Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE





The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
1995-
ILW.COM,
American
Immigration LLC.

  • News: DOL H-2A Final Rule on Range Herding and Production of Livestock


    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





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





    Employment and Training Administration





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





    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]]


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

    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.

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

    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.
    ---------------------------------------------------------------------------

    \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.''
    ---------------------------------------------------------------------------

    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.
    ---------------------------------------------------------------------------

    \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).
    ---------------------------------------------------------------------------

    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

    [[Page 62960]]

    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\
    ---------------------------------------------------------------------------

    \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.
    ---------------------------------------------------------------------------

    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

    [[Page 62961]]

    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\
    ---------------------------------------------------------------------------

    \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.''
    ---------------------------------------------------------------------------

    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.
    ---------------------------------------------------------------------------

    \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.
    ---------------------------------------------------------------------------

    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.
    ---------------------------------------------------------------------------

    \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.
    ---------------------------------------------------------------------------

    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\
    ---------------------------------------------------------------------------

    \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.
    ---------------------------------------------------------------------------

    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).
    ---------------------------------------------------------------------------

    \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.
    ---------------------------------------------------------------------------

    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\
    ---------------------------------------------------------------------------

    \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\
    ---------------------------------------------------------------------------

    \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.

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

    [[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\
    ---------------------------------------------------------------------------

    \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.
    ---------------------------------------------------------------------------

    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.
    ---------------------------------------------------------------------------

    \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.

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

    [[Page 63024]]

    [GRAPHIC] [TIFF OMITTED] TR16OC15.010


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

    \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.
    ---------------------------------------------------------------------------

    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.
    ---------------------------------------------------------------------------

    \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.
    ---------------------------------------------------------------------------

    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.
    ---------------------------------------------------------------------------

    \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).
    ---------------------------------------------------------------------------

    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.
    ---------------------------------------------------------------------------

    \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.
    ---------------------------------------------------------------------------

    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\
    ---------------------------------------------------------------------------

    \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.
    ---------------------------------------------------------------------------

    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\
    ---------------------------------------------------------------------------

    \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.
    ---------------------------------------------------------------------------

    \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).

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

    [[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\
    ---------------------------------------------------------------------------

    \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\
    ---------------------------------------------------------------------------

    \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\
    ---------------------------------------------------------------------------

    \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.
    ---------------------------------------------------------------------------

    \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
    ---------------------------------------------------------------------------

    \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



Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: