. The Department's
economic analysis under this Part (III.A) is strictly limited to
meeting the requirements under Executive Orders 12866 and 13563. The
Department did not use the economic analysis under this Part as a
factor or basis for determining the scope or extent of the Department's
obligations or responsibilities under the Immigration and Nationality
Act, as amended. Nor did the Department use the economic analysis in
this Part as a relevant factor relating to any requirement under the
Administrative Procedure Act (APA), or any case interpreting the
requirements under the APA.
The Department derives its estimates by comparing the baseline,
that is, the program benefits and costs under the 2010 Final Rule and
TEGLs 32-10 (Special Procedures: Labor Certification Process for
Employers Engaged in Sheepherding and Goatherding Occupations under the
H-2A Program) and 15-06, Change 1, (Special Procedures: Labor
Certification Process for Occupations Involved in the Open Range
Production of Livestock under the H-2A Program), against the benefits
and costs associated with the

[[Page 63016]]

implementation of provisions contained in the Final Rule. This analysis
assumes that entities subject to the Final Rule are already in
compliance with the 2010 Final Rule and relevant TEGLs. We explain how
the required actions of employers engaged in herding or the production
of livestock on the range are linked to the expected impacts of the
Final Rule.
The Department has quantified and monetized the impacts of the
Final Rule where feasible. Where we were unable to quantify benefits
and costs--for example, due to data limitations--we describe them
qualitatively and identify which data were not available to quantify
the costs. The analysis covers 10 years (2016 through 2025) to ensure
it captures all major impacts.\65\ When summarizing the benefits,
costs, or transfers resulting from specific provisions of the Final
Rule, we present the 10-year averages to estimate the typical annual
effect or 10-year discounted totals to estimate the present value of
the overall effects.
---------------------------------------------------------------------------

\65\ For the purposes of the cost-benefit analysis, the 10-year
period starts on January 1, 2016.
---------------------------------------------------------------------------

In the remaining sections, the Department first presents an
overview of general comments received from the public. We then present
a subject-by-subject analysis of the impacts of the Final Rule and a
summary of the costs and transfers, including total impacts over the
10-year analysis period.
a. General Comments Received on the Economic Analysis
i. Employer Growth Rate
The NPRM's EO 12866 analysis used an annual growth rate of 2
percent to forecast participation in the H-2A program. Several
commenters stated that this growth rate was inaccurate. Carol Martinez,
Alex (Buster) Dufurrena, and John and Carolyn Espil, individual
employers, stated that the assumed 2-percent annual growth rate of U.S.
sheep producers was inaccurate because the proposed rule would put
additional financial burdens on producers that would force them to
reduce the number of H-2A workers hired or to close. John and Carolyn
Espil referenced the BLS Occupational Outlook Handbook (2014-15
Edition), which predicted that farmers, ranchers, and other
agricultural managers would experience a loss of 179,000 jobs over the
period of 2012-2022, which amounts to a 19 percent reduction.
Similarly, the Texas Sheep & Goat Raisers Association and ASI and
Public Lands Council stated that after the National Wool Act was phased
out by the Federal government in 1993-1995, tens of thousands of sheep
ranches went out of business and subsequently, in the late 1990's,
linked allied industries also went out of business due to the lack of
lamb and wool. Mountain Plains and Western Range stated that the
assumed 2-percent employer growth rate ``demonstrates how fundamentally
wrong DOL's assumptions are.''
The Department had estimated the 2-percent annual growth rate based
on historical H-2A program data on labor certifications for
sheepherding, goat herding, and range cattle production employers. For
the Final Rule, the Department updated its analysis by evaluating the
annual change in the number of unique herding employers between FY 2012
and 2014 and found inconsistent results. Between FY 2012 and 2013, we
found a decrease in participation of 114 percent, while the FY 2013 and
2014 program data indicate an increase in participation of 11 percent.
In light of the comments and this data, in the Final Rule the
Department revises the growth rate to be 0 percent, that is, the
Department assumes the employer participant population in this H-2A
program will neither rise nor fall over the analysis time period.
ii. Comments Received on Impacts on Profitability
Several commenters stated that the increased costs associated with
the proposed rule, particularly the proposed wage increases, would
destroy the industry. Other commenters questioned the accuracy of the
economic analysis and opposed some of the conclusions presented in the
analysis. For example, Representative Allen Jaggi, an elected official,
and Skye Krebs, an individual employer, warned that the proposed rule
would force employers out of business because they operate on thin
profit margins. The American Farm Bureau Federation used an industry
standard range sheep farm budget developed by the University of Utah to
analyze the impact of the proposed 2020-2025 forecasted FLS-based AEWR
wage, which resulted in $41,325 per year in additional wages. According
to the American Farm Bureau, if prices fall to year 2002 conditions--
the lowest prices over the period of 2000-2014 ($0.80 per pound for
lambs and $0.53 per pound for wool)--employers in each of the 19 states
analyzed would be operating at a loss (Alabama, Arizona, Arkansas,
California, Colorado, Hawaii, Idaho, Missouri, Montana, New Mexico,
Nevada, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah,
Washington, and Wyoming). They also presented the average prices over
the last five years as well as over the preceding 10 years to
demonstrate the trend in prices. They noted that the average price
received for lamb over the past five years ($1.70 per pound) is 63
percent higher than the price received over the preceding 10 years
($1.04 per pound), while the average price received for wool over the
last five years ($1.45 per pound) is 113 percent higher than the prices
they received on average over the preceding 10 years ($0.68 per pound).
The State of Utah also submitted data pertaining to the average price
of lamb over time. The State noted that the average price of lamb
increased from $67.94 in 1994 to $157.15 in 2014, which amounts to an
increase of $48.61 over a 20-year period after adjusting for inflation.
Without acknowledging that worker wages have not similarly been
adjusted for inflation, the commenter stated that this small increase
in the value of lamb cannot support the proposed tripling in the wage
increase and will force producers out of business.
The Utah Farm Bureau Federation, the Texas Sheep & Goat Raisers
Association, and Mountain Plains and Western Range analyzed an
enterprise budget for an Idaho sheep operation with ewes on the range
and selling feeder lambs (Painter, K., Idaho, University of Idaho,
2014), which earned $60 per head in total returns. Using data for the
State of Utah, the Utah Farm Bureau estimated that after tripling the
wage rate, total returns would decrease 111 percent to negative $6.00
per head, while income above operating costs would decrease 80 percent
from $83,000 to less than $17,000. They stated that tripling the hired
labor rate reduces total returns from a profit of nearly $90,000 to a
loss of approximately $10,200.
The Wyoming Wool Growers Association stated that the Department
underestimated the cost associated with the proposed wage increase.
They referenced an analysis from the University of Wyoming estimating
that the proposed wage increases would increase the annual operating
costs by more than 40 percent ($39,600) for a Wyoming range sheep
operation with two foreign herders. The analysis also indicated that
income above operating costs would fall by 78 percent (to $11,313)
under current price conditions. The Texas Sheep & Goat Raisers
Association commented that the Department underestimated the cost of
the proposed rule, which included the cost of additional wages over the
period from 2016 to 2020 ($45 million) and non-wage costs ($5 million
per year).

[[Page 63017]]

John and Carolyn Espil stated that the Department misrepresented
the make-up of the industry as it was presented in the NPRM's Exhibit 2
(The Number and Percentage of H-2A Employers by Occupation and State).
They stated that none of the values in the Exhibit reflected the
Western Range Association's membership numbers. For example, the
Department presented information indicating that Nevada had one
employer, while the Western Range Association had 17 members from
Nevada as of January 2015. Because of what they perceived as an
inaccuracy, they questioned the overall accuracy of the economic
analysis. They also disagreed that the proposed rule was not a major
rule that required review by Congress under the Small Business
Regulatory Enforcement Fairness Act (SBREFA), asserting that it would
have an economic impact of at least $100 million and would result in
increased costs to consumers, levels of government, and regions due to
failed businesses, the loss of stewardship of the land by livestock
workers, as well as a loss of 40 percent of the sheep industry. They
stated that this would affect competition, employment, investment,
productivity, innovation, and the competitiveness of U.S.-based
businesses.
Mountain Plains and Western Range, and Vermillion Ranch and Midland
Ranch stated that the economic analysis did not take into account the
cost of forcing ranches to close or to downsize. The commenters
contended that employers would be forced to sell their herds,
equipment, and land into a buyer's market. Many other commenters
similarly stated that the economic analysis did not estimate the losses
associated with the massive sale of livestock. Since 40 percent of the
nation's sheep graze on ranges, the commenters asserted that the
proposed rule could lead to the sale of breeding ewes for slaughter at
undervalued prices because the market would not be able to absorb them.
Mountain Plains and Western Range, for example, estimated that the
total loss would be $212 million based on the total value of the U.S.
sheep supply. They also emphasized that the ranchers could not simply
raise prices to cover the increased costs because U.S. producers
account for less than seven tenths of one percent of the world's wool
production and less than nine tenths of one percent of the world's lamb
production.
The commenters focused primarily on the proposed wage increase
because labor is such a significant percentage of their operating
costs, although the statistics they cited were not uniform. The Utah
Farm Bureau Federation referenced an economic analysis conducted by Dr.
Julie Shiflett of Juniper Consulting, which stated that hired labor
accounts for 40 percent of total operating costs for an average western
range sheep operation with two bands of sheep. The Rural Development
Office cited the Utah Woolgrowers Association, which also stated that
labor costs make up 40 percent of total operating costs in Utah sheep
operations.
On the other hand, the Wyoming Livestock Board, the Texas Sheep &
Goat Raisers Association, Mountain Plains and Western Range, and ASI
and Public Lands Council summarized that current statistics from ASI
show that, on average, hired labor costs make up 24 percent of a sheep
rancher's total operating costs. The Diamond Sheep Company stated that
wage costs represent approximately 20 percent of its operation's annual
costs. The commenter noted that, in total, nearly 30 percent of its
annual operating costs are labor-related when groceries--which make up
approximately five percent--and travel and labor document fees--which
make up 2 percent--are included.
Several commenters described the effect the proposed rule's wage
increases would have on their operations, with some indicating that the
proposal would result in annual operating losses:
FIM Corp. stated that over the period of 2006-2013, its
gross annual income from sales of wool, lambs, sheep, and hay averaged
$1.1 million and that after operating expenses are taken out, its net
income averaged approximately three percent of gross income. FIM Corp.
further stated that the proposed tripling of sheepherder wages would
result in approximately $250,000 per year in additional wage payments.
The commenter also noted that it employs 11 H-2A sheepherders and seven
workers for other ranch work, and stated that it treats them equally;
hence, it would apply any wage increase imposed by the Department to
all workers, which would cost the commenter's operation between
$320,000 and $450,000 per year.
David and Bonnie Little stated that they typically employ
10 sheepherders and that the proposed wage increase would add an
additional $180,000 per year in payroll expenses, which exceeds their
average adjusted gross income of $79,000.
Steve Raftapoulos, an individual employer, stated that the
proposed wage increase alone would result in a loss of approximately
$120,000 in 2017 and $320,000 by 2020.
The Siddoway Sheep Company stated that the proposed wage
increase would result in increased costs of $98,354 over the first five
years of implementation, excluding employer liability for payroll
taxes, while using the FLS-based AEWR with no transition would result
in increased costs of $138,539 over the first five years of
implementation. Siddoway stated that the wage increases should be
consistent with average wage growth, and stated (without noting that
there has been almost no wage growth for H-2A herders since 1994) that
the average wage for U.S. workers increased 3.13 percent in 2011, 3.12
percent in 2012, and 1.28 percent in 2013.
Eph Jensen Livestock, LLC stated that, in 2014, wages paid
to sheepherders accounted for nine percent of the gross revenue and
would have accounted for as high as 30 percent if the proposed rule had
been fully implemented.
In contrast to the comments from employers, the Worker Advocates'
Joint Comment emphasized that the proposed monthly wage was
inappropriately low. They criticized the weekly number of hours used to
set the proposed monthly wage, presenting data from a survey of 90 H-2A
herders indicating that only 7 percent worked less than 60 hours per
week, while 62 percent worked more than 81 hours per week, and 35
percent worked more than 91 hours per week. In their view, this study
demonstrates that the 44-hour assumption used in the proposal is a
significant underestimate of the actual number of hours worked. In
support of the view that the FLS-based AEWR should be immediately
effective, the Worker Advocates' Joint Comment pointed to several
examples of jobs that, in the their view, demonstrated that the
ranching industry already supports workers earning the full FLS-based
AEWR who perform similar work, particularly citing ``Sheep, Farmworker
General'' in Wyoming, ``Closed Range Herders'' in Texas, and ranch
hands performing livestock as well as other tasks. They further cited
wage rates paid by employers ``in states without large herder
populations,'' such as for Maine sheep farmers and sheep farm workers
in North Dakota (both paid on an hourly basis). Further, they noted
that California, where employers are significant participants in the H-
2A program, has a wage rate for herders that is significantly higher
than the current TEGL wages in other States.
In response to the comments on potential economic losses to H-2A
employers attributable to the proposed

[[Page 63018]]

rule, the Department considered enterprise budgets pertaining to range
sheep production submitted by commenters and the economic analysis
provided by the American Farm Bureau on the range sheep production
industry, in assessing the industry's ability to absorb the increased
wages that would have been required based on the FLS-based wage
methodology in the proposed rule.\66\ The Department also considered
the comments from individual employers who provided the data on wage
increases as a percentage of their revenues and profits. We also
reviewed the historic pricing data for lamb and wool, which show
significant fluctuations over the years. The Department also carefully
reviewed the comments from worker advocates regarding the wages paid in
occupations that they view as comparable to range herding jobs and the
hours worked.
---------------------------------------------------------------------------

\66\ As discussed below, the enterprise budgets are from various
years when labor, lamb, wool and all other factors were priced at
different levels, making them of somewhat limited utility; however,
they provided a useful starting point for the analysis.
---------------------------------------------------------------------------

After carefully evaluating all of the available information, we
found that the data did not warrant setting wages for these occupations
based on the FLS-based AEWR for the reasons discussed in detail in the
preamble and summarized below. If the rule would result in a
substantial number of range herding employers closing their operations
or significantly reducing the number of workers hired, that would
result in fewer jobs being available to U.S. workers and would thus be
inconsistent with the Department's obligation to protect against
adverse effect to U.S. workers.
First, the Department received many comments from employers who
have been in the business for many generations asserting that the
proposed wage rate would cause many employers to either go out of
business entirely or to downsize and greatly reduce the number of
workers employed. Commenters provided enterprise budgets for the range
sheep production firms in Wyoming, Idaho, and Utah.\67\ The enterprise
budgets for range sheep production show that applying the full FLS-
based proposed AEWR to H-2A workers will lead to a wage increase of
about 290 percent, which under the conditions presented will entirely
eliminate profits in Wyoming and Idaho and substantially diminish them
in Utah. For example, the Wyoming Wool Growers Association estimated
that the proposed wage increase would reduce annual returns to a
negative $16,237. The commenter asserted that based on the past 20
years of total receipts per ewe, the sheep operation would have been
able to pay total operating and ownership costs only eight percent of
the time over the 20-year period if labor costs were as high as
proposed by the Department.
---------------------------------------------------------------------------

\67\ Wyoming Wool Growers Association, ``Economic Importance of
Sheep Production in Wyoming,'' http://wyowool.com/NewsandInfo/2015/Supplemental%20Info_UWYO%20Analysis_EconImpactSheep%20in%20WY.pdf;
University of Idaho Extension, ``2014 Idaho Livestock Costs and
Return Estimate--Sheep Range,'' http://web.cals.uidaho.edu/idahoagbiz/files/2015/04/EBB-SR1-14.pdf; Utah State University,
Extension Economics, E. Bruce Godfrey and Gary Anderson, http://extension.usu.edu/agribusiness/files/uploads/livestock/pdf/1997%20range%20sheep.pdf.
---------------------------------------------------------------------------

The American Farm Bureau, using the average prices for 2000-
2014,\68\ showed that the profit for range sheep firms will be reduced
by approximately 35 percent to 40 percent in Utah, Colorado, Nevada,
Wyoming, and Idaho. The reduced profits are approximately $75,000 on
average per firm in those states. When the 2002 prices are used, which
were the lowest over the 15-year period, profits for range sheep
production firms in all five states will be entirely eliminated. The
American Farm Bureau stated that the historic prices for feeder lamb
and shorn wool have fluctuated greatly over the last 25 years and that
it is probable they will return to prices lower than the current
prices, which in the past few years have been at historic highs.
---------------------------------------------------------------------------

\68\ $1.26/lb 60-90 pound feeder lambs, $0.90/lb shorn wool.
---------------------------------------------------------------------------

Nevertheless, after considering variations from year to year, the
data reflect that the increases in the prices of wool and lamb have
outpaced the minimal increases in wages, and that based upon the 15-
year average prices a substantial increase is wages could be absorbed.
Thus, even the three primary employer associations have proposed
setting the monthly AEWR based on a methodology that will result in
wages significantly above the current TEGL rates, which we view as
compelling evidence that the industry will remain viable even where
employers pay a significantly higher wage rate to employees in these
occupations. This is consistent with the fact that employers in Oregon
and California are currently paying substantially higher wages (for
example, in California the higher state minimum wage for sheepherders
produces a monthly salary for sheepherders of $1,600.34, and effective
January 1, 2016 it will increase to $1,777.98). Not only does the
industry remain viable at those rates in those States, but California
has the second highest number of employers participating in the H-2A
sheep and goat herder program.
This evidence is supported by the few comments we received in
support of the proposed wage methodology in the NPRM. These commenters
stated that wage rates based on the full FLS-based AEWR, as in the
proposed rule, are appropriate and necessary to protect against adverse
effect on workers in the U.S. similarly employed. The Worker Advocates'
Joint Comment provided prevailing wage data for various states based on
wage surveys that show that some H-2A workers performing similar duties
are paid at wage rates that are comparable to the full AEWR.
However, as discussed in the preamble, DOL found that data did not
warrant setting wages for these occupations based on the FLS-based
AEWR. The record indicates that the proposed approximate tripling in
the wage rates, which would have resulted in higher wage rates than
those in California in several states, could not be absorbed without a
significant risk of job losses. Based on the comments from ranchers,
the Department concludes that at least some sheepherding or goat
herding employers would decide to leave the industry if, due to the
extra costs, they would be able to earn income outside farming that is
significantly higher than their reduced profits or no profit,
especially due to the risky and unpredictable nature of agriculture and
the fluctuations in prices that they receive with an ever-decreasing
share of the world market. Therefore, we conclude that some ranchers
would not be able to continue to do business if they had to pay H-2A
workers at the FLS-based AEWR, thereby resulting in job losses in the
range sheep production industry and related industries.
As noted above, the Department relied on the enterprise budget data
submitted by commenters only in conjunction with all the other
information in the record in coming to this conclusion, because there
are several limitations on that data. First, the enterprise budget data
is not available for all range sheep production firms in terms of
various operational sizes and geographical areas, which are factors
that may significantly affect costs and profitability. Second, budgets
are generally constructed to reflect future actions, and it is
difficult to accurately predict future commodity prices and yields.
High degrees of variability in price and production adversely affect
the reliability of the estimates used in the enterprise budgets. Third,
it likely that some of the workers included in the enterprise budgets
are paid wages above those required by the TEGLs; therefore,

[[Page 63019]]

the wage increase costs measured in this analysis may overestimate the
true cost increase for H-2A employers. \69\ In addition, errors in
developing an enterprise budget from various data sources can compound
themselves to the point where budgets can have limited value in
assessing profitability and break-even values, particularly for range
sheep production. Finally, a rancher could have multiple enterprise
operations that include both range sheep production and range cattle
production. This would negate the accuracy and reliability of the
profitability analysis of the rancher that is solely based on the
enterprise-budget data pertaining to range sheep production.
---------------------------------------------------------------------------

\69\ This is particularly true as the budgets are not limited to
H-2A workers, and some employers stated in their public comments
that they pay even their H-2A herding workers above the minimum
TEGL-required wage.
---------------------------------------------------------------------------

In that regard, the Department did not receive any economic
analysis pertaining to range cattle production, which is a much smaller
part of the program than the range production of sheep; the limited
data received for cattle herding is generally consistent with that
received on sheep production. For example, Vermillion Ranch and Midland
Ranch, individual employers, provided a link to a study \70\ showing
that the average net income (i.e., profit) for range cow/calf
production is 55 cents per acre in New Mexico and also indicated that a
cow/calf operation running 300 head in New Mexico would need about
31,000 acres. Using 31,000 acres for a viable range cattle production
firm in New Mexico, it would have an annual profit of $17,050. This
profit would be reduced by almost 90 percent to around $1,700 if wages
were increased by 250 percent based on the monthly FLS-based AEWR for
one H-2A worker hired by the firm.
---------------------------------------------------------------------------

\70\ New Mexico State University, Cooperative Extension Service
Agricultural Experiment Station, ``Legacy of Agricultural Property
Tax in New Mexico (2011),'' http://aces.nmsu.edu/pubs/_ritf/RITF81.pdf.
---------------------------------------------------------------------------

The Department understands that prices for wool and lamb have
varied widely over the past 15 years, and that they are currently at
historic highs, so that in determining the appropriate wage rate we
cannot consider only what employers presently can pay without resulting
in the loss of jobs. Based on the record in the comments as a whole,
the Department concludes that some ranchers would not be able to
continue to do business if they had to pay H-2A workers at the full
FLS-based AEWR, as proposed; thus, there would be a potential for
significant job losses in the range sheep, goat and cattle industries
and related industries. Therefore, the Department modified the required
monthly AEWR in the Final Rule in a manner generally consistent with a
suggestion offered by Mountain Plains and Western Range and many other
commenters, although modified in a manner suggested in the Worker
Advocates' Joint Comment. Thus, the Department has decided to set wage
rates for range sheep, goat and other livestock herders based on a
formula that uses the current FLSA minimum wage as a starting point and
updates it annually for inflation. These rates are in line with those
set forth in the second of two alternative proposals by Mountain Plains
and Western Range, a proposal that was endorsed by ASI and many
individual employers. However, we modify their suggestion by increasing
the number of hours in setting the monthly rate to 48 hours per week,
and by shortening the transition period before the full monthly AEWR
goes into effect. The record, including the comments from the three
primary employer associations, demonstrate that such higher wage rates
can be absorbed and will not result in significant job losses. In
addition, the viability of these higher wage rates is supported by the
fact that California has continued to have a vibrant herding industry
(it is the second largest user of the H-2A herder program) even in
light of the increased wage rates in that state. The Department
concludes that the increase in operating costs under the new wage rate
initially based on the FLSA should be manageable for ranchers and is
the minimum necessary to overcome the decades of wage stagnation and
require that the job opportunities are made available to U.S. workers
at appropriate wage rates that will not result in adverse effect.
iii. Economic Impacts of Herding on Other Industries
The Department received numerous comments related to the economic
impacts of herding on other industries. Many commenters asserted that
up- and down-stream businesses in related industries, consumers, as
well as local, state, and national economies would be negatively
affected by the implementation of the rule.
Several commenters, including ASI and Public Lands Council, the
Texas Sheep & Goat Raisers Association, and individual employers,
stated that since 38 percent of U.S. sheep are cared for by H-2A
workers, if the proposed rule forced ranchers out of business, it could
result in up- and down-stream losses. The Texas Sheep & Goat Raisers
Association, ASI and Public Lands Council, and the Utah Farm Bureau
Federation estimated that, in 2014 dollars, $1.00 of revenue produced
by a sheep producer generates $1.71 in backward-linked industries and
$0.80 in forward-linked good and services industries, for a total of
$3.47 in additional economic impacts generated in the local, rural
economy (Shiflett, ASI, Sheep and Lamb Industry Economic Impact
Analysis, April 2008, Revised March 2011). They stated that the U.S.
sheep industry annually generates approximately $500 million in
backward-linked industries through the sale of items such as lambs,
wool, and cull breeding stock. The direct and value-added multiplier
effects were calculated to be an estimated $486.5 million, which
supports an additional $1.2 billion in economic activity for a total of
$1.7 billion. The sheep industry also supports forward-linked
industries, such as local businesses, through expenditures of sheep-
industry generated income on goods and services. Estimates of sales
from retail lamb and wool-related products indicate that $785.6 million
in production generates an additional $1.9 billion in multiplier
effects. The commenters stated that the total economic impact is $2.7
billion. Mountain Plains and Western Range stated that the estimated
value of the direct production of sheep cared for by H-2A workers is
$275 million, and that revenue created in indirect up- and down-stream
businesses is valued at more than $665 million.
The Texas Sheep & Goat Raisers Association and ASI and Public Lands
Council further remarked that an estimated loss of $66,167 per rancher
would generate approximately $229,320 in backward- and forward-linked
businesses, and given that they estimate 598 operations employ herders,
rural communities across the West would experience a loss of
approximately $137.1 million. The commenters stated that a loss of over
$66,000 per sheep rancher would result in 1.67 jobs being lost at the
ranch, which would subsequently result in a total loss of 2.62 jobs in
the local economy. They estimated that if 598 sheep operations
employing herders suffered this loss, the total rural-employment loss
would be 1,568 jobs.
Many commenters, including the Texas Sheep & Goat Raisers
Association, the Wyoming Livestock Board, the Wyoming Wool Growers
Association, the National Lamb Feeders Association, the Garfield County
Farm Bureau, and TVB Management Company, discussed the broader impact
of the rule. Some

[[Page 63020]]

cited industry estimates that suggested that each H-2A open-herder
position creates many full-time U.S. jobs up- and down-stream, most of
which are associated with small, rural communities. Mountain Plains and
Western Range stated that significant losses would occur up-stream and
down-stream, because each production of livestock job creates at least
eight full-time U.S. jobs. Commenters cited related industries and jobs
such as feed suppliers, lamb processors, slaughterhouses, meat packing
plants, truck drivers, shearers, textile mills, fencing companies,
veterinarians, supermarket clerks, and butchers who would be affected.
Other commenters focused on the types of supplies and equipment that
sheep businesses typically buy from local businesses (e.g., groceries,
propane, campers, animal feed, crop seeds, cloth, insurance, medicine,
parts from agriculture dealers and auto part stores, as well as
vehicles and machinery such as ATVs and John Deere and Bobcat
products). The commenters warned that the effects would not be limited
to western sheep operations--the loss of the supporting industry in the
West would force eastern sheep operations out of business as well. They
noted that losing 2,000 H-2A workers could result in the loss of tens
of thousands of U.S. jobs.
Some commenters from supporting businesses expressed how the
proposed rule would affect them. Below are three comments that were
typical of the comments provided:
Oregon Shepherd LLC, which manufactures all-natural wool
building insulation, stated that it is a small business with three
employees that depends on the U.S. sheep industry for raw materials. It
is located in a rural Oregon county with a higher than average
unemployment rate.
Center of the Nation Wool, Inc. is a primary wool supplier
to the U.S. textile industry and acts as a wool marketing agent for a
large percentage of sheep enterprises, which are mostly small family
operations that would be directly affected by the proposed rule. The
commenter asserted that the implementation of the proposed rule could
lead to a loss of textile jobs and destroy the entire lamb and wool
marketing chain.
Mountain State Rosen, LLC is an integrated lamb packer and
processor. It employs over 300 people and has national distribution
with annualized sales of $192 million. It is a producer-owned company
affiliated with Mountain States Lamb Cooperative, which is comprised of
170 lamb producers located in 17 western states, and 65 percent of the
lambs they market through their cooperative come from ranches with H-2A
herders. The commenter stated that volume is critical to its business,
and the proposed rule would force mass liquidation of western sheep
operations, thereby doing significant harm to its business.
The New Mexico Department of Agriculture, the Wyoming Department of
Workforce Services, the Wyoming Department of Agriculture, Governor
Matthew H. Mead of the State of Wyoming, and John and Carolyn Espil
suggested that the Department should perform a full economic analysis
on the impacts that the proposed rule would have on local, State, and
national economies. ASI and Public Lands Council stated that for some
western states (e.g., Idaho, Colorado, Oregon and New Mexico), the loss
of sheep-related economic activity would affect three to five percent
of the total agriculture, forestry, fishing, and hunting gross domestic
product (GDP). For other western states, the loss would be more
significant--for example, sheep-related economic activity accounts for
14 percent of the GDP in Utah and Wyoming. The Lassen County Board of
Supervisors stated that the value of sheep and lamb livestock
production ($1,332,634) made up approximately 25 percent of Lassen
County's 2012 agricultural economic output. Vermillion Ranch and
Midland Ranch stated that Vermillion Ranch holds grazing permits in
Daggett County, Utah, and pays property taxes; hence, it is a critical
part of the local economy (as are other ranches throughout western
States). John and Carolyn Espil stated that Bureau of Land Management
(BLM) and Forest Service sheep permits would be rendered valueless.
Other commenters expressed concern that the proposed rule would
result in shortages of lamb and wool, because U.S. citizens could not
afford or would not be willing to pay higher prices for lamb and wool.
A consultant to ASI for military procurement stated that the proposed
rule would disrupt the wool industry's ability and requirement (by the
Berry Amendment) to support the U.S. Department of Defense (DOD) with
wool for garments and blankets. The commenter stated that over 80
percent of the wool required by DOD is grown in the West on lands
requiring shepherds. If domestic wool production is reduced by 38
percent, it may be impossible for the national industry to supply DOD.
The commenter cited FY 2015 DOD-published accession, retention, and
clothing issue rates, which indicate that DOD would spend over $300
million on wool-based garments and blankets in FY 2015. The commenter
asserted that this expenditure could support as many as 5,000
manufacturing jobs in the U.S. economy, which may be lost if the
proposed rule were implemented.
The Department is unable to accurately quantify the potential
indirect economic impacts to related industries in the local and
national economies, due to the lack of data and economic models
necessary to conduct an appropriate analysis. Therefore, the Department
estimated the costs only to the sheep, goat and range cattle production
industries that are directed affected by this regulation, both in the
NPRM's EO 12866 analysis and IRFA and in the Final Rule's analyses. In
the absence of an economic input-output model or comparative general
equilibrium model of the economy specifically developed for sheep, goat
and range livestock production industries, it is not possible to
measure the aggregate indirect economic impact of the Final Rule on
other related industries in the economy with any degree of accuracy.
Numerous changes made in the Final Rule make these commenters'
concerns about the impact on the broader economy unlikely. These
include for example, the adoption of a definition of ``range'' that
deletes the reference to fencing that so many commenters opposed, the
adoption of a wage setting methodology that is similar to a suggestion
offered by the three primary employer representatives, and the other
flexibilities such as the deletion of the proposed 20 percent cap on
the days that workers could perform duties at the ranch that are
closely and directly relating to herding and/or the production of
livestock. The Department concludes that the Final Rule will not likely
result in the commenter predictions regarding the impact on the broader
economy.
The Department also is responding to a few other specific comments
that we received. John and Carolyn Espil stated that the Department
misrepresented the make-up of the industry as presented in Exhibit 2 of
the NPRM, which showed the number and percentage of H-2A employers by
occupation and state derived from H-2A employer applications filed with
the Department during FY 2011 and 2012. The Exhibit was not intended to
reflect the total number of employers in the industry in Nevada as of
January 2015 or the number of members of the Western Range Association.
In the Final Rule, the Department has updated the number of H-2A
employers by state using H-2A employer applications filed during FY

[[Page 63021]]

2013-14. The Exhibits below present the number of unique herder and
range livestock production employers by state for FY2013 and 2014.
However, due to the fact that these occupations involve performing work
on itineraries covering multiple states, some employers applied for
certification covering areas of employment in multiple states; thus,
the total number of unique employers is overstated.
BILLING CODE 4510-FP-P
[GRAPHIC] [TIFF OMITTED] TR16OC15.009


[[Page 63022]]


BILLING CODE 4510-FP-C
The Department disagrees with the comment that the proposed rule
(or the Final Rule) should be considered a major rule requiring
Congressional review under SBREFA. As detailed in the FRFA, the
Department does not expect that the impact of the Final Rule will be
over $100 million annually, which is the monetary benchmark of
significance for a rule to be classified as major under SBREFA. The
Department also does not believe that the Final Rule, which was
significantly modified from the NPRM in response to the comments, will
result in a ``major increase in costs or prices'' for industries,
governments, or consumers, or that it will have a ``significant adverse
effects'' on the economy, such as on competition, employment,
productivity or the ability to compete.
4. Subject-by-Subject Analysis
The Department's analysis below considers the expected impacts of
the following provisions of the Final Rule against the baseline (i.e.,
the 2010 Final Rule; TEGL 32-10; and TEGL 15-06, Change 1): (a)
Proportion/type of work permitted at the ranch (i.e., not on the
range); (b) the new methodology for determining the minimum monthly
AEWR to be paid to workers; (c) H-2A application filing requirements;
(d) job order submissions; (e) job order duration; (f) newspaper
advertisements; (g) placement of workers on master applications; (h)
employer-provided items; (i) meals; (j) potable water; (k) expanded
cooking/cleaning facilities; (l) heating equipment; (m) recordkeeping;
and (n) time to read and review the rule.
For each of these provisions, the Department discusses the relevant
costs, benefits, and transfers. In addition, we provide a qualitative
assessment of transfer payments associated with the increased wages and
protections of U.S. workers. Transfer payments, as defined by OMB
Circular A-4, are payments from one group to another that do not affect
total resources available to society. Transfer payments are associated
with a distributional effect but do not result in additional costs or
benefits to society.
a. Proportion/Type of Work Permitted at the Ranch
The Final Rule codifies certain procedures for employers who apply
to the Department to obtain temporary agricultural labor certifications
to hire foreign workers to perform herding or the range production of
livestock. The Final Rule also clarifies the proportion/type of work
that is permitted to be performed by workers at the fixed-site ranch.
Any job duties performed at a place other than the range (e.g., a fixed
site farm or ranch) must be performed on no more than 50 percent of the
workdays in a work contract period, and duties at the ranch must
involve the production of livestock, which includes duties that are
closely and directly related to herding and/or the production of
livestock. The Final Rule thus clarifies and makes more specific the
provision in current TEGL 32-10, which similarly provides that it
applies in the unique situation of sheepherding, which requires
``spending extended periods of time with grazing herds of sheep in
isolated mountainous terrain,'' and states that workers may perform
``other farm or ranch chores related to the production and husbandry of
sheep and/or goats on an incidental basis.'' As in current TEGL 32-10,
the Final Rule states that the work activities must also generally
require the workers to be on call 24 hours per day, 7 days per week.
i. Costs
This change represents a cost to employers engaged in herding and
range livestock production that have had or will have workers at the
ranch for more than 50 percent of the contracted workdays or have had
workers perform incidental duties at the ranch that are not closely and
directly related to herding and/or the production of livestock. These
employers will be excluded from applying for workers pursuant to the
special procedures unless they commit to complying with the limitations
for such workers in the future. The Department is not able to estimate
this cost, however, because we do not know how many workers currently
spend more than 50 percent of their days working at the farm or ranch,
although we believe the number is very small given the commenters'
descriptions of the typical herding cycles, which generally involve
months spent on the range. Particularly given the Final Rule's revised
definition of the term ``range,'' which no longer includes the word
``open'' and which deleted the NPRM's proposed limitation to areas that
were not fenced, we anticipate employers will be able to satisfy the
requirement that at least 50 percent of the job order period be spent
on the range. Further, the Final Rule deletes the NPRM's proposed 20
percent cap on the percentage of ranch days that a worker could spend
performing closely and directly related work. Therefore, the Department
anticipates that it is likely that affected employers will make any
necessary adjustments to their practices so that the duties performed
by herding and range livestock workers at the employer's fixed-site
ranch will be closely and directly related to herding and/or the
production of livestock.
b. New Methodology for Determining the Wages of Workers
As discussed above, the Department received numerous comments
related to the proposed methodology for determining worker wages. In
particular, employers and their representatives commented on (1)
perceived flaws with the Farm Labor Survey (FLS) data, (2) wages not
accounting for herder benefits, (3) the effect the proposed wage
increases would have on the profitability of operations, and (4) flaws
in the reasoning behind the methodology. Worker advocates commented
that the proposed wage methodology incorporated a weekly number of
hours worked that was too low and that the transition period was
inappropriate.
i. Use of FLS Data
Several commenters stated that it was inappropriate for the
Department to determine proposed wages based on semi-annual FLS data
produced by USDA's National Agricultural Statistic Service (NASS). For
the reasons set forth in the preamble, the Department is not using FLS
data in the Final Rule, but rather is relying on the current FLSA
minimum wage of $7.25 as the starting point in the wage formula for
2016.
ii. Employee Benefits
Numerous employer commenters, including Mountain Plains and Western
Range and Calvin Roberts, an individual employer, stated that the
Department's wage methodology was flawed because it did not account for
the other ``benefits'' employees receive (e.g., food, rent, clothes,
and transportation). Mountain Plains and Western Range remarked that
most H-2A herders are able to send all of their salary to their home
country. Some commenters provided estimates pertaining to the amount of
the benefits provided. Calvin Roberts estimated that the cost of
housing, food, and owning and operating a car could range between
$1,200 and $1,500 per month in western Colorado. Mountain Plains and
Western Range estimated that the proposed wage increases would yield
``actual wages'' over $2,000 per month using the methodology from the
Colorado Wool Growers' 2010 report. Andre Talbott-Soares, an individual
employer, stated that California's H-2A monthly wage of $1,600
increases to at least $2,100 once the costs of necessities (e.g., food,
housing, supplies, propane, travel, and I-94 visas) are included.
Roswell Wool,

[[Page 63023]]

an individual employer, compared the net income of an H-2A worker
making $800 in net pay per month to a U.S. worker making $16.50 per
hour while working 40 hours per week. Once costs for rent, taxes, food,
vehicle expenses, and clothing are taken into account, the commenter
concluded that the H-2A worker would make more than such a U.S. worker
in monthly net pay. Vermillion Ranch and Midland Livestock stated that
meal credits should be included in the wage methodology in order to
offset the substantial wage increase proposed by the Department.
The provision of these items does not suggest a different wage is
appropriate. As discussed in the preamble, all H-2A employers are
required to provide housing free of charge. Furthermore, all H-2A
employers are required to provide the tools, supplies, and equipment
necessary to perform the job free of charge as well as any job-related
transportation. Moreover, sheep and goat herder employers are required
under the existing TEGL to provide food free of charge, and livestock
herder employers have been required to do so in recent years based on
the SWA wage survey. Nonetheless, this economic impact analysis
accounts for the cost associated with this requirement for livestock
employers below in a separate section.
iii. Reasoning Behind Wage Methodology--U.S. Workers
The Utah Farm Bureau Federation and John and Carolyn Espil stated
that the reasoning behind the wage methodology was flawed because the
Department's attempt to protect U.S. workers by increasing wages is
inappropriate. The commenters remarked that U.S. workers do not want to
work in this occupation and are not suited for it. Mountain Plains and
Western Range expressed the view that low wages are not the prime
deterrent for workers and stated that, in their experience, despite
higher wages in California they receive fewer U.S. applicants in sheep
herding occupations in that state than in other states.
As discussed above, the Department has decided to set the monthly
AEWR for these occupations based on a calculation of $7.25 per hour
multiplied by 48 hours per week and adjusted annually for inflation.
Because this Final Rule does not use the FLS-based AEWR to set the wage
rates, the Department disagrees that meal credits should be included in
the new wage formula to offset the wage increase because permitting
food deductions under the wage methodology adopted in this Final Rule
would erode much of the wage increase; therefore, it would not be
sufficient address wage stagnation in these occupations.
As discussed in the preamble, we have elected not to use the FLS-
based AEWR to set the monthly AEWR for these occupations because use of
this wage source is likely to cause, rather than prevent, adverse
effect on U.S. workers. For the reasons discussed above, this decision
is not based upon flaws with the FLS as a data source or on commenters'
views of the effects of the state law wage rate in California. As
explained in the preamble, commenters' observations about California
are inconsistent with DOL's experience that California is consistently
among the states with the largest number of U.S. sheepherders
identified in SWA surveys.
The Department also received many comments in response to the NPRM
stating that costs related to the proposed wage increases were
underestimated in the economic analysis. Mountain Plans and Western
Range Association commented that the proposed wage requirements should
be classified as costs rather than transfers. They reasoned that since
most of the money earned by H-2A workers is spent in countries like
Peru or Mexico, the proposed requirement results in a net loss for the
U.S. economy. The Texas Sheep & Goat Raisers Association and Vermillion
Ranch and Midland Ranch stated that the Department underestimated the
costs of the proposed wage increases, especially for operations with
more than three H-2A workers. The commenters estimated their annual
costs using an estimate of $13,860 per year for one worker based on the
5-year phase in. Vermillion Ranch, which has 18 workers, would expect
to pay $249,480 in additional wages, while Midland Ranch, which has 13
workers, would expect to pay $180,180.
In contrast to the employer comments, the Workers Advocates' Joint
Comment stated that the phase-in methodology to the new wage is not
justified. They noted that the current wage rates already reflect
stagnated wages and asked DOL to consider this history of stagnation in
requiring the full FLS-based AEWR to be paid immediately. In the Final
Rule the Department does decrease the transition period to two years,
and we also increase the number of hours per week on which the monthly
AEWR is based.
In the NPRM's EO 12866 analysis assessing the total costs and
transfers to society, the proposed wage increases were classified as a
transfer. Transfer payments are defined as monetary payments from one
group to another that do not affect total resources available to
society. However, contrary to the commenters' statements, the proposed
wage increases also were classified as additional costs to small H-2A
employers in IRFA assessing the impact to H-2A employers (as they are
in the analysis in the Final Rule). Wage increases are both transfer
payments (to society) and costs (to employers); however, we recognize
that foreign employees send at least some of their wages to their
families abroad.
The Final Rule changes the methodology for determining the required
monthly AEWR for workers engaged in the herding or production of
livestock on the range. The Final Rule sets the monthly AEWR for these
occupations by multiplying a $7.25 hourly wage rate by 48 hours per
week, indexed annually beginning in the second year based on the ECI.
The Final Rule uses a two-year transition period (at 80% and 90% of the
full rate in 2016 and 2017, respectively) with full implementation in
year three (2018).\71\ The Department analyzes the impact of this
provision relative to the baseline--the 2015 herder monthly wage
rates--which is the most recent AEWR data available and which reflects
what employers currently are paying. To convert the monthly wage rate
to an hourly wage rate, the Department divides the monthly wage rate by
48 hours and 4.333 weeks (which is derived from 52 weeks/12 months).
Exhibit 3 presents the monthly baseline wages by state.
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\71\ As explained in the FRFA, the Department considered three
other alternatives to set the monthly wage rate: Using (1) the 1994
TEGL wage adjusted using the capped ECI approach and a three-year
transition period with full implementation in year four; (2) $7.25
multiplied by a 44-hour estimated calculation of weekly hours and
adjusted using the ECI beginning with the wages for year five, using
a three-year transition period with full implementation in year
four; and (3) the FLS-based AEWR multiplied by a 65-hour estimate of
weekly hours, implemented immediately and permitting a food
deduction of the scope allowed under the regular H-2A program.

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[[Page 63024]]

[GRAPHIC] [TIFF OMITTED] TR16OC15.010


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\72\ California's state-required sheep herder wage will increase
to $1777.98 on January 1, 2016, and employers in that state will be
required to pay that increased wage on that date.
\73\ Hawaii's monthly wage of $1,422.52 is based on a 2012
prevailing wage survey conducted by California.
\74\ This wage rate is annually adjusted by the CPI-U. The
average percentage increase of the CPI-U in the past 3 years (2012-
2014) was 1.54 percent. With the 1.54 percent increase per year, the
forecasted monthly wage in Oregon in 2016 is $1,628; $1,653 in 2017;
$1,679 in 2018; $1,705 in 2019; $1,731 in 2020; and $1,758 in 2021;
$1,785 in 2022 and $1,812 in 2023. The forecasted monthly wage with
ECI-adjusted $7.25 hourly wage is $1,797 in 2025. Therefore, the
monthly wage in Oregon is always expected to be higher than the
forecasted monthly wage with ECI-adjusted $7.25 hourly wage over the
10-year period, and, thus, no wage impact is expected for Oregon.
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Exhibit 4 presents the number and percentage of employers engaged
in the herding or production of livestock on the range participating in
the H-2A program and the state for which they applied for certified H-
2A workers. The number of employers is based on the H-2A certification
dataset over FY 2013-2014. Note that each employer is counted once for
each state for which the employer applied for workers, although due to
the itinerant nature of the work, some employers applied for
certification covering areas of employment for workers in multiple
states. Hence, Exhibit 4 overstates the number of employers
participating in the H-2A herder and range livestock program. As
Exhibit 4 illustrates, sheepherders and goat herders are most heavily
concentrated in Arizona, California, Utah, and Colorado, while range
livestock (i.e., cattle) production workers are most heavily
concentrated in Utah, Colorado, Wyoming, and Montana.

[[Page 63025]]

[GRAPHIC] [TIFF OMITTED] TR16OC15.011

To estimate the new monthly AEWR, the Department first calculates
the average quarterly wages and salaries ECI for each year from 2012
through 2014. We then take the average year-over-year growth rate and
apply the resulting value (2.0 percent) to the initial $7.25 hourly
base wage rate used in 2016 and do so each successive year to forecast
the hourly base wage rates from 2017 to 2025. The new wage setting
methodology will base the calculation on 48 hours per week and includes
a two-year transition period. The Department estimates the hourly base
wage rate for each year of the analysis period as follows:

[[Page 63026]]

[GRAPHIC] [TIFF OMITTED] TR16OC15.012

Exhibit 6 presents the forecasted ECI-adjusted $7.25 hourly wage
rates with the two-year transition period and full implementation in
2018.
[GRAPHIC] [TIFF OMITTED] TR16OC15.013

To convert this to a monthly wage rate, the Department multiplies
the above rates times the estimated 48 hours per week and by 4.333
weeks per month. Exhibit 7 presents the monthly wage rates.
[GRAPHIC] [TIFF OMITTED] TR16OC15.014

Exhibits 8 and 9 present the wage differential between the monthly
AEWR required under this Final Rule and the baseline by state for sheep
and goat herders and range livestock production workers, respectively.
In the case of California, the monthly AEWR wage is lower than the
baseline wage for the first nine years, because state law requires a
higher wage. In those years, the workers will continue to receive the
baseline wage; therefore, no wage differential results. Similarly,
Oregon's state required wage is higher than the rate required under the
AEWR calculation of this Final Rule, and it is adjusted annually for
inflation using the CPI-U. Accordingly, workers in that state will
continue to be paid the state-required rate and employers in Oregon
will not be impacted by the wage increase in this Final Rule. Hawaii's
current monthly wage of $1,422.52 is based on a 2012 prevailing wage
survey conducted by California, and the Final Rule's monthly AEWR is
lower than Hawaii's current baseline wage in the first two years. The
Department assumes that the workers in Hawaii will continue to receive
the baseline wage in those years; therefore, no wage differential
results. Additionally, the hourly wage differentials for states that
did not have a baseline wage because there were no H-2A workers
employed as herders or range livestock workers are denoted as ``N/A.''
Note that these values are for informational purposes only and were not
used in the analysis.
BILLING CODE 4510-FP-P

[[Page 63027]]

[GRAPHIC] [TIFF OMITTED] TR16OC15.015


[[Page 63028]]


[GRAPHIC] [TIFF OMITTED] TR16OC15.016

BILLING CODE 4510-FP-C
The Department multiplies the average increase in hourly wages per
H-2A worker under this wage determination option in 2016 ($1.53) by the
estimate of weekly hours (48) and the average duration of need (50
weeks) to obtain the total increase per H-2A worker in 2016 ($3,672).
We then multiply the total increase per worker by the number of H-2A
certified workers (2,481) to obtain total transfer due to increased
wages of $9.11 million in 2016.\75\ We repeat this calculation for each
year of the analysis period, using the average increases in hourly
wages.

[[Page 63029]]

This results in an average annual transfer payment of $17.46 million.
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\75\ This methodology may result in an overestimate. Using the
number of H-2A workers certified may overestimate the number of
affected workers because employers do not bring into the country all
the workers for whom they are certified each year, and some workers
are double counted because employers file multiple applications for
certification to cover additional states and send the same workers
to those states. In addition, some certifications are not for a full
year, as some commenters indicate that they hire additional H-2A
workers during peak seasons, such as the lambing season. Moreover,
all workers do not stay for the entire period of the certification.
Finally, as noted in the preamble, some employer commenters stated
that they already pay more than the TEGL-required wages, that they
pay bonuses, or that they provide paid vacation. Nevertheless, there
likely are some corresponding workers who would also receive the
increased wages. The number of annual H-2A workers needed by
employers may also be higher in future years. Therefore, the
Department concludes that using the total number of workers
certified and a 50-week average duration provides a reasonable
estimate of the impact based on the available data.
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The increase in the wage rates for some workers represents an
important transfer from agricultural employers to corresponding U.S.
workers, not just H-2A workers. As noted previously, the higher wages
for workers associated with the Final Rule's methodology for
determining the monthly AEWR will result in an improved ability on the
part of workers and corresponding U.S. workers and their families to
meet their costs of living and spend money in their local communities.
On the other hand, higher wages represent an increase in costs of
production from the perspective of employers that affects economic
profit and creates a disincentive to hire H-2A and corresponding U.S.
workers. The Department does not have sufficient information to measure
the net effect of these countervailing impacts.
There also may be a transfer of costs from government entities to
employers as a result of lower expenditures on unemployment insurance
benefits claims. Unemployment insurance benefits replace a maximum of
half of prior earnings in most states. However, to the extent that
workers who had been laid off and were eligible for unemployment
insurance benefits were not willing to accept a job at the current
lower wage, and may now be willing to accept the job at the new higher
wage, they would not need to seek new or continued unemployment
insurance benefits. The Department, however, is not able to quantify
these transfer payments.
c. Filing Requirements
The Final Rule permits an association of agricultural employers
filing as a joint employer to submit a single job order and master
Application for Temporary Employment Certification on behalf of its
employer-members located in more than two contiguous states with
different start dates of need.
This provision does not represent a change for an association
filing a master application as a joint employer with its employer-
members for sheepherding or goat herding positions. However, to ensure
consistency in the handling of all employers eligible to use these
procedures, the Final Rule extends this existing practice to employers
in the range herding or production of other livestock.
i. Cost Reductions
This change represents a minor cost reduction to employers of H-2A
workers in range livestock production occupations that file master
applications as joint employers with their employer-members. Due to
data limitations regarding the time savings realized by filing a master
application relative to separate applications and the extent to which
range livestock production employers would file master applications as
joint employers with their employer-members, however, the Department is
not able to quantify this impact.
d. Job Order Submissions
The Final Rule extends the waiver of job order filing requirements
in 20 CFR 655.121(a) through (d) to employers of H-2A workers in range
livestock production occupations. A covered employer will submit its
job order, Agricultural and Food Processing Clearance Order, Form ETA
790, directly to the National Processing Center (NPC), not to the State
Workforce Agency (SWA). The employer will submit the job order to the
NPC at the same time it submits its Application for Temporary
Employment Certification, Form ETA 9142A, as outlined in 20 CFR
655.130.
This provision does not represent a change for an association
filing a master application as joint employer with its employer-members
for sheepherding or goat herding positions. However, to ensure
consistency in the handling of all employers eligible to use these
procedures, the Final Rule extends this existing practice to all
employers involved in the range herding or production of other
livestock.
i. Cost Reductions
This change represents a minor cost reduction to employers of H-2A
workers in range livestock production occupations who will no longer be
required to prepare and send a separate ETA Form 790 submission to the
SWA and then communicate directly with the SWA about any concerns the
SWA raises with the ETA Form 790. Due to data limitations, however, the
Department is not able to quantify the staff time and resource costs
saved relative to the baseline in which submission of the form and
communication with the SWA is required.
e. Job Order Duration
The Final Rule requires that, where a single job order is approved
for an association of agricultural employers filing as a joint employer
on behalf of its employer-members with different start dates of need,
each of the SWAs to which the job order was transmitted by the
Contracting Officer (CO) or the SWA having jurisdiction over the
location of the association must keep the job order on its active file
until 50 percent of the period of the work contract has elapsed for all
employer-members identified on the job order, and must refer each
qualified U.S. worker who applies (or on whose behalf an application is
made) for the job opportunity. The Final Rule also requires that the
Department keep the job order posted on the OFLC electronic job
registry for the same period.
i. Cost Reductions
This change represents a possible cost reduction for an H-2A
employer association that files a master application as a joint
employer with its employer-members for workers in sheepherding and goat
herding occupations. These employers were previously required to accept
referrals throughout the work contract period. Under the Final Rule,
these employers will only have to accept referrals for 50 percent of
the work contract period, resulting in avoided costs of accepting
referrals during the second half of the work contract period. Due to
data limitations regarding the number of referrals during the second
half of the work contract period, however, the Department is not able
to quantify this impact.
f. Newspaper Advertisements
The Final Rule continues for sheepherding and goat herding
occupations and expands to other range livestock production occupations
the TEGL practice of granting a waiver of the requirement to place an
advertisement on two separate days in a newspaper of general
circulation serving the area of intended employment. Because both
herding and the range production of livestock cover multiple areas of
intended employment in remote, inaccessible areas within one or more
states, the newspaper advertisement is impractical and ineffective for
recruiting domestic workers for these types of job opportunities.
i. Cost Reductions
This change represents a cost reduction to employers of workers in
range livestock production occupations. The Department estimates this
cost reduction by multiplying the estimated number of applications
filed by range livestock production employers each year (107, as
determined from a review of 2013 and 2014 applications for labor
certification in the herding program) by the average cost of placing a
newspaper advertisement ($258.64) and the number

[[Page 63030]]

of advertisements per employer (2).\76\ We repeat this calculation for
each remaining year of the analysis period. This results in an average
annual cost reduction of $55,349.
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\76\ This newspaper advertisement cost estimate is based on an
advertisement of 158 words placed in The Salt Lake Tribune for one
day (Source: The Salt Lake Tribune. Available at http://placead.yourutahclassifieds.com/webbase/en/std/jsp/WebBaseMain.do.
Accessed Nov. 13, 2014).
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Because these activities require time on the part of a human
resources manager on the ranch, we add to the result the incremental
cost of preparing the advertisement, which we calculate by multiplying
the estimated number of applications filed by range livestock
production employers each year (107) by the time required to prepare a
newspaper advertisement (0.5 hours), the hourly labor compensation rate
of a human resources manager at an agricultural business ($78.48), and
the number of advertisements per employer (2).\77\ This amounts to an
average annual cost reduction of $8,397.
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\77\ The Department estimates that this work would be performed
by a human resources manager at an agricultural employer at an
hourly rate of $54.88 (as published by the Department's OES Survey,
O*Net Online), which we multiply by 1.43 to account for employee
benefits to obtain a total hourly labor cost of $78.48.
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In total, the cost reduction from not having to place the
advertisement and saved labor yield an average annual cost reduction of
$0.06 million.
The Department received one comment pertaining to the cost
reductions by waiving newspaper advertisements for workers in range
livestock production occupations. The Department estimated a labor cost
of a human resources (HR) manager to prepare the advertisement. Patrick
O'Toole, a private citizen, stated that family members typically serve
as the HR managers; hence, they do not receive benefits along with
their wages, and they do not spend all of their time acting as the HR
manager.
Even if family members serve as the HR managers and are not
explicitly compensated for their time and work, it is still considered
a cost reduction under the opportunity-cost approach used in the
economic analysis for costing purposes. This is similar to the
expenditure for family labor in the enterprise budget when family
members are not actually paid for their labor. Thus, the Department
believes that the inclusion of the labor cost of an HR manager is still
reasonable.
g. Placement of Workers on Master Applications
The Final Rule requires that eligible U.S. workers who apply for
the job opportunities and are hired be placed at the locations nearest
to them, absent a request for a different location by the U.S. workers.
The Final Rule also requires that associations that fulfill the
recruitment requirements for their members maintain a written
recruitment report for each individual employer-member identified in
the application or job order, including any approved modifications.
i. Cost Reductions and Costs
The U.S. worker placement requirement represents a minor cost
reduction. Because U.S. workers will be placed at locations nearest to
them, the Final Rule will yield a decrease in travel costs to arrive at
and return from the work site. Due to data limitations regarding travel
costs to arrive at and return from the work site for participating U.S.
workers, however, the Department is not able to quantify this impact
with any certainty.
The recruitment report requirement represents a cost to an
association of employers of workers in range livestock occupations.
Associations will be required to maintain a written recruitment report
for each individual employer-member; however, associations are
currently required to document all applications and their disposition,
making this a change in the form of the recordkeeping rather than its
substance. This will likely lead to a marginal increase in costs for
the association to prepare and maintain a more disaggregated
recruitment report for each employer-member named on a master
application. The Department is not able to quantify this impact with
any certainty, however, due to data limitations regarding the time
required for associations to prepared and maintain a more disaggregated
recruitment report.
h. Employer-Provided Items
In the NPRM, the Department proposed to require that the job offer
specify that the employer will provide, without charge or deposit
charge, those tools, supplies, and equipment required by law, by the
employer, or by the nature of the work to do the job safely and
effectively. Because of the isolated nature of these occupations, an
effective means of communication between worker and employer--to enable
the employer to check the worker's status and the worker to communicate
an emergency to persons capable of responding--is required because it
is necessary to perform the job safely and effectively. The workers'
location may be so remote that electronic communication devices may not
work at all times. Therefore, the NPRM proposed to continue the TEGLs'
current requirement for the employer to provide an effective means of
communicating in an emergency. The Final Rule similarly provides that
where the employer will not otherwise make regular contact with the
worker (e.g., when delivering food or checking on the worker and herd
in-person), the employer must make arrangements so that the workers
will be geographically located in a place where the electronic
communication device will function on a regular basis (e.g., mobile
phone in an area with adequate reception) so that the workers' safety
and needs can be monitored. The employer must include in the job order
a simple statement identifying the type of electronic communication
device that it will provide and the frequency with which it will make
contact with the workers when the devices may not operate effectively.
The Department received several comments on the cost of employer-
provided items--including the cost of maintaining regular contact.
Sharon O'Toole, an individual employer, stated that it is not necessary
to quantify the cost of regular contact between employers and herders,
as it has been a common practice for decades to ensure the conditions
of herders, sheep, horses, and dogs, which is in an employer's business
interest. Contact usually occurs when someone delivers items such as
food and water. In contrast, the Wyoming Farm Bureau Federation stated
that it is not possible to get a cellular signal in some areas. The
commenter noted that a satellite phone plan that allows 10 minutes of
usage per month costs at least $300 per year, not including the price
of the phone, and that plans can cost as much as $2,000 per year.
The Department understands that there is a range of different ways
to establish effective communication between employers and their
workers to address the workers' basic needs and to enable contact in an
emergency. Employers are not required to provide satellite phones, as
they do not always provide reliable service, when other effective means
of communication are available. The Department expects that very few
employers will have to purchase satellite phone to communicate with
their workers.
The Department also received several comments pertaining to the
quantification and data sources for other items they stated should be
monetized in the economic analysis. For example, Governor Matthew H.
Mead of the State of Wyoming remarked that the

[[Page 63031]]

economic analysis did not reflect an analysis of the complete
compensation structure. Several commenters similarly commented on the
cost of providing items to H-2A workers that, in the commenters' view,
supplement the workers' wages. For example, FIM Corp. stated that the
cost of ``benefits'' (listing for example housing, utilities, food,
satellite TV, cell phone service, laundry, workers' compensation
insurance, supplies, travel to and from the home country,
administrative costs for Western Range Service, and banking services)
for each sheepherder is at least $1,220 per month beyond the wages
paid, bringing the total compensation to over $2,000 per month. Donald
Watson expressed that the cost of workers' compensation insurance,
housing, provisions, and incidental herding costs nearly double the
annual cost per herder from $10,000 to $20,000. Raymond Talbott, an
individual employer, stated that although H-2A wage is $1,600 per month
in California, when the cost of items such as commissary, housing,
supplies, propane, travel, and I-94 visas are included, the wage
increases to at least $2,100.
Many of these costs, such as the cost of housing and related
provisions (utilities/propane), are required by the H-2A program
generally; thus those costs are not new or unique under this Final
Rule. Other employer business expenses, such as a worker's travel to
and from the home country, visa fees, or employer association fees,
also are the responsibility of the employer under the standard H-2A
regulations. Anything that is newly required by this Final Rule, such
as free meals for range livestock workers, is acknowledged and
discussed separately.
Finally, many commenters, including Mountain Plains and Western
Range, the Washington State Sheep Producers, and John and Carolyn
Espil, stated that the Department should monetize the impact caused by
the change in the definition of ``open range,'' which they asserted
would exclude approximately 40 percent of employers that currently use
the H-2A program. As explained in detail in the preamble, commenters
explained that livestock grazing varies substantially, depending on the
particular ranch owner and/or the geographic location, and they
emphasized that modern grazing contains fencing. Commenters almost
unanimously opposed using fencing as a defining factor for ``open
range.'' In response to the comments related to definition of ``open
range,'' the Department decided to use a modified version of the FLSA
definition of ``range'' to provide flexibility and account for the
changes in herding practices over time. The Department believes this
revised definition of ``range'' will not impose any additional costs on
employers, as most comments indicate that employers assign their H-2A
workers to the range for at least the majority of the year.
In the final rule, employers are also required to provide:
Containers appropriate for storing and using potable water
and, in locations subject to freezing temperatures, containers must be
small enough to allow storage in the housing unit to prevent freezing;
facilities, including shovels, for effective disposal of
excreta and liquid waste in accordance with the requirements of the
state health authority or involved Federal agency; and
appropriate materials, including sprays, and sealed
containers for food storage, to aid housing occupants in combating
insects, rodents and other vermin.
i. Costs
The requirement that employers arrange for the workers to be
located in a place where the electronic communication device will
operate effectively on a regular basis when they are stationed in areas
where the devices may not work, or to provide regular in-person
contact, represents a possible minor cost to herding or range livestock
production employers. This may impose restrictions on land use or
require the purchase of particular types of communication devices. The
Department cannot, however, predict this impact or quantify it as a
cost to employers, but we anticipate that it will be minimal as the
current TEGLs contain a similar communication requirement and many
employer commenters stated that they are in routine contact with their
workers to monitor their health and well-being and that of the herd.
The Department believes that most existing employers already
provide to H-2A workers on the range containers for storing and using
potable water, shovels for effective disposal of excreta and liquid
waste, and insect and rodent control materials such as sprays and
sealed containers for food storage in order to satisfy their current
requirements under the TEGLs. Even for the small fraction of employers
who currently do not provide any such items to H-2A workers on the
range, the additional costs would be trivial, at most $50 in 2016.
i. Meals
All H-2A employers must provide either three meals a day or free
and convenient kitchen facilities. Currently, as required under the
sheepherding and goat herding TEGL and pursuant to practice in the
industry for range production of livestock occupations, employers with
these range herding occupations must provide food, free of charge, to
their workers. The Final Rule adopts this common practice as a
requirement for employers engaged in the range production of livestock
(who now must provide free food pursuant to the prevailing industry
practice) and continues it for employers engaged in sheep or goat
herding. The Final Rule also requires employers to disclose it in the
job offer. The Final Rule clarifies that the food must be
``sufficient'' and ``adequate'' and that it must include a daily source
of protein, vitamins and minerals. The employer commenters agreed that
the physical demands of the job require a protein-rich diet, and that
the workers need and deserve good, nourishing food; they stated that
they currently provide such food to their workers, typically in
response to the workers' expressed preferences for particular food.
i. Costs
Because this is a current requirement of the sheepherding and goat
herding TEGL, this provision does not represent a cost to sheepherding
and goat herding employers (the Department concludes that the
clarifications requiring that the food be sufficient and adequate, and
include a daily source of protein, vitamins and minerals, impose no
additional quantifiable cost, particularly given the employers'
assertions that they are providing such food now). This provision does,
however, represent a cost to other range livestock production
employers.\78\ The Department estimates this cost by multiplying the
number of days workers receive meals on a weekly basis (7), the average
cost of three meals per day ($11.86), and the average duration of need
(50 weeks) to obtain the total cost of meals per worker ($4,151).\79\
We then multiply the total cost of meals per worker by the estimated
number of range livestock

[[Page 63032]]

production employers in 2016 (102) and the average number of H-2A
workers per employer needing meals on a weekly basis (4.2) to obtain an
average annual cost of $ 1.78 million.\80\
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\78\ Since 2013 livestock employers have been required to
provide food free of charge because payment of food is included in
the wage rate identified in the SWA surveys. Therefore, the cost
estimate for this provision is an overestimate.
\79\ The daily meal cost estimate of $11.86 is from Allowable
Meal Charges and Reimbursements for Daily Subsistence published by
the U.S. Department of Labor, Employment & Training Administration
(Source: http://www.foreignlaborcert.doleta.gov/meal_travel_subsistence.cfm. Accessed July 30, 2015).
\80\ The FY 2013 and FY 2014 certification data show an annual
average of 954 applications certified for an average of 2,482
workers in the herding and range production of livestock program, or
2.6 workers per application. The Department concluded that this
could be an underestimate because some employers file multiple
applications per year. Therefore, we also attempted to identify the
number of unique employers filing applications. We estimate that an
annual average of 485 unique employers filed applications, which
would indicate more than five workers per employer. However, the
Department concluded that this could be an overestimate because
employers do not bring into the country all the workers for which
they are certified each year. Furthermore, some employers file
multiple applications because their itinerary changes and they need
to reapply to receive authorization to send workers to another
state, even though they will be the same workers. Therefore, we
assumed an average of 4.2 workers per employer, which is consistent
with the estimate from the Mountain Plains 2015 telephone survey of
its members discussed by the SBA Office of Advocacy.
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In addition to the cost incurred to purchase food, these range
livestock production employers would incur costs to transport the food
to the workers. The Department assumes that food would be transported
to the workers on a weekly basis along with the potable water. The
costs related to transporting food and potable water are accounted for
below in the section on costs related to potable water.
The Department received only a handful of comments directly
pertaining to the economic analysis of providing meals without charge
to workers. However, as discussed in the preamble, some commenters
opposed the proposed provision to provide daily meals to workers for
free and wanted to be permitted to take a wage credit for the cost of
meals, while others thought that providing free food was appropriate.
For example, Sharon O'Toole stated that if an employer is not already
providing adequate food to employees, then they are in violation of
other laws and should not be covered by this rule. She also commented
that providing access to expanded cooking facilities is unnecessary
because the workers are already provided with hot meals at the ranch.
Vermillion Ranch and Midland Ranch stated that the cost of
providing meals increases operating costs substantially when the number
of workers hired increases. They said that for Vermillion Ranch, the
cost of the meal provision requirement would be $72,954 for 18 workers
as opposed to the $12,159 estimated by the Department. The Siddoway
Sheep Company stated that during the winter lambing season it employs a
cook who prepares the workers three meals each day, and that when
workers are on the range, it purchases food every eight to 10 days. The
commenter expressed that actual food expenditures, including meat grown
on the ranch, average $476 per worker per month. Siddoway provided
three alternatives that it supported: (1) Allowing employers to deduct
the cost of purchasing the food products on the employee's grocery
list; (2) a ranch-specific deduction based on annualized expenditures
over a three-year period; and (3) an industry-wide deduction equal to
128 percent of the liberal USDA Food Plan Cost, which is what it
estimated it spends on meals. ASI and Public Lands Council, and
Mountain Plains and Western Range, also pointed to the USDA liberal
meal plan and stated that such a meal plan is more expensive than the
subsistence meal charges that the Department uses for workers. For the
reasons discussed in the preamble, including the current free food
requirements and that the Final Rule uses the FLSA minimum wage rate of
$7.25 as the starting point for the wage requirement, we did not permit
employers to offset the cost of meals to avoid continued wage
stagnation; rather, we have identified it as a cost for range livestock
production employers.
j. Potable Water
The Department received several comments related to the costs of
transporting meals and potable water to workers. As summarized below,
the commenters (1) stated that the economic analysis did not fully
capture the cost, (2) described the amount of water provided and the
types of containers typically used at their locations, (3) listed
alternative sources of water not specified by the Department, and (4)
were generally opposed to employers being required to provide water for
laundry.
Several commenters remarked that the Department's economic analysis
underestimated the cost to transport meals and potable water; several
commenters also provided cost estimates. Eph Jensen Livestock, LLC and
Mountain Plains and Western Range stated that the Department did not
account for the actual distances traveled between the ranch and camp or
how the time needed to travel can vary depending on the type of
terrain. Eph Jensen Livestock, LLC, stated that the Department did not
account for areas in which vehicle travel is prohibited or impossible.
The Wyoming Farm Bureau Federation also commented on the difficulties
associated with using a trailer for water. The trailers must often be
driven on roads that are two tracks or not maintained. These conditions
make it difficult to drive in reverse and drivers occasionally get
stuck. In addition, workers' mobile housing units already have a
trailer attached. Attaching another trailer would make traveling
unsafe, increase traveling time, and result in additional costs. The
commenter also noted that some states prohibit the use of triple
trailers.
Mountain Plains and Western Range and Sharon O-Toole stated that
the estimated costs for providing meals and water did not include the
cost of purchasing additional trucks or water trailers. Several
commenters stated that in addition to the costs for the truck and
trailer, the Department should include the cost to hire a driver with a
commercial driver's license. They noted that it recently cost them
$45,000 for a cab with 500,000 miles and $8,000 for a used trailer.
Sims Sheep Co. LLC stated that trailers and tanks would be more
expensive than estimated because they would need to be tailor-made to
withstand the weight of the water and poor road/terrain conditions.
Paul Nelson stated that it costs $15 for gas each trip, $30 per worker
to transport water and other necessities. Cindy Siddoway stated that
transportation to mountain camps would require them to purchase eight
pack horses, which would cost $9,600 in addition to food and pack
saddles. Vermillion Ranch and Midland Ranch stated that the costs of
providing sufficient potable water for drinking, cleaning, and laundry
using the Department's estimate of $4,910.96 per worker would be
$88,397.28 per year and $63,842.28 per year for Vermillion Ranch and
Midland Ranch, respectively, given their large number of employees.
Paul Nelson and Cindy Siddoway stated they provide water in five-
gallon containers. Donald Watson stated that he provides water in
either five-gallon containers, 50-gallon barrels, 400-gallons tanks, or
from containers filled by hose, depending on the location. A handful of
individual employers warned that large water tanks could restrict
workers' access to water during winter months if the water freezes, and
that a preferable alternative would be smaller potable water containers
that could fit inside the workers' housing units and would thus not be
subject to freezing.
Several commenters listed alternative sources of water. The Wyoming
Farm Bureau Federation and Sharon O'Toole listed melted snow as an
alternative water source, and Cindy Siddoway listed mountain springs
and streams as alternative sources. Commenters stated that workers have
tools to boil water to

[[Page 63033]]

make it potable, and some commented that their workers have not gotten
sick drinking from these alternative sources and that workers rarely
use purification methods such as water filters or purification tablets
that have been made available by the employer.
The Department understands that these alternative sources of water
would be almost costless relative to the estimated costs of potable
water in the economic analysis. However, such alternative sources are
not always available, and for health reasons the Department must
require that workers have available potable water (or in exigent
circumstances the means to make water potable) for consumption,
cooking, and dishwashing.
Several commenters opposed the proposed requirement for employers
to provide enough water for laundry, stating either that non-potable
water sources are often available that are adequate for washing laundry
or, more often, that they wash laundry for the workers and deliver it
when they bring food to the workers. They stated that this is more
cost-effective than transporting water for workers to wash laundry
themselves.
A few commenters stated how much water was typically needed in
their operations. Sharon O'Toole stated that 40 gallons of potable
water per week is enough for a worker to drink and wash. Eph Jensen
Livestock, LLC commented that the amount of water needed varies
depending on climate.
The Workers Advocates' Joint Comment outlined several suggestions
regarding what constitutes an adequate supply of potable water. They
stated that the supply of water should be defined as 4 to 4.5 gallons
of potable water per day in clean and sealed containers, which amounts
to 28 to 31.5 gallons per week. They also noted that the water supply
should include an additional 50 gallons per week for cleaning, bathing,
and laundry, which is based on comments from range workers. The
commenters stated that range workers should be supplied with a means
for water purification only in exigent circumstances (e.g., forest
fires), and that the Department should clarify that the supply of water
is ``for workers only'' and not for the sheep dogs or horses. In the
NPRM the Department assumed that each worker required 28 gallons of
potable water per week. Several commenters stated that this was not a
sufficient amount and suggested the Department use an estimate based on
4 to 4.5 gallons of potable water per day in clean and sealed
containers.
For the reasons discussed in the preamble, in the Final Rule the
Department requires employers to provide at least 4.5 gallons of
potable water per day, which amounts to at least 31.5 gallons of
potable water per worker per week (4.5 x 7). The Department does not
specifically define the minimum quantity of water that must be provided
for bathing and laundry. The Final Rule also allows the use of
alternate sources of water for bathing and laundry where such sources
are readily available. Moreover, we note that if employers provide
laundry services for workers that likely will substantially minimize
their need for water for that purpose. Finally, the Final Rule allows
the employer to request a variance from the requirement to provide 4.5
gallons of potable water when workers are located in areas that are not
accessible by motorized vehicle; the employer must identify an
alternative water supply and disseminate both the means and methods for
testing and making potable the water obtained for drinking and cooking
from such alternative supplies.
i. Costs
In the NPRM's EO 12866 analysis, the Department estimated that
range sheep, goat, and other livestock production employers already
must incur the cost under the TEGLs of transporting both food and water
for cooking, consumption and bathing to their workers on the range,
which must meet state health authority standards. The NPRM proposed to
add a requirement for additional water for cleaning and laundry. The
Department assumed that the additional water would be transported to
the workers on a weekly basis along with the previously required food
and potable water. The cost of providing a water supply to workers was
estimated as the sum of the cost of the water itself, the cost of
purchasing utility trailers to transport the additional water and
meals, the cost of mileage for those vehicles, and the wages for the
drivers to transport the additional water and meals. The Department
noted that because employers are currently required to provide food and
water to workers, our cost estimate in the analysis likely was an
overestimate.
The Final Rule continues the same general approach, with the
modifications discussed above. The Department concludes, given the
changes made in the Final Rule, particularly the employers' ability to
identify alternative sources of water for bathing and laundry, that the
NPRM's general approach remains valid. In addition, because the Final
Rule requires only that workers spend the majority of their time on the
range, we continue to believe that the estimate likely produces an
overestimate because the analysis assumes that the water and food is
transported 50 weeks of the year.
The Department estimates the cost of purchasing the water by
multiplying the estimated number of employers in each year (485) by the
average number of H-2A workers per employer needing potable water on a
weekly basis (4.2), the number of gallons of potable water needed per
worker on a weekly basis (31.5), the average cost of a gallon of
potable water ($0.005), and the average duration of need (50
weeks).\81\ This results in an average annual cost of $16,041.
---------------------------------------------------------------------------

\81\ This potable water cost estimate is from the 2014 Water and
Wastewater Survey produced by the Texas Municipal League (Source:
http://www.tml.org/surveys. Accessed Nov. 13, 2014). It is estimated
based on the average cost of potable water for commercial entities
in Texas cities with a population below 2,000 and based on the fee
for 50,000 gallons.
---------------------------------------------------------------------------

Because the employers must have the means to transport the potable
water and food to the workers, the Department estimates the cost of
purchasing utility trailers. We assume that 10 percent of agricultural
employers do not currently have a trailer sufficient to transport the
additional water and food to workers. In the first year of the rule, we
include the cost incurred by existing and new H-2A employers to
purchase trailers; in future years, we include the cost incurred only
by new participants. To calculate the cost for the first year of the
Final Rule, we multiply the total number of participants in the program
(485) by the assumed percentage of employers that would need to
purchase a trailer (10 percent). We then multiply the number of
employers needing to purchase a trailer (49) by the average cost of a
trailer ($839.34) to estimate the total cost of purchasing utility
trailer each year ($40,708).\82\ To calculate the cost for each of the
remaining years, we estimate the average number of employers joining
the program that would need to purchase a trailer each year, which we
calculate by multiplying the number of participants joining the H-2A
program (49) by the assumed percentage of employers that would need to
purchase a trailer (10%).\83\ We

[[Page 63034]]

then multiply the number of employers joining the H-2A program needing
to purchase a trailer (5) by the average cost of a trailer ($839.34) to
estimate the total cost of purchasing utility trailers in each
remaining year ($4,071).
---------------------------------------------------------------------------

\82\ This trailer cost estimate is based on the average costs
for a 5 x 8 ft. utility trailer from Tractor Supply Co. (Source:
http://www.tractorsupply.com/en/store/search/utility-trailers.
Accessed Nov. 13, 2014), Lowes, and Home Depot. Given the changes in
the Final Rule, particularly the employers' ability to identify
alternative sources of water for bathing and laundry, we conclude it
is not necessary to assume a cost for a water truck as a few
commenters suggested.
\83\ Based upon H-2A program data, the Department assumes that,
due to turnover, 10% of the average number of employers that
participate in the H-2A program each year (485) join the H-2A
program each year, which results in 49 new employers per year.
---------------------------------------------------------------------------

The Department also estimates the cost of mileage on the employers'
vehicles. The mileage reimbursement rate is intended to cover the costs
of operating a vehicle for business purposes. The costs encompassed by
the standard mileage rate are standard maintenance, repairs, taxes,
gas, insurance, and registration fees. Essentially, the standard
mileage rate is intended to cover the expenses that an individual would
report if using the actual car expenses deduction. While the standard
mileage reimbursement rate is simply an estimate and may end up being
more or less than actual car expenses, it reflects the full cost of
operating a truck for transporting the water and meals. However, the
Department assumed that employers already would have a truck for
delivering food and water as it is currently required by TEGL and
therefore, did not include the cost of purchasing a new truck in this
analysis. We estimate this cost by multiplying the estimated number of
employers in each year (485) by the average cost per mile of owning and
operating an automobile ($0.58), the number of miles driven (roundtrip)
to deliver the water and meals (100), and the number of roundtrips
expected per year (50).\84\ This calculation results in an average
annual cost of $1.4 million.
---------------------------------------------------------------------------

\84\ This cost per mile of owning and operating an automobile is
based on the average costs in the DOT Bureau of Transportation
Statistics. (source: http://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/publications/national_transportation_statistics/html/table_03_17.html Accessed
July 30, 2015), which cites the costs presented by American
Automobile Association Exchange (Source: http://exchange.aaa.com/automobiles-travel/automobiles/driving-costs/ Accessed July 30,
2015). The Department assumes the workers are all located within the
100-mile roundtrip distance so only one roundtrip per employer per
week would be needed to transport water and meals to workers.
Although the Department received a handful of general comments
stating that we had underestimated the distances involved and the
time required, they did not provide data or alternative estimates of
their actual distances or time spent. Therefore, the Department has
not modified its assumptions.
---------------------------------------------------------------------------

Because these activities require time on the part of an
agricultural worker on the ranch, the Department estimates the cost of
transporting the potable water and food to the workers, which we
calculate by multiplying the estimated number of employers in each year
(485) by the assumed time required to transport the potable water and
food (2.86 hours), the hourly labor compensation rate of an
agricultural worker ($13.40), and the number of roundtrips per year
(50).\85\ This calculation results in an average annual cost of $0.9
million. As mentioned above, this may be an overestimate as the Final
Rule only requires that workers be on the range for the majority of
workdays in the job order period.
---------------------------------------------------------------------------

\85\ The Department assumes that the water delivery will be
performed by an agricultural worker at an hourly rate of $9.37 (as
published by the Department's OES Survey, O*Net Online), which we
multiply by 1.43 to account for employee benefits to obtain a total
hourly labor cost of $13.40. The time required to transport the
potable water and meals roundtrip was estimated using the
assumptions that a roundtrip is 100 miles and that the agricultural
worker would drive at 35 mph. The Department assumes the workers are
all located within the 100-mile roundtrip distance, so only one
roundtrip per employer per week would be needed to transport water
and meals to workers.
---------------------------------------------------------------------------

This calculation yields an average annual cost of $2.4 million for
the cost of the water, utility trailers, vehicle mileage, and labor to
deliver the additional water and food.
k. Expanded Cooking/Cleaning Facilities
The Department recognizes that there are times when workers are
located at or near the ranch or farm (or a similar central location)
for certain operations that are a normal part of the herding cycle,
such as birthing (in some cases), shearing, or branding. In such
instances, the Final Rule allows workers to continue to use their
mobile housing, which may be preferred by workers, even where access to
fixed housing exists. However, the Final Rule requires (as the NPRM
proposed) in such a situation that workers be granted access to
facilities, including toilets and showers with hot and cold water under
pressure, as well as cooking and cleaning facilities that satisfy the
standard housing requirements if the employer does not provide meals.
The Department received a couple of comments in response to the
NPRM pertaining to the cost to provide expanded cooking facilities at a
ranch or farm. Sharon O'Toole commented that providing access to
expanded cooking facilities is unnecessary because the workers are
already provided with hot meals at the ranch. Vermillion Ranch and
Midland Ranch objected to the term ``ranch'' in conjunction with the
proposed locations of the expanded cooking facilities.
i. Costs
As the Department stated in its NPRM economic analysis, we do not
expect any additional costs for construction or expansion of cooking
facilities because existing farm kitchens will be able to increase
production to a sufficient extent to provide for the additional
workers. As several commenters stated, some employers already provide
hot meals to H-2A workers at the ranch. Alternatively, employers need
not incur any additional cost to construct or expand cooking facilities
as they could simply provide the workers with access to the existing
farm kitchen to prepare their own meals.
The requirement to provide access to facilities such as toilets and
showers with hot and cold water under pressure, however, will likely
impose a cost on herding and range livestock production employers that
do not have such facilities for worker use. To estimate the cost of
constructing or expanding the cleaning facilities for the first year of
the Final Rule, the Department estimates the number of existing H-2A
participants that would need to construct/expand cleaning facilities,
which we calculate by multiplying the number of existing H-2A
participants (485) by the assumed percentage of employers that would
need to construct or expand their facilities (20%). We then multiply
the number of existing employers that would need to construct/expand
facilities (97) by the average cost per square foot to construct or
expand cleaning facilities ($270.00) and the assumed size of the
cleaning facility (150 sq. ft.).\86\ This calculation results in a cost
of $3.93 million in 2016.
---------------------------------------------------------------------------

\86\ This cost per square foot estimate is based on the average
cost to add a bathroom to a building from The Nest (Source: http://budgeting.thenest.com/average-cost-per-square-foot-add-addition-house-23356.html. Accessed Nov. 13, 2014).
---------------------------------------------------------------------------

To calculate the cost for each of the remaining years of the Final
Rule, we estimate the average number of employers joining the program
that would need to construct such facilities, which we calculate by
multiplying the number of participants joining the H-2A program (49) by
the assumed percentage of employers that would need to construct or
expand their facilities (20%). We then multiply the number of employers
joining the H-2A program needing to construct or expand their
facilities (10) by the average cost per square foot to construct or
expand cleaning facilities ($270.00) and the assumed size of the
cleaning facility (150 sq. ft.) to estimate the total cost of
constructing or expanding facilities in each remaining year ($0.4
million). Over the 10-year period, this calculation yields an average
annual cost of $.75 million to existing and new employers.

[[Page 63035]]

l. Heating Equipment
In the Final Rule, as specified in Sec. 655.235, the mobile
housing unit provided to workers must include operable heating
equipment that supplies adequate heat for workers in locations where
required for the health and safety of the workers by the climate. Where
the climate in which the housing will be used is mild and the low
temperature for any day in the work contract period is not reasonably
expected to drop below 50 degrees Fahrenheit, no separate heating
equipment is required as long as proper protective clothing and bedding
are made available, free of charge or deposit charge, to the workers.
i. Costs
The Department acknowledges that this may impose a cost on some
employers, but we do not have sufficiently accurate location and
temperature available to identify how many workers may require such
additional heating units or how many of the mobile housing units
already contain built-in heating equipment. The Department evaluated
possible portable heating equipment units that are suitable for a
housing unit of approximately 150 square feet to determine the range of
costs required to purchase heating units. We found 12 different types
of portable heating equipment suitable for heating at least 150 square
feet, including propane units, kerosene units, and electric units. The
propane units range in cost from approximately $69 to $280; \87\ the
kerosene units range in cost from approximately $119 to $188; \88\ and
the electric units range from approximately $147 to $218.\89\
---------------------------------------------------------------------------

\87\ http://www.grainger.com/product/DAYTON-Portable-Gas-Heater-12H991; http://www.homedepot.com/p/Dyna-Glo-15k-25k-BTU-Propane-Convection-Heater-RMC-LPC25DG/202223055; http://www.grainger.com/product/DAYTON-Tank-Top-Portable-Gas-Heater-WP105137; http://www.grainger.com/product/DAYTON-Convection-Portable-Gas-Heater-WP105135 (Accessed 07/27/15).
\88\ http://www.homedepot.com/p/DuraHeat-23-000-BTU-Kerosene-Portable-Heater-DH2304/100045793; http://www.homedepot.com/p/Unbranded-Duraheat-Compact-Convection-Heater-DH1051/202221099;
http://www.grainger.com/product/SENGOKU-Omni-Radiant-4NHH2; http://www.grainger.com/product/SENGOKU-Radiant-Convection-Heater-5UDU3(Accessed 07/27/15).
\89\ http://www.grainger.com/product/PRO-TEMP-Portable-Heater-32MY65; http://www.grainger.com/category/hvac-and-refrigeration/ecatalog/N-k00; http://www.grainger.com/product/DAYTON-Electric-Space-Htr-3VU34; http://www.grainger.com/product/PRO-TEMP-Portable-Heater-32MY66(Accessed 07/27/15).
---------------------------------------------------------------------------

The Department estimates the number of existing H-2A participants
that would need to purchase portable heating equipment, which we
calculate by multiplying the number of existing H-2A participants (485)
by the assumed percentage of employers that would need to purchase
portable heating equipment (20%). We then multiply the number of
existing employers that would need to purchase portable heating
equipment (97) by the average cost of a portable propane heating unit
($150.00). This calculation results in a cost of $14,550 in 2016. The
Department added gas costs to employers by assuming that the average
price of propane is $3 per gallon and that it would require
approximately 323 gallons \90\ of propane to adequately supply heat for
workers in locations where the temperature is expected to drop below 50
degrees Fahrenheit. This calculation results in a cost of $93,993 per
year.\91\ The total cost of providing portable heating equipment and
propane is $108,543 in 2016.\92\
---------------------------------------------------------------------------

\90\ 323 = 4 months x 4.333 weeks x 7 days x 8 hours / 3 hours
(average heating time per gallon of propane for a portable gas
heater with 3,000 BTU).
\91\ $93,993 = $3 x 97 x 323.
\92\ $108,403 = $14,550 + $93,993.
---------------------------------------------------------------------------

To calculate the cost for each of the remaining years of the Final
Rule, we estimate the average number of employers joining the program
that would need to purchase such equipment, which we calculate by
multiplying the number of participants joining the H-2A program (49) by
the assumed percentage of employers that would need to purchase
portable heating equipment (20%). We then multiply the number of
employers joining the H-2A program needing to purchase such equipment
(10) by the average purchase cost ($150.00) to estimate the total cost
of purchasing portable heating equipment in each remaining year
($1,455). The total cost of providing portable heating equipment and
propane is $95,448 in 2017 and thereafter.\93\ Over the 10-year period,
this calculation yields an average annual cost of $96,758 to existing
and new employers for purchasing the equipment and propane.
---------------------------------------------------------------------------

\93\ $95,448 = $93,993 + $1,455.
---------------------------------------------------------------------------

m. Recordkeeping
The NPRM required that employers generate a daily record of the
site of the employee's work, whether it was on the range or on the
ranch or farm, and for periods when the worker was on the ranch a
record of the hours worked and duties performed. The Department
received several comments on the costs of generating daily records of a
worker's hours and duties in response to this requirement. Several
commenters stated that the Department underestimated the costs
associated with the proposed requirement, while one commenter stated
that the Department overestimated the costs.
For example, the Wyoming Farm Bureau Federation and Sims Sheep Co.
LLC commented that the Department underestimated the costs. The Wyoming
Farm Bureau stated that the Department used flawed assumptions in its
estimation and remarked, along with John and Carolyn Espil, that most
employers do not have an HR manager--often family members are used to
perform these tasks. Secondly, the commenter stated that ranch
operations do not occur in locations such as offices or manufacturing
facilities that are convenient for record keeping. Without access to a
clock, it is difficult to track the amount of time spent on activities,
which may change unexpectedly (e.g., if an animal gets sick and its
care must be immediately prioritized). Thirdly, the commenter stated
the proposed requirement would require a clerk as herders do not have
the necessary skills. Finally, additional costs would be required for
an employer to transfer the employees' records onto a time sheet for
the Department's records. The Wyoming Farm Bureau concluded that the
benefits do not outweigh the costs.
The Worker Advocates' Joint Comment stated that the Department's
methodology for estimating the cost of complying with the proposed
record keeping requirement was reasonable; however, they stated the
cost may have been overestimated. The commenter noted that operations
that employ workers who are not covered by the current herder
exemptions are already required to have payroll systems that meet Fair
Labor Standards Act (FLSA) requirements, and that it would not require
much time to incorporate herder information into those systems. The
commenter stated that the benefit of having these records available for
monitoring and enforcement outweigh the minor cost of compliance, as
the employees generally would bear the responsibility for recording
their own time.
The Final Rule modifies the NPRM's proposed recordkeeping
requirements by eliminating the requirement to record hours worked when
workers are not on the range and by eliminating the requirement to
record the duties performed each day when workers are not on the range.
The Final Rule retains only the requirement to record daily whether
work was performed on the range or at the farm or ranch.

[[Page 63036]]

i. Costs
This change represents a minor cost to herding or range livestock
production employers who are not already creating and retaining
records. Given that the Department received contradictory comments that
it had either overestimated or underestimated the costs of the proposed
recordkeeping requirement, the Department maintains its average
estimate of the time required. The Department estimates the cost by
multiplying the time required to prepare and store the records by the
average compensation of a human resources manager at an agricultural
business. In the first year of the rule, the Department estimates that
the average employer will spend approximately 6 minutes each week or
approximately 5 hours a year (based on a 50 week average period of
need) to prepare and store the records, which amounts to approximately
$392.40 ($78.48 x 5) in labor costs per year.\94\ For the 485
employers, the total is 2,425 minutes (485 employers x 5 minutes) per
week, or 40 hours per week for recording, with an annualized reporting
burden of 2,000 hours per year (40 hours per week x 50 weeks). The
total recordkeeping burden for 485 employers is 485 minutes (485
employers x 1 minute) per week, or 8 hours per week, with an annualized
recordkeeping burden of 400 hours per year (8 hours per week x 50
weeks). When these two sums are added together, the total employer
reporting and recordkeeping burden is 2,400 hours per year. Therefore,
the total annual respondent hourly cost for this new reporting and
recordkeeping burden placed on the employers in herding and the range
production of livestock is estimated at 2,400 hours x $78.48 = $0.19
million per year.
---------------------------------------------------------------------------

\94\ The Department estimates that herding and range livestock
production employers will spend 5 minutes each week to record and 1
minute to store these records. The average period of need for an H-
2A worker is 50 weeks a year. The median hourly wage for a human
resources manager is $54.88 (as published by the Department's OES
survey, O*Net Online), which we multiply by 1.43 to account for
private-sector employee benefits (Source: Bureau of Labor
Statistics). This calculation yields an hourly labor cost of $78.48.
---------------------------------------------------------------------------

n. Time To Read and Review the Rule
During the first year that this rule would be in effect, herding
and range livestock production employers would need to learn about the
new requirements. The Department received a couple of comments related
to the cost to read and review the proposed rule, which expressed the
view that the Department's estimate was too low. For example, Sheep!
Magazine commented that it would take longer than two hours to read and
review the proposed rule. The commenter stated that the average
American cannot read 400 words per minute, especially when reading
regulatory language. Vermillion Ranch and Midland Ranch stated that the
Department's estimate of the average annual cost ($15.18) to review the
NPRM was an underestimate because employers or associations would have
to hire counsel and experts to review the NPRM and prepare feedback and
guidance. The commenters suggested that it would cost $15,000 per
employer.
In response to comments, the Department revised its estimate of
time to read and review the Final Rule upward to four hours. While the
Department understands that different employers may take more or less
time to read and review the rule, it believes that four hours on
average is a reasonable estimate of the time needed to learn about the
new requirements. The text of the regulation is quite limited in length
and scope as it addresses only the subset of requirements for herding
and the range production of livestock that are exceptions from the
standard H-2A regulations. Further, the Final Rule does not require
employers to retain counsel or other advisors to assist them, and the
Department will make available compliance assistance materials,
including a specific small business compliance guide, that many
employers may choose to read in lieu of reading the regulation itself.
i. Costs
This requirement represents a cost to herding and range livestock
production employers in the first year of the rule. The Department
notes that the cost of reading and reviewing the rule ($313.92) is
incurred only in the first year; amortized over the rule's 10-year
lifespan, the average annual cost is only $31.39. The Department
estimates this cost by multiplying the time required to read and review
the new rule (4 hours) by the average compensation of a human resources
manager at an agricultural business ($78.48).\95\ The Department
estimates the cost of reading and reviewing the rule by multiplying
$31.39 times the number of employers (485). This calculation results in
a cost of $152,251 in 2016 and an average annual cost of $15,225.
---------------------------------------------------------------------------

\95\ The median hourly wage for a human resources manager is
$54.88 (as published by the Department's OES survey, O*Net Online),
which we multiply by 1.43 to account for private-sector employee
benefits (source: Bureau of Labor Statistics). This calculation
yields an hourly labor cost of $78.48.
---------------------------------------------------------------------------

5. Summary of Impacts
i. Costs and Transfers
Exhibit 10 presents a summary of first-year and average annual
costs and transfers by affected entity.\96\ The Department estimates
the total first-year costs and transfers of the Final Rule to be $8.49
million and $9.11 million, respectively. The transfer from all herding
and range livestock production employers to workers due to the revised
wage determination methodology, which bases the monthly AEWR on the
forecasted ECI-adjusted $7.25 base wage, times 48 hours per week with a
2-year transition period, amounts to $9.11 million. The largest first-
year cost is the cost to expand cooking/cleaning facilities at $3.93
million, followed by the cost of providing water to workers, the cost
of providing food to workers, recordkeeping, heating equipment, and the
time required to read and review the Final Rule. These costs and
transfers are incurred by all sheep and goat herding and range
livestock production employers with the exception of the cost of
providing food to workers, which is incurred only by range livestock
production employers. Range livestock production employers experience a
cost reduction of approximately $0.06 million in the first year of the
rule due to the elimination of the newspaper advertising requirement.
---------------------------------------------------------------------------

\96\ Transfer payments, as defined by OMB Circular A-4, are
payments from one group to another that do not affect total
resources available to society. Transfer payments are associated
with a distributional effect but do not result in additional costs
or benefits to society. In this case, the Department classifies the
wage increases as both transfer payments (to society) and costs (to
employers).
---------------------------------------------------------------------------

In general, average annual transfers are larger than those in the
first year because of the transition period for the monthly wage
increases and because the Department adjusted the base wage based upon
the wages and salaries ECI over the 10-year analysis period. The
average annual transfer from employers to employees due to the revised
wage determination methodology for the AEWR amounts to $17.46 million
per year. The largest average cost is providing water to workers at
$2.36 million per year, followed by the cost of providing meals to
workers at $1.78 million per year, the cost of expanding cooking/
cleaning facilities at $0.75 million per year, the cost of
recordkeeping at $0.19 million per year, the cost of the heating
equipment and propane at $0.10 million, and the time required to read
and review the Final Rule at $0.02 million per year. Range livestock
production employers experience an average annual cost

[[Page 63037]]

reduction of approximately $0.06 million. The Department estimates the
average annual cost of the Final Rule to be $5.13 million.
[GRAPHIC] [TIFF OMITTED] TR16OC15.017

Exhibit 11 presents a summary of the economic impact analysis of
the Final Rule. The monetized net costs and transfers displayed are the
yearly summations of the calculations described above. In some cases,
the totals for one year are less than the totals of the annual averages
described above. The total (undiscounted) costs and transfers of the
rule sum to $51.26 million and $174.64 million over the 10-year
analysis period, respectively. This amounts to an average annual cost
and transfer of $5.13 million and $17.46 million per year,
respectively. In total, the 10-year discounted costs of the Final Rule
range from $36.87 million to $44.16 million (with 7 and 3 percent
discounting, respectively). In total, the 10-year discounted transfers
of the Final Rule range from $117.99 million to $146.52 million (with 7
and 3 percent discounting, respectively).

[[Page 63038]]

[GRAPHIC] [TIFF OMITTED] TR16OC15.018

ii. Benefits
The Department was able to identify cost reductions of the Final
Rule due to the elimination of the newspaper advertising requirement,
which amount to $0.06 million per year over the 10-year analysis
period. The Department also expects there to be cost reductions due to
the revised job order submission requirements and the revised master
application filing requirements. However, the Department was not able
to quantify those cost reductions resulting from the Final Rule.
Due to data limitations, the Department also did not quantify
several of the important benefits to society provided by the revised
policies. Through this rulemaking the Department is establishing a new
methodology for determining a monthly AEWR and clarifying employer
obligations for these unique occupations with the aim of protecting the
wages and working conditions of U.S. workers and better assessing their
availability for these jobs based on appropriate terms and conditions
of employment. The higher wages for workers will result in an improved
ability on the part of workers and their families to meet their costs
of living and spend money in their local communities. Higher wages may
also decrease turnover among U.S. workers and thereby decrease the
costs of recruitment and retention to employers. Reduced worker
turnover is associated with lower costs to employers arising from
recruiting and training replacement workers. Because seeking and
training new workers is costly, reduced turnover leads to savings for
employers. Research indicates that decreased turnover costs partially
offset increased labor costs (Reich, Hall, and Jacobs 2003; Fairris,
Runstein, Briones, and Goodheart 2005).\97\
---------------------------------------------------------------------------

\97\ Reich, Michael, Peter Hall, and Ken Jacobs, ``Living Wages
and Economic Performance: The San Francisco Airport Model''
Institute of Industrial Relations, University of California,
Berkeley, March 2003. Fairris, David, David Runsten, Carolina
Briones, and Jessica Goodheart, ``Examining the Evidence: The Impact
of the Los Angeles Living Wage Ordinance on Workers and Businesses''
LAANE, 2005. See Arindrajit Dube, T. William Lester and Michael
Reich (2012), ``Minimum Wage Shocks, Employment Flows and Labor
Market Frictions,'' Institute for Research on Labor and Employment,
http://www.irle.berkeley.edu/workingpapers/122-12.pdf.
---------------------------------------------------------------------------

This potential retention of U.S. workers may reduce the need to
recruit and hire temporary foreign workers to fill these jobs.
Furthermore, higher wages may have positive impacts on productivity.
Higher wages can boost employee morale, thereby leading to increased
effort and greater productivity. For example, Holzer (1990) \98\ finds
that high-wage firms can sometimes offset more than half of their
higher wage costs through improved productivity and lower hiring and
turnover costs.
---------------------------------------------------------------------------

\98\ Holzer, Harry, ``Wages, Employer Costs, and Employee
Performance in the Firm.'' Industrial and Labor Relations Review,
Vol. 43, No. 3, pp 147-164, 1990.
---------------------------------------------------------------------------

In addition, clarifications for such requirements as providing
sufficient housing; supplying all tools, supplies, and equipment
required, free of charge; establishing effective means of communication
in case of emergencies; and providing meals and potable water will
better foster the safety and health of both U.S. and H-2A workers as
they perform these jobs. Due to data limitations, the Department was
not able to quantify or monetize the impact of these protective
measures.

B. Final Regulatory Flexibility Analysis

The Regulatory Flexibility Act (RFA) at 5 U.S.C. 603 requires
agencies to prepare a regulatory flexibility analysis to determine
whether a regulation will have a significant economic impact on a
substantial number of small entities. Section 605 of the RFA allows an
agency to certify a rule in lieu of

[[Page 63039]]

preparing an analysis if the regulation is not expected to have a
significant economic impact on a substantial number of small entities.
Further, under the Small Business Regulatory Enforcement Fairness Act
of 1996, 5 U.S.C. 801 (SBREFA), an agency is required to produce
compliance guidance for small entities if the rule has a significant
economic impact. This rule will have a significant economic impact on a
substantial number of small entities.
1. Need for, and Objectives of, the Rule
Among the reasons for the current rulemaking was the decision of
the Court of Appeals for the District of Columbia in the Mendoza case,
which required the Department to engage in notice and comment
rulemaking to set standards governing the employment of foreign herders
because those standards were legislative rules governed by the
Administrative Procedure Act, 5 U.S.C. 553. Mendoza, 754 F.3d at 1024-
1025. In addition to the Mendoza decision, ETA's traditional method of
determining the monthly AEWR for these occupations--the use of SWA
surveys--has become increasingly difficult with few states reporting
wage results because their surveys included so few U.S. workers that
they could not report statistically valid results. Wage stagnation has
resulted from this methodology with herders in most states earning only
slightly higher nominal wages today than they were 20 years ago, and
therefore they are making significantly less in real terms. 80 FR
20307. Accordingly, we needed to engage in notice and comment
rulemaking as a result of both the Mendoza decision and to address the
faulty wage methodology that over years contributed to herder wage
stagnation.
2. Significant Issues Raised by the Public Comments and the
Department's Response
This section presents an analysis of the significant issues raised
by the public comments in response to the initial regulatory
flexibility analysis (IRFA) and a summary of the Department's response
to those issues. We discuss many of these issues in detail in the
preamble and the EO 12866 analysis and, therefore, we incorporate those
discussions by reference.
a. Comments on the Number of H-2A Workers per Small Business
The SBA Office of Advocacy, the Mountain Plains Agricultural
Services and Western Range Association (Mountain Plains and Western
Range), the Wyoming Wool Growers Association, Vermillion Ranch and
Midland Ranch, and others stated that the Department underestimated the
cost of the proposed rule for small herding operations because these
operations may hire more than three H-2A workers, which is the value
the Department used to estimate costs. They emphasized that, for small
businesses that hire more than three H-2A workers, the cost of the
proposed rule could be higher than the 19 to 24 percent of revenues the
Department identified in the IRFA. The commenters referenced a survey
by the Colorado Wool Growers Association, The Real Wage Benefits
Provided to H-2A Sheep Herders and the Economic Cost to Colorado
Ranchers, which showed that its members hired an average of five H-2A
workers per employer. The commenters also cited a recent phone survey
by Mountain Plains, which showed that its members hired an average of
4.2 H-2A workers per employer. Vermillion Ranch and Midland Ranch
stated that although their ranches' gross revenues are generally higher
than the average annual revenue of $252,050 estimated by the
Department, they would incur significantly greater costs because they
hire 18 and 13 workers, respectively, each year.
Some commenters provided the number of workers hired on their
ranches per year:
Etchart Livestock, Inc. stated that it employs five to
seven foreign workers.
David and Bonnie Little stated that they employ 10
sheepherders.
FIM Corp. stated that it employs 11 H-2A sheepherders.
Julian Land & Livestock stated that it employs 12 to 22
men.
In the Notice of Proposed Rulemaking (NPRM) economic analysis, the
Department estimated the average number of H-2A workers per employer as
three based on actual H-2A certifications issued during FY 2011 and FY
2012. Based on a review of more recent H-2A certifications issued
during FY 2013 and FY 2014, the Department revised the average number
H-2A workers per employer to 4.2 in the final regulatory flexibility
analysis (FRFA).\99\ The Department notes that this is the average
number of H-2A workers per employer, meaning that some employers may
choose to employ more than 4.2 H-2A workers while others employ fewer.
The Department agrees that ranchers involved in sheep and goat herding
operations who employ more than 4.2 H-2A workers, and who earn no more
than an average revenue of $252,050, will incur a revenue loss of more
than the estimated percentage of annual revenues. Based on the revised
average number of H-2A workers per employer, the Department believes
that the Final Rule will have a significant economic impact on a
substantial number of affected small entities. DOL has a statutory
obligation to set wages and working conditions in the H-2A program at a
level that protects against adverse effect on U.S. workers due to the
employment of foreign workers. For the reasons discussed in the
preamble, DOL has determined that the requirements in this rule are
needed to protect against adverse effect on U.S. workers; therefore,
DOL could not lower requirements for small businesses.
---------------------------------------------------------------------------

\99\ The FY 2013 and FY 2014 certification data show an annual
average of 953 applications certified for an average of 2,481
workers in the herding and range production of livestock program, or
2.6 workers per application. The Department concluded that this
could be an underestimate because some employers file multiple
applications per year. Therefore, we also attempted to identify the
number of unique employers filing applications. We estimate that an
annual average of 485 unique employers filed applications, which
would indicate 5.1 workers per employer. However, the Department
concluded that this could be an overestimate because employers do
not bring into the country all the workers for which they are
certified each year. Furthermore, some employers file multiple
applications because their itinerary changes and they need to
reapply to receive authorization to send workers to another state,
even though they will be the same workers. Therefore, we assumed an
average of 4.2 workers per employer, consistent with the estimate
from the Mountain Plains 2015 telephone survey of its members
discussed by the SBA Office of Advocacy.
---------------------------------------------------------------------------

b. Comments on the Calculation of the Number of Affected Small Entities
The Department received comments on the calculation of the number
of affected small entities. The commenters asserted that most or all of
the businesses affected by the proposed rule are small entities.
John and Carolyn Espil stated that most or all of the ranches
affected by the proposed rule would be small entities. They cited (1)
the Nevada Department of Agriculture (NDA), which stated that 82.78
percent of agricultural operations in Nevada are engaged in livestock
production and (2) the NDA's Economic Contribution of Agriculture
Report, which stated that 82.2 percent of farms and ranches are owned
by families or individuals. The commenters also disagreed with the
Department's estimate in the IRFA that the average small farm makes
$252,050 in annual revenue. The commenters remarked that farms cannot
make this much without off-farm income and stated that any other
estimates using this annual revenue figure should be considered
inaccurate as well. Sharon O'Toole stated that since nearly all of the

[[Page 63040]]

businesses affected by the proposed rule are small entities, the
proposed rule is a violation of existing law.
Mountain Plains and Western Range and Texas Sheep & Goat Raisers
Association cited the ASI, which stated that 99.98 percent of sheep
operations in the United States are small businesses. In addition, the
commenter noted that nearly all of the members of Mountain Plains and
Western Range would meet the statutory definition of a ``small
business'' for an agricultural enterprise. The SBA Office of Advocacy
confirmed that approximately 99 percent of U.S. farms in the relevant
industries are considered small businesses under the SBA definition.
The Siddoway Sheep Company referenced the U.S. Department of
Agriculture's most recent census, which stated that 92 percent of sheep
and goat operations are family businesses. ASI and Public Lands Council
and Patrick O'Toole stated that changes to the H-2A sheepherder program
would have a significant negative impact on the 79,500 family farms and
ranches that raise sheep in the United States. The Wyoming Livestock
Board, the Texas Sheep & Goat Raisers Association, ASI, and the Pilster
Ranch stated that 38 percent of sheep production in the United States
is under the care of H-2A sheepherders and that the proposed rule would
negatively impact the 79,500 family farms in the U.S. sheep industry.
The Department agrees with the commenters that almost all of the H-
2A employers affected by the rule are small entities that meet the
SBA's small business size standards, which was reflected in the IRFA
and is repeated in the FRFA. However, the Department maintains that its
estimate of the average revenue of a small entity ($252,050 in 2013
dollars) is consistent with the average revenue from the Idaho farm
enterprise budget for range sheep herding submitted by Mountain Plains
and Western Range. Please note that in the FRFA, the Department has
updated its analysis to 2014 dollars; thus, the revised estimate of the
average revenue of a small entity is $256,138 in 2014 dollars.\100\ In
addition, some ranchers have multiple enterprise operations that
include both range sheep production and range cattle production.
---------------------------------------------------------------------------

\100\ According to the 2012 Census of Agriculture, the average
revenue (i.e., the average market value of agricultural products
sold and government payments) per farm in the relevant industries is
$248,411. After adjusting for inflation using the CPI-U, the
Department estimates that the average revenue per farm in the
relevant industries is approximately $252,050 in 2013 dollars and
$256,138 in 2014 dollars. Thus, the Department estimated that a
small farm in the relevant industries would have average annual
revenues of approximately $252,050 and $256,138 in the NPRM and
Final Rule, respectively.
---------------------------------------------------------------------------

c. Comments on the Calculation of the Significant Economic Impact on a
Substantial Number of Small Entities
The Department received several comments stating that the proposed
rule would have a significant economic impact on a substantial number
of small entities. The Department also received a couple of comments
suggesting that the Department publish a Supplemental IRFA for public
comment.
The SBA Office of Advocacy, Mountain Plains and Western Range, the
Wyoming Wool Growers Association, the Montana Wool Growers Association,
John and Carolyn Espil, and Sheep! Magazine concluded that the proposed
rule would have a significant economic impact on a substantial number
of small entities. The SBA Office of Advocacy stated that the
Department's IRFA may have underestimated costs for small businesses
and did not analyze any alternatives that may minimize the economic
impact on small businesses. The commenter suggested that the Department
publish for public comment a Supplemental IRFA analyzing the cost of
the proposed rule and alternatives for small businesses that minimize
the economic impact.
The Department concluded that the proposed rule would have a
significant economic impact on a substantial number of small entities.
Therefore, the Department published the IRFA and invited comments on
the impact to such small entities. If the small-entity impact estimates
in the IRFA underestimated the true costs to the small entities, such
as because we were not able to quantify the costs of some of items due
to data limitations, we specifically identified those items and invited
comments. Very few, if any, responses were received that provided
specific information on such costs. Moreover, the IRFA identified two
alternatives; we did not identify any less costly alternatives because
we concluded, at that time, that such alternatives would not allow the
Department to fulfill our dual statutory mandate of determining that no
U.S. workers are available for the job and that the employment of
foreign workers will not adversely affect the wages and working
conditions of workers similarly employed in the United States.
With respect to the ``downstream'' economic impacts on related
industries in the U.S. economy, the Department was unable to quantify
such impacts due to a lack of data and statistical input-output models
necessary to conduct an accurate analysis. Therefore, such impacts are
beyond the scope of this economic analysis.
Based upon the comments received on the NPRM, the Final Rule makes
a number of changes to the NPRM, all of which are analyzed below. The
Department decided to set the monthly wage rates for range herders of
sheep, goats, and other livestock using the current Fair Labor
Standards Act (FLSA) minimum wage rate of $7.25 per hour as a starting
point, with annual adjustments to account for inflation, and an assumed
48-hour workweek; we also considered and address below alternative wage
setting proposals submitted by commenters, including two less costly
alternatives.
d. Alternatives Considered in the Analysis
As discussed in detail in the EO 12866 analysis, the Department
received comments related to the alternatives considered in the IRFA.
Many commenters asserted that the alternatives were not ``true''
alternatives in that the Department did not consider other ways to
determine the monthly Adverse Effect Wage Rate (AEWR). They commented
that the Department only considered alternatives related to the timing
of the monthly wage rate increases, and thus they characterized it as
one alternative with three transition periods. For this reason, some
commenters stated that the Department failed to meet the requirements
set forth in Section 603(c) of the RFA to describe ``any significant
alternatives to the proposed rule which accomplish the stated
objectives of applicable statutes and which minimize any significant
economic impact of the proposed rule on small entities.''
The Department carefully reviewed the comments related to the
proposed wage-setting methodology and to the alternatives laid out in
the EO 12866 analysis and the IRFA. After considering the comments, the
Department has decided to set the monthly AEWR for range herders of
sheep, goats, and other livestock using a formula based on the current
FLSA minimum wage as a starting point, with annual adjustment based on
inflation. This decision is in line with the second of two alternative
proposals set forth by Mountain Plains and Western Range, which was
endorsed by the ASI and many individual employers; however, it also was
slightly modified consistent with the suggestions in the Worker
Advocates' Joint Comment. As discussed in detail in the preamble, the
Department concludes that this wage rate is both necessary to provide a
meaningful test of the labor market for

[[Page 63041]]

available U.S. workers and to protect against adverse effect on workers
in the United States similarly employed.
The Department has considered three alternatives in addition to the
new wage setting methodology in the Final Rule analysis:
(1) To base the monthly AEWR on the 1994 TEGL wage rates ($800,
which was approximately the highest 1994 TEGL rate), adjusted to a 2014
monthly wage using the ECI capped at a maximum annual increase of 2.5
percent, the forecasted ECI for wages and salaries values applied to
the estimated 2014 monthly wage, and which is introduced over a three-
year transition period with full implementation in year four;
(2) to base the monthly AEWR on the current FLSA minimum hourly
wage, the forecasted ECI for wages and salaries values applied
beginning in year five, a 44-hour workweek, and which is introduced
over a three-year transition period with full implementation in year
four; and
(3) to base the monthly AEWR on forecasted hourly AEWRs for
combined field and livestock workers by state, a 65-hour workweek, with
full implementation in year one, and incorporating a monthly food
deduction estimate as permitted in the standard H-2A program, which is
adjusted by the average CPI-U over 2012 to 2014.
The preamble and the EO 12866 analysis describe in detail the
methodology we adopted in the Final Rule and the reasons for its
selection over the three alternatives that we considered. The three
alternatives that we considered are described in detail below.
i. 1994 TEGL Wage Adjusted Based on Capped ECI With a Three-Year
Transition Period
Under this alternate wage determination methodology, the Department
adjusts the estimated 1994 TEGL wage ($800.00) as recommended by
Mountain Plains, Western Range, ASI and others using a capped ECI
approach.\101\ Under the capped ECI approach, we adjust the wage for
each year as follows:
---------------------------------------------------------------------------

\101\ The employer commenters proposed using $800 as the 1994
wage to index; although $800 is higher than the wage in all but one
state, it was not used in any state and is lower than the $820 sheep
and goat herder wage in Arizona in 1994. The alternative wage
methodology does not account for wages paid by livestock herders,
which are not available for 1994.
---------------------------------------------------------------------------

By 1.5 percent if the percentage increase in the wages and
salaries ECI during the previous calendar year was less than 1.5
percent;
By the percentage increase if the percentage increase in
the wages and salaries ECI during the previous calendar year was
between 1.5 percent and 2.5 percent, inclusive; or
By 2.5 percent if the percentage increases in the wages
and salaries ECI during the previous calendar year was greater than 2.5
percent.

[[Page 63042]]

[GRAPHIC] [TIFF OMITTED] TR16OC15.019

We then apply the growth rate calculated under the Final Rule's
source--the average year-to-year-growth rate of the average quarterly
wages and salaries ECI for each year from 2012 through 2014 (2.0
percent)--to the 2014-indexed wage ($1,261.84) and forecast the indexed
monthly wage required under Alternative 1 for 2016 to 2025. The wage
rate determination methodology includes a three-year transition period,
with full implementation in year four. The Department estimates the
hourly wage rate for each year of the analysis period as follows
(Exhibit 13):

[[Page 63043]]

[GRAPHIC] [TIFF OMITTED] TR16OC15.020

Exhibit 14 presents the forecasted ECI-adjusted cap-indexed 1994
TEGL wage with a three-year transition period and full implementation
in 2019 under Alternative 1.
[GRAPHIC] [TIFF OMITTED] TR16OC15.021

Exhibits 15 and 16 present the wage differential between the
monthly wage under Alternative 1 and the baseline by state for sheep
and goat herders and range livestock production workers, respectively.
In the case of California and Oregon, the monthly wage under
Alternative 1 is lower than the baseline wage in every year. In the
case of Hawaii, where the monthly wage of $1,422.52 is based on a 2012
prevailing wage survey conducted by California, the monthly wage under
Alternative 1 is lower than Hawaii's current baseline wage in the first
five years. In these instances, the Department assumes that the workers
will continue to receive the baseline wage in the applicable year;
therefore, no wage differential results. Additionally, the monthly wage
differentials for states that did not have a baseline wage because
there were no H-2A workers certified are denoted as ``N/A.'' Note that
these values are for informational purposes only and were not used in
the analysis.

[[Page 63044]]

[GRAPHIC] [TIFF OMITTED] TR16OC15.022


[[Page 63045]]


[GRAPHIC] [TIFF OMITTED] TR16OC15.023

ii. Forecasted ECI-Adjusted $7.25 Multiplied by 44 Hours/Week With a
Three-Year Transition Period
Under this alternate monthly wage rate determination methodology,
which also was generally suggested by Mountain Plains, Western Range,
ASI, and other employer commenters, the Department estimates the hourly
base wage rate by applying the 2-percent growth rate estimated under
the Final Rule's wage methodology, which is the average year-to-year-
growth rate of the average quarterly ECI for wages and salaries for
each year from 2012 through 2014, to $7.25 for each year beginning in
2020.\102\ The wage rate determination methodology uses a three-year
transition period, with full implementation in year four. The
Department estimates the hourly wage rate for each year of the analysis
period as follows (Exhibit 17):
---------------------------------------------------------------------------

\102\ Because the average year-to-year ECI growth rate was 2.0
percent, it fell within the cap range (1.5 to 2.5 percent) suggested
by Mountain Plains and Western Range; therefore, the increase is the
same whether using the capped or uncapped methodology.

---------------------------------------------------------------------------

[[Page 63046]]

[GRAPHIC] [TIFF OMITTED] TR16OC15.024

To convert the hourly base wage rate to a monthly wage rate, the
Department multiplies the hourly wage rate by 44 hours per workweek and
4.333 weeks per month. Exhibit 18 presents the monthly AEWR.
[GRAPHIC] [TIFF OMITTED] TR16OC15.025

Exhibits 19 and 20 present the wage differential between the
monthly wage under Alternative 2 and the baseline by state for sheep
and goat herders and range livestock production workers, respectively.
In the case of California and Oregon, the monthly wage under
Alternative 2 is lower than the baseline wage in every year. In the
case of Hawaii, where the monthly wage of $1,422.52 is based on a 2012
prevailing wage survey conducted by California, the monthly wage under
Alternative 2 is lower than Hawaii's current baseline wage in the first
five years. In these instances, the Department assumes that the workers
will continue to receive the baseline wage in the applicable year;
therefore, no wage differential results. Additionally, the monthly wage
differentials for states that did not have a baseline wage are denoted
as ``N/A.'' Note that these values are for informational purposes only
and were not used in the analysis.

[[Page 63047]]

[GRAPHIC] [TIFF OMITTED] TR16OC15.026


[[Page 63048]]


[GRAPHIC] [TIFF OMITTED] TR16OC15.027

iii. Forecasted FLS-Based AEWR, 65-Hour Week, With Food Deductions and
No Transition Period
Under this alternate wage rate determination methodology, based
generally upon the recommendation made in the Joint Workers' Advocate
Comment, the Department first calculates the annual percentage change
in each state's average FLS-based AEWR for each year from 2013 to 2015.
We then take the averages of the resulting two values to estimate the
average annual percentage changes by state as shown in Exhibit 21.

[[Page 63049]]

[GRAPHIC] [TIFF OMITTED] TR16OC15.028

Using each state's geometric average annual percent change, we
forecast each state's FLS-based AEWR for 2016 to 2025.\103\
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\103\ The geometric mean of the annual percent changes provides
the rate of growth which, if experienced each year, would lead to
the same total change in wages as that observed between 2013 and
2015. In this case, the formula for the geometric mean is: (see
equation above) where rmean is the geometric mean and
r2013-2014 and r2014-2015 are the annual
percent changes between 2013-2014 and 2014-2015, respectively.

Using Alabama as an example, the geometric average annual percent
change over the two years is 1.1 percent. The Department applies the
1.1-percent growth rate to the 2015 hourly AEWR to obtain the
forecasted 2016 hourly AEWR ($10.00 x 1.011 = $10.11). We then apply
the same 1.1 percent growth rate to the forecasted 2016 hourly AEWR to
forecast the 2017 hourly AEWR ($10.11 x 1.011 = $10.22). We repeat this
calculation to forecast the hourly AEWRs for the remaining years in the
analysis period. Exhibit 22 presents the forecasted hourly AEWRs for
each state.
[GRAPHIC] [TIFF OMITTED] TR16OC15.038


[[Page 63050]]


[GRAPHIC] [TIFF OMITTED] TR16OC15.029

As recommended in the Worker Advocates' Joint Comment, this wage
rate option does not use a transition period. To convert the hourly
FLS-based AEWR to a monthly wage rate, the Department multiplies the
hourly wage rate by 65 hours per workweek and 4.333 weeks per month. To
account for the food deduction, we convert the 2015 daily food
deduction of $11.86 per worker to the monthly food deduction of $359.73
per worker by multiplying the daily food deduction by the number of
days per week (7) by the number of weeks per month (4.333).\104\ We
then apply the average year-to-year change in the CPI-U from 2012 to
2014 (1.5 percent) to the monthly food deduction for each year
beginning in 2016. Exhibit 23 presents the monthly food deductions by
year.
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\104\ The daily meal cost estimate of $11.86 is from Allowable
Meal Charges and Reimbursements for Daily Subsistence published by
the U.S. Department of Labor, Employment & Training Administration
(Source: http://www.foreignlaborcert.doleta.gov/meal_travel_subsistence.cfm. Accessed July 30, 2015).

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[[Page 63051]]

[GRAPHIC] [TIFF OMITTED] TR16OC15.030

We subtract the monthly food deduction from the monthly wage.
Exhibit 24 presents the monthly wages with the food deductions taken
into account.

[[Page 63052]]

[GRAPHIC] [TIFF OMITTED] TR16OC15.031

Exhibits 25 and 26 present the wage differential between the
monthly wage under Alternative 3--the forecasted FLS-based AEWR with
food deductions taken into account--and the baseline by state for sheep
and goat herders and range livestock production workers, respectively.
Additionally, the monthly wage differentials for states that did not
have a baseline wage because there were no H-2A workers employed as
herders or range livestock workers are denoted as ``N/A.'' Note that
these values are for informational purposes only and were not used in
the analysis.

[[Page 63053]]

[GRAPHIC] [TIFF OMITTED] TR16OC15.032


[[Page 63054]]


[GRAPHIC] [TIFF OMITTED] TR16OC15.033

As discussed in the preamble and the EO 12866 analysis, the
Department concludes that the Final Rule's methodology for setting the
monthly AEWR is the most appropriate as it will begin to address
immediately and substantially the wage stagnation that has occurred
over the past decades. Some transition period is necessary because the
comments indicate that requiring the full monthly increase immediately
could lead to significant disruptions that might cause job losses due
to some employers going out of business or scaling back their
operations. Based on all the information in the comments, including
balance sheet information from individual

[[Page 63055]]

employers, the state enterprise budgets, and the other data in the
record such as regarding average prices for lamb and wool over the last
15 years, the Department concludes that given the Final Rule's
methodology for setting the monthly AEWR a two-year transition period
is sufficient to avoid such disruptions. We do not believe that the
lengthier transition periods in the first two alternatives we
considered are necessary. However, we also do not believe that the
third alternative, with substantially higher wages based on the FLS-
based hourly wages with no transition period, is appropriate; the
evidence indicates that there is a substantial risk that tripling the
required wage rates will entirely eliminate annual profits for some
employers, which is likely to cause, rather than prevent, adverse
effect on U.S. workers.
Exhibit 27 presents a summary of average annual transfers over the
10-year analysis period by wage determination methodology. The
Department estimates the average annual transfer from all herding and
range livestock production employers to workers due to the Final Rule's
wage determination methodology, which bases the monthly AEWR on
forecasted ECI-adjusted $7.25 base wage, times 48 hours per week with a
2-year transition period, to be $17.46 million per year. This is a
decrease relative to the average annual transfer from employers to
workers estimated under the NPRM's wage determination methodology,
forecasted AEWR values by USDA region incrementally phased in over a 5-
year period, of $45.08 million per year. Of the three alternatives, the
largest average annual transfer from employers to employees due to
Alternative 3's revised wage determination methodology (i.e., the
forecasted FLS-based AEWR with food deductions taken into account)
amounts to $71.38 million per year, followed by Alternative 1's
methodology (i.e., the forecasted ECI-adjusted cap-indexed 1994 TEGL
wage with a 3-year transition period and full implementation in 2019)
at $12.64 million per year, and Alternative 2's methodology (i.e., the
forecasted ECI-adjusted $7.25 base wage, times 44 hours per week with a
3-year transition period) at $12.47 million per year.
[GRAPHIC] [TIFF OMITTED] TR16OC15.034

3. Response to Comments Filed by the Chief Counsel for Advocacy of the
SBA
As discussed in Section 2 above, the SBA Office of Advocacy
submitted substantive comments regarding a number of issues, including
the number of H-2A workers per small business, the calculation of the
number of affected small entities, and the calculation of the
significant impact on a substantial number of small entities. This
section summarizes separately the SBA Office of Advocacy's comments and
the Department's responses.
The SBA Office of Advocacy commented that the Department
underestimated the cost of the proposed rule for small herding
operations because these operations may hire more than three H-2A
workers, which is the value the Department used to estimate costs. In
response to this concern, the Department revised the average number of
H-2A workers per employer in the FRFA to 4.2 based on actual H-2A
certifications issued during FY 2013 and FY 2014. This figure is
consistent with the estimate submitted by the commenters based upon a
recent telephone survey conducted by Mountain Plains involving
responses from 214 of 275 members.
The SBA Office of Advocacy also commented on the number of small
entities affected, noting that approximately 99 percent of sheep
operations in the United States are small businesses. The Department
agrees that almost all of the H-2A employers affected by the proposed
rule are small entities that meet the SBA's small business size
standards, which was reflected in the IRFA and is repeated in the FRFA.
However, the Department maintains that its estimate of the average
revenue of a small entity ($252,050 in 2013 dollars) is consistent with
the average revenue from farm enterprise budgets for range sheep
herding reported by commenters. Please note that in the FRFA, the
Department updates its analysis to 2014 dollars; thus, the revised
estimate of the average revenue of a small entity is $256,138.
The SBA Office of Advocacy stated that the proposed rule would have
a significant impact on a substantial number of small entities. SBA
also commented that the Department's IRFA may have underestimated costs
for small businesses and did not analyze any alternatives that may
minimize the economic impact on small businesses. SBA suggested that
the Department publish for public comment a Supplemental IRFA analyzing
the cost of the proposed rule and alternatives for small businesses
that minimize the economic impact. The Department concluded that the
proposed rule would have a significant impact on a substantial number
of small entities. Therefore, the Department published the IRFA and
invited comments on the impact to such small entities. If we were not
able to quantify certain costs due to data limitations, we identified
those items and invited comments. Very few, if any, responses were
received that provided specific information on such costs.

[[Page 63056]]

The IRFA identified two alternatives for setting the required
monthly wage; we did not identify any less costly alternatives in the
IRFA because we concluded, at that time, that such alternatives would
not allow the Department to fulfill its dual statutory mandate of
ensuring that no U.S. workers are available for the job and that the
employment of foreign workers will not adversely affect the wages and
working conditions of workers similarly employed in the United States.
Based upon comments received from the industry, the FRFA identifies two
less-costly alternatives to the Final Rule wage methodology and,
together with the preamble and EO 12866 analysis, explains why the
Department did not find either of those alternatives to be appropriate.
The SBA Office of Advocacy expressed concern about the NPRM's
definition of ``open range,'' noting that 36 percent of respondents to
a Mountain Plains survey thought they would not qualify for the program
if fences were prohibited. The Final Rule substantially revises the
definition of what qualifies as the ``range'' in recognition of the
fact that fences are used in many locations for many purposes,
including on Forest Service and BLM lands where animals graze.
The SBA Office of Advocacy also expressed concern that the NPRM
relied upon the same hourly wage rate as is paid to regular H-2A field
and livestock workers, when herding employers provide housing, food,
clothing, tools, paid vacation, etc. Unlike the NPRM, the Final Rule
does not base the monthly AEWR on the FLS-based hourly wage. Moreover,
we note that all H-2A employers are required to provide free housing
and are required to provide the tools, supplies and equipment necessary
to perform the job free of charge. The Department does not require
herding employers to provide paid vacation, although we support them if
they voluntarily choose to do so.
With regard to the concern that small herding operations have a
difficult time hiring U.S. workers for this work, we anticipate that
updating the required monthly wage rate to overcome the many years of
wage stagnation may result in more U.S. workers being interested in
this work. California, which has a higher state minimum wage for
herders, is consistently among the states with the largest number of
U.S. sheepherders identified in SWA surveys.
4. Calculation of the Number of Affected Small Entities
a. Definition of a Small Business
A small entity is one that is ``independently owned and operated
and which is not dominant in its field of operation.'' The definition
of small business varies from industry to industry, to the extent
necessary, in order to properly reflect industry size differences. An
agency must either use the SBA definition for a small entity or
establish an alternative definition for the relevant industries to
which a rule applies, which in this case includes Beef Cattle Ranching
and Farming (NAICS 112111), Dairy Cattle and Milk Production (NAICS
11212), Sheep and Goat Farming (NAICS 1124), and Other Animal
Production (NAICS 1129).\105\ The Department has adopted the SBA
definition for these industries, which is an establishment with annual
revenues of less than $0.75 million.\106\
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\105\ Animal Aquaculture (NAICS 1125) is not considered a
relevant industry for this rulemaking. However, the RFA analysis
uses data from the 2012 Census of Agriculture, which does not
distinguish between Animal Aquaculture (1125) and Other Animal
Production (1129). Due to this data limitation, the Department
includes Animal Aquaculture industry data in the calculations of
this RFA analysis. In addition, the Department excludes farms in the
Cattle Feedlots (NAICS 112112) industry because cattle in feedlots
do not graze on the range; therefore, employers in the cattle
feedlot industry would not be affected by the rule.
\106\ Source: U.S. Small Business Administration. Table of Small
Business Size Standards Matched to North American Industry
Classification System Codes (July 2014). Available at http://www.sba.gov/sites/default/files/Size_Standards_Table.pdf (Accessed
Nov. 13, 2014).
---------------------------------------------------------------------------

b. Estimated Number of Affected Small Entities
Approximately 99 percent of U.S. farms in the relevant industries
have annual revenues of less than $0.75 million and, therefore, fall
within the SBA's definition of a small entity. The Department estimates
that by 2025, there will be approximately 485 employer applications
filed (not necessarily applicants) under the H-2A program for herding
and the range production of livestock. The Department considers a rule
to have an impact on a ``substantial number of small entities'' when
the total number of small entities impacted by the rule is equal to or
great than 15 percent of the relevant universe of small entities
affected in a given industry (in this case, the relevant universe is
the employers participating in the program). Therefore, the Department
concludes the rule will have an impact on a substantial number of small
entities as described by the RFA.
5. Compliance Requirements of the Final Rule, Including Reporting and
Recordkeeping
a. Impact on Small Businesses
The Department has estimated the incremental costs for small
businesses from the baseline (i.e., the 2010 Final Rule, TEGL 32-10,
and TEGL 15-06, Change 1) to this rule. We have estimated the costs of
(a) the new methodology for estimating the minimum monthly AEWR
employers must offer to their workers; (b) elimination of requirements
to advertise in a newspaper of general circulation in the area of
intended employment (cost reduction); (c) provision of meals; (d)
provision of potable water; (e) provision of expanded cooking/cleaning
facilities at the ranch; (f) recording and retaining records of the
employees' work locations; (g) providing heating equipment; and (h)
time to read and review the rule. This analysis includes the
incremental cost of this rule as it adds to the requirements in the
2010 Final Rule, TEGL 32-10, and TEGL 15-6, Change 1. The cost
estimates included in this analysis for the provisions of the Final
Rule are consistent with those presented in the EO 12866 section.
The Department identified the following provisions of the Final
Rule to have an impact to industry but was not able to quantify the
impacts due to data limitations: proportion/type of work permitted at
the ranch (i.e., not on the range); application filing requirements;
job order submissions; job order duration; placement of workers on
master applications; and employer-provided items. Thus, although the
Department believes those additional costs are minor, the total cost to
small entities may be higher than the total cost presented in this
analysis (although we conclude the cost of other items may be
overestimated).
i. New Methodology for Estimating the Wages of Workers
Under the new wage determination methodology, the use of the
forecasted ECI-adjusted $7.25 base wage times 48 hours per week and
times 4.333 weeks per month to set the required monthly AEWR, with a
two-year transition period, results in an increase of $1.53 in hourly
wages (using the assumed 48 hours per week computation) paid to H-2A
workers in 2016. The Department multiplies this average hourly wage
increase by 48 hours per workweek to obtain a weekly cost per worker of
$73.44 ($1.53 x 48) in 2016. The Department then multiplies this weekly
cost by 50 weeks, which is the average

[[Page 63057]]

period of need for workers in these industries. This results in an
average increased cost of $3,672.00 ($73.44 x 50) per H-2A worker in
2016. For employers hiring the average number of H-2A workers (4.2),
this results in an average increased cost of $15,422.40 ($3,672 x 4.2)
paid to workers in wages for 2016.
To estimate the average annual cost of increased wages paid to H-2A
workers under the Final Rule's wage determination methodology, the
Department first calculates the average annual assumed hourly wage
increase over the period of analysis. Given the average annual assumed
hourly wage increase ($2.93), a 48-hour workweek, and an average period
of need for workers of 50 weeks, the Department estimates an average
annual increased cost of $7,039.20 ($2.93 x 48 x 50) per H-2A worker.
For employers hiring the average number of H-2A workers (4.2), this
results in an average annual increased cost of $29,564.64 ($7,039.20 x
4.2) paid to workers in wages over the 10-year analysis period.\107\
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\107\ If the results of the FRFA, using an estimated average of
4.2 workers per employer, were multiplied times 485 (the number of
employers), it would not produce identical results to the total
impact results estimated in the EO 12866 analysis. As we discussed
above, the Department concludes that the EO 12866 analysis produces
an overestimate of the likely results, in part because that analysis
was based on an assumption that all 2,481 workers for whom employers
receive a labor certification enter the country each year. The FRFA
uses an estimate of 4.2 workers per employer, which mirrors the
estimate from the Mountain Plains 2015 telephone survey of its
members and is based upon estimates from the Department's data from
H-2A applications for labor certification.
---------------------------------------------------------------------------

To estimate the average annual cost of increased wages paid to H-2A
workers under the first wage determination methodology alternative--the
forecasted ECI-adjusted cap-indexed 1994 TEGL wage with a three-year
transition--the Department first calculates the average annual monthly
wage increase over the period of analysis. Given the average annual
monthly wage increase ($441.66), an average period of need for workers
of 11.54 months,\108\ the Department estimates an average annual
increased cost of $5,096.71 ($441.66 x 11.54) per H-2A worker. For
employers hiring the average number of H-2A workers (4.2), this
alternative results in an average annual increased cost of $21,406.19
($5,096.71 x 4.2) paid to workers in wages over the 10-year analysis
period.
---------------------------------------------------------------------------

\108\ 11.54 months are equivalent to 50 weeks.
---------------------------------------------------------------------------

To estimate the average annual cost of increased wages paid to H-2A
workers under the second wage determination methodology alternative--
the forecasted ECI-adjusted $7.25 wage rate with a three-year
transition based on a 44-hour workweek--the Department calculates the
average annual hourly wage increase over the period of analysis. Given
the average annual hourly wage increase ($2.28), a 44-hour workweek,
and an average period of need for workers of 50 weeks, the Department
estimates an average annual cost of $5,024.80 ($2.28 x 44 x 50) per H-
2A worker. For employers hiring the average number of H-2A workers
(4.2), this alternative results in an average annual increased cost of
$21,104.16 ($5,024.80 x 4.2) paid to workers in wages.
To estimate the average annual cost of increased wages paid to H-2A
workers under the third wage determination methodology alternative--the
forecasted State AEWR with food deductions based on a 65-hour
workweek--the Department calculates the average annual hourly wage
increase over the period of analysis. Given the average annual hourly
wage increase ($8.85), a 65-hour workweek, and an average period of
need for workers of 50 weeks, the Department estimates an average
annual increased cost of $28,772.25 ($8.85 x 65 x 50) per H-2A worker.
For employers hiring the average number of H-2A workers (4.2), this
results in an average annual increased cost of $120,843.45 ($28,772.25
x 4.2) paid to workers in wages.
ii. Newspaper Advertisements
Through the Final Rule, the Department will expand to production of
livestock occupations on the range the historical practice of waiving
the regulatory requirement to place two advertisements in a newspaper
serving the area of intended employment for sheepherding and goat
herding occupations. This will result in a minor cost reduction. To
estimate this cost reduction, the Department multiplies the number of
newspaper advertisements required for each range livestock employer
application (2) by the average cost of placing a newspaper
advertisement ($258.64) to obtain an avoided cost of purchasing
advertising space equal to $517(2 x $258.64) per range livestock
employer application per year.\109\ The Department also estimates the
labor cost required to prepare the advertisements by multiplying the
number of newspaper advertisements required per open range livestock
production employer (2) by the assumed time required to prepare a
newspaper advertisement (0.5 hours) and the hourly compensation of a
human resources (HR) manager ($78.48), which amounts to $78.48 (2 x 0.5
x $78.48) in avoided labor costs per range livestock employer
application per year.\110\ In total, this requirement will result in a
cost reduction of $595.76 ($517.28 + $78.48) per application per year
for employers involved in the range production of livestock.
---------------------------------------------------------------------------

\109\ The newspaper advertisement cost estimate is based on an
advertisement of 158 words placed in The Salt Lake Tribune for one
day. Available at http://placead.yourutahclassifieds.com/webbase/en/std/jsp/WebBaseMain.do (Accessed Nov. 13, 2014).
\110\ The Department assumes estimates that range livestock
production employers will spend 0.5 hours to prepare each newspaper
advertisement. In addition, the Department estimates that the median
hourly wage for a human resources manager is $54.88 (as published by
the Department's OES survey, O*Net Online), which we increased by
1.43 to account for private-sector employee benefits (Source: Bureau
of Labor Statistics) for an hourly compensation rate of $78.48.
---------------------------------------------------------------------------

iii. Meals
Under the Final Rule, the Department will require H-2A employers to
provide either three sufficient meals per day or free and convenient
kitchen facilities and food provisions to workers. This change
represents a cost to range livestock production employers but not to
sheepherding or goat herding employers because this is already a
requirement under TEGL 32-10. To estimate this cost, the Department
multiplies the number of days per week workers receive meals (7) by the
average daily cost of meals ($11.86) and the average duration of need
in weeks (50) to obtain a cost of $4,151.00 (7 x $11.86 x 50) per range
livestock production worker per year.\111\ For employers hiring the
average number of 4.2 H-2A workers, the average annual cost increase is
$17,434.20 ($4,151 x 4.2).
---------------------------------------------------------------------------

\111\ The meal cost estimate of $11.86 is from Allowable Meal
Charges and Reimbursements for Daily Subsistence published by the
U.S. Department of Labor, Employment and Training Administration
(source: http://www.foreignlaborcert.doleta.gov/meal_travel_subsistence.cfm; accessed on July 30, 2015).
---------------------------------------------------------------------------

In addition to the cost to purchase food, range livestock
production employers would also incur costs to transport the food to
the workers. The Department assumes that food would be transported to
the workers on a weekly basis along with the potable water. The costs
related to transporting food and potable water are accounted for below
in the section on costs related to potable water.
iv. Potable Water
The Final Rule requires that the herding or range livestock
production employer provide to the workers adequate provision of
potable water (4.5 gallons per day) for drinking and cooking, which is
similar to the TEGLs' requirement. The Final Rule continues

[[Page 63058]]

the TEGLs' requirements for water for bathing and adds a requirement
for sufficient water for laundry, although the Final Rule does not
define a specific minimum quantity for these purposes. Moreover, the
Final Rule allows employers to identify an alternate readily available
source of water for bathing and laundry. The Department estimates the
additional cost of these requirements above the baseline by summing the
cost of purchasing the water, the cost of purchasing a trailer to
transport the water and meals, the cost of vehicle mileage, and the
labor cost of the time required to transport the water and meals to the
workers.
As discussed above, in the NPRM the Department assumed that each
worker required 28 gallons of water per worker per week. Several
commenters stated that this was not a sufficient amount and suggested
the Department use an estimate based on 4 to 4.5 gallons of potable
water per day in clean and sealed containers. In the Final Rule, the
Department revises this assumption to be 4.5 gallons of potable water
per day, which amounts to approximately 31.5 gallons of potable water
per worker per week (4.5 x 7).
The Department estimates the cost of purchasing the water by
multiplying the cost per gallon of potable water ($0.005) by the number
of gallons of water per worker per week (31.5) and the average duration
of need in weeks (50). This calculation yields a cost of providing
potable water equal to $7.88 ($0.005 x 31.5 x 50) per worker per year
and $33.08 ($7.88 x 4.2) for employers hiring the average number of 4.2
H-2A workers.\112\
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\112\ The potable water cost estimate is calculated using data
published in the 2014 Water and Wastewater Survey produced by the
Texas Municipal League. (Source: http://www.tml.org/surveys.
Accessed Nov. 13, 2014). The estimate is based on the average cost
of potable water for commercial entities in all Texas cities with a
population below 2,000 using the fee for 50,000 gallons.
---------------------------------------------------------------------------

The Department estimates the cost of purchasing a utility trailer
to be $839.34.\113\ This results in a one-time cost of $839.34 for the
average employer who must purchase a trailer in the first year of the
rule. This value yields an average annual cost of $83.93 over the 10-
year analysis period.
---------------------------------------------------------------------------

\113\ The trailer cost estimate is based on the average cost for
a 5 x 8 ft. utility trailer from Tractor Supply Co., Lowes, and Home
Depot.
---------------------------------------------------------------------------

The Department estimates the cost of vehicle mileage per employer
by multiplying the average vehicle mileage cost ($0.58) by the number
of miles driven to transport the potable water and meals roundtrip
(100) and the average number of roundtrips per year (50).\114\ This
calculation yields a mileage cost equal to $2,900.00 ($0.58 x 100 x 50)
per employer per year.
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\114\ The cost per mile of owning and operating an automobile is
based on the average costs in the DOT Bureau of Transportation
Statistics. (Source: http://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/publications/national_transportation_statistics/html/table_03_17.html. Accessed
Nov. 13, 2014), which cites the costs presented by American
Automobile Association Exchange (Source: http://exchange.aaa.com/automobiles-travel/automobiles/driving-costs/ Accessed July 30,
2015).
---------------------------------------------------------------------------

The Department estimates the labor cost of time to transport the
water and meals to workers by multiplying the average number of
roundtrips required per employer (50) by the assumed time required to
transport the water and meals (2.86 hours) and the hourly compensation
of an agricultural worker ($13.40), which amounts to $1,916.20 (50 x
2.86 x $13.40) in labor costs per employer per year.115 116
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\115\ The Department assumes that a roundtrip would be 100 miles
and that an agricultural worker would drive at 35 mph. We divide the
100 miles by 35 mph to estimate that it would take an agricultural
worker 2.86 hours to drive roundtrip (100/35).
\116\ The Department assumes estimates that herding and range
livestock production employers will spend 2.86 hours transporting
water and meals. In addition, the Department estimates that the
median hourly wage for an agricultural worker is $9.37 (as published
by the Department's OES survey, O*Net Online), which we increased by
1.43 to account for private-sector employee benefits (Source: Bureau
of Labor Statistics) for an hourly wage rate of $13.40.
---------------------------------------------------------------------------

Finally, the Department sums the cost of purchasing water, the cost
of purchasing a trailer to transport the water and meals, the cost of
vehicle mileage, and the labor cost of the time required to transport
the water and meals to the workers. This requirement will result in a
cost of $5,663.42 ($7.88 + $839.34+ $2,900.00 + $1,916.20) per employer
hiring only one H-2A worker during the first year of the rule. The
average annual cost of this provision for employers hiring only one H-
2A worker is $4,908.01 ($7.88 + $83.93 + $2,900.00 + $1,916.20) over
the 10-year analysis period. For employers hiring the average number of
4.2 H-2A workers, the first-year cost increases to $5,688.62 ($33.08 +
$839.34+ $2,900.00 + $1,916.20) and the average annual cost increases
to $4,933.21 ($33.01 + $83.93 + $2,900.00 + $1,916.20).
v. Expanded Cooking/Cleaning Facilities
Where a worker continues to use the mobile housing that was
provided by the employer for herding or production of livestock
operations on the range while the worker is temporarily stationed at
the ranch to perform production of livestock duties (which includes
those that are closely and directly related to herding and/or the
production of livestock), the Final Rule requires that the employer
provide the worker with access to facilities such as toilets and
showers with hot and cold water under pressure. To estimate this cost,
the Department multiplies the average cost per square foot to
construct/expand cleaning facilities ($270.00) by the assumed size of
the facility that will be required to be constructed/expanded (150
square feet). This calculation results in a one-time cost of $40,500.00
($270.00 x 150) for the average employer who must construct such a
facility, which amounts to an average annual cost of $4,050.00 over the
10-year analysis period.\117\
---------------------------------------------------------------------------

\117\ The Department assumes that the average employer will
require a cleaning facility of approximately 150 square feet.
---------------------------------------------------------------------------

vi. Heating Equipment
In the Final Rule, as specified in Sec. 655.235, the mobile
housing unit provided to workers must include operable heating
equipment that supplies adequate heat for workers in locations where
necessary for the health and safety of workers due to the climate. The
Department estimates the average cost per portable gas heating unit is
$150.00 and the propane cost to adequately supply heat for workers in
locations where the temperature is expected to drop below 50 degrees
Fahrenheit is $969.00 per year.\118\ This calculation results in the
total cost of $1,119.00 ($150.00 + $969.00) for the average employer
who must purchase the equipment, which amounts to an average annual
cost of $984.00 ($15.00 + $969.00) over the 10-year analysis period.
---------------------------------------------------------------------------

\118\ $969.00 = $3 x 323 gallons.
---------------------------------------------------------------------------

vii. Maintaining Records of Work Location
In response to comments, including from small businesses, the Final
Rule modifies the NPRM's proposed recordkeeping requirements by
eliminating the requirement to record hours worked when workers are not
on the range and by eliminating the requirement to record the duties
performed each day when workers are not on the range. The Final Rule
retains only the requirement to record daily whether work was performed
on the range or at the farm or ranch so that the Department can
evaluate employers' compliance with the requirement that herding and
range livestock workers must spend at least 50 percent of the job order
period on the range.
The Department estimates the cost by multiplying the time required
to prepare

[[Page 63059]]

and store the records by the average compensation of a human resources
manager at an agricultural business. In the first year of the rule, the
Department estimates that the average employer will spend approximately
6 minutes each week or approximately 5 hours a year (based on a 50 week
average period of need) to prepare and store the records, which amounts
to approximately $392.40 ($78.48 x 5) in labor costs per year.\119\ For
the 485 employers, the total is 2,425 minutes (485 employers x 5
minutes) per week, or 40 hours per week for recording, with an
annualized reporting burden of 2,000 hours per year (40 hours per week
x 50 weeks). The total recordkeeping burden for 485 employers is 485
minutes (485 employers x 1 minute) per week, or 8 hours per week, with
an annualized recordkeeping burden of 400 hours per year (8 hours per
week x 50 weeks). When these two sums are added together, the total
employer reporting and recordkeeping burden is 2,400 hours per year.
Therefore, the total annual respondent hourly cost for this new
reporting and recordkeeping burden placed on the employers in herding
and the range production of livestock is estimated at 2,400 hours x
$78.48 = $188,352 per year.
---------------------------------------------------------------------------

\119\ The Department estimates that herding and range livestock
production employers will spend 5 minutes each week to record and 1
minute to store these records. The average period of need for an H-
2A worker is 50 weeks a year. The median hourly wage for a human
resources manager is $54.88 (as published by the Department's OES
survey, O*Net Online), which we multiply by 1.43 to account for
private-sector employee benefits (Source: Bureau of Labor
Statistics). This calculation yields an hourly labor cost of $78.48.
---------------------------------------------------------------------------

viii. Time to Read and Review the Final Rule
During the first year that the Final Rule would be in effect,
employers involved in the herding or production of livestock on the
range would need to learn about the rule provisions and the
requirements necessary to remain compliant. In the first year of the
rule, the Department estimates that the average small farm will spend
approximately 4 hours of staff time to read and review the new rule,
which amounts to approximately $313.92 ($78.48 x 4) in labor costs per
employer in the first year of the rule. This amounts to an average
annual cost of $31.39 ($313.92/10) over the 10-year analysis
period.\120\
---------------------------------------------------------------------------

\120\ The Department estimates that employers will spend 2 hours
to read the new rule. In addition, the Department estimates that the
median hourly wage for a human resources manager is $54.88 (as
published by the Department's OES survey, O*Net Online), which we
increased by 1.43 to account for private-sector employee benefits
(Source: Bureau of Labor Statistics) for an hourly compensation rate
of $78.48.
---------------------------------------------------------------------------

b. Total Cost Burden for Small Entities
The Department's calculations indicate that the total average
annual cost is $39,955.64 (or 15.6 percent of annual revenues) for the
average small entity employing 4.2 workers in sheepherding or goat
herding occupations.\121\ The total average annual cost is $56,794.08
(or 22.2 percent of annual revenues) for the average small entity
employing 4.2 workers in range livestock production occupations.\122\
---------------------------------------------------------------------------

\121\ For illustration, the total average annual cost of
$39,939.95 for the results from summing the average annual totals
for the various rule requirements described above as follows:
$39,939.95 = $29,565.64 + $4,933.21 + $4,050.00 + $984.00 + $392.40
+ $15.70.
\122\ For illustration, the total average annual cost of
$56,778.39 results from summing the totals for the various rule
requirements described above as follows: $56,778.39 = $29,564.64--
$595.76 + $17,434.20 + $4,933.21 + $4,050.00 + $984.00 + $392.40 +
$15.70.
---------------------------------------------------------------------------

For small entities that apply for one worker instead of 4.2--
representing the smallest of the small farms that hire workers--the
Department estimates that the total average annual cost of the rule is
$17,405.00 (or 6.8 percent of annual revenues) for entities employing a
worker in a sheepherding or goat herding occupation.\123\ The
Department estimates that the total average annual cost of the rule is
$20,960.24 (or 8.2 percent of annual revenues) for small entities
applying for one worker in a range livestock production
occupation.\124\
---------------------------------------------------------------------------

\123\ For illustration, the total average annual cost of
$17,389.31 results from summing the totals for the various rule
requirements described above as follows: $17,389.31 = $7,039.20 +
$4,908.01 + $4,050.00 + $984.00 + $392.40 + $15.70.
\124\ For illustration, the total average annual cost of
$20,944.55 results from summing the totals for the various rule
requirements described above as follows: $20,944.55 = $7,039.20-
$595.76+ $4,151 + $4,908.02 + $4,050.00 + $984.00 + $392.40 +
$15.70.
---------------------------------------------------------------------------

Exhibit 28 presents a summary of the average annual cost per
employer. The Department focuses on the average annual cost of the rule
rather than costs in the first year because the wage methodology
increases the costs of compliance over the analysis time period. The
total cost per employer varies depending on whether the employer is a
sheepherding or goat herding employer or a range livestock production
employer. The Department defines a ``significant economic impact'' as
an impact that amounts to at least three percent of annual revenues.
Due primarily to the increase in wages paid to H-2A workers, the
proposed rule is expected to have a significant economic impact on
affected small entities. The average annual costs reflected in Exhibit
28 are an overestimate for most employers as they would apply only to
an employer who must bear all the possible costs, including purchasing
a trailer to deliver water, constructing a cleaning facility, and
purchasing portable heating equipment. Because those costs apply to
only a small percentage of the participating employers, the actual
average annual cost for most employers will be substantially less than
the cost shown.

[[Page 63060]]

[GRAPHIC] [TIFF OMITTED] TR16OC15.035

c. Alternatives to the Final Rule
The Department has considered three alternatives to the wage
methodology contained in the Final Rule, in which the monthly AEWR is
based on the current FLSA minimum hourly wage as a starting point
(i.e., the $7.25 hourly wage rate), the forecasted ECI for wages and
salaries as published by the BLS applied beginning in year two, a 48-
hour workweek, 4.333 weeks per month, and is introduced over a two-year
transition period with full implementation in year three. Those three
alternatives are: (1) To base the monthly AEWR on the 1994 TEGL wages
($800) adjusted to the 2014 monthly wage using the ECI capped at 2.5
percent, the forecasted annual ECI for wages and salaries values
applied to the estimated 2014 monthly wage, and to introduce it over a
three-year transition period with full implementation in year four; (2)
to base the monthly AEWR on the FLSA minimum hourly wage, the
forecasted ECI for wages and salaries values applied beginning in year
five, a 44-hour workweek, and to introduce over a three-year transition
period with full implementation in year four; and (3) to base the
monthly AEWR on forecasted hourly AEWRs for combined field and
livestock workers by state, a 65-hour workweek, with full
implementation in year one, incorporating a monthly food deduction
estimate, which is adjusted by the average CPI-U over 2012 to 2014.
The Department believes that the option adopted in the Final Rule
will most effectively enable the Department to meet its statutory
obligations to determine that there are not sufficient workers
available to perform the labor or services requested, and that the
employment of foreign workers will not adversely affect the wages and
working conditions of workers in the United States similarly employed
before the admission of foreign workers is permitted, given these
occupations and their unique characteristics that have historically
resulted in a limited number of U.S. workers interested in performing
these jobs. The new wage methodology will begin to address immediately
the wage stagnation concerns discussed earlier.
Exhibit 29 presents a summary of the average annual cost per
employer for the Final Rule, the NPRM, and the three alternatives. The
Final Rule and three alternatives vary only due to their respective
revised wage determination methodologies. Note that the average annual
cost per employer for the NPRM is in 2013 dollars and did not include
annual costs associated with earnings records or heating equipment. In
each case, the total cost per employer varies depending on whether the
employer is a sheepherding or goat herding employer or a range
livestock production employer.

[[Page 63061]]

[GRAPHIC] [TIFF OMITTED] TR16OC15.036


[[Page 63062]]


The Department estimated the total cost burden on small entities
for each of the alternatives as follows.
i. Forecasted ECI-Adjusted Cap-Indexed 1994 TEGL Wage With a Three-Year
Transition Period
The first alternative retains the same features of the 2010 Final
Rule, TEGL 32-10, TEGL 15-06, Change 1, and includes the same
provisions as the Final Rule except that the wage determination
methodology uses the forecasted ECI-adjusted cap-indexed 1994 TEGL wage
with a three-year transition period. The Department's calculations
indicate that the total average annual cost of this alternative would
be $31,797.19 (or 12.4 percent of annual revenues) for the average
small entity employing 4.2 workers in sheepherding or goat herding
occupations.\125\ The total average annual cost of this alternative
would be $48,635.63 (or 19.0 percent of annual revenues) for the
average small entity employing 4.2 workers in range livestock
production occupations.\126\
---------------------------------------------------------------------------

\125\ For illustration, the total average annual cost of
$31,781.49 for the average small entity applying for 4.2 workers in
sheepherding or goat herding occupations results from summing the
totals for the various rule requirements described above as follows:
$31,781.49 = $5,096.71 x 4.2 + $7.88 x 4.2 + $83.93 + $2,900.00 +
$1,916.20 + $4,050.00 + $984.00 + $392.39 + $15.70.
\126\ For illustration, the total average annual cost of
$48,619.93 for the average small entity applying for 4.2 workers in
range livestock production occupations results from summing the
totals for the various rule requirements described above as follows:
$48,619.93 = $5,096.71 x 4.2 - $595.76 + 4,151.00 x 4.2 + $7.88 x
4.2 + $83.93 + $2,900.00 + $1,916.20 + $4,050.00 + $984.00 + $392.39
+ $15.70.
---------------------------------------------------------------------------

For small entities that apply for one worker instead of 4.2--
representing the smallest of the small farms that hire workers--the
Department estimates that the total average annual cost of this
alternative would be $15,462.51 (or 6.0 percent of annual revenues) for
entities employing a worker in a sheepherding or goat herding
occupation.\127\ The total average annual cost of this alternative
would be $19,017.75 (or 7.4 percent of annual revenues) for small
entities employing a worker in a range livestock production
occupation.\128\
---------------------------------------------------------------------------

\127\ For illustration, the total average annual cost of
$15,446.82 for the average small entity applying for one worker in a
sheepherding or goat herding occupation results from summing the
totals for the various rule requirements described above as follows:
$15,446.82 = $5,096.71 + $7.88 + $83.93 + $2,900.00 + $1,916.20 +
$4,050.00 + $984.00 + $392.39 + $15.70.
\128\ For illustration, the total average annual cost of
$19,002.06 for the average small entity applying for one worker in a
range livestock production occupation results from summing the
totals for the various rule requirements described above as follows:
$19,002.06 = $5,096.71 - $595.76 + $4,151.00 + $7.88 + $83.93 +
$2,900.00 + $1,916.20 + $4,050.00 + $984.00 + $392.39 + $15.70.
---------------------------------------------------------------------------

ii. Forecasted ECI-Adjusted $7.25 Wage Rate With a Three-Year
Transition Period
The second alternative retains the same features of the 2010 Final
Rule, TEGL 32-10, TEGL 15-06, Change 1, and includes the same
provisions as the Final Rule except that the wage determination
methodology uses a three-year transition period and is based on a 44-
hour workweek. The Department's calculations indicate that the total
average annual cost of this alternative would be $31,495.16 (or 12.3
percent of annual revenues) for the average small entity employing 4.2
workers in sheepherding or goat herding occupations.\129\ The total
average annual cost of this alternative would be $48,333.60 (or 18.9
percent of annual revenues) for the average small entity employing 4.2
workers in range livestock production occupations.\130\
---------------------------------------------------------------------------

\129\ For illustration, the total average annual cost of
$31,479.47 for the average small entity applying for 4.2 workers in
sheepherding or goat herding occupations results from summing the
totals for the various rule requirements described above as follows:
$31,479.47 = $5,025 x 4.2 + $7.88 x 4.2 + $83.93 + $2,900.00 +
$1,916.20 + $4,050.00+ $984.00 + $392.39 + $15.70.
\130\ For illustration, the total average annual cost of
$48,317.91 for the average small entity applying for 4.2 workers in
range livestock production occupations results from summing the
totals for the various rule requirements described above as follows:
$48,317.91 = $5,024.80 x 4.2 - $595.76 + 4,151.00 x 4.2 + $7.88 x
4.2 + $83.93 + $2,900.00 + $1,916.20 + $4,050.00 + $984.00 + $392.39
+ $15.70.
---------------------------------------------------------------------------

For small entities that apply for one worker instead of 4.2--
representing the smallest of the small farms that hire workers--the
Department estimates that the total average annual cost of this
alternative would be $15,390.60 (or 6.0 percent of annual revenues) for
entities employing a worker in a sheepherding or goat herding
occupation.\131\ The total average annual cost of this alternative
would be $18,945.84 (or 7.4 percent of annual revenues) for small
entities employing a worker in a range livestock production
occupation.\132\
---------------------------------------------------------------------------

\131\ For illustration, the total average annual cost of
$15,374.91 for the average small entity applying for one worker in a
sheepherding or goat herding occupation results from summing the
totals for the various rule requirements described above as follows:
$15,374.91 = $5,024.80 + $7.88 + $83.93 + $2,900.00 + $1,916.20 +
$4,050.00 + $984.00 + $392.39 + $15.70.
\132\ For illustration, the total average annual cost of
$18,930.15 for the average small entity applying for one worker in a
range livestock production occupation results from summing the
totals for the various rule requirements described above as follows:
$18,930.15 = $5,024.80 - $595.76 + $4,151.00 + $7.88 + $83.93 +
$2,900.00 + $1,916.20 + $4,050.00 + $984.00 + $392.39 + $15.70.
---------------------------------------------------------------------------

iii. Forecasted Hourly State AEWR With Food Deductions and No
Transition Period
The third alternative retains the same features of the 2010 Final
Rule, TEGL 32-10, TEGL 15-06, Change 1, and includes the same
provisions as the Final Rule except that the wage determination
methodology uses the forecasted state AEWR with food deductions, does
not utilize a transition period, and is based on a 65-hour workweek.
The Department's calculations indicate that the total average annual
cost of this alternative would be $131,234.45 (or 51.2 percent of
annual revenues) for the average small entity employing 4.2 workers in
sheepherding or goat herding occupations.\133\ The total average annual
cost of this alternative would be $148,072.89 (or 57.8 percent of
annual revenues) for the average small entity employing 4.2 workers in
range livestock production occupations.\134\
---------------------------------------------------------------------------

\133\ For illustration, the total average annual cost of
$133,552.91 for the average small entity applying for 4.2 workers in
sheepherding or goat herding occupations results from summing the
totals for the various rule requirements described above as follows:
$133,552.91 = $29,328.00 x 4.2 + $7.88 x 4.2 + $83.93 + $2,900.00 +
$1,916.20 + $4,050.00 + $984.00 + $392.39 + $15.70.
\134\ For illustration, the total average annual cost of
$150,391.35 for the average small entity applying for 4.2 workers in
range livestock production occupations results from summing the
totals for the various rule requirements described above as follows:
$150,391.35 = $29,328.00 x 4.2 - $595.76 + 4,151.00 x 4.2 + $7.88 x
4.2 + $83.93 + $2,900.00 + $1,916.20 + $4,050.00 + $984.00 + $
392.39 + $15.70.
---------------------------------------------------------------------------

For small entities that apply for one worker instead of 4.2--
representing the smallest of the small farms that hire workers--the
Department estimates that the total average annual cost of this
alternative would be $39,138.05 (or 15.3 percent of annual revenues)
for entities employing a worker in a sheepherding or goat herding
occupation.\135\ The total average annual cost of this alternative
would be $42,693.29 (or 16.7 percent of annual revenues) for small
entities employing a worker in a range livestock production
occupation.\136\
---------------------------------------------------------------------------

\135\ For illustration, the total average annual cost of
$39,678.11 for the average small entity applying for one worker in a
sheepherding or goat herding occupation results from summing the
totals for the various rule requirements described above as follows:
$39,678.11 = $29,328.00 + $7.88 + $83.93 + $2,900.00 + $1,916.20 +
$4,050.00 + $984.00 + $392.39 + $15.70.
\136\ For illustration, the total average annual cost of
$43,233.35 for the average small entity applying for one worker in a
range livestock production occupation results from summing the
totals for the various rule requirements described above as follows:
$43,233.35 = $29,328.00 - $595.76 + $4,151.00 + $7.88 + $83.93 +
$2,900.00 + $1,916.20 + $4,050.00 + $984.00 + $392.39 + $15.70.

---------------------------------------------------------------------------

[[Page 63063]]

6. Steps Taken To Minimize the Economic Impact on Small Entities
This Final Rule will have a significant economic impact on a
substantial number of small entities. We recognize the concerns
expressed by small businesses and have made every effort to minimize
the burden on all users to the extent consistent with DOL's obligations
under the INA. The Department's responsibilities under the INA,
however, severely constrain our ability to make adjustments to program
requirements in an effort to address concerns unique to small business.
The Department's mandate under the H-2A program is to set requirements
for employers who wish to recruit and hire foreign agricultural
workers. Those standards are designed to provide both that foreign
workers are hired only if qualified domestic workers are not available
and that bringing in H-2A workers will not adversely affect the wages
and working conditions of similarly employed domestic workers. These
regulations set those standards for range herding occupations. To
create different and likely lower standards for small businesses would
essentially sanction the very adverse effect that the Department is
compelled to prevent. The need for parity among employers regardless of
size is illuminated by the fact that Congress within the INA carved out
a specific dispensation for small businesses in a specific area of the
statute. Section 218(c)(3)(B)(ii) of the INA (8 U.S.C.
1188(c)(3)(B)(ii)) exempts certain small businesses from the
application of the 50-percent rule regarding the period that priority
hiring rights for U.S. applicants exist. Where Congress has so clearly
demonstrated its ability to modify H-2A program requirements to
accommodate small businesses, it would be inappropriate and outside of
the Secretary's authority for the Department to carve out additional
exceptions. Moreover, because commenters indicated that more than 99
percent of sheep operations in the United States qualify as small
businesses under the SBA definition, there is no basis for considering
special relief for small businesses.
As previously discussed, after considering the comments, DOL
determines that it is appropriate and consistent with the Department's
obligation to protect against adverse effect to U.S. workers to set the
monthly AEWR for these occupations by borrowing the current federal
minimum wage of $7.25/hour, multiplied by an estimated 48 hours per
week, and adjusted annually based on the ECI. In reaching this result,
DOL concludes that the wage source proposed in the NPRM was likely to
result in adverse effect to U.S. workers by causing a substantial
number of herding employers to close or significantly downsize their
operations. In addition to other reasons discussed fully above, we
conclude that $7.25/hour is an appropriate starting point to set the
monthly rate because the persistent lack of workers in these herding
occupations is likely due in part to the reality that U.S. workers can
earn at least the federal minimum wage elsewhere. We use the uncapped
ECI to adjust wages beginning in year two to require that wages in
these occupations continue to rise apace with wages across the U.S.
economy and adopt an estimate of 48 hours worked per week, a
calculation from data reported on Form ETA-9142A, because it is the
most comprehensive and detailed data source from which to establish an
hourly calculation. In light of the scope of the increase and the
economic data provided by commenters, discussed above, a transition
period to the new wage is needed. Recognizing that any transition must
not be longer than necessary to prevent adverse effect, we adopt a two-
year transition with full implementation in year three. As noted above,
the Final Rule does not provide any different wage or implementation
period for small businesses, as virtually all employers subject to the
Rule are small businesses. However, we believe that the Final Rule's
monthly AEWR methodology (which was modeled on one of the methodologies
suggested by the three leading industry representatives), together with
the other changes made in the Final Rule, such as those relating to the
definition of the ``range'' and the deletion of the 20 percent cap on
incidental work at the ranch, will allow small businesses to continue
to participate successfully in the program.
In addition to the wage methodology adopted, DOL considered several
significant alternative methodologies for setting the monthly AEWR.
First, we considered setting the monthly wage rate based on the 1994
TEGL wages adjusted based on the capped ECI, with a three-year
transition and full implementation in year four as recommended by
Mountain Plains, Western Range, and many others including individual
small employers. As discussed further above, we do not adopt this
recommendation because it is premised on a misunderstanding of the 1994
data in the NPRM. Further, given the absence of any data to assess an
appropriate year and wage rate to index, and what many commenters
characterize as the persistent lack of U.S. workers in these
occupations for decades, we are concerned that continued reliance on
the TEGL wages, even in indexed form, could be inconsistent with DOL's
obligation to protect against adverse effect on U.S. workers. In
addition, capping the ECI as recommended by commenters would lead to
further wage stagnation.
Second, we considered setting the monthly AEWR by borrowing the
current federal minimum wage rate of $7.25/hour and multiplying it by
44 hours per week, with a three-year transition and full implementation
in year four, using the capped ECI to adjust wages after year four as
recommended by Mountain Plains, Western Range and many individual small
employers. As discussed fully above, we have adopted the $7.25 rate
from this recommendation as the starting point, but have used a 48-hour
estimate rather than a 44-hour estimate so that the hourly estimate is
based on the most comprehensive data source available. Recognizing that
any transition must not be longer than necessary to prevent adverse
effect, this Final Rule requires a two-year transition, rather than the
three-year transition recommended by these commenters.
Third, we considered setting the monthly wage rate using the FLS-
based AEWR, multiplied by a compromise number of weekly hours (65)
between the data submitted by workers from the Colorado Legal Services
survey, which found that 62 percent of herders worked at least 81 hours
per week, and the 48-hour estimate from the Form ETA-9142A data. This
option would have been implemented immediately and permitted a food
deduction. As discussed above, DOL did not elect to use the FLS-based
AEWR to set the monthly wage rate because we conclude that the FLS-
based methodology is likely to cause adverse effect to U.S. workers by
causing a substantial number of herding employers to close or
significantly downsize their operations--leaving fewer herding jobs
available to U.S. workers and creating significant economic
dislocation. We do not adopt a 65-hour threshold because this Final
Rule relies only on the Form ETA-9142A data, the most comprehensive and
detailed data source from which to establish an hourly calculation,
rather than the calculation based on worker data in a single state.
Finally, we do not require immediate implementation because we conclude
that a brief transition period is needed for the reasons discussed
above.

[[Page 63064]]

C. Unfunded Mandates Reform

Executive Order 12875--This Final Rule will not create an unfunded
Federal mandate upon any State, local or tribal government.
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531) directs agencies to assess the effects of Federal regulatory
actions on State, local, and Tribal governments, and the private
sector. This Final Rule has no Federal mandate, which is defined in 2
U.S.C. 658(6) to include either a ``Federal intergovernmental mandate''
or a ``Federal private sector mandate.'' A Federal mandate is any
provision in a regulation that imposes an enforceable duty upon State,
local, or Tribal governments, or imposes a duty upon the private sector
which is not voluntary. A decision by a private entity to obtain an H-
2A worker is purely voluntary and is, therefore, excluded from any
reporting requirement under the Act.
The SWAs are mandated to perform certain activities for the Federal
Government under this program, and are compensated for the resources
used in performing these activities.
This Final Rule includes no new mandates for the SWAs in the H-2A
application process and does not include any Federal mandate that may
result in increased expenditures by State, local, and tribal
governments, in the aggregate, of $100 million or more. It also does
not result in increased expenditures by the private sector of $100
million or more, because participation in the H-2A program is entirely
voluntary. SWA activities under the H-2A program are currently funded
by the Department through grants provided under the Wagner-Peyser Act.
29 U.S.C. 49 et seq. The Department anticipates continuing funding
under the Wagner-Peyser Act. As a result of this Final Rule, the
Department will analyze the amounts of such grants made available to
each State to fund the activities of the SWAs.

D. Small Business Regulatory Enforcement Fairness Act of 1996

The Department has determined that this Final Rule will impose a
significant economic impact on a substantial number of small entities
under the RFA; therefore, the Department will be required to produce a
Compliance Guide for Small Entities as mandated by SBREFA. The
Department has concluded that this Final Rule is not a major rule
requiring review by the Congress under SBREFA because it will not
likely result in: (1) An annual effect on the economy of $100 million
or more; (2) a major increase in costs or prices for consumers,
individual industries, Federal, State or local Government agencies, or
geographic regions; or (3) significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability of
U.S.-based enterprises to compete with foreign-based enterprises in
domestic or export markets.

E. The Congressional Review Act

The Congressional Review Act (5 U.S.C. 801 et seq.) requires rules
to be submitted to Congress before taking effect. We will submit to
Congress and the Comptroller General of the United States a report
regarding the issuance of this Final Rule prior to its effective date,
as required by 5 U.S.C. 801(a)(1).

F. Executive Order 13132--Federalism

The Department has reviewed this Final Rule in accordance with E.O.
13132 regarding federalism and has determined that it does not have
federalism implications. The Final Rule does not have substantial
direct effects on States, on the relationship between the States, or on
the distribution of power and responsibilities among the various levels
of Government as described by E.O. 13132. Therefore, the Department has
determined that this Final Rule will not have a sufficient federalism
implication to warrant the preparation of a summary impact statement.

G. Executive Order 13175--Indian Tribal Governments

This Final Rule was reviewed under the terms of E.O. 13175 and
determined not to have Tribal implications. The Final Rule does not
have substantial direct effects on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes. As a result, no Tribal summary impact
statement has been prepared.

H. Assessment of Federal Regulations and Policies on Families

Section 654 of the Treasury and General Government Appropriations
Act, enacted as part of the Omnibus Consolidated and Emergency
Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat.
2681) requires the Department to assess the impact of this NPRM on
family well-being. A rule that is determined to have a negative effect
on families must be supported with an adequate rationale. The
Department has assessed this Final Rule and determines that it will not
have a negative effect on families.

I. Executive Order 12630--Government Actions and Interference With
Constitutionally Protected Property Rights

This Final Rule is not subject to E.O. 12630, Governmental Actions
and Interference with Constitutionally Protected Property Rights,
because it does not involve implementation of a policy with takings
implications.

J. Executive Order 12988--Civil Justice

This Final Rule has been drafted and reviewed in accordance with
E.O. 12988, Civil Justice Reform, and will not unduly burden the
Federal court system. The regulation has been written to minimize
litigation and provide a clear legal standard for affected conduct, and
has been reviewed carefully to eliminate drafting errors and
ambiguities.

K. Plain Language

The Department drafted this Final Rule in plain language.

L. Executive Order 13211--Energy Supply

This Final Rule is not subject to E.O. 13211. It will not have a
significant adverse effect on the supply, distribution, or use of
energy.

M. Paperwork Reduction Act

As part of its continuing effort to reduce paperwork and respondent
burden, the Department of Labor (the Department) conducts a
preclearance consultation process to provide the general public and
Federal agencies with an opportunity to comment on proposed and
continuing collections of information in accordance with the Paperwork
Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)).
This helps to ensure that the public understands the Department's
collection instructions; respondents can provide the requested data and
in the desired format, reporting burden (time and financial resources)
is minimized, collection instruments are clearly understood, and the
Department can properly assess the impact of collection requirements on
respondents. Persons are not required to respond to a collection of
information unless it displays a currently valid OMB control number as
required in 5 CFR 1320.11(l).
The information collected is mandated in this Final Rule at Sec.
655.210(f). The Department did not create a specific form for this new

[[Page 63065]]

collection requirement. The Final Rule requires that employers keep
daily records indicating the site of the employee's work, whether it
was on the open range or on the ranch or farm. Any absences from work
for which the employer prorates a worker's monthly wage pursuant to
section 655.210(g)(2) must include the reason for the worker's absence.
Such records will enable the employer, and the Department, if
necessary, to determine whether the worker performed work on the range
at least 50 percent of the days during the contract period.
In accordance with the PRA, 44 U.S.C. 3501, information collection
requirements that must be implemented as a result of this regulation
must receive approval from the Office of Management and Budget (OMB).
Therefore, a clearance package containing the new requirements was
submitted to OMB on April 15, 2015 as part of the proposed rule for the
hiring of foreign workers in the H-2A program for herding or production
of livestock on the open range in the United States under OMB Control
Number 1205-0519. The public was given 60 days to comment on this
information collection. OMB filed a comment asking the Department to
resubmit the information collection at the final rule stage after
considering public comments on the NPRM. The Department did resubmit
the package prior to publication of this Final Rule. As of publication
of this rule, OMB has not approved the information collection under OMB
control number 1205-0519. No person is required to respond to a
collection of information request unless the collection of the
information has a valid OMB control number and expiration date.
Therefore, until the Department publishes a Federal Register notice
informing the public of the approval by OMB and the expiration date of
the information collection, the affected parties do not have to comply
with this information collection.
The Department received more than fifty comments about the new
recordkeeping requirement as described in the NPRM. Forty seven of the
comments opposed the new requirement and four supported the
requirement. Many of those who opposed the new requirement
misunderstood the requirement and thought that employers would need to
keep hourly logs. In actuality, the logs only needed to reflect days on
the range; and on those days when an employee worked on the ranch or
farm, the employer needed to write down the number of hours worked and
a description of the duties performed. The duties did not need to be
accounted for by hour and minutes. Those who agreed with the new
requirement thought the burden was minimal.
However, in light of these and other comments, and as discussed
above in Sec. IV.B.2.e. of the preamble related to Sec. 655.210(f),
the Department has decided to change this requirement in the Final
Rule. Employers will now only be required to notate whether employees
spend days on the ranch or on the range and the reason for any prorated
salary paid.
This information collection in this Final Rule creates an
associated paperwork burden on the employers that must be assessed
under the PRA. Based on the average number of employers filing
applications for H-2A workers to perform herding work filed with the
Department in 2013 and 2014, the Department estimates that the
information collection will affect 485 employers employing foreign
sheepherders, goat herders, and other workers engaged in the open range
production of livestock. The Department further estimates that it will
take each employer, on average, 5 minutes each week to prepare
timesheets for its employees, and 1 minute each week to store these
timesheets. Thus, the reporting burden for 485 employers is 2,425
minutes (485 employers x 5 minutes) per week, or approximately 40 hours
per week. When annualized, the total reporting burden is 2,000 hours
per year (40 hours per week x 50 weeks). The total record keeping
burden for 485 employers is 485 minutes (485 employers x 1 minute) per
week, or 8 hours per week. When annualized, the total recordkeeping
burden is 400 hours per year (8 hours per week x 50 weeks). When these
two sums are added together, the total employer reporting and
recordkeeping burden is 2,400 hours per year.
When estimating the cost burden of paperwork requirements, the
Department used the average salary of a Human Resources Manager based
on the national cross-industry mean hourly wage rate for a Human
Resources Manager ($54.88), from the U.S. Department of Labor, Bureau
of Labor Statistics, Occupational Employment Statistics survey wage
data,\137\ and increased by a factor of 1.43 to account for employee
benefits and other compensation, for a total hourly cost of $78.48.
This number was multiplied by the total hourly annual burden created
for this new requirement, which, as noted above, is 2,400 hours per
year. The total annual respondent hourly costs for this new burden
placed on the employers in the sheepherding and open range production
of livestock is estimated as follows:
---------------------------------------------------------------------------

\137\ Source: Bureau of Labor Statistics, Occupational
Employment Statistics: May 2014 National Occupational Employment and
Wage Estimates; Management Occupations.
---------------------------------------------------------------------------

Total burden cost of this provision is 2,400 hours x $78.48 =
$188,352 per year. The total costs other than the time associated with
the information collections required under this Final Rule, as defined
by the PRA, are zero dollars per employer.
As noted above, this collection of information is subject to the
PRA. Accordingly, this information collection in this Final Rule has
been submitted to OMB for review under 44 U.S.C. 3507(d) of the PRA.
For an additional explanation of how the Department calculated the
burden hours and related costs, the PRA package for this information
collection (OMB Control Number 1205-0519) can be obtained from the
RegInfo.gov Web site at http://www.reginfo.gov/public/dol/pramain or by
contacting the Department at Office of Policy Development and Research,
U.S. Department of Labor, 200 Constitution Ave. NW., Washington, DC
20210 or by phone request to 202-693-3700 (this is not a toll-free
number) or by email at
DOL_PRA_PUBLIC@dol.gov
Overview of the Information Collection
Type of Review: New Collection.
Agency: Employment and Training Administration.
Title: H-2A Sheepherder Recordkeeping Requirement.
OMB Number: 1205-0519.
Affected Public: Farm businesses.
Form(s): None.
Total Annual Respondents: 485.
Annual Frequency: Weekly (50 weeks).
Total Annual Responses: 242,250.
Average Time per Response: 6 minutes.
Estimated Total Annual Burden Hours: 2,400 hours per year.
Total Annual Start-up/Capital/Maintenance Costs for Respondents:
$0.

List of Subjects in 20 CFR Part 655

Administrative practice and procedure, Employment, Employment and
training, Enforcement, Foreign workers, Forest and forest products,
Fraud, Health professions, Immigration, Labor, Passports and visas,
Penalties, Reporting and recordkeeping requirements, Unemployment,
Wages, Working conditions.

For the reasons discussed in the preamble, the Department of Labor
amends 20 CFR part 655 as follows:

[[Page 63066]]

PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES

0
1. Revise the general authority citation and the subpart B authority
citation for part 655 to read as follows:

Authority: Section 655.0 issued under 8 U.S.C.
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 1182(m), (n) and
(t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); sec. 3(c)(1),
Pub. L. 101-238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec.
221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note);
sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101
note); sec. 323(c), Pub. L.103-206, 107 Stat. 2428; sec. 412(e),
Pub. L. 105-277, 112 Stat. 2681 (8 U.S.C. 1182 note); sec. 2(d),
Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub. L.
109-423, 120 Stat. 2900; and 8 CFR 214.2(h)(4)(i).
* * * * *

Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184(c), and
1188; and 8 CFR 214.2(h).

* * * * *

0
2. Subpart B is amended by adding the following undesignated center
heading, and Sec. Sec. 655.200, 655.201, 655.205, 655.210, 655.211,
655.215, 655.220, 655.225, 655.230, and 655.235 to read as follows:

Labor Certification Process for Temporary Agricultural Employment in
Range Sheep herding, Goat Herding, and Production of Livestock
Occupations

Sec.
655.200 Scope and purpose of herding and range livestock
regulations.
655.201 Definition of herding and range livestock terms.
655.205 Herding and range livestock job orders.
655.210 Contents of herding and range livestock job orders.
655.211 Herding and range livestock wage rate.
655.215 Procedures for filing herding and range livestock
applications for temporary employment certification.
655.220 Processing herding and range livestock applications for
temporary employment certification.
655.225 Post-acceptance requirements for herding and range
livestock.
655.230 Range housing.
655.235 Standards for range housing.


Sec. 655.200 Scope and purpose of herding and range livestock
regulations.

(a) Purpose. The purpose of Sec. Sec. 655.200-655.235 is to
establish certain procedures for employers who apply to the Department
of Labor to obtain labor certifications to hire temporary agricultural
foreign workers to perform herding or production of livestock on the
range, as defined in Sec. 655.201. Unless otherwise specified in
Sec. Sec. 655.200-655.235, employers whose job opportunities meet the
qualifying criteria under Sec. Sec. 655.200-655.235 must fully comply
with all of the requirements of Sec. Sec. 655.100-655.185; part 653,
subparts B and F; and part 654 of this chapter.
(b) Jobs subject to Sec. Sec. 655.200-655.235. These procedures
apply to job opportunities with the following unique characteristics:
(1) The work activities involve the herding or production of
livestock (which includes work that is closely and directly related to
herding and/or the production of livestock), as defined under Sec.
655.201;
(2) The work is performed on the range for the majority (meaning
more than 50 percent) of the workdays in the work contract period. Any
additional work performed at a place other than the range must
constitute the production of livestock (which includes work that is
closely and directly related to herding and/or the production of
livestock); and
(3) The work activities generally require the workers to be on call
24 hours per day, 7 days a week.


Sec. 655.201 Definition of herding and range livestock terms.

The following are terms that are not defined in Sec. Sec. 655.100-
655.185 and are specific to applications for labor certifications
involving the herding or production of livestock on the range.
Herding. Activities associated with the caring, controlling,
feeding, gathering, moving, tending, and sorting of livestock on the
range.
Livestock. An animal species or species group such as sheep,
cattle, goats, horses, or other domestic hooved animals. In the context
of Sec. Sec. 655.200-655.235, livestock refers to those species raised
on the range.
Production of livestock. The care or husbandry of livestock
throughout one or more seasons during the year, including guarding and
protecting livestock from predatory animals and poisonous plants;
feeding, fattening, and watering livestock; examining livestock to
detect diseases, illnesses, or other injuries; administering medical
care to sick or injured livestock; applying vaccinations and spraying
insecticides on the range; and assisting with the breeding, birthing,
raising, weaning, castration, branding, and general care of livestock.
This term also includes duties performed off the range that are closely
and directly related to herding and/or the production of livestock. The
following are non-exclusive examples of ranch work that is closely and
directly related: repairing fences used to contain the herd; assembling
lambing jugs; cleaning out lambing jugs; feeding and caring for the
dogs that the workers use on the range to assist with herding or
guarding the flock; feeding and caring for the horses that the workers
use on the range to help with herding or to move the sheep camps and
supplies; and loading animals into livestock trucks for movement to the
range or to market. The following are examples of ranch work that is
not closely and directly related: working at feedlots; planting,
irrigating and harvesting crops; operating or repairing heavy
equipment; constructing wells or dams; digging irrigation ditches;
applying weed control; cutting trees or chopping wood; constructing or
repairing the bunkhouse or other ranch buildings; and delivering
supplies from the ranch to the herders on the range.
Range. The range is any area located away from the ranch
headquarters used by the employer. The following factors are indicative
of the range: it involves land that is uncultivated; it involves wide
expanses of land, such as thousands of acres; it is located in a
remote, isolated area; and typically range housing is required so that
the herder can be in constant attendance to the herd. No one factor is
controlling and the totality of the circumstances is considered in
determining what should be considered range. The range does not include
feedlots, corrals, or any area where the stock involved would be near
ranch headquarters. Ranch headquarters, which is a place where the
business of the ranch occurs and is often where the owner resides, is
limited and does not embrace large acreage; it only includes the
ranchhouse, barns, sheds, pen, bunkhouse, cookhouse, and other
buildings in the vicinity. The range also does not include any area
where a herder is not required to be available constantly to attend to
the livestock and to perform tasks, including but not limited to,
ensuring the livestock do not stray, protecting them from predators,
and monitoring their health.
Range housing. Range housing is housing located on the range that
meets the standards articulated under Sec. 655.235.


Sec. 655.205 Herding and range livestock job orders.

The employer whose job opportunity has been determined to qualify
for these procedures, whether individual, association, or H-2ALC, is
not required to comply with the job order filing requirements in Sec.
655.121(a) through (d). Rather, the employer must submit

[[Page 63067]]

Form ETA-790, directly to the National Processing Center (NPC)
designated by the Office of Foreign Labor Certification (OFLC
Administrator) along with a completed H-2A Application for Temporary
Employment Certification, Form ETA-9142A, as required in Sec. 655.215.


Sec. 655.210 Contents of job herding and range livestock orders.

(a) Content of job offers. Unless otherwise specified in Sec. Sec.
655.200-655.235, the employer, whether individual, association, or H-
2ALC, must satisfy the requirements for job orders established under
Sec. 655.121(e) and for the content of job offers established under
part 653, subpart F of this chapter and Sec. 655.122.
(b) Job qualifications and requirements. The job offer must include
a statement that the workers are on call for up to 24 hours per day, 7
days per week and that the workers spend the majority (meaning more
than 50 percent) of the workdays during the contract period in the
herding or production of livestock on the range. Duties may include
activities performed off the range only if such duties constitute the
production of livestock (which includes work that is closely and
directly related to herding and/or the production of livestock). All
such duties must be specifically disclosed on the job order. The job
offer may also specify that applicants must possess up to 6 months of
experience in similar occupations involving the herding or production
of livestock on the range and require reference(s) for the employer to
verify applicant experience. An employer may specify other appropriate
job qualifications and requirements for its job opportunity. Job offers
may not impose on U.S. workers any restrictions or obligations that
will not be imposed on the employer's H-2A workers engaged in herding
or the production of livestock on the range. Any such requirements must
be applied equally to both U.S. and foreign workers. Each job
qualification and requirement listed in the job offer must be bona
fide, and the Certifying Officer (CO) may require the employer to
submit documentation to substantiate the appropriateness of any other
job qualifications and requirements specified in the job offer.
(c) Range housing. The employer must specify in the job order that
range housing will be provided. The range housing must meet the
requirements set forth in Sec. 655.235.
(d) Employer-provided items. (1) The employer must provide to the
worker, without charge or deposit charge, all tools, supplies, and
equipment required by law, by the employer, or by the nature of the
work to perform the duties assigned in the job offer safely and
effectively. The employer must specify in the job order which items it
will provide to the worker.
(2) Because of the unique nature of the herding or production of
livestock on the range, this equipment must include effective means of
communicating with persons capable of responding to the worker's needs
in case of an emergency including, but not limited to, satellite
phones, cell phones, wireless devices, radio transmitters, or other
types of electronic communication systems. The employer must specify in
the job order:
(i) The type(s) of electronic communication device(s) and that such
device(s) will be provided without charge or deposit charge to the
worker during the entire period of employment; and
(ii) If there are periods of time when the workers are stationed in
locations where electronic communication devices may not operate
effectively, the employer must specify in the job order, the means and
frequency with which the employer plans to make contact with the
workers to monitor the worker's well-being. This contact must include
either arrangements for the workers to be located, on a regular basis,
in geographic areas where the electronic communication devices operate
effectively, or arrangements for regular, pre-scheduled, in-person
visits between the workers and the employer, which may include visits
between the workers and other persons designated by the employer to
resupply the workers' camp.
(e) Meals. The employer must specify in the job offer and provide
to the worker, without charge or deposit charge:
(1) Either three sufficient meals a day, or free and convenient
cooking facilities and adequate provision of food to enable the worker
to prepare his own meals. To be sufficient or adequate, the meals or
food provided must include a daily source of protein, vitamins, and
minerals; and
(2) Adequate potable water, or water that can be easily rendered
potable and the means to do so. Standards governing the provision of
water to range workers are also addressed in Sec. 655.235(e).
(f) Hours and earnings statements. (1) The employer must keep
accurate and adequate records with respect to the worker's earnings and
furnish to the worker on or before each payday a statement of earnings.
The employer is exempt from recording the hours actually worked each
day, the time the worker begins and ends each workday, as well as the
nature and amount of work performed, but all other regulatory
requirements in Sec. 655.122(j) and (k) apply.
(2) The employer must keep daily records indicating whether the
site of the employee's work was on the range or off the range. If the
employer prorates a worker's wage pursuant to paragraph (g)(2) of this
section because of the worker's voluntary absence for personal reasons,
it must also keep a record of the reason for the worker's absence.
(g) Rates of pay. The employer must pay the worker at least the
monthly AEWR, as specified in Sec. 655.211, the agreed-upon collective
bargaining wage, or the applicable minimum wage imposed by Federal or
State law or judicial action, in effect at the time work is performed,
whichever is highest, for every month of the job order period or
portion thereof.
(1) The offered wage shall not be based on commissions, bonuses, or
other incentives, unless the employer guarantees a wage that equals or
exceeds the monthly AEWR, the agreed-upon collective bargaining wage,
or the applicable minimum wage imposed by Federal or State law or
judicial action, or any agreed-upon collective bargaining rate,
whichever is highest, and must be paid to each worker free and clear
without any unauthorized deductions.
(2) The employer may prorate the wage for the initial and final pay
periods of the job order period if its pay period does not match the
beginning or ending dates of the job order. The employer also may
prorate the wage if an employee is voluntarily unavailable to work for
personal reasons.
(h) Frequency of pay. The employer must state in the job offer the
frequency with which the worker will be paid, which must be at least
twice monthly. Employers must pay wages when due.


Sec. 655.211 Herding and range livestock wage rate.

(a) Compliance with rates of pay. (1) To comply with its obligation
under Sec. 655.210(g), an employer must offer, advertise in its
recruitment and pay each worker employed under Sec. Sec. 655.200-
655.235 a wage that is the highest of the monthly AEWR established
under this section, the agreed-upon collective bargaining wage, or the
applicable minimum wage imposed by Federal or State law or judicial
action.
(2) If the monthly AEWR established under this section is adjusted
during a work contract, and is higher than both the agreed-upon
collective bargaining

[[Page 63068]]

wage and the applicable minimum wage imposed by Federal or State law or
judicial action in effect at the time the work is performed, the
employer must pay that adjusted monthly AEWR upon publication by the
Department in the Federal Register.
(b) Publication of the monthly AEWR. The OFLC Administrator will
publish a notice in the Federal Register, at least once in each
calendar year, on a date to be determined by the OFLC Administrator,
establishing the monthly AEWR.
(c) Monthly AEWR Rate. (1) The monthly AEWR shall be $7.25
multiplied by 48 hours, and then multiplied by 4.333 weeks per month;
and
(2) Beginning for calendar year 2017, the monthly AEWR shall be
adjusted annually based on the Employment Cost Index for wages and
salaries published by the Bureau of Labor Statistics (ECI) for the
preceding October--October period.
(d) Transition Rates. (1) For the period from the effective date of
this rule through calendar year 2016, the Department shall set the
monthly AEWR at 80% of the result of the formula in paragraph (c) of
this section.
(2) For calendar year 2017, the Department shall set the monthly
AEWR at 90% of the result of the formula in paragraph (c) of this
section.
(3) For calendar year 2018 and beyond, the Department shall set the
monthly AEWR at 100% of the result of the formula in paragraph (c) of
this section.


Sec. 655.215 Procedures for filing herding and range livestock
applications for temporary employment certification.

(a) Compliance with Sec. Sec. 655.130-655.132. Unless otherwise
specified in Sec. Sec. 655.200-655.235, the employer must satisfy the
requirements for filing an H-2A Application for Temporary Employment
Certification with the NPC designated by the OFLC Administrator as
required under Sec. Sec. 655.130-655.132.
(b) What to file. An employer must file a completed H-2A
Application for Temporary Employment Certification (Form ETA-9142A),
Agricultural and Food Processing Clearance Order (Form ETA-790), and an
attachment identifying, with as much geographic specificity as possible
for each farmer/rancher, the names, physical locations and estimated
start and end dates of need where work will be performed under the job
order.
(1) The H-2A Application for Temporary Employment Certification and
Form ETA-790 may be filed by an individual employer, association, or an
H-2ALC, covering multiple areas of intended employment and more than
two contiguous States.
(2) The period of need identified on the H-2A Application for
Temporary Employment Certification and job order for range sheep or
goat herding or production occupations must be no more than 364
calendar days. The period of need identified on the H-2A Application
for Temporary Employment Certification and job order for range herding
or production of cattle, horses, or other domestic hooved livestock,
except sheep and goats, must be for no more than 10 months.
(3) An association of agricultural employers filing as a joint
employer may submit a single Form ETA-790 and master H-2A Application
for Temporary Employment Certification on behalf of its employer-
members located in more than two contiguous States with different start
dates of need. Unless modifications to a sheep or goat herding or
production of livestock job order are required by the CO or requested
by the employer, pursuant to Sec. 655.121(e), the association is not
required to re-submit the Form ETA-790 during the calendar year with
its H-2A Application for Temporary Employment Certification.


Sec. 655.220 Processing herding and range livestock applications for
temporary employment certification.

(a) NPC Review. Unless otherwise specified in Sec. Sec. 655.200-
655.235, the CO will review and process the H-2A Application for
Temporary Employment Certification and the Form ETA-790 in accordance
with the requirements outlined in Sec. Sec. 655.140-655.145, and will
work with the employer to address any deficiencies in the job order in
a manner consistent with Sec. Sec. 655.140-655.141.
(b) Notice of acceptance. Once the job order is determined to meet
all regulatory requirements, the NPC will issue a Notice of Acceptance
consistent with Sec. 655.143(b)(1). The CO will provide notice to the
employer authorizing conditional access to the interstate clearance
system; identify and transmit a copy of the Form ETA-790 to any one of
the SWAs having jurisdiction over the anticipated worksites, and direct
the SWA to place the job order promptly in intrastate and interstate
clearance (including all States where the work will take place); and
commence recruitment of U.S. workers. Where an association of
agricultural employers files as a joint employer and submits a single
Form ETA-790 on behalf of its employer-members, the CO will transmit a
copy of the Form ETA-790 to the SWA having jurisdiction over the
location of the association, again directing that SWA to place the job
order in intrastate and interstate clearance, including to those other
States where the work will take place, and commence recruitment of U.S.
workers.
(c) Electronic job registry. Under Sec. 655.144(b), where a single
job order is approved for an association of agricultural employers
filing as a joint employer on behalf of its employer-members with
different start dates of need, the Department will keep the job order
posted on the OFLC electronic job registry until 50 percent of the
period of the work contract has elapsed for all employer-members
identified on the job order.


Sec. 655.225 Post-acceptance requirements for herding and range
livestock.

(a) Unless otherwise specified in this section, the requirements
for recruiting U.S. workers by the employer and SWA must be satisfied,
as specified in Sec. Sec. 655.150-655.158.
(b) Interstate clearance of job order. Pursuant to Sec.
655.150(b), where a single job order is approved for an association of
agricultural employers filing as a joint employer on behalf of its
employer-members with different start dates of need, each of the SWAs
to which the Form ETA-790 was transmitted by the CO or the SWA having
jurisdiction over the location of the association must keep the job
order on its active file until 50 percent of the period of the work
contract has elapsed for all employer-members identified on the job
order, and must refer to the association each qualified U.S. worker who
applies (or on whose behalf an application is made) for the job
opportunity.
(c) Any eligible U.S. worker who applies (or on whose behalf an
application is made) for the job opportunity and is hired will be
placed at the location nearest to him/her absent a request for a
different location by the U.S. worker. Employers must make reasonable
efforts to accommodate such placement requests by the U.S. worker.
(d) The employer will not be required to place an advertisement in
a newspaper of general circulation serving the area of intended
employment, as required in Sec. 655.151.
(e) An association that fulfills the recruitment requirements for
its members is required to maintain a written recruitment report
containing the information required by Sec. 655.156 for each
individual employer-member identified in the application or job order,
including any approved modifications.

[[Page 63069]]

Sec. 655.230 Range housing.

(a) Housing for work performed on the range must meet the minimum
standards contained in Sec. 655.235 and Sec. 655.122(d)(2).
(b) The SWA with jurisdiction over the location of the range
housing must inspect and certify that such housing used on the range is
sufficient to accommodate the number of certified workers and meets all
applicable standards contained in Sec. 655.235. The SWA must conduct a
housing inspection no less frequently than once every three calendar
years after the initial inspection and provide documentation to the
employer certifying the housing for a period lasting no more than 36
months. If the SWA determines that an employer's housing cannot be
inspected within a 3-year timeframe or, when it is inspected, the
housing does not meet all the applicable standards, the CO may deny the
H-2A application in full or in part or require additional inspections,
to be carried out by the SWA, in order to satisfy the regulatory
requirement.
(c)(1) The employer may self-certify its compliance with the
standards contained in Sec. 655.235 only when the employer has
received a certification from the SWA for the range housing it seeks to
use within the past 36 months.
(2) To self-certify the range housing, the employer must submit a
copy of the valid SWA housing certification and a written statement,
signed and dated by the employer, to the SWA and the CO assuring that
the housing is available, sufficient to accommodate the number of
workers being requested for temporary labor certification, and meets
all the applicable standards for range housing contained in Sec.
655.235.
(d) The use of range housing at a location other than the range,
where fixed site employer-provided housing would otherwise be required,
is permissible only when the worker occupying the housing is performing
work that constitutes the production of livestock (which includes work
that is closely and directly related to herding and/or the production
of livestock). In such a situation, workers must be granted access to
facilities, including but not limited to toilets and showers with hot
and cold water under pressure, as well as cooking and cleaning
facilities, that would satisfy the requirements contained in Sec.
655.122(d)(1)(i). When such work does not constitute the production of
livestock, workers must be housed in housing that meets all the
requirements of Sec. 655.122(d).


Sec. 655.235 Standards for range housing.

An employer employing workers under Sec. Sec. 655.200-655.235 may
use a mobile unit, camper, or other similar mobile housing vehicle,
tents, and remotely located stationary structures along herding trails,
which meet the following standards:
(a) Housing site. Range housing sites must be well drained and free
from depressions where water may stagnate.
(b) Water supply. (1) An adequate and convenient supply of water
that meets the standards of the state or local health authority must be
provided.
(2) The employer must provide each worker at least 4.5 gallons of
potable water, per day, for drinking and cooking, delivered on a
regular basis, so that the workers will have at least this amount
available for their use until this supply is next replenished.


Employers must also provide an additional amount of water sufficient to
meet the laundry and bathing needs of each worker. This additional
water may be non-potable, and an employer may require a worker to rely
on natural sources of water for laundry and bathing needs if these
sources are available and contain water that is clean and safe for
these purposes. If an employer relies on alternate water sources to
meet any of the workers' needs, it must take precautionary measures to
protect the worker's health where these sources are also used to water
the herd, dogs, or horses, to prevent contamination of the sources if
they collect runoff from areas where these animals excrete.
(3) The water provided for use by the workers may not be used to
water dogs, horses, or the herd.
(4) In situations where workers are located in areas that are not
accessible by motorized vehicle, an employer may request a variance
from the requirement that it deliver potable water to workers, provided
the following conditions are satisfied:
(i) It seeks the variance at the time it submits its H-2A
Application for Temporary Employment Certification, Form ETA-9142A;
(ii) It attests that it has identified natural sources of water
that are potable or may be easily rendered potable in the area in which
the housing will be located, and that these sources will remain
available during the period the worker is at that location;
(iii) It attests that it shall provide each worker an effective
means to test whether the water is potable and, if not potable, the
means to easily render it potable; and
(iv) The CO approves the variance.
(5) Individual drinking cups must be provided; and
(6) Containers appropriate for storing and using potable water must
be provided and, in locations subject to freezing temperatures,
containers must be small enough to allow storage in the housing unit to
prevent freezing.
(c) Excreta and liquid waste disposal. (1) Facilities, including
shovels, must be provided and maintained for effective disposal of
excreta and liquid waste in accordance with the requirements of the
state health authority or involved Federal agency; and
(2) If pits are used for disposal by burying of excreta and liquid
waste, they must be kept fly-tight when not filled in completely after
each use. The maintenance of disposal pits must be in accordance with
state and local health and sanitation requirements.
(d) Housing structure. (1) Housing must be structurally sound, in
good repair, in a sanitary condition and must provide shelter against
the elements to occupants;
(2) Housing, other than tents, must have flooring constructed of
rigid materials easy to clean and so located as to prevent ground and
surface water from entering;
(3) Each housing unit must have at least one window that can be
opened or skylight opening directly to the outdoors; and
(4) Tents appropriate to weather conditions may be used only where
the terrain and/or land use regulations do not permit the use of other
more substantial housing.
(e) Heating. (1) Where the climate in which the housing will be
used is such that the safety and health of a worker requires heated
living quarters, all such quarters must have properly installed
operable heating equipment that supplies adequate heat. Where the
climate in which the housing will be used is mild and the low
temperature for any day in which the housing will be used is not
reasonably expected to drop below 50 degrees Fahrenheit, no separate
heating equipment is required as long as proper protective clothing and
bedding are made available, free of charge or deposit charge, to the
workers.
(2) Any stoves or other sources of heat using combustible fuel must
be installed and vented in such a manner as to prevent fire hazards and
a dangerous concentration of gases. If a solid or liquid fuel stove is
used in a room with wooden or other combustible flooring, there must be
a concrete slab, insulated metal sheet, or other fireproof material on
the floor under each stove, extending at least 18 inches beyond the
perimeter of the base of the stove.
(3) Any wall or ceiling within 18 inches of a solid or liquid fuel
stove or

[[Page 63070]]

stove pipe must be made of fireproof material. A vented metal collar
must be installed around a stovepipe or vent passing through a wall,
ceiling, floor or roof.
(4) When a heating system has automatic controls, the controls must
be of the type that cuts off the fuel supply when the flame fails or is
interrupted or whenever a predetermined safe temperature or pressure is
exceeded.
(5) A heater may be used in a tent if the heater is approved by a
testing service and if the tent is fireproof.
(f) Lighting. (1) In areas where it is not feasible to provide
electrical service to range housing units, including tents, lanterns
must be provided (kerosene wick lights meet the definition of lantern);
and
(2) Lanterns, where used, must be provided in a minimum ratio of
one per occupant of each unit, including tents.
(g) Bathing, laundry, and hand washing. Bathing, laundry and hand
washing facilities must be provided when it is not feasible to provide
hot and cold water under pressure.
(h) Food storage. When mechanical refrigeration of food is not
feasible, the worker must be provided with another means of keeping
food fresh and preventing spoilage, such as a butane or propane gas
refrigerator. Other proven methods of safeguarding fresh foods, such as
dehydrating or salting, are acceptable.
(i) Cooking and eating facilities. (1) When workers or their
families are permitted or required to cook in their individual unit, a
space must be provided with adequate lighting and ventilation; and
(2) Wall surfaces next to all food preparation and cooking areas
must be of nonabsorbent, easy to clean material. Wall surfaces next to
cooking areas must be made of fire-resistant material.
(j) Garbage and other refuse. (1) Durable, fly-tight, clean
containers must be provided to each housing unit, including tents, for
storing garbage and other refuse; and
(2) Provision must be made for collecting or burying refuse, which
includes garbage, at least twice a week or more often if necessary,
except where the terrain in which the housing is located cannot be
accessed by motor vehicle and the refuse cannot be buried, in which
case the employer must provide appropriate receptacles for storing the
refuse and for removing the trash when the employer next transports
supplies to the location.
(k) Insect and rodent control. Appropriate materials, including
sprays, and sealed containers for storing food, must be provided to aid
housing occupants in combating insects, rodents and other vermin.
(l) Sleeping facilities. A separate comfortable and clean bed, cot,
or bunk, with a clean mattress, must be provided for each person,
except in a family arrangement, unless a variance is requested from and
granted by the CO. When filing an application for certification and
only where it is demonstrated to the CO that it is impractical to
provide a comfortable and clean bed, cot, or bunk, with a clean
mattress, for each range worker, the employer may request a variance
from this requirement to allow for a second worker to join the range
operation. Such a variance must be used infrequently, and the period of
the variance will be temporary, i.e., the variance shall be for no more
than 3 consecutive days. Should the CO grant the variance, the employer
must supply a sleeping bag or bed roll for the second occupant free of
charge or deposit charge.
(m) Fire, safety, and first aid. (1) All units in which people
sleep or eat must be constructed and maintained according to applicable
state or local fire and safety law.
(2) No flammable or volatile liquid or materials may be stored in
or next to rooms used for living purposes, except for those needed for
current household use.
(3) Housing units for range use must have a second means of escape
through which the worker can exit the unit without difficulty.
(4) Tents are not required to have a second means of escape, except
when large tents with walls of rigid material are used.
(5) Adequate, accessible fire extinguishers in good working
condition and first aid kits must be provided in the range housing.

Signed in Washington this 9th day of October, 2015.
Portia Wu,
Assistant Secretary, Employment and Training Administration.
[FR Doc. 2015-26252 Filed 10-13-15; 4:15 pm]
BILLING CODE 4510-FP-P