[Federal Register Volume 80, Number 72 (Wednesday, April 15, 2015)]
[Proposed Rules]
[Pages 20299-20343]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-08505]



[[Page 20299]]

Vol. 80

Wednesday,

No. 72

April 15, 2015

Part II





Department of Labor





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Employment and Training Administration





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20 CFR Part 655





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

Federal Register / Vol. 80 , No. 72 / Wednesday, April 15, 2015 / 
Proposed Rules

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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

RIN 1205-AB70


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

AGENCY: Employment and Training Administration, Labor.

ACTION: Proposed rule; request for comments.

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SUMMARY: The Department of Labor (Department) is proposing to amend its 
regulations governing certification of the employment of nonimmigrant 
workers in temporary or seasonal agricultural employment under the H-2A 
program to codify certain procedures for employers seeking to hire 
foreign temporary agricultural workers for job opportunities in 
sheepherding, goat herding and production of livestock on the open 
range. Such procedures must be consistent with the Secretary's 
statutory responsibility to ensure that there are no 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. Before the current rulemaking, variances from the general H-
2A regulatory requirements were established and revised for these 
occupations through sub-regulatory guidance, i.e. ``special 
procedures,'' that were issued in the form of separate Field Memoranda 
or Training and Employment Guidance Letters. The U.S. Court of Appeals 
for the District of Columbia Circuit recently ruled that the existing 
special procedures for sheepherding, goat herding and open range 
production of livestock are not interpretive rules but rather include 
substantive departures from established regulatory requirements 
necessitating notice and comment rulemaking under the Administrative 
Procedure Act. This proposed rule provides the public with the notice 
and opportunity to comment on proposed procedures to be followed in the 
filing and processing of applications involving herding and production 
of livestock on the open range. Among the issues addressed 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, 
recruiting U.S. workers, determining the minimum offered wage rate, and 
the minimum standards for mobile housing on the open range. The 
Department's goal is to establish a single set of regulations enabling 
employers seeking to hire foreign temporary agricultural workers for 
both herding and production of livestock on the open range to comply 
with their obligations under the H-2A program given the unique 
characteristics of these job opportunities in their industry.

DATES: Interested persons are invited to submit written comments on the 
proposed rule on or before May 15, 2015.

ADDRESSES: You may submit comments, identified by Regulatory 
Information Number (RIN) 1205-AB70, by any one of the following 
methods:
     Federal e-Rulemaking Portal www.regulations.gov. Follow 
the Web site instructions for submitting comments.
     Mail or Hand Delivery/Courier: Please submit all written 
comments (including disk and CD-ROM submissions) to Adele Gagliardi, 
Administrator, Office of Policy Development and Research, Employment 
and Training Administration, U.S. Department of Labor, 200 Constitution 
Avenue NW., Room N-5641, Washington, DC 20210.
    Please submit your comments by only one method and within the 
designated comment period. Comments received by means other than those 
listed above or received after the comment period has closed will not 
be reviewed. The Department will post all comments received on http://www.regulations.gov without making any change to the comments, 
including any personal information provided. The http://www.regulations.gov Web site is the Federal e-rulemaking portal and all 
comments posted there are available and accessible to the public. The 
Department cautions commenters against including personal information 
such as Social Security Numbers, personal addresses, telephone numbers, 
and email addresses in their comments as such information will become 
viewable by the public on the http://www.regulations.gov Web site. It 
is the commenter's responsibility to safeguard his or her information. 
Comments submitted through http://www.regulations.gov will not include 
the commenter's email address unless the commenter chooses to include 
that information as part of his or her comment.
    Postal delivery in Washington, DC, may be delayed due to security 
concerns. Therefore, the Department encourages the public to submit 
comments through the http://www.regulations.gov Web site.
    Docket: For access to the docket to read background documents or 
comments received, go to the Federal eRulemaking portal at http://www.regulations.gov. The Department will also make all the comments it 
receives available for public inspection during normal business hours 
at the Employment and Training Administration's (ETA) Office of Policy 
Development and Research at the above address. If you need assistance 
to review the comments, the Department will provide you with 
appropriate aids such as readers or print magnifiers. The Department 
will make copies of the rule available, upon request, in large print 
and as an electronic file on computer disk. The Department will 
consider providing the proposed rule in other formats upon request. To 
schedule an appointment to review the comments and/or obtain the rule 
in an alternate format, contact the ETA Office of Policy Development 
and Research at (202) 693-3700 (VOICE) (this is not a toll-free number) 
or 1-877-889-5627 (TTY/TDD).

FOR FURTHER INFORMATION CONTACT: For further information, contact 
William W. Thompson, II, Acting Administrator, Office of Foreign Labor 
Certification, ETA, 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

A. The Statutory and Regulatory Framework

    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

[[Page 20301]]

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 5-2010, 75 FR 55352 (Sept. 10, 
2010).
    The Department has operated the H-2A program for more than two 
decades 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.\1\ In 1987, the Department issued 
the first H-2A regulations (the 1987 regulations). 52 FR 20496 (Jun. 1, 
1987). The Department's 1987 regulations provided for the establishment 
of special procedures for certain occupations, as long as they did not 
deviate from the Secretary's statutory responsibility to determine U.S. 
worker availability and to ensure that the importation of 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)(B); 20 CFR 655.93(b) 1987. The Department has issued several 
special procedures guidance documents under the 1987 regulations.
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    \1\ The Immigration and Nationality Act of 1952 created the H-2 
temporary worker program. Pub. L. 82-414, 66 Stat. 163. In 1986, 
IRCA divided the H-2 program into separate agricultural and non-
agricultural temporary worker programs. See Pub. L. 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).
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    The 1987 regulations remained in effect, largely unchanged, until 
the Department promulgated new H-2A regulations on December 18, 2008. 
73 FR 77110 (Dec. 18, 2008) (the 2008 Final Rule). The 2008 Final Rule 
implemented several substantive changes to the program, and revised the 
companion regulations at 29 CFR part 501 governing WHD's enforcement 
responsibilities under the H-2A program. The 2008 Final Rule retained 
the authority of the OFLC Administrator to develop, amend, or rescind 
special procedures, enumerating those in effect at that time, including 
H-2A applications for sheepherders in the Western States as well as the 
adaptation of such procedures to the open range production of 
livestock. 20 CFR 655.102.
    After the Department determined that the policy underpinnings of 
the 2008 Final Rule did not provide an adequate level of protection for 
either U.S. or foreign workers, the Department commenced a new 
rulemaking process that culminated in the publication of revised H-2A 
regulations on February 12, 2010. 75 FR 6884 (Feb. 12, 2010) (the 2010 
Final Rule). The 2010 Final Rule better met the Department's 
responsibility to provide that wages and working conditions of U.S. 
workers are not adversely affected, by adjusting wages and working 
conditions requirements and establishing incentives for ensuring 
employers demonstrate that they have performed an adequate test of the 
U.S. labor market. The 2010 Final Rule retained the authority of the 
OFLC Administrator to develop, amend, or rescind special procedures, 
recognizing that variances from the regular H-2A labor certification 
processes are appropriate to permit access to the program for specific 
industries or occupations.

 B. Legislative and Sub-Regulatory Framework for Special Procedures for 
Herding and Production of Livestock on the Open Range

    Historically, employers in a number of States (primarily but not 
exclusively in the West) have used what is now the H-2A program to 
bring in foreign workers to work as sheep and goat herders. Sheep and 
goat herders attend to herds of sheep or goats, and oversee the herd as 
it moves from one area to another. Herders facilitate grazing, and they 
settle the herd to rest for the night, guard it from predatory animals 
and other dangers (e.g., poisonous plants and dangerous terrain), 
examine animals for illness, and administer medication, vaccinations, 
and insecticide care, as needed. This herding takes place on the open 
range which requires the herders to live on the open range with the 
herd, monitoring and attending to the herd's needs on an on-call basis 
up to 24 hours per day, 7 days per week, as the herd moves across 
remote range lands and isolated and often mountainous terrain. These 
herders may also assist in lambing, docking, and shearing. The employer 
may require the herd to be brought to the main ranch or farm location 
for short periods, for the care or sorting of the animals. A herder's 
time at the ranch is limited, however, as the purpose of the work is to 
attend to the herd as it grazes on the open range. The unique 
occupational characteristics of sheep and goat herding (spending 
extended periods of time herding animals across remote open range 
lands; being on call to protect and maintain herds up to 24 hours a 
day, 7 days a week) have long been recognized by the Department as 
significant factors that limit the number of U.S. workers interested in 
performing these jobs.
    Congress has recognized the lack of U.S. workers available to 
perform these jobs and has sought to address employers' need for labor. 
During the early 1950's, Congress enacted statutes authorizing the 
permanent admission of a certain number of ``foreign workers skilled in 
sheepherding'' to fill the demand for workers in sheepherding jobs. 
Pub. L. 81-587, 64 Stat. 306 (Jun. 30, 1950); Pub. L. 82-307, 66 Stat. 
50 (Apr. 9, 1952); and Pub. L. 83-770, 68 Stat. 1145 (1954). These 
statutes enabled skilled foreign sheepherders to gain entry into the 
country on an expedited basis, provided that they were otherwise 
admissible into the United States for permanent residence.
    During 1955 and 1956, the House Judiciary Committee (Committee), in 
response to requests from sheep ranchers, investigated allegations that 
a number of foreign sheep and goat herders admitted under those 
statutes were leaving herding shortly after arriving in the United 
States, and were instead becoming employed in other industries and 
occupations. In a report issued on February 14, 1957, the Committee 
found that American employers and the sheep-raising industry had not 
fully benefitted from the services of foreign sheepherders, as was 
intended by the legislation. H.R. Rep. No. 67, 85th Cong., 1st Session 
(1957). The Committee recommended that no additional legislation be 
enacted to admit foreign sheepherders and also that the process for 
bringing future foreign sheepherders be governed by the H-2 temporary 
worker provisions of the INA administered by the Immigration and 
Naturalization Service (INS) (now, U.S. Citizenship and Immigration 
Services (USCIS)) and the Department. Id. at 4-5.
    Following the recommendation in the Committee's report, Congress 
permitted the previously-enacted legislation to expire. No additional 
legislation for foreign sheepherders has been enacted since then. The 
labor certification program for temporary foreign sheep

[[Page 20302]]

and goat herders was instead implemented through the H-2 program and 
then the successor H-2A program after the passage of IRCA.\2\
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    \2\ In 2004, sheepherders were added to the Department's 
permanent residence program as a specific occupation eligible for 
exemption from the permanent labor certification process, now 
referred to as PERM, upon meeting certain employment criteria. 20 
CFR 656.16.
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    Beginning in 1989, consistent with Congress's historical approach 
and in recognition of employers' need for appropriate access to foreign 
workers to perform these jobs, the Department established variances 
from certain H-2A regulatory requirements and procedures to allow 
employers of open range herders to use the H-2 program. Thus, Field 
Memorandum (FM) 74-89, Special Procedures: Labor Certification for 
Sheepherders Under the H-2A Program (1989) established special 
procedures for sheep and goat herders. Due to the evolution of the H-2A 
program, these special procedures were rescinded and new special 
procedures were established by FM 24-01, Special Procedures: Labor 
Certification for Sheepherders Under the H-2A Program, which were in 
use from August 1, 2001 until June 14, 2011. In 2011, new special 
procedures containing references to and incorporating the principles of 
the 2010 Final Rule were implemented in Training and Employment 
Guidance Letter (TEGL) No. 32-10, Special Procedures: Labor 
Certification Process for Employers Engaged in Sheepherding and 
Goatherding Occupations under the H-2A Program.\3\
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    \3\ The Department's policy directives and advisories for the H-
2A program, including TEGLs related to herding and livestock 
production on the open range, are available at on the OFLC Web site 
at http://www.foreignlaborcert.doleta.gov/reg.cfm.
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    While the sheepherding program history provided a basis for 
establishing special procedures for the temporary employment of foreign 
workers in sheep and goat herding occupations, the Department 
recognized that the production of other types of livestock on the open 
range (e.g., cattle) involved duties and occupational characteristics 
similar to sheep and goat herders. Like sheep and goat herders, herders 
of other types of livestock grazing on the open range also spend 
extended periods of time herding animals across remote open range lands 
living in mobile housing, and are on call up to 24 hours a day, 7 days 
a week to care for and protect the herd. Accordingly, in 2007, the 
Department established similar special procedures for the processing of 
H-2A applications for certification of temporary employment in those 
occupations. Rather than amending the TEGL specific to sheep and goat 
herding occupations to encompass open range herding of other types of 
livestock, the Department adapted and extended similar variances 
through TEGL No. 15-06, which guided the regulated community until the 
TEGL was rescinded and replaced on June 14, 2011, with TEGL No. 15-06, 
Change 1, Special Procedures: Labor Certification Process for 
Occupations Involved in the Open Range Production of Livestock under 
the H-2A Program. These new special procedures for livestock that were 
issued on June 14, 2011 were based on the 2010 Final Rule, which 
provided the OFLC Administrator (as the previous regulations had) with 
the authority to establish, continue, revise or revoke special 
procedures for processing H-2A applications so long as those procedures 
do not deviate from statutory requirements under the INA. 20 CFR 
655.102.

C. The Mendoza Litigation and Need for Rulemaking

    On October 7, 2011, four workers filed a lawsuit in the U.S. 
District Court for the District of Columbia challenging these special 
procedures. Mendoza v. Solis, 924 F. Supp. 2d 307 (D.D.C. 2013). The 
plaintiffs, who are U.S. workers interested in herding employment, 
asserted that the Department violated the Administrative Procedure Act 
(APA) by adopting the special procedures without first providing notice 
and an opportunity for interested parties to comment. The district 
court dismissed the case, holding the plaintiffs lacked standing to 
bring a lawsuit on this issue.
    On appeal, the U.S. Court of Appeals for the District of Columbia 
Circuit reversed the district court's dismissal for lack of standing, 
finding that the plaintiffs had both Article III and prudential 
standing. Mendoza et al. v. Perez, 754 F.3d 1002 (D.C. Cir. 2014). The 
court concluded that ``[a]s participants in the labor market for 
herders, the plaintiffs were injured by the Department of Labor's 
promulgation of the TEGLs and fall within the zone of interests 
protected by the INA.'' Id. at 1025. In the interest of judicial 
efficiency, the D.C. Circuit also ruled on the merits of the 
plaintiffs' claim, agreeing with the plaintiffs that the Department's 
TEGLs constituted legislative rules subject to notice and comment under 
the APA. The appellate court remanded the case to the district court, 
which has set a rulemaking schedule.
    Through this rulemaking, the Department seeks to remedy the APA 
violations identified by the D.C. Circuit. The Mendoza decision, 
however, is but one reason for the promulgation of this NPRM. In these 
occupations the prevailing wage has served as the Adverse Effect Wage 
Rate (AEWR).\4\ The on-call nature (up to 24 hours a day, 7 days a 
week) of the work associated with these occupations, coupled with the 
sustained scarcity of U.S. workers employed in open range herding and 
livestock production, has made determining the appropriate prevailing 
wage increasingly difficult under the current methodology for 
determining wages for these occupations. 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. Therefore, through this rulemaking, the Department 
plans to establish a more effective and workable methodology for 
determining and adjusting a monthly AEWR for these unique occupations 
that adequately protects U.S. and H-2A workers in these occupations.
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    \4\ The AEWR neutralizes any adverse effect on U.S. workers 
resulting from the influx of temporary foreign workers, and is the 
minimum wage rate that agricultural employers seeking nonimmigrant 
alien workers must offer to and pay their U.S. and foreign workers, 
if prevailing wages are below the AEWR. 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). The AEWR is intended to 
ensure that the wages of similarly employed U.S. workers will not be 
adversely affected by the importation of foreign workers. Id. As 
noted above, the Department has set the prevailing wage as the AEWR 
for these occupations.
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II. Discussion of 20 CFR Part 655, Subpart C

A. Introductory Sections

1. Sec.  655.200 Scope and Purpose of Subpart C
    These introductory provisions propose to establish that, because of 
the unique nature of the occupations, employers who seek to hire 
temporary agricultural foreign workers to perform herding or production 
of livestock on the open range, as described in proposed Sec.  
655.200(b), are subject to certain standards that are different from 
the regular H-2A procedures in Subpart B of this part. To date, the 
Department has processed these applications using two different 
Departmental guidance letters containing substantially similar 
variances, one specific to sheep and goat herding on the open range and 
the other specific to open range production of other types of 
livestock. TEGL No. 32-10 (Jun. 14, 2011); TEGL No. 15-06, Change 1 
(Jun. 14, 2011). In this

[[Page 20303]]

rulemaking, the Department proposes to create a single set of 
procedures for employers engaged in the herding or production of 
livestock on the open range. Establishing a single set of procedures 
for these occupations will create administrative efficiencies for the 
Department, promote greater consistency in the review of H-2A 
applications, provide foreign workers and workers similarly employed in 
the United States with the same benefits and guarantees, and provide 
greater clarity for employers with respect to program requirements.
    In order to use Subpart C, an employer's job opportunity must 
possess all of the characteristics described in this subpart. The 
employer must be seeking workers in the herding or production of 
livestock on the open range, on an on-call basis, up to 24 hours per 
day and 7 days a week, and in locations requiring the use of mobile 
housing for at least 50 percent of the workdays included in the work 
contract period.
    The Department recognizes that the employer may, at times, require 
the workers to bring the herd to the fixed-site ranch or farm and stay 
at or near the ranch or farm for periods to assist with work involving 
the herd that constitutes the production of livestock (e.g., lambing or 
calving, shearing, tending to a sick animal, branding, culling, or 
splitting livestock from the herd for sale or transfer). During such 
periods at the ranch the workers may also perform minor, sporadic, and 
incidental work closely and directly related to the herding and 
production of livestock. However, any such ranch duties must be 
included in the job order. Such minor, sporadic, and incidental work 
may occur on no more than 20 percent of the workdays that the worker is 
at the ranch during the contract period. The job order must not include 
any work other than work that is herding or production of livestock or 
work that is closely and directly related to the herding or production 
of livestock.
    The Department seeks comments 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. Under this proposal, open range 
livestock occupations would continue to be limited to periods of need 
of not more than 10 month as under the current special procedures. 
Should a similar 10 month limitation apply to sheep and goat herders, 
to reflect more appropriately their temporary or seasonal need as 
required by the INA? Specifically, the Department seeks comment on the 
following:
     Based on information obtained during enforcement 
investigations, the Department understands that in some circumstances 
separate winter open range seasons and summer open range seasons exist. 
Between these seasons, workers may spend months at a time at the ranch; 
however, the amount of this time may vary substantially based on 
numerous factors, including geography and/or size of employer. 
Therefore, while recognizing that employer operations differ, the 
Department seeks comments, as reflected in the questions below, 
regarding a typical cycle of differing functions/locations for sheep 
and goat herders across the country, and the length of time and defined 
time periods within which these employees are on the open range as 
opposed to working at the ranch.
     The Department seeks information about the time periods 
and location of each duty typically performed by these workers.
     Do sheep and goat herders typically spend certain time 
periods on the range and other time periods on the ranch?
     If so, which periods are spent on the range? Which periods 
are spent at the ranch?
     What duties are typically performed while on the range? 
What duties are typically performed while on the ranch?
     If there are distinct seasonal needs for ranch and range 
work, would there be a need for an allowance for minor, sporadic and 
incidental work for open range occupations?
    Where the job opportunity does not fall within the scope of this 
Subpart, the employer must comply with all of the regular H-2A 
procedures in Subpart B. If an employer submits an application 
containing information and attestations indicating that its job 
opportunity is eligible for processing under the procedures in Subpart 
C but later, as a result of an investigation or other compliance 
review, it is determined that the worker did not spend at least 50 
percent of the workdays on the open range, that work performed on the 
ranch was not included within the scope of the job order (e.g., 
unrelated ranch chores such as tilling soil for hay or constructing an 
irrigation well), or the worker performed work that is closely and 
directly related to herding or production of livestock during more than 
20 percent of the workdays at the ranch, 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 have to provide 
other relief. Depending upon all the facts and circumstances, including 
but not limited to factors such as the percentage of days the worker 
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 regular H-2A 
procedures and requirements in Subpart B of this part, including 
payment of the highest applicable wage rate, determined in accordance 
with 20 CFR 655.122(l) for all hours worked.\5\ In addition, the 
Department may seek other remedies, such as civil monetary penalties 
and potentially debarment from use of the H-2A program, for the 
violations.
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    \5\ Compliance with 20 CFR 655.122(l) of Subpart B requires an 
employer to ``pay the worker at least the AEWR, the prevailing 
hourly wage rate, the prevailing piece rate, the agreed-upon 
collective bargaining rate, or the Federal or State minimum wage 
rate, in effect at the time work is performed, whichever is highest, 
for every hour or portion [of an hour] worked during a pay period.''
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    This provision is also intended to provide notice to employers 
seeking workers in the open range production of livestock and herding 
occupations that they must comply with all the obligations contained in 
Subpart B of the rule, unless specifically addressed in Subpart C. Such 
employers must refer to all of the obligations in Subpart B before 
utilizing the specific variances from those requirements that comprise 
proposed Subpart C. The obligations contained in Subpart B, such as 
ensuring the general contents of job orders, the three-fourths 
guarantee, obligations to workers in corresponding employment, the 
prohibition of agency payments, and the provision of housing and 
transportation, have been fully explained elsewhere. See 75 FR 6884 
(Feb. 12, 2010).
2. Sec.  655.201 Definition of Terms
    The proposed definitions contained in this subpart supplement the 
definitions in Subpart B of 20 CFR part 655, subparts B and F of 20 CFR 
part 653, and 20 CFR part 654. This subpart adds definitions for terms 
specific to the herding or production of livestock occupations working 
on the open range: Herding; livestock; minor, sporadic, and incidental 
work; mobile housing; open range; and production of livestock. These 
are new definitions, which did not previously exist in the TEGLs. They 
are intended to assist employers in understanding the type of work that 
qualifies for these special procedures.
    The proposed definitions of herding and production of livestock 
describe typical activities associated with

[[Page 20304]]

managing livestock on the open range, while the proposed definition of 
livestock describes the type of animals, when managed on the open 
range, covered by this Subpart. The proposed definition of mobile 
housing 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. The proposed definition of minor, 
sporadic, and incidental work is intended to help employers evaluate 
whether their job opportunity is an open range occupation covered under 
Subpart C (e.g., duties performed at the fixed-site ranch or farm that 
do not constitute the production of livestock must be closely and 
directly related to herding or the production of livestock and are 
limited to no more than 20 percent of the workdays spent at the ranch 
in the contract period).
    The Department's proposed definition of open range describes an 
essential characteristic of the jobs covered under this Subpart. 
Whether on public or private lands, owned or not owned by the employer, 
the animals are roaming across range lands or remote mountainous 
locations not easily accessible on a daily basis from the employer's 
fixed-site ranch or farm. Moreover, the animals are not enclosed. For 
the purposes of this rule, animals are not enclosed where there are no 
fences or other barriers protecting them from predators or restricting 
their freedom of movement; rather the 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 (e.g., a steep cliff). These types of 
barriers prevent access to dangers rather than containing the animals, 
and therefore supplement rather than replace the herders' efforts.
    The Department seeks comment on all the definitions. In particular, 
we seek comment on whether the definition of open range should include 
a minimum acreage of the land on which the animals roam. We also seek 
comment on whether, and 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. 
The Department also seeks comment on other factors that should be 
considered in the definition of open range.

B. Variances From Pre-Filing Procedures

    This section enumerates the pre-filing procedures for employers 
seeking workers in open range production of livestock and herding 
occupations. These provisions are intended to assist employers with 
understanding their basic obligations.
1. Sec.  655.205 Variances From Job Order Requirements
    This provision addresses variances from the job order filing 
requirements in 20 CFR 655.121(a) through (d). The Department is 
proposing that an eligible employer seeking workers in open range 
production of livestock or herding occupations must submit its job 
order, Agricultural and Food Processing Clearance Order, Form ETA 790, 
directly to the National Processing Center (NPC) designated by the OFLC 
Administrator, rather than to the SWA. The employer must 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. An employer submitting its application electronically 
using the iCERT Visa Portal System must scan and upload the job order 
as well as all other supporting documents.
    This proposal reflects the current filing requirement in TEGL 32-10 
for an association filing a master application as a joint employer with 
its employer-members for sheep or goat herding positions. The proposal 
to make the filing process the same for individual employers and 
associations filing as joint employers and for open range herding and 
livestock production occupations is intended to establish consistent 
handling of all applications eligible to use these procedures.
2. Sec.  655.210 Variances From Contents of Job Orders
    This provision contains requirements for the content of the job 
order in addition to those in 20 CFR 655.122. Proposed Sec.  655.210(a) 
reminds employers that if a requirement of Subpart B of this part is 
not addressed in Subpart C (such as workers' compensation, among other 
requirements), then employer-applicants must comply with the regulation 
as stated in Subpart B.
a. Sec.  655.210(b) Job Qualifications and Requirements
    The Department is proposing to retain a long-standing practice that 
the job offer in these occupations must include a statement that the 
hours of work are ``on call for up to 24 hours per day, 7 days per 
week,'' rather than specific work hours. Additionally, the employer may 
require in its job offer that applicants possess up to 6 months of 
experience in similar occupations involving the herding and production 
of livestock and provide verifiable references. We are proposing that 
an employer may specify other appropriate job qualifications and 
requirements for its job opportunity. These qualifications and 
requirements 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 (e.g., an all-terrain vehicle). The 
Certifying Officer (CO) may require the employer to submit 
documentation to substantiate the appropriateness of any job 
qualifications and requirements specified in the job order. In all 
cases, the employer must apply all qualifications and requirements 
included in the job offer equally to U.S. and foreign workers in order 
to maintain compliance with the prohibition against preferential 
treatment of foreign workers contained at 20 CFR 655.122(a).
b. Sec.  655.210(c) Mobile Range Housing
    The Department proposes that the employer disclose the use of 
mobile range housing when satisfying its obligation under 20 CFR 
655.122(d) to ensure that it will provide sufficient housing to workers 
unable to reasonably return to their residence within the same day, at 
no cost to the worker.
    In Sec. Sec.  655.230 and 655.235, the Department proposes housing 
standards for range housing to account for the mobile nature of the 
housing typically used in this industry. The standards are discussed in 
Section E: Mobile Housing.
c. Sec.  655.210(d) Employer-Provided Items
    All H-2A employers must provide to their workers, free of charge, 
all tools, supplies, and equipment required to perform the duties 
assigned. See 20 CFR 655.122(f). DOL Wage and Hour Division 
investigations have found instances in which employers have failed to 
provide the tools/supplies/equipment necessary for the job, i.e., 
failing to provide boots, raingear, and/or ATV necessary for the work 
and/or in which the employers have charged the workers for such tools 
and brought them below the required wage. The proposed Subpart C 
regulations require the employer to provide, without charge or deposit 
charge, the tools, supplies, and equipment required by law, by the 
employer, or by the nature of the work to do the job safely and 
effectively. The Department proposes to add the additional requirement 
that the employer must also specify in the job order which items he or 
she will provide for the worker.
    Because of the isolated nature of these occupations, an effective 
means of communication between worker and

[[Page 20305]]

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. The proposal specifies that such means of communication may 
include, but are not limited to, satellite phones, cell phones, 
wireless devices, radio transmitters, or other types of electronic 
communication systems. The worker's location may be so remote that 
electronic communication devices may not work at all times. Where the 
employer will not otherwise make contact with the worker (e.g., when 
delivering food or checking on the worker and herd in-person), the 
employer must establish a regular schedule when the worker will be 
located in a place in which the electronic communication device will 
work so that the worker's safety and needs can be monitored. The 
Department expects that while the definition of ``regularly'' could 
vary, a worker must be able to communicate with his or her employer at 
intervals appropriate to monitoring the health and safety of the 
worker. The Department believes such contact is in the best interests 
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. The employer's commitment to make 
contact with the worker at least at these regular intervals must also 
be disclosed in the job order. The Department seeks comment on the 
minimum allowable interval between contacts initiated by the employer, 
and whether a satellite phone or other electronic device would be an 
adequate substitute for a requirement related to the frequency of 
employer-employee contact. The Department also invites comments on how 
employers may satisfy the interval requirement without any new or 
increased costs.
    In addition to the electronic communication device, other tools, 
supplies, and equipment are required by the nature of the work to 
perform the job safely and effectively. Depending on such factors as 
the terrain, weather, or size of the herd; particular tools, supplies, 
and equipment are required. For example, some workers need binoculars 
to monitor the herd's location and safety, or a gun to protect both the 
herd and themselves from predators. Others need boots, rain gear, a 
horse, or an all-terrain vehicle to effectively cover difficult 
terrain. As provided in Sec.  655.235 regarding mobile housing 
standards, in areas in which the temperature is generally mild, the 
employer may provide protective bedding and clothing as an alternative 
to heating equipment. This bedding and clothing, provided as an 
alternative to heating equipment, is required to perform the job and 
must be provided to the worker free of charge. The actual equipment 
required to perform the duties assigned vary, based upon factors such 
as the location of the herd, the number of workers available to tend 
the herd, and the time of year; however, whatever equipment is required 
by law or regulation, by the employer, or by the nature of the work 
must be disclosed in the job order and provided without charge to the 
worker. The Department invites comments on other tools, supplies, and 
equipment required by law, by employers, or by the nature of the work 
in order to perform it safely and effectively and whether it would be 
helpful to include in the regulation a list of items that typically are 
required by law or the nature of the work and location.
d. Sec.  655.210(e) Meals
    All H-2A employers of open range workers must provide either three 
sufficient prepared meals a day or provide free and convenient cooking 
facilities and enough food and water that is potable, or easily 
rendered potable, to enable the worker(s) to prepare their own meals. 
Historically, employers of open range sheep and goat herders have been 
prohibited from deducting the cost of food and meals from wages due, 
and employers of workers in other occupations, including open range 
livestock production, have had the option of doing so. As a result, 
under the sheep and goat herding TEGL, and pursuant to practice in the 
industry for some employers engaged in open range production of 
livestock, employers provide food, free of charge, to their workers in 
the field. This proposed rule adopts the practice applicable to 
employers of sheep and goat herders, and applies it to both employers 
engaged in open range herding and those engaged in open range livestock 
production; therefore, under this proposal, employers will not be 
permitted to deduct the cost of food from wages, and employers must 
disclose the provision of meals in the job order. However, particularly 
in light of the proposed increase in wages, the Department seeks 
comment about whether employers should be permitted to deduct costs of 
food and, if so, the reasonable amount of that deduction. The 
Department also seeks comment on what constitutes a sufficient meal for 
these workers, given the physically demanding nature of their work, as 
well as what constitutes adequate food provision given the remote 
location of these workers. Also, given the remote nature of herding and 
production of livestock occupations on the open range, we are proposing 
a new specific obligation to provide workers with an adequate supply of 
potable water when working on the open range. See section E of this 
preamble for a fuller discussion on the requirements for food and 
potable water.
e. Sec.  655.210(f) Hours and Earnings Statements
    Employees principally engaged in the open range herding and 
livestock production are generally exempt from Fair Labor Standards Act 
(FLSA) minimum wage and overtime obligations under 29 U.S.C. 
213(a)(6)(E), and therefore the typical FLSA recordkeeping 
requirements, such as those pertaining to hours worked each day and 
each workweek, do not apply to employers of such employees. See 29 CFR 
516.1, 516.33. However, for the purpose of implementing and enforcing 
the requirements of the INA, some type of recordkeeping of compensable 
time actually worked is necessary for the Department to monitor 
compliance with and enforce H-2A program obligations, such as the 
three-fourths guarantee. See 20 CFR 655.122(i). As the Department is 
proposing a minimum required monthly wage rate, an hourly record for 
days spent working on the open range is not necessary (see proposed 
Sec.  655.211). Except as discussed in the next paragraph, the 
Department is proposing that employers be required to keep and maintain 
no less than daily records for those employees engaged in open range 
herding or production of livestock. The records must reflect each day 
that the employee works or was available to work, as well as where the 
work is performed--on the open range or on the ranch or farm. Thus, for 
days when work is performed on the open range, the employer is exempt 
from recording the hours actually worked each day as well as the time 
the worker begins and ends each workday. All other regulatory 
requirements found in 20 CFR 655.122(j) and (k) apply.
    The Department is also proposing that when herders or livestock 
production workers perform work on the ranch or farm, the employers 
must keep and maintain records of the hours that the workers work and 
the duties performed in that setting. Such records will enable the 
employer, and the Department, if necessary, to determine wages due and 
whether work at the ranch or farm that does not fall within the 
definition of the production of livestock was minor,

[[Page 20306]]

sporadic, and incidental (i.e., occurred no more than 20 percent of the 
workdays spent at the ranch in the contract period). Moreover, the 
requirement to record employees' duties performed at the ranch permits 
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.
    Employers should already be keeping and maintaining hourly work 
records where applicable for other ranch or farm employees as required 
under the regular H-2A regulations, the Migrant and Seasonal 
Agricultural Worker Protection Act (MSPA), and the FLSA. Therefore, the 
Department believes that keeping records for the herders or open range 
production workers who are performing work on the ranch or farm does 
not create a significant new burden on employers.
    The Department specifically invites comments on the two proposed 
recordkeeping requirements (to keep hourly records for work performed 
at the ranch and daily records of the work performed on the range) and 
other appropriate records employers should keep of compensable time 
worked in these occupations that will balance any new burdens imposed 
on the employer against the Department's need to monitor and enforce H-
2A program obligations for open range applications as it does with all 
applications filed under the H-2A program.
    As previously noted in this preamble, the Department is proposing 
to permit herders and livestock production workers, when at the ranch, 
to assist with minor, sporadic, and incidental work involving the herd 
that does not fall within the definition of the production of livestock 
(e.g., the inspection and repair of the corral) so long as these duties 
are identified on the job order and they occur on no more than 20 
percent of the workdays spent at the ranch in the contract period. This 
allowance should not be construed as a means by which to circumvent the 
regular H-2A program by using herders as ranch workers. The provisions 
of Subpart C do not apply to workers labeled as ``herders'' but who 
perform duties at the ranch on more than a minor, sporadic and 
incidental basis; rather, the regular H-2A program requirements apply 
to those workers. For example, the employer would not be permitted to 
pay those workers the monthly AEWR as provided in Subpart C. Instead, 
the employer would be required to pay the workers according to the 
regular H-2A program provisions (i.e., payment of the highest 
applicable rate under 20 CFR 655.122(l) for all hours worked \6\). If 
it is determined that work performed by the herders or livestock 
production workers on the ranch or farm is not included within the 
scope of the job order, occurs at the ranch on more than 50 percent of 
the workdays in the contract period, or exceeds the 20 percent 
allowance for minor, sporadic, and incidental work, the employer will 
be in violation of the requirements of this part. For purposes of the 
50 percent limitation for ranch work, if a majority of hours worked 
during a workday are spent on the ranch, it is considered to be a day 
worked at the ranch. If a majority of hours worked during a workday are 
spent on the range, it is considered a day worked on the range. 
However, for the purpose of determining whether the 20 percent 
allowance for minor, sporadic, or incidental work has been met, if any 
minor, sporadic, and incidental work occurs on a workday, that workday 
is counted towards the 20 percent allowance. As discussed above, the 
Department seeks comment on the nature and extent of work typically 
performed at the ranch or farm by herder and livestock production 
workers.
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    \6\ Under 20 CFR 655.122(l) of Subpart B an employer must ``pay 
the worker at least the AEWR, the prevailing hourly wage rate, the 
prevailing piece rate, the agreed-upon collective bargaining rate, 
or the Federal or State minimum wage rate, in effect at the time 
work is performed, whichever is highest, for every hour or portion 
[of an hour] worked during a pay period.''
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f. Sec.  655.210(g) Rates of Pay
    The Department is proposing, consistent with current practice and 
with Subpart B, that the employer must guarantee a wage that is no less 
than the minimum wage rate issued and announced annually by the 
Department. This amount will be set consistent with Sec.  655.211, 
discussed in detail below.
    An employer may prorate the monthly wage if the initial month of 
the job order is a partial month, or if an employee does not enter the 
country and report for work until the middle of a month. For example, 
an employer who pays based on the calendar month may pay half the 
required monthly wage for April if the job order begins on April 16, 
and may prorate if the job order begins on April 1 but the employee is 
unable for personal reasons to report for duty until April 16. 
Similarly, an employer may prorate the monthly wage if the final month 
of the job order is a partial month. For example, an employer who pays 
based on the calendar month may pay two-thirds of the monthly wage if 
the job order ends on June 20. An employer also may prorate the 
required monthly wage if an employee is voluntarily absent from work 
for personal reasons. For example, if an employee returns to his home 
country for two weeks because of a family emergency. However, an 
employer must pay workers whenever they are available for work and may 
not encourage employees to miss work, such as when business is slow and 
fewer workers are required, and use that as a basis for prorating the 
required monthly wage. See WHD Field Assistance Bulletin 2012-1 (Feb. 
28, 2012).\7\
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    \7\ WHD Field Assistance Bulletins are available at on the WHD 
Web site at http://www.dol.gov/whd/FieldBulletins/.
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g. Sec.  655.210(h) Frequency of Pay
    This provision proposes to establish the frequency of pay for these 
occupations to be no less than monthly. This requirement is a long-
established standard in occupations involving the herding or production 
of livestock on the open range. With jobs in remote locations, 
employees may not be available to receive physical paychecks more 
frequently. However, employers must pay wages when due and such wage 
payments must be received free and clear. Therefore, 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. See WHD Field 
Assistance Bulletin 2012-3 (May 17, 2012). The Department specifically 
invites comments on how frequently employers in these industries should 
be obligated to provide pay, and whether the Department should require 
employers to prorate the salaries and issue paychecks in response to 
workers' requests in the event they want access to their wages on a 
more frequent basis.

C. Sec.  655.211 Variance From the Wage Rate

    Historically, herding employers have not paid the hourly AEWR 
required for other H-2A employers. As discussed above, the 1987 and 
subsequent regulations authorized the creation of special procedures 
for certain occupations. Further, the OFLC

[[Page 20307]]

Administrator assumed the authority to establish monthly, weekly, or 
semi-monthly AEWRs for ``occupations characterized by other than a 
reasonably regular workday or workweek, such as the range production of 
sheep or other livestock.'' See 20 CFR 655.102. Accordingly, the 
guidance for these occupations exempted employers from paying at least 
the hourly AEWR in favor of an occupation-specific monthly, weekly, or 
semi-monthly AEWR. Historically, the AEWR for these occupations was 
determined based on prevailing wage surveys of employers conducted by 
the SWAs. The Department proposes 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 open range occupations given the 
remote location of the work and the sporadic and unpredictable nature 
of the duty hours on any given day.
    To determine the AEWR for these occupations under the guidance, the 
Department historically followed the process as described in the ETA 
Handbook 385, defining the ``Domestic Agricultural In-Season Wage 
Finding Process.'' Each year since the promulgation of the 1987 
regulations, SWAs conducted agricultural prevailing wage surveys, 
including surveys of employers in States where open range herding and 
production of livestock occupations are typically found. The SWAs 
attempted to obtain information from these employers, voluntarily, 
about the wages being paid exclusively to U.S. workers. The exclusion 
of H-2A nonimmigrant workers from the survey is required by ETA 
Handbook 385. After the OFLC Administrator determined that the computed 
wage rate derived from a SWA survey was statistically valid, it was 
designated as the prevailing wage rate and used as the AEWR for the 
occupation in that State.
    The central dilemma faced by the Department for decades has been 
the dearth of information available to it through these surveys 
regarding the actual wages paid to U.S. workers. Often, and almost 
always more recently, the SWAs determine that there are no survey 
results or the survey does not return statistically valid results. 
Thus, for many years, the Department has been unable to determine a 
statistically valid prevailing wage rate each year in each State in 
which one is needed, requiring the OFLC Administrator to set the AEWR 
based on other data or to use the survey results from another adjoining 
area or State.
    Both Field Memorandum 24-01, which established the special 
procedures from 2001 to 2011 for sheep and goat herding occupations, 
and Field Memorandum 74-89, the predecessor guidance in place from 1989 
to 2001 (with various amendments), established that in the event of 
inadequate sample sizes, ``every attempt will be made to establish a 
prevailing wage by using other comparable information, e.g., utilizing 
data from adjoining areas or States, merging sheepherder (goat herder) 
data from several States or using past survey data for sheepherders 
(goat herders) in that State.'' Therefore, the Department set wages 
based, where possible, on the wages actually provided in that State to 
U.S. workers in the occupation; but where such data is not available 
the guidance permitted aggregating data from contiguous States, or 
continuing the previous year's wage. Where several contiguous States 
did not produce a statistically valid wage, it was not possible to 
aggregate State wage data, and previous survey data from the same State 
could be carried forward instead. Because almost every State 
experienced years in which no wage report could be statistically 
verified, wage stagnation in varying degrees across these occupations 
has been the inevitable result in all but two States.
    Two States have legal mandates that set wages for these 
occupations, which have typically been higher than the DOL-set AEWR for 
the occupations. California law provides for increases to sheepherder 
wages established by its Industrial Welfare Commission based on 
corresponding increases in the State's minimum wage. Cal. Labor Code 
Sec.  2695.2(a) (West 2003). The current minimum salary for 
sheepherders in California as of July 1, 2014, is $1,600.34 per month, 
and effective January 1, 2016, the minimum monthly salary for 
sheepherders will be $1,777.98.\8\ Oregon's sheepherder wages are based 
on a court settlement reached two decades ago, which set a wage for 
sheepherders and required them to be adjusted annually to reflect 
adjustments to the State minimum wage and the Consumer Price Index; 
that amount is $1,319.07 per month in 2014.\9\ Zapata v. Western Range 
Association, Civ. N. 92-10-25, 244L (Ore. 1994).\10\
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    \8\ See State of California Department of Industrial Relations, 
Division of Labor Standards Enforcement at http://www.dir.ca.gov/dlse/faq_minimumwage.htm.
    \9\ According to the Oregon SWA's ETA Form 232, Domestic 
Agricultural In-Season Wage Report, the SWA applied the State 
minimum wage statute and the guidelines in the Zapata settlement to 
arrive at $1,319.07, the minimum monthly wage applicable to 
sheepherders in Oregon in 2014.
    \10\ The Department understands that the wage set by the Zapata 
settlement may be superseded by the State's more recent 
interpretation of its minimum wage requirements. See http://www.oregon.gov/boli/TA/pages/t_faq_taagric.aspx. Based on this 
analysis, workers who spend more than 50 percent of their time in 
the range production of livestock are exempt from minimum wage. 
However, to be exempt, Oregon workers must be paid on a salary 
basis, which is defined as 2,080 hours times the current minimum 
wage, then divided by 12. For example, effective January 1, 2015, 
the Oregon minimum wage increased to $9.25, so the required minimum 
salary for workers in the range production of livestock is $9.25 
times 2,080 hours divided by 12 months, or $1,603.33 per month.
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    In contrast, wages for these occupations in other States 
effectively have not increased since 1994. A memorandum from Barbara 
Ann Farmer, Administrator, Office of Regional Management, to regional 
Certifying Officers in 1993, noted that of the 14 State-based AEWRs for 
Sheepherders and Goat Herders that were determined in 1994-1995, nine 
were set at $700 per month and three were set at $650 per month. Of the 
remaining two AEWR determinations, the Arizona AEWR was based on a 
reported weekly wage of $205, and the Idaho AEWR was set at $750 per 
month. By comparison, 11 of the current 14 listed AEWRs for sheep and 
goat herding are $750 per month, indicating that in the vast majority 
of States sheep and goat herder wages have increased only $50 per month 
in the most recent 20 years of the program. The open range livestock 
wages are currently somewhat higher, set in every case at $875 per 
month. 78 FR 19019, 19021 (Mar. 28, 2013).
    The 2011 TEGLs provided for small but distinct variations to the 
process. First, where the SWA survey results were insufficient to 
establish a prevailing wage rate for occupations involving the open 
range production of livestock, sheepherding and goat herding, due to 
inadequate sample size or another valid reason, the applicable TEGL's 
wage setting procedures allowed the Department to issue a prevailing 
wage or piece rate for that State based on the wage rate findings 
submitted by an adjoining or proximate SWA for the same or similar 
agricultural activity, among other options.\11\ This sought to

[[Page 20308]]

avoid the continuation of the previous year's wage into one or more 
subsequent years. Second, the wage rates were to be published in the 
Federal Register after collection and analysis each year.
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    \11\ OFLC used three main principles in establishing the 
prevailing wage rates for States that had no official wage rate 
findings: (1) Where a State directly borders a State with a wage 
rate finding, that wage rate finding is assigned to the adjoining 
(bordering) State; (2) where a State borders more than one State 
with wage rate findings, the findings of the State that is more 
adjoining (i.e., more shared geographic characteristics, including a 
longer shared border) are applied to the State with no wage rate 
finding; and (3) where a State does not directly border a State with 
a wage rate finding but is within a U.S. Department of Agriculture 
(USDA) farm production region that includes another State either 
with its own wage rate finding or to which findings were applied 
consistent with one of the other two principles, that wage rate 
finding is applied to the State with no wage rate finding. See 
Notice, 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, 78 
FR 1260, 1261 (Jan. 8, 2013). See also TEGL No. 15-06, Change 1 and 
TEGL No. 32-10.
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    On January 8, 2013, the first wage rates after the promulgation of 
the 2011 TEGLs were published in the Federal Register. 78 FR 1260 (Jan. 
8, 2013). On March 28, 2013, as a result of litigation, the Department 
issued a Notice amending and rescinding parts of the previous Notice 
``because of issues regarding the wage finding process in these 
states.'' 78 FR 19020 (Mar. 28, 2013). The wages were set in that 
second Notice at the previous rates, with herding wages in California 
and Oregon reflecting the applicable statutory or judicially set 
amounts. Thus, wages currently are set according to the methodology in 
place before the 2011 TEGLs: FM 24-10 for sheep and goat herding 
occupations and TEGL 15-06 for open range livestock production.
    The Department has been given a broad statutory mandate to balance 
the competing goals of the statute to provide an adequate labor supply 
and to protect the jobs of U.S. workers. See Rogers v. Larson, 563 F.2d 
617, 626 (3rd Cir. 1977), cert. denied, 439 U.S. 803, (1978); AFL-CIO 
v. Brock, 923 F.2d 182, 187 (D.C. Cir. 1991). With this balance in 
mind, we must set the prevailing wage to provide that H-2A workers are 
employed only where U.S. workers are not available for the job and will 
not be adversely affected by the presence of foreign workers, and also 
to foster the provision of workers for these occupations.
    Given this statutory mandate, the Department proposes to establish 
the monthly AEWR for these occupations based on the Farm Labor Survey 
(FLS) conducted by the National Agricultural Statistics Service (NASS) 
of the U.S. Department of Agriculture (USDA). Conducted annually in 
collaboration with the U.S. Department of Labor, the FLS provides 
estimates of the number of hired workers, average hours worked, total 
wages by type of worker (field, livestock, supervisor/manager, and 
other) for a specified survey week, and provides wage rates at regional 
and national levels. Annual average estimates for the number of all 
hired workers, hours worked by hired workers and wage rates are 
included in the October FLS report, which is published in November.\12\ 
The Department currently uses the NASS Farm Labor Survey to set the 
AEWR in the H-2A program, so its adoption for herder occupations in 
this rulemaking would be consistent with the Department's practice with 
respect to all other temporary agriculture work.
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    \12\ Information about the methodology of the FLS is publicly 
available at: http://www.nass.usda.gov/About_NASS/index.asp.
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    The FLS defines hired workers as anyone, other than workers 
supplied by a services contractor, who was paid for at least 1 hour of 
agricultural work on a farm or a ranch. Worker type is determined by 
what the employee was primarily hired to do, not necessarily what work 
was done during the survey week. The survey seeks data on four types of 
hired workers: Field workers, livestock workers, supervisors (hired 
managers, range foremen, and crew leaders) and other workers engaged in 
agricultural work not included in the other three categories.\13\
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    \13\ The FLS includes work done in connection with the 
production of agricultural products, including nursery and 
greenhouse products and animal specialties such as fur farms or 
apiaries. It also includes work done off the farm to handle farm-
related business, such as trips to buy feed or deliver products to 
local markets.
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    The FLS report is based on farmers' gross wages paid to workers 
grouped into two broad categories: Field workers and livestock workers. 
Wage rates are not calculated and published for supervisors or other 
workers, but are for field workers, livestock workers, field and 
livestock workers combined, and total hired workers. Field workers 
include employees engaged in planting, tending and harvesting crops, 
including operation of farm machinery on crop farms. Livestock workers 
include employees tending livestock, milking cows or caring for 
poultry, including operation of farm machinery on livestock or poultry 
operations.\14\
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    \14\ To the extent workers receive incentive pay, the average 
wage rate would exceed the workers' actual wage rate. Because the 
ratio of gross pay to hours worked may be greater than a workers' 
actual wage rate, some statistics agencies refer to the ratio as 
average hourly earnings, and not as hourly wages or wage rate.
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    The USDA survey is conducted semi-annually (the April survey 
collects wage estimates for the January and April reference weeks, and 
the October survey collects wage estimates for the July and October 
reference weeks). Annual average wage estimates are based on these four 
quarterly estimates. The survey is designed to produce statistically 
reliable estimates of overall hired labor use and costs for California, 
Florida and Hawaii, and provide data for other States except Alaska 
under 15 multistate groupings. Thus, for California, Florida and 
Hawaii, we propose to set the AEWR each year as the annual average of 
the previous calendar year's semi-annual FLS hourly wage estimates for 
field and livestock workers (combined) in each of these States. For the 
other States the AEWR will be set as the annual average of the previous 
calendar year's semi-annual FLS hourly wage estimates for field and 
livestock workers (combined) of the FLS multistate crop region to which 
the State belongs. Every State in the same region will be assigned the 
same AEWR amount. The Department bases the AEWR in the regular H-2A 
program on the combined wage estimates for both field and livestock 
workers. As a result, we propose that the AEWR for herder occupations 
be similarly based on the combined estimates for field and livestock 
workers. The State groupings are as follows.\15\
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    \15\ As proposed elsewhere in this NPRM, all employers must pay 
the higher of the Department's AEWR or the agreed-upon collective 
bargaining wage, or the applicable minimum wage specific to the 
occupation(s) imposed by Federal or State law or judicial action. 
Accordingly, where a State-mandated minimum wage for the occupation 
is higher than the Department's AEWR, which has been the case for 
employers in California and Oregon, the employer would be required 
to offer and pay the higher state-mandated minimum wage rate.

Northeast I Connecticut, Maine, Massachusetts, New Hampshire, New York, 
Rhode Island and Vermont.
Northeast II Delaware, Maryland, New Jersey and Pennsylvania.
Appalachian I Virginia and North Carolina.
Appalachian II Kentucky, Tennessee and West Virginia.
Southeast Alabama, Georgia and South Carolina.
Delta Arkansas, Louisiana and Mississippi.
Cornbelt I Illinois, Indiana and Ohio.
Cornbelt II Iowa and Missouri.
Lake Michigan, Minnesota and Wisconsin.
Northern Plains Kansas, Nebraska, North Dakota and South Dakota.
Southern Plains Oklahoma and Texas.
Mountain I Idaho, Montana and Wyoming.
Mountain II Colorado, Utah and Nevada.
Mountain III Arizona and New Mexico.
Pacific Oregon and Washington.

    The FLS defines livestock workers as follows:

    Livestock Workers: Employees tending livestock, milking cows or 
caring for poultry, including operation of farm machinery on

[[Page 20309]]

livestock or poultry operations. SOC codes and titles associated 
with livestock workers are 45-2041: graders and sorters, farm, ranch 
and aquacultural animal products; 45-2093: farm workers, farms, 
ranch and aquacultural animal products; 45-2099: all other workers, 
farms, ranch and aquacultural animal products; 53-7064: packers and 
packagers, hand, farms, ranch and aquacultural animal products.

The FLS methodology includes both livestock work performed on the ranch 
and on the open range.
    The Department may reasonably rely on the FLS combined wage 
estimates for both field and livestock workers for the purpose of 
setting the wage for the occupation addressed in this NPRM, consistent 
with the Department's long standing practice for the rest of the H-2A 
program and the regulations in Subpart B. Brock, supra, 923 F.2d at 
187; United Farm Workers v. Solis, 697 F. Supp. 2d 5, 9-10 (D.D.C. 
2010). Both historically and in this NPRM, the Department has defined 
the work performed by sheep, goat and other livestock herders who tend 
to their herds and oversee them as they move from one area to another 
on the open range largely based on the care and upkeep of the animals. 
Accordingly, we propose in this NPRM to define herding as ``activities 
associated with the caring, controlling, feeding, gathering, moving, 
tending, and sorting of livestock on the open range.'' In addition, we 
propose to define the production of livestock as ``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.'' These primary duties are the same as those performed by 
livestock workers who are covered by the FLS survey. The FLS represents 
the most comprehensive survey available for wages of livestock workers, 
and it is the best available source for wage data related to livestock 
work.
    The Department has considered alternatives to adopting the FLS as 
the basis for setting herders' wages. As noted elsewhere in this NPRM, 
SWA surveys of range herders have become increasingly unreliable 
because of the small numbers of U.S. workers employed in the 
occupation. The lack of reportable data in the SWA surveys have likely 
contributed to the stagnation of wages over the last 20 years in these 
occupations, which has a prohibited adverse effect on the domestic 
labor market. As a result, the Department cannot continue to rely on 
these surveys under current conditions and fulfill its statutory 
mandate to prevent adverse effect to workers' wages and working 
conditions. In addition, for the reasons contained in the Department's 
2010 H-2A rule, the Bureau of Labor Statistics (BLS) Occupational 
Employment Statistics (OES) survey is not the preferred method for 
determining the prevailing wage for agricultural livestock workers.\16\ 
See ``Temporary Agricultural Employment of H-2A Aliens in the United 
States; Final Rule,'' 75 FR 6884, 6896-6898 (Feb. 12, 2010). Finally, 
the U.S. Census Bureau's occupational description for ``farming 
occupations'' in the American Community Survey (ACS) is not 
sufficiently disaggregated for application to herding occupations. The 
ACS provides data based on samples, and because herder occupations are 
so small, any sample would be insufficient for statistical purposes. 
Moreover, census data for herders is not available from the ACS. 
Accordingly, based on review of available data sets on which to base 
herder wages and our consideration of alternatives within the context 
of the statute's requirements, the Department proposes to adopt the FLS 
as the tool for setting the AEWR for these occupations. The Department 
seeks comment from the public on the selection of the FLS as the data 
set on which to set the AEWR for herder occupations, any alternative 
reliable and applicable data sets that may be used for this purpose, 
and the relative advantages and disadvantages of each.
---------------------------------------------------------------------------

    \16\ As we stated in the 2010 H-2A rule, 75 FR 6884, 6896 (Feb. 
12, 2010):
    The OES agricultural wage data has a number of significant 
shortcomings with respect to its accuracy as a measure of the wages 
of hired farm labor suitable to be used as the AEWR. Perhaps its 
most substantial shortcoming in this context is that the OES data do 
not include wages paid by farm employers. Data is not gathered 
directly from farmers but from non-farm establishments whose 
operations support farm production, rather than engage in farm 
production. . . . Given that the employees of non-farm 
establishments constitute a minority of the overall agricultural 
labor force, the Department has concluded that these data are 
therefore not representative of the farm labor supply and do not 
provide an appropriately representative sample for the labor engaged 
by H-2A employers.
---------------------------------------------------------------------------

    In order to set a monthly wage, as discussed earlier, the 
Department proposes to convert the hourly AEWRs based on a 44-hour 
workweek, which is intended to reflect the average hours worked per 
week over the course of the employment period in these occupations. We 
base the proposed 44-hour workweek on comments the Department received 
from both associations of industry employers and from worker advocates 
following the court's decision in Mendoza v. Perez.\17\ The worker 
advocates' letter suggested that the salary for these occupations 
should be based on a 48-hour workweek, which they offered as a 
``conservative'' estimate using employer data.\18\ Industry employers 
submitted that workers on the open range work 173.33 hours per month, 
or 40 hours per week, which they based on the Oregon court's approach 
in the Zapata settlement, discussed earlier.\19\ Therefore, the 
Department based its proposed 44-hour workweek on the average of the 
suggested 40- and 48-hour workweeks.\20\ Accordingly, the hourly AEWRs 
applicable to each State would be multiplied by 44 hours per week and 
4.333 weeks per month to arrive at the monthly AEWRs. The monthly AEWRs 
may increase or decrease each year, as the hourly AEWRs do, reflecting 
USDA survey results. The Department seeks comment on using a 44-hour 
workweek to calculate the monthly AEWRs for these occupations and 
invites

[[Page 20310]]

information about studies or expert opinion supporting alternative 
methodologies that would result in using a different workweek figure to 
compute the wage.
---------------------------------------------------------------------------

    \17\ We received a communication from Mountain Plains 
Agricultural Service, dated October 8, 2014. We also received a 
report from consultant Julie Stepanek Shiflett on behalf of three 
employer associations--Mountain Plains Agricultural Service, Western 
Range Association and the American Sheep Industry Association--dated 
October 9, 2014. Finally, we received a letter from attorney Edward 
Tuddenham on behalf of worker representatives, dated October 30, 
2014. We have placed all three submissions in the administrative 
record related to this rulemaking so that the public may review and 
comment on them.
    \18\ The data relied on by the worker advocate letter included a 
survey of range workers in Colorado that found that the majority of 
workers work over 81 hours per week. See Colorado Legal Services, 
Overworked and Underpaid, January 14, 2010, at 18 (which can be 
accessed at https://www.creighton.edu/fileadmin/user/StudentServices/MulticulturalAffairs/docs/OverworkedandUnderpaidReport.pdf. In response, the Colorado Wool 
Growers Association suggested that a typical work day for range 
workers consists of 6-8 hours of actively watching the sheep, with 
longer days of 10 hours in the spring and shorter days of 4-6 hours 
in the fall and winter, which averages to 49.5 hours per week (based 
on the seven-day workweek). Julie Stepanek Shiflett, The Real Wage 
Benefits Provided To H-2A Sheep Herders And The Economic Cost To 
Colorado Ranchers (March 2010).
    \19\ Zapata v. Western Range Association, Civ. N. 92-10-25, 244L 
(Ore. 1994).
    \20\ In its separate letter dated October 8, 2014, the Mountain 
Plains Agricultural Service submitted that herders work 4-8 hours 
per day on average. Because this suggestion encompassed a very broad 
range, which could result in hours worked per week anywhere between 
28 (4 hours x 7 days) and 56 (8 hours x 7 days), we found it 
difficult to incorporate it into our proposal. However, the average 
hours per week based on this suggested range is 42, which is very 
close to the proposed 44 hours-per-week standard.
---------------------------------------------------------------------------

    The Department proposes to phase in the new wage requirement over a 
5-year transition period. In doing so, we are striking a balance 
between the competing goals of the statute, as discussed earlier, that 
require us to foster an adequate labor supply and protect U.S. workers. 
Rogers v. Larson, 563 F.2d at 626; Brock, 923 F.2d at 187. The new wage 
methodology will begin to address immediately the stagnation concerns 
discussed earlier. A phase-in also recognizes that the full wage 
increase in a single year could lead to significant disruptions that 
might cause job losses that could be avoided by a gradual 
implementation period. In ensuring that prevailing wage is set at a 
level where it will not have adverse effect, it is appropriate for the 
Department to consider whether a significantly higher wage can 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. This proposed rule will eventually 
result in wage increases of greater than one hundred percent to many 
employers. Given the long history of employers paying a substantially 
lower wage rate than would be required at the end of the phase-in 
period under this proposed rule, the Department proposes to set the 
monthly AEWR initially at 60 percent of the monthly AEWR calculated 
using the proposed methodology, with incremental increases over the 5-
year period following implementation. This proposal is intended to 
ensure that this rule will not have adverse effect on U.S. workers due 
to significant job losses. As reflected in the projection charts below, 
during the first year, employers filing under Subpart C would be 
subject to monthly AEWRs that are 60 percent of the current USDA hourly 
AEWRs converted to a monthly rate. Each year thereafter until 2020, the 
monthly AEWRs applicable to these employers would increase by 10 
percent (i.e., 70 percent in 2017; 80 percent in 2018; 90 percent in 
2019). Beginning in 2020, the monthly AEWR applicable to the 
occupations covered under Subpart C would be 100 percent of that year's 
hourly regional AEWR converted into a monthly rate by multiplying it by 
44 hours per week and 4.333 weeks per month.
    Wages in Year One will make a significant impact on wage 
stagnation, and subsequent years will continue to do so. By 2020, the 
Department anticipates this methodology will have addressed wage 
stagnation concerns fully. The Department invites comment on other 
options for determining the monthly AEWRs for these occupations, 
including other options for phasing in the new methodology.
    Finally, the Department is proposing that an employer must offer 
and pay at least the monthly AEWR established using the adopted wage-
setting methodology, unless another applicable wage source reflects a 
higher threshold wage rate. Specifically, if one of the following wage 
sources reflects a higher wage rate requirement for the occupation than 
the monthly AEWR, then the Department proposes the employer must offer 
and pay at least that wage rate: (1) Specified in an agreed-upon 
collective bargaining agreement; or (2) imposed by Federal or State law 
or judicial action. The current TEGLs establish that the prevailing 
wage is the required wage unless there is a State occupation-specific 
wage rate for sheepherders; no additional wage obligation is imposed on 
the open range employers. The Department has developed these limited 
exceptions to account for increases that have occurred in States as a 
matter of legislative or judicial action. The Department has also opted 
to account for collective bargaining to permit a higher wage rate 
requirement where such an agreement exists. Accordingly, the Department 
proposes that the monthly AEWR determination will be the employer's 
minimum wage requirement, unless a CBA wage rate or State law or 
judicially required rate for the occupation is higher.
    As always, an employer may choose to offer and pay more than the 
minimum required. The proposed methodology described in this provision 
is intended to set a more appropriate minimum wage requirement for 
employers seeking temporary open range workers through the H-2A program 
while preventing wage stagnation or regression.
    The Department seeks comment on all aspects of the new wage 
methodology for these occupations. In particular, we seek comment on 
the proposal to combine open range herding and livestock production 
into one wage-setting structure, which is predicated on the similarity 
of the job duties, the nature of the activities, the location and the 
conditions under which the activities are performed, and the isolated, 
on-call nature of the employment. In addition, we particularly seek 
comment on the proposed wage setting method used to establish a monthly 
AEWR for these occupations, which, when implemented, will determine the 
minimum wage an employer must offer, free and clear, without altering 
other benefits, wages, and working condition obligations (e.g., 
provision of housing without charge or deposit charge) applicable to 
these occupations.

D. Variances From Filing, Processing, and Post-Acceptance Procedures

1. Sec.  655.215 Variances From Filing Procedures
    The Department proposes to continue to require employers (whether 
an individual, an association, or an H-2A Labor Contractor) seeking 
workers in open range production of livestock and herding occupations 
to include an attachment listing the locations, estimated start and end 
dates, and, if applicable, names for each farmer/rancher where work 
will be performed under the job order when filing an Application for 
Temporary Employment Certification. The locations should be identified 
with as much 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 Department proposes to continue to allow employers or employer 
associations engaged in open range herding and livestock production to 
file applications and job orders covering work locations in multiple 
areas of intended employment and within one or more States.\21\ This 
approach is warranted by the unique nature of the herding or production 
of livestock on the open range, particularly the transient nature of 
herding or livestock operations, often covering many hundreds of miles. 
In addition, the Department proposes to continue to allow an 
association of agricultural employers filing a master application as a 
joint employer to identify different dates of need for each of its 
employer-members on the application and job order.\22\ Unless a 
modification to the job order is required by the CO or requested by the 
employer under 20 CFR 655.121(e), the association with

[[Page 20311]]

sheepherding or goat herding positions will not need to resubmit its 
job order during the calendar year.
---------------------------------------------------------------------------

    \21\ This would continue the current practice that permits a 
variance from the geographic scope limitations of 20 CFR 655.132(a) 
for H-2ALCs engaged in open range herding and livestock production, 
and from 20 CFR 655.131(b) for master applications that include 
worksites in more than two contiguous States.
    \22\ The current guidance provides this variance from the date 
of need requirement in 20 CFR 655.131(b).
---------------------------------------------------------------------------

    Finally, consistent with 20 CFR 655.103(d) and the history of 
herding, under the proposal, the total period of need that an employer 
seeking temporary labor certification for herding on the open range is 
permitted to state on the application and job order must be no longer 
than 364 days. The Department seeks comments regarding the temporary 
and seasonal nature of the work, including the amount of time spent on 
the open range during a year. The recognition of sheep and goat herding 
work on the open range has resulted from decades of past practices and 
draws upon the unique characteristics of the work that cannot be 
completely addressed within the generally applicable regulatory 
definition of temporary need; however, the Department seeks comments 
regarding whether the unique characteristics of the work exist year-
round. The Department's long standing special procedures that allow 
sheep or goat herding employers to participate in the H-2A program with 
a total period of need lasting up to 364 calendar days have their 
origins in prior statutory provisions from the 1950s, see, supra, Sec. 
I.A. However, the Department is considering whether to modify this 
approach if evidence shows that the unique characteristics of sheep or 
goat herding on the open range do not exist for the entire period of 
the job order. The issuance of temporary labor certifications in this 
manner to employers engaged in sheep or goat herding on the open range 
has historically been based on the idea that the work is unique and, 
thus, has recognized the peculiarities of the industry and work 
involved. Thus, as we stated in Section II.A.1, we are seeking 
information on the seasonal nature as well as the duration of sheep and 
goat herding.
    The proposal retains the 364-day duration of need in sheep and goat 
herding on the open range and does not expand this approach to 
applications for temporary open range livestock production occupations, 
for which an employer must continue to demonstrate a temporary need 
period of not more than 10 months. Despite similarities between herding 
and livestock production occupations performed on the open range, 
experience processing applications indicates that open range production 
of livestock involves distinct temporary positions at different times 
of the year. In any case, range livestock employers have been able to 
operate successfully without needing this unique benefit for many 
years. See, e.g., In the Matter of Vermillion Ranch Limited 
Partnership, 2014-TLC-00002 (Dec. 5, 2013). As discussed in Vermillion, 
open range livestock employers may require separate temporary labor 
certifications for different time periods of the year to accurately 
reflect the distinct seasonal labor needs of the employer. 2014-TLC-
00002, at *9-10. The Department seeks comments as to whether sheep and 
goat herding similarly involves distinct temporary positions at 
different times of the year and should require more than one 
certification to match the various phases of the herding cycle to 
reflect temporary need under the INA. In addition, if separate 
certifications are required, should herding and open range livestock 
production employers be required to pay the hourly AEWR, as under the 
regular H-2A requirements, for temporary labor certifications covering 
time periods at a location other than the open range (i.e., ranch or 
farm)?
2. Sec.  655.220 Variance From Processing Procedures
    This section contains the only variances the Department proposes to 
make from the general filing procedures in Subpart B for eligible 
employers seeking workers in open range production of livestock and 
herding 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. The Department is proposing that 
under Sec.  655.220, when the CO determines that an application and job 
order meet all regulatory requirements, the CO will notify the employer 
and transmit a copy of the job order to any one of the SWAs with 
jurisdiction over the anticipated worksites so that recruitment can 
begin. Where an association of agricultural employers files a master 
application as a joint employer and submits a single job order on 
behalf of its employer-members, the CO will transmit the copy of the 
job order to the SWA with jurisdiction over the association's location. 
The CO's notification will also direct the SWA receiving the job order 
copy to place the job order promptly in intrastate and interstate 
clearance, including forwarding the applications to all States where 
work will be performed.
    Consistent with the OFLC's handling of 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 
Department proposes that it will keep the job order posted on the 
OFLC's electronic job registry until 50 percent of the work contract 
period has elapsed for all employer-members identified on the job order 
(i.e., the 50 percent period will be measured based on the employer-
member with the last date of need). Since these job orders involve 
employer-members with different dates of need, each with its own 50 
percent mark, this provision provides greater clarity for associations 
filing as joint employers with respect to the period the job order will 
appear on the electronic job registry.
3. Sec.  655.225 Variances From Post-Acceptance Procedures
    The Department is proposing to continue for sheep and goat herding 
occupations and expand to open range livestock production the practice 
under the TEGLs of waiving the requirement for placement of an 
advertisement on two separate days in a newspaper of general 
circulation as provided under 20 CFR 655.151. Because both open 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 and ineffective for recruiting domestic workers for these 
types of job opportunities.
    Consistent with the OFLC's handling of 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 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, with this proposed 
rule codifying the association's 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 rule clarifies 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.

E. Mobile Housing

1. Sec.  655.230 Use of Mobile Housing
    Employers covered under this Subpart may use mobile housing for 
open range herding and livestock production job

[[Page 20312]]

opportunities, as provision of non-mobile housing is not practicable 
due to the remote locations of the work or terrain. Currently, there 
are no specific Department of Labor Occupational Safety and Health 
Administration (OSHA) standards for worker housing on the open range. 
OSHA's rules for temporary labor camps under 29 CFR 1910.142 are 
applicable only to workers housed in fixed structures or units. 
Similarly, the Department's rules for housing temporary agricultural 
workers under 20 CFR part 654, subpart E (published in the Federal 
Register on March 4, 1980) are only applicable to fixed structures or 
units and refer back to the OSHA standards in 29 CFR 1910.142 for 
employer-provided housing for agricultural workers. However, 29 CFR 
654.400(b) requires mobile housing on the open range to ``meet existing 
Departmental guidelines.'' The Department is proposing to codify these 
guidelines in Sec.  655.235.
    Since the mobile housing is often located in remote or isolated 
areas and is moved frequently, often covering hundreds of miles, the 
Department proposes continuing its long-standing practice of requiring 
the SWA to schedule and conduct an inspection of the employer's mobile 
housing no less frequently than once every 3 years (i.e., 36 months). 
Based on that inspection, the SWA must provide a certification to the 
employer for a period lasting no more than 36 months. During the 
validity period of the SWA's housing certification, the Department will 
continue to allow employers to self-certify on each new application for 
certification that its mobile housing continues to meet the guidelines 
in Sec.  655.235. To self-certify the employer must submit a copy of 
the SWA's valid housing certification along with a written statement, 
signed and dated by the employer, assuring the SWA and NPC that the 
employer's mobile housing continues to comply with all the applicable 
standards for mobile housing. The NPC may deny the H-2A application in 
situations where the certification provided by the SWA has expired or 
the housing does not meet all the applicable standards.
    There are times when the mobile housing is temporarily located at 
or near the ranch or farm (or a similar central location) that has 
fixed housing for workers for certain operations that are a normal part 
of the herding cycle, such as birthing, shearing, or branding, and for 
minor, sporadic, and incidental work within the open range worker's 
duties. The Department acknowledges that the mobile housing may in such 
instances continue to be used, or even be preferred, by workers, even 
where access to fixed housing exists. In situations in which the 
workers are temporarily stationed at or near the ranch or farm 
(reasonably able to return to it each night), the Department proposes 
that employers do not need to maintain full fixed-site housing for open 
range workers, but must provide access when employees are at the ranch 
to toilets, kitchens, and cleaning facilities for both person and 
clothing, including showers with hot and cold water under pressure. 
Where workers are temporarily located in employer-provided fixed-site 
housing at the ranch site, rather than remaining in the worker's mobile 
unit, such fixed-site housing must meet the standards applicable to 
such housing under 20 CFR 655.122(d). The Department invites comments 
about whether the employer must provide the worker a second sleeping 
facility in a fixed-site housing unit at the ranch or farm or other 
central location whenever the worker is located there.
2. Sec.  655.235 Standards for Mobile Housing
    The NPRM, in large measure, proposes to codify the minimum 
standards historically applied by the Department to mobile housing. 
These standards are generally consistent with the housing rules for 
temporary agricultural workers published under 20 CFR part 654, subpart 
E, but contain adaptations due to the unique circumstances of mobile 
housing. Because mobile housing for herders requires frequent movement 
to remote or isolated sites on the open range and must accommodate a 
very small number of workers, the current housing rules for temporary 
agricultural workers must be modified. For example, although the 
Department requires that mobile housing sites be well drained and free 
from depressions in which water may stagnate, the existing rules under 
20 CFR 655.404(c)-(d) concerning the controlling of noxious plants and 
uncontrolled weeds or brush, as well as provision of space for 
recreation related to the size of the facility and type of occupancy, 
cannot practically be enforced due to the topography of the open range 
and highly mobile nature of the housing. Similarly, although the 
standards for water supply are consistent with those outlined under 20 
CFR 654.405(a) and (c), the requirement under 20 CFR 654.405(b) 
concerning the provision of a cold water tap within 100 feet of each 
individual living unit is not feasible due to the remote and highly 
mobile nature of the housing units. Finally, the Department proposes 
guidelines clarifying that, in situations where workers are located in 
rough or mountainous terrain or where land use regulations may not 
permit the use of certain kinds of mobile housing, tents may be used as 
a temporary housing option where the worker's health and safety will 
not be impaired.
    The proposed rule also addresses health and safety concerns for 
workers living in the mobile housing. Workers must be able to escape 
from the mobile housing in an emergency, such as a fire. As electricity 
is not available in open range areas, alternative heating, lighting, 
and refrigeration or food preservation options are necessary. The 
Department invites comments related to safe and effective heating and 
lighting options for open range housing as well as refuse disposal 
methods that will avoid attracting wildlife. Further, the Department 
invites comments on food and food preservation options in keeping with 
food safety and nutrition concerns.
    The Department proposes that each worker must have a separate bed, 
cot, or bunk with a clean mattress. The Department recognizes, however, 
that an employer must occasionally send a second worker to a remote 
open range location where only one, single-capacity mobile housing unit 
is located, and that bringing a second mobile housing unit or tent may 
not be feasible or appropriate. The second worker may be replacing the 
first worker, for example, and a short transition time may be necessary 
during which the workers will share the single-occupancy mobile housing 
unit. In those cases, the proposed rule codifies the Department's 
intent to limit the duration of the shared occupancy situation to no 
more than three consecutive days. Further, the rule proposes continuing 
the current requirement that, in such a temporary situation, each 
worker must have a separate bed or bedding (e.g., sleeping bag).
    The Department is expanding upon the current standards in a number 
of areas. For example, the Department is proposing that the employer 
provide the workers with water in quantities sufficient for basic 
cooking, consumption, cleaning, laundry and bathing requirements.\23\ 
In WHD investigations, the Department has found employers who do not 
provide water at all times, and employees who

[[Page 20313]]

were forced to melt snow for drinking water. The water to be used for 
cooking and consumption must be potable or easily rendered potable and 
the employee must be provided with the means to do so. 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. This 
definition mirrors the OSHA field sanitation regulations that define 
potable water for agricultural establishments, 29 CFR 1928.110. The 
supply of potable water must also be readily available in order to 
ensure that the water is available for cooking and consumption when 
needed by the worker. OSHA requires that drinking water must always be 
available in amounts needed for satisfying thirst, cooling, waste 
elimination, and metabolism. Occupational Safety and Health 
Administration, Field Sanitation, 52 FR 16050, 16087 (May 1, 1987). The 
Department is also proposing that the employer provide individual 
drinking cups.
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    \23\ Current requirements mandate the provision of sufficient 
water for cooking, drinking and bathing. Therefore, the proposal 
represents a modest expansion of the existing requirements by adding 
the obligation to supply water sufficient for cleaning and laundry 
as well.
---------------------------------------------------------------------------

    The Department invites comments on the amount of water needed for 
each worker for these purposes. The Department further seeks comment on 
how much of the water should be potable (or easily rendered potable) 
for cooking and consumption and how much water is sufficient for 
cleaning, laundry, and bathing requirements.
    When exigent circumstances make transporting water to remote 
locations temporarily impossible, the employer must identify an 
alternative water supply and methods for making water obtained from 
alternate supplies potable. The employer must provide the employee with 
the appropriate means for making the water potable. The Department 
seeks comment on what alternative water supplies may be used when 
exigent circumstances preclude the employer from transporting water to 
the worker, as well as what means are available to make alternate water 
sources potable for cooking and consumption.
    The Department is aware that these rules may involve additional 
expense of providing a sufficient supply of potable water (or water 
easily rendered potable), but concludes that any additional expense is 
justified fully given the necessity of making drinkable water available 
for a vulnerable worker population performing physical labor outdoors, 
sometimes in extreme weather conditions.
    In sum, the Department is proposing to maintain most of the 
existing requirements that have governed mobile housing for workers 
engaged in herding and the open range production of livestock for many 
years. The Department invites comments on all aspects of the standards 
for mobile housing on the open range as well as appropriate standards 
for tents, including size, material, accessories (e.g., rainfly and 
ground cover), and related sleeping units (e.g., thermal sleeping pad 
and type of sleeping bag).

III. 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.
    The proposed rule is a significant regulatory action under sec. 
3(f) of E.O. 12866.
    The economic effects of the costs and transfers that would result 
from the changes in this proposed 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 proposed wage setting methodology, which would be 
phased in over a 5-year period. This proposal will result in average 
annual transfers from employers to employees due to increased wages of 
$45.08 million between 2016 and 2025, which includes a 5-year phase-in 
period from 2016 through 2020.\24\ For those employers engaged in open 
range production of livestock other than sheep and goat herding, the 
proposed rule requires employers to provide food or meals, free of 
charge, to workers at an average annual cost of $1.74 million. The 
special procedures guidance currently in place for open range 
production of livestock and sheepherding/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 proposed rule expands the 
required water supply by including water for cleaning and laundry. In 
addition, the proposed rule requires that the water used for drinking 
and cooking be potable or easily rendered potable. The additional costs 
on employers resulting from this proposed rule include those involved 
in the provision of water for laundry and cleaning. The average 
additional annual cost for the employers to provide this water is $2.97 
million, which includes the cost of the potable water, utility 
trailers, vehicle mileage, and labor to deliver the water and food to 
workers.\25\ The proposed rule 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

[[Page 20314]]

existing cooking facilities will accommodate the requirement, the 
anticipated average annual cost to employers for costs related to the 
provision of cleaning facilities is $0.36 million. Finally, the cost 
for the time required to read and review the proposed rule is $0.01 
million per year. Therefore, the average annual cost of the proposed 
rule is $5.08 million. The proposed rule involves some cost reductions 
for employers, primarily for those who will no longer be required to 
place newspaper advertisements, which range from $0.09 million to $0.11 
million per year.
---------------------------------------------------------------------------

    \24\ To estimate the new wage rates, the Department first 
calculates the annual percent change in each USDA region's average 
hourly AEWR for each year from 2009 to 2015. We then take the 
averages of the resulting six values to estimate the average annual 
percent changes by USDA region. Using each USDA region's average 
annual percent change, we forecast the hourly AEWR from 2016 to 2025 
for each USDA region. This methodology is described in detail in 
Section 4: Subject-by-Subject Analysis.
    \25\ The estimate of $2.97 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.
---------------------------------------------------------------------------

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 open 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 D.C. 
Circuit reversed the district court's dismissal and held that the 
Department's TEGLs containing special procedures for herding and 
production of livestock occupations on the open 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 D.C. Circuit. The lawsuit, however, is only one of the 
reasons for the promulgation of this Notice of Proposed Rulemaking 
(NPRM). 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 three 
years by approximately 10 States located in the mountain plains/western 
regions of the United States, all of the SWAs reported a combined total 
of only 30 (FY 2012), 26 (FY 2013), and 18 (FY 2014) 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 AEWR for these 
unique occupations that adequately protects U.S. and H-2A workers in 
these occupations. In addition, DOL 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 (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 DOL's 
charges against employer for multiple violations, including lack of 
adequate housing).
2. Regulatory Alternatives
    The Department has considered three alternatives: (1) To make the 
policy changes contained in the proposed rule in which the wage 
determination is based on forecasted AEWR values by U.S. Department of 
Agriculture (USDA) region, which are incrementally phased in over five 
years; (2) to make the same proposed policy changes contained in the 
proposed rule in which the wage determination is based on forecasted 
AEWR values by USDA region, which are incrementally phased in over 
three years; or (3) to make the policy changes contained in the 
proposed rule in which the wage determination is based on forecasted 
AEWR values by USDA region, which do not utilize a phase-in schedule. 
The Department believes that the first alternative--making the policy 
changes contained in the proposed rule using the wage based on 
forecasted AEWR values by USDA region phased in over five years--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 stagnation concerns discussed earlier. A phase-in also recognizes 
that the full wage increase in a single year could lead to significant 
disruptions that might cause job losses that could be avoided by a 
gradual implementation period. In ensuring that prevailing wage is set 
at a level where it will not have adverse effect, it is appropriate for 
the Department to consider whether a significantly higher wage can 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. This proposed rule will eventually 
result in wage increases of greater than 100 percent to many employers. 
Given the long history of employers paying a substantially lower wage 
rate than would be required at the end of the phase-in period, under 
this proposed rule the Department proposes to set the monthly AEWR 
initially at 60 percent of the monthly AEWR calculated using the 
proposed methodology, with incremental increases over the 5-year period 
following implementation. This proposal is intended to ensure that this 
rule will not have adverse effect on U.S. workers due to significant 
job losses. The Department invites comments from the public on these 
and other possible alternatives to consider with the goal of ensuring 
that the Final Rule best enables the Department to fulfill its 
statutory mandate.
3. Economic Analysis
    The economic analysis presented below covers herding and open range 
livestock production occupations. The Department's economic analysis 
under this Part (III.A) is strictly limited to meeting the requirements 
under Executive Orders 12866 and 13563. The

[[Page 20315]]

Department did not use the economic analysis under this Part (III.A) 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 (III.A) as a relevant factor relating to any 
requirement under the Administrative Procedure Act, or any case 
interpreting the requirements under the Administrative Procedure Act.
    The Department derives its estimates by comparing the baseline, 
that is, the program benefits and costs under the 2010 Final Rule and 
Training and Employment Guidance Letters (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 
implementation of provisions contained in the proposed rule. We explain 
how the required actions of employers in herding and open range 
livestock production occupations are linked to the expected impacts of 
the proposed rule.
    The Department has quantified and monetized the impacts of the 
proposed 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.\26\ When summarizing the benefits, 
costs, or transfers resulting from specific provisions of the proposed 
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.
---------------------------------------------------------------------------

    \26\ For the purposes of the cost-benefit analysis, the 10-year 
period starts on October 1, 2015.
---------------------------------------------------------------------------

    In the remaining sections, the Department first presents a subject-
by-subject analysis of the impacts of the proposed rule. We then 
present a summary of the costs and transfers of the proposed rule, 
including total impacts over the 10-year analysis period.
4. Subject-by-Subject Analysis
    The Department's analysis below considers the expected impacts of 
the following provisions of the proposed 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 open 
range); (b) the new methodology for determining the wages of workers; 
(c) 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) earnings 
records; and (m) time to read and review the rule.
    For each of these subjects, 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 proposed 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 production 
of livestock on the open range. The proposed 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 open 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 
any additional duties above and beyond the production of livestock must 
be minor, sporadic, and incidental to the herding or production of 
livestock, i.e. closely and directly related to herding and the 
production of livestock and be performed on no more than 20 percent of 
the workdays spent at the ranch in a work contract period. The proposed 
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 proposed rule states 
that the work activities must also generally require the workers to be 
on call 24 hours per day, 7 days per week. In addition, the work 
performed in the open range must require the use of mobile housing 
because the worker is not reasonably able to return to his or her place 
of residence or the employer-provided fixed-site housing within the 
same day. However, as discussed previously, the Department is 
requesting comments regarding the length of time and nature of work 
performed while at the ranch and whether the ranch work duties should 
be considered a separate and distinct job from the open range duties, 
requiring a separate job order.
i. Costs
    This change represents a cost to herding and open range livestock 
production employers that have had or will have workers at the ranch 
for more than 50 percent of the contracted workdays or have had workers 
perform minor, sporadic, and incidental duties on more than 20 percent 
of the contracted workdays spent at the ranch. These employers will be 
excluded from applying for workers pursuant to the special procedures 
in subpart C unless they commit to complying with the proposed 
percentage limitations for such workers. 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 
typical cycles for months spent on the range. Further, the Department 
cannot predict the adjustments of employers in response to the 20 
percent cap. The Department anticipates that it is likely that affected 
employers will adjust their practices so that minor, sporadic, and 
incidental work performed at the employer's fixed-site ranch will be 
equal to or less than the 20 percent cap. However, as discussed 
previously, the Department is requesting comments regarding the length 
of time and nature of work performed while at the ranch and whether the 
ranch work duties should be considered a separate and distinct job from 
the open range duties, requiring a separate job order. Also, the 
Department invites comments regarding possible data sources that could 
be used to estimate this cost.
b. New Methodology for Determining the Wages of Workers
    The proposed rule changes the methodology for determining the 
required wages of herding and open range livestock production workers. 
The Department proposes for both sets of occupations to establish the 
required wage by using forecasted AEWR values

[[Page 20316]]

by USDA region, and incrementally phasing the wages in over the first 
five years of the analysis period. The Department considered two other 
alternatives: Using forecasted AEWR values by USDA region, which are 
incrementally phased in over the first three years of the analysis 
period; and using forecasted AEWR values by USDA region that do not 
utilize a phase-in schedule. The Department analyzes these alternatives 
relative to the baseline--the monthly AEWR for FY 2014--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 44 hours and 
4.333 weeks. Exhibit 1 presents the baseline wages by State.

                                 Exhibit 1--Baseline Wage--FY 2014 Monthly AEWR
                                                  [Hourly AEWR]
----------------------------------------------------------------------------------------------------------------
                                                                                          Required wage for open
                             State                              Required wage for sheep      range livestock
                                                                    and goat herders        production workers
----------------------------------------------------------------------------------------------------------------
AL............................................................          $750.00 ($3.93)                      N/A
AZ............................................................          $750.00 ($3.93)                      N/A
AR............................................................          $750.00 ($3.93)                      N/A
CA............................................................        $1,600.34 ($8.39)                      N/A
CO............................................................          $750.00 ($3.93)          $875.00 ($4.59)
HI............................................................        $1,422.52 ($7.46)                      N/A
ID............................................................          $750.00 ($3.93)          $875.00 ($4.59)
MO............................................................          $750.00 ($3.93)                      N/A
MT............................................................          $750.00 ($3.93)          $875.00 ($4.59)
NM............................................................          $750.00 ($3.93)          $875.00 ($4.59)
NV............................................................          $800.00 ($4.20)          $875.00 ($4.59)
ND............................................................                      N/A          $875.00 ($4.59)
OK............................................................          $750.00 ($3.93)                      N/A
OR............................................................        $1,227.67 ($6.44)          $875.00 ($4.59)
SD............................................................          $750.00 ($3.93)          $875.00 ($4.59)
TX............................................................          $750.00 ($3.93)          $875.00 ($4.59)
UT............................................................          $750.00 ($3.93)          $875.00 ($4.59)
WA............................................................          $750.00 ($3.93)                      N/A
WY............................................................          $750.00 ($3.93)          $875.00 ($4.59)
----------------------------------------------------------------------------------------------------------------

    Exhibit 2 presents the number and percentage of goat/sheepherding 
and open range livestock production employers 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 FY 2012 H-2A 
certification dataset.\27\ Note that each employer is counted once for 
each State for which the employer applied for workers; some employers 
applied for workers in multiple States. Hence, Exhibit 2 overstates the 
number of employers participating in the H-2A herder and open range 
livestock program. As Exhibit 2 illustrates, sheep and goat herders are 
most heavily concentrated in California, Utah, and Colorado, while open 
range livestock production workers are most heavily concentrated in 
Colorado, Texas, Utah, and Wyoming.
---------------------------------------------------------------------------

    \27\ The FY 2012 certification dataset provides the most recent 
data available in a useable form. Data from FY 2013 was not 
available in a useable form due to the Department's settlement of 
litigation regarding prevailing wages during FY 2013:Q1 where the 
wage offers for many employers certified for H-2A open range workers 
changed post-certification and, therefore, the existing 
administrative did not accurately reflect the actual wage offers for 
purposes of conducting the analysis. Data for FY 2014 was not yet 
available in a useable form at the time the analysis was conducted.

                   Exhibit 2--Number and Percentage of H-2A Employers by Occupation and State
----------------------------------------------------------------------------------------------------------------
                                                                                  Number of open    Percent of
                                                     Number of      Percent of         range        open range
                      State                       sheep and goat  sheep and goat     livestock       livestock
                                                      herder          herder        production      production
                                                     employers       employers       employers       employers
----------------------------------------------------------------------------------------------------------------
AL..............................................               2             0.4  ..............  ..............
AZ..............................................              50            10.0  ..............  ..............
AR..............................................              46             9.2  ..............  ..............
CA..............................................              91            18.2  ..............  ..............
CO..............................................              66            13.2              37            30.6
HI..............................................               2             0.4  ..............  ..............
ID..............................................              43             8.6               5             4.1
MO..............................................               1             0.2  ..............  ..............
MT..............................................              25             5.0               7             5.8
NM..............................................  ..............  ..............               1             0.8
NV..............................................               1             0.2               1             0.8
ND..............................................              27             5.4               1             0.8
OK..............................................               3             0.6  ..............  ..............
OR..............................................              15             3.0               1             0.8
SD..............................................               4             0.8               1             0.8
TX..............................................              10             2.0              25            20.7

[[Page 20317]]

 
UT..............................................              71            14.2              22            18.2
WA..............................................               4             0.8  ..............  ..............
WY..............................................              38             7.6              20            16.5
                                                 ---------------------------------------------------------------
    Total.......................................             499             100             121             100
----------------------------------------------------------------------------------------------------------------
Note: The total number of employers by State (620) exceeds the number of actual employers participating in the H-
  2A herder and open range livestock program (517). This discrepancy is due to some employers submitting
  applications for certified H-2A workers in multiple States.

1. AEWR Values Incrementally Phased In Over Five Years
    To estimate the new wage rates, the Department first calculates the 
annual percent change in each USDA region's average hourly AEWR for 
each year from 2009 to 2015. We then take the averages of the resulting 
six values to estimate the average annual percent changes by USDA 
region. Using each USDA region's average annual percent change, we 
forecast the hourly AEWR for the 5-year phase-in period from 2016 to 
2020 for each USDA region. Using the Southeast region as an example, 
the average annual percent change over the six years is 2.2 percent. 
The Department applies the 2.2 percent growth rate to the 2015 hourly 
AEWR to obtain the forecasted 2016 hourly AEWR ($10.00 x 1.022 = 
$10.22). We then apply the same 2.2 percent growth rate to the 
forecasted 2016 hourly AEWR to forecast the 2017 hourly AEWR ($10.22 x 
1.022 = $10.44). We repeat this calculation to forecast the hourly 
AEWRs for the remaining years in the analysis period. Exhibit 3 
presents the actual and forecasted hourly AEWRs for each USDA region.

                                              Exhibit 3--Actual and Forecasted Hourly AEWRs by USDA Region
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                    Actual average hourly AEWR                                      Forecasted hourly AEWR
  USDA Survey region (state)  --------------------------------------------------------------------------------------------------------------------------
                                 2009      2010      2011      2012      2013      2014      2015      2016      2017      2018      2019     2020-2025
--------------------------------------------------------------------------------------------------------------------------------------------------------
Southeast (AL)...............     $8.77     $9.11     $9.12     $9.39     $9.78    $10.00    $10.00    $10.22    $10.44    $10.67    $10.91       $11.15
                                                                                                    ----------------------------------------------------
    Annual Percent Change....  ........     3.90%     0.10%     3.00%     4.20%     2.20%     0.00%  Forecasted hourly AEWR calculated using the average
                                                                                                                annual percent change of 2.2%
                                                                                                    ----------------------------------------------------
Cornbelt II (MO).............    $10.77    $10.86    $11.03    $11.50    $11.41    $12.22    $12.62    $12.96    $13.31    $13.67    $14.04       $14.42
                                                                                                    ----------------------------------------------------
    Annual Percent Change....  ........     0.80%     1.60%     4.30%    -0.80%     7.10%     3.30%  Forecasted hourly AEWR calculated using the average
                                                                                                                annual percent change of 2.7%
                                                                                                    ----------------------------------------------------
Delta (AR)...................     $8.92     $9.10     $8.97     $9.30     $9.50     $9.87    $10.18    $10.40    $10.63    $10.87    $11.11       $11.35
                                                                                                    ----------------------------------------------------
    Annual Percent Change....  ........     2.00%    -1.40%     3.70%     2.20%     3.90%     3.10%  Forecasted hourly AEWR calculated using the average
                                                                                                                annual percent change of 2.2%
                                                                                                    ----------------------------------------------------
Northern Plains (KS, NE, ND,     $10.39    $10.66    $11.52    $11.61    $12.33    $13.41    $13.59    $14.22    $14.87    $15.55    $16.27       $17.02
 SD).........................
                                                                                                    ----------------------------------------------------
    Annual Percent Change....  ........     2.60%     8.10%     0.80%     6.20%     8.80%     1.30%  Forecasted hourly AEWR calculated using the average
                                                                                                                annual percent change of 4.6%
                                                                                                    ----------------------------------------------------
Southern Plains (OK, TX).....     $9.27     $9.78     $9.65     $9.88    $10.18    $10.86    $10.35    $10.55    $10.75    $10.95    $11.16       $11.37
                                                                                                    ----------------------------------------------------
    Annual Percent Change....  ........     5.50%    -1.30%     2.40%     3.00%     6.70%    -4.70%  Forecasted hourly AEWR calculated using the average
                                                                                                                annual percent change of 1.9%
                                                                                                    ----------------------------------------------------
Mountain I (ID, MT, WY)......     $9.64     $9.90     $9.90    $10.19     $9.99    $10.69    $11.14    $11.42    $11.70    $12.00    $12.30       $12.60
                                                                                                    ----------------------------------------------------
    Annual Percent Change....  ........     2.70%     0.00%     2.90%    -2.00%     7.00%     4.20%  Forecasted hourly AEWR calculated using the average
                                                                                                                annual percent change of 2.5%
                                                                                                    ----------------------------------------------------
Mountain II (CO, NV, UT).....     $9.88    $10.06    $10.48    $10.43    $10.08    $10.89    $11.37    $11.64    $11.92    $12.21    $12.50       $12.80
                                                                                                    ----------------------------------------------------
    Annual Percent Change....  ........     1.80%     4.20%    -0.50%    -3.40%     8.00%     4.40%  Forecasted hourly AEWR calculated using the average
                                                                                                                annual percent change of 2.4%
                                                                                                    ----------------------------------------------------
Mountain III (AZ, NM)........     $9.82     $9.71     $9.60     $9.94     $9.73     $9.97    $10.54    $10.67    $10.79    $10.92    $11.06       $11.19
                                                                                                    ----------------------------------------------------
    Annual Percent Change....  ........    -1.10%    -1.10%     3.50%    -2.10%     2.50%     5.70%  Forecasted hourly AEWR calculated using the average
                                                                                                                annual percent change of 1.2%
                                                                                                    ----------------------------------------------------
Pacific (OR, WA).............    $10.12    $10.85    $10.60    $10.92    $12.00    $11.87    $12.42    $12.87    $13.33    $13.81    $14.31       $14.82
                                                                                                    ----------------------------------------------------
    Annual Percent Change....  ........     7.20%    -2.30%     3.00%     9.90%    -1.10%     4.60%  Forecasted hourly AEWR calculated using the average
                                                                                                                annual percent change of 3.6%
                                                                                                    ----------------------------------------------------
California...................    $10.16    $10.25    $10.31    $10.24    $10.74    $11.01    $11.33    $11.53    $11.74    $11.95    $12.17       $12.39
                                                                                                    ----------------------------------------------------
    Annual Percent Change....  ........     0.90%     0.60%    -0.70%     4.90%     2.50%     2.90%  Forecasted hourly AEWR calculated using the average
                                                                                                                annual percent change of 1.8%
                                                                                                    ----------------------------------------------------
Hawaii.......................    $11.06    $11.45    $12.01    $12.26    $12.72    $12.91    $12.98    $13.33    $13.69    $14.06    $14.44       $14.83
                                                                                                    ----------------------------------------------------
    Annual Percent Change....  ........     3.50%     4.90%     2.10%     3.80%     1.50%     0.50%  Forecasted hourly AEWR calculated using the average
                                                                                                                annual percent change of 2.7%
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 20318]]

    The new wage rate determination methodology would be implemented 
over the first five years of the proposed rule. The Department 
estimates each region's hourly wage rate for each year of the analysis 
period as follows:

         Exhibit 4--Wage Rate Phasing Schedule for Alternative 1
------------------------------------------------------------------------
               Year                          Wage rate estimate
------------------------------------------------------------------------
2016.............................  60 percent of the forecasted 2016
                                    AEWR.
2017.............................  70 percent of the forecasted 2017
                                    AEWR.
2018.............................  80 percent of the forecasted 2018
                                    AEWR.
2019.............................  90 percent of the forecasted 2019
                                    AEWR.
2020.............................  100 percent of the forecasted 2020
                                    AEWR.
2021.............................  100 percent of the forecasted 2021
                                    AEWR.
2022.............................  100 percent of the forecasted 2022
                                    AEWR.
2023.............................  100 percent of the forecasted 2023
                                    AEWR.
2024.............................  100 percent of the forecasted 2024
                                    AEWR.
2025.............................  100 percent of the forecasted 2025
                                    AEWR.
------------------------------------------------------------------------

    Exhibit 5 presents the phased-in forecasted hourly AEWRs for each 
USDA region under Alternative 1--the proposed 5-year phase-in.

                                        Exhibit 5--Forecasted Hourly AEWRs By USDA Region Phased in Over 5 Years
--------------------------------------------------------------------------------------------------------------------------------------------------------
              USDA Region                        States included               2016            2017            2018            2019          2020-2025
--------------------------------------------------------------------------------------------------------------------------------------------------------
Southeast.............................  AL                                         $6.13           $7.31           $8.54           $9.82          $11.15
Cornbelt II...........................  MO                                          7.78            9.32           10.94           12.64           14.42
Delta.................................  AR                                          6.24            7.44            8.69           10.00           11.35
Northern Plains.......................  KS, NE, ND, SD                              8.53           10.41           12.44           14.64           17.02
Southern Plains.......................  OK, TX                                      6.33            7.52            8.76           10.04           11.37
Mountain I............................  ID, MT, WY                                  6.85            8.19            9.60           11.07           12.60
Mountain II...........................  CO, NV, UT                                  6.99            8.35            9.77           11.25           12.80
Mountain III..........................  AZ, NM                                      6.40            7.56            8.74            9.95           11.19
Pacific...............................  OR, WA                                      7.72            9.33           11.05           12.88           14.82
California............................  CA                                          6.92            8.22            9.56           10.95           12.39
Hawaii................................  HI                                          8.00            9.58           11.25           13.00           14.83
--------------------------------------------------------------------------------------------------------------------------------------------------------

    To convert the hourly wage rate to a monthly wage rate, the 
Department multiplies the hourly wage rate by 44 hours and 4.333 weeks. 
Exhibit 6 presents the monthly wage rate by State.

                       Exhibit 6--Forecasted Monthly AEWRs by State Phased in Over 5 Years
----------------------------------------------------------------------------------------------------------------
              State                    2016            2017            2018            2019          2020-2025
----------------------------------------------------------------------------------------------------------------
AL..............................       $1,169.08       $1,393.93       $1,628.11       $1,871.92       $2,125.67
AZ..............................        1,220.15        1,440.59        1,666.15        1,896.91        2,132.97
AR..............................        1,190.12        1,419.02        1,657.42        1,905.62        2,163.93
CA..............................        1,319.38        1,566.99        1,823.08        2,087.88        2,361.62
CO..............................        1,331.84        1,591.11        1,862.05        2,145.08        2,440.63
HI..............................        1,524.89        1,827.07        2,144.46        2,477.65        2,827.28
ID..............................        1,306.18        1,561.97        1,829.73        2,109.91        2,402.96
MO..............................        1,482.59        1,776.40        2,084.98        2,408.93        2,748.86
MT..............................        1,306.18        1,561.97        1,829.73        2,109.91        2,402.96
NM..............................        1,220.15        1,440.59        1,666.15        1,896.91        2,132.97
NV..............................        1,331.84        1,591.11        1,862.05        2,145.08        2,440.63
ND..............................        1,626.09        1,984.37        2,372.17        2,791.45        3,244.29
OK..............................        1,206.44        1,434.26        1,670.30        1,914.79        2,167.97
OR..............................        1,471.89        1,779.02        2,106.36        2,454.96        2,825.93
SD..............................        1,626.09        1,984.37        2,372.17        2,791.45        3,244.29
TX..............................        1,206.44        1,434.26        1,670.30        1,914.79        2,167.97
UT..............................        1,331.84        1,591.11        1,862.05        2,145.08        2,440.63
WA..............................        1,471.89        1,779.02        2,106.36        2,454.96        2,825.93
WY..............................        1,306.18        1,561.97        1,829.73        2,109.91        2,402.96
----------------------------------------------------------------------------------------------------------------

    Exhibits 7 and 8 present the wage differential between the hourly 
wage under Alternative 1--the proposed 5-year phase-in--and the 
baseline by State for sheep and goat herders and open range livestock 
production workers, respectively. In the case of California, the hourly 
wage under Alternative 1 is lower than the baseline wage for the first 
two years, because State law requires a higher wage than the proposed 
methodology. In those years, the workers would continue to receive the 
baseline wage; 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 open 
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 20319]]



         Exhibit 7--Hourly Wage Differential by State for Sheep and Goat Herders Phased in Over 5 Years
----------------------------------------------------------------------------------------------------------------
              State                    2016            2017            2018            2019          2020-2025
----------------------------------------------------------------------------------------------------------------
AL..............................           $2.20           $3.38           $4.61           $5.88           $7.22
AZ..............................            2.47            3.62            4.81            6.02            7.25
AR..............................            2.31            3.51            4.76            6.06            7.42
CA..............................  ..............  ..............            1.17            2.56            3.99
CO..............................            3.05            4.41            5.83            7.32            8.87
HI..............................            0.54            2.12            3.79            5.53            7.37
ID..............................            2.92            4.26            5.66            7.13            8.67
MO..............................            3.84            5.38            7.00            8.70           10.48
MT..............................            2.92            4.26            5.66            7.13            8.67
NM..............................            2.47            3.62            4.81            6.02            7.25
NV..............................            2.79            4.15            5.57            7.06            8.61
ND..............................             N/A             N/A             N/A             N/A             N/A
OK..............................            2.39            3.59            4.83            6.11            7.44
OR..............................            1.28            2.89            4.61            6.44            8.38
SD..............................            4.60            6.47            8.51           10.71           13.08
TX..............................            2.39            3.59            4.83            6.11            7.44
UT..............................            3.05            4.41            5.83            7.32            8.87
WA..............................            3.79            5.40            7.11            8.94           10.89
WY..............................            2.92            4.26            5.66            7.13            8.67
----------------------------------------------------------------------------------------------------------------


 Exhibit 8--Hourly Wage Differential by State for Open Range Livestock Production Workers Phased in Over 5 Years
----------------------------------------------------------------------------------------------------------------
              State                    2016            2017            2018            2019          2020-2025
----------------------------------------------------------------------------------------------------------------
AL..............................             N/A             N/A             N/A             N/A             N/A
AZ..............................             N/A             N/A             N/A             N/A             N/A
AR..............................             N/A             N/A             N/A             N/A             N/A
CA..............................             N/A             N/A             N/A             N/A             N/A
CO..............................           $2.40           $3.76           $5.18           $6.66           $8.21
HI..............................             N/A             N/A             N/A             N/A             N/A
ID..............................            2.26            3.60            5.01            6.48            8.01
MO..............................             N/A             N/A             N/A             N/A             N/A
MT..............................            2.26            3.60            5.01            6.48            8.01
NM..............................            1.81            2.97            4.15            5.36            6.60
NV..............................            2.40            3.76            5.18            6.66            8.21
ND..............................            3.94            5.82            7.85           10.05           12.43
OK..............................             N/A             N/A             N/A             N/A             N/A
OR..............................            3.13            4.74            6.46            8.29           10.23
SD..............................            3.94            5.82            7.85           10.05           12.43
TX..............................            1.74            2.93            4.17            5.45            6.78
UT..............................            2.40            3.76            5.18            6.66            8.21
WA..............................             N/A             N/A             N/A             N/A             N/A
WY..............................            2.26            3.60            5.01            6.48            8.01
----------------------------------------------------------------------------------------------------------------

2. AEWR Values Incrementally Phased in Over Three Years
    Under this alternative wage rate determination methodology, the 
Department estimates each region's hourly wage rate using the same AEWR 
values presented in Exhibit 3 but uses the following phase-in schedule:

         Exhibit 9--Wage Rate Phasing Schedule for Alternative 2
------------------------------------------------------------------------
               Year                          Wage rate estimate
------------------------------------------------------------------------
2016.............................  60 percent of the forecasted 2016
                                    AEWR.
2017.............................  80 percent of the forecasted 2017
                                    AEWR.
2018.............................  100 percent of the forecasted 2018
                                    AEWR.
2019.............................  100 percent of the forecasted 2019
                                    AEWR.
2020.............................  100 percent of the forecasted 2020
                                    AEWR.
2021.............................  100 percent of the forecasted 2021
                                    AEWR.
2022.............................  100 percent of the forecasted 2022
                                    AEWR.
2023.............................  100 percent of the forecasted 2023
                                    AEWR.
2024.............................  100 percent of the forecasted 2024
                                    AEWR.
2025.............................  100 percent of the forecasted 2025
                                    AEWR.
------------------------------------------------------------------------

    Exhibit 10 presents the phased-in forecasted hourly AEWRs for each 
USDA region under Alternative 2.

[[Page 20320]]



                                        Exhibit 10--Forecasted Hourly AEWRs by USDA Region Phased In Over 3 Years
--------------------------------------------------------------------------------------------------------------------------------------------------------
              USDA region                        States included               2016            2017            2018            2019          2020-2025
--------------------------------------------------------------------------------------------------------------------------------------------------------
Southeast.............................  AL                                         $6.13           $8.36          $10.67          $10.91          $11.15
Cornbelt II...........................  MO                                          7.78           10.65           13.67           14.04           14.42
Delta.................................  AR                                          6.24            8.51           10.87           11.11           11.35
Northern Plains.......................  KS, NE, ND, SD                              8.53           11.90           15.55           16.27           17.02
Southern Plains.......................  OK, TX                                      6.33            8.60           10.95           11.16           11.37
Mountain I............................  ID, MT, WY                                  6.85            9.36           12.00           12.30           12.60
Mountain II...........................  CO, NV, UT                                  6.99            9.54           12.21           12.50           12.80
Mountain III..........................  AZ, NM                                      6.40            8.64           10.92           11.06           11.19
Pacific...............................  OR, WA                                      7.72           10.66           13.81           14.31           14.82
California............................  CA                                          6.92            9.39           11.95           12.17           12.39
Hawaii................................  HI                                          8.00           10.95           14.06           14.44           14.83
--------------------------------------------------------------------------------------------------------------------------------------------------------

    To convert the hourly wage rate to a monthly wage rate, the 
Department multiplies the hourly wage rate by 44 hours and 4.333 weeks. 
Exhibit 11 presents the monthly wage rate by State.

                      Exhibit 11--Forecasted Monthly AEWRs by State Phased In Over 3 Years
----------------------------------------------------------------------------------------------------------------
              State                    2016            2017            2018            2019          2020-2025
----------------------------------------------------------------------------------------------------------------
AL..............................       $1,169.08       $1,593.06       $2,035.14       $2,079.91       $2,125.67
AZ..............................        1,220.15        1,646.39        2,082.68        2,107.68        2,132.97
AR..............................        1,190.12        1,621.74        2,071.77        2,117.35        2,163.93
CA..............................        1,319.38        1,790.84        2,278.84        2,319.86        2,361.62
CO..............................        1,331.84        1,818.41        2,327.56        2,383.43        2,440.63
HI..............................        1,524.89        2,088.08        2,680.57        2,752.95        2,827.28
ID..............................        1,306.18        1,785.11        2,287.17        2,344.35        2,402.96
MO..............................        1,482.59        2,030.17        2,606.23        2,676.59        2,748.86
MT..............................        1,306.18        1,785.11        2,287.17        2,344.35        2,402.96
NM..............................        1,220.15        1,646.39        2,082.68        2,107.68        2,132.97
NV..............................        1,331.84        1,818.41        2,327.56        2,383.43        2,440.63
ND..............................        1,626.09        2,267.85        2,965.21        3,101.61        3,244.29
OK..............................        1,206.44        1,639.16        2,087.87        2,127.54        2,167.97
OR..............................        1,471.89        2,033.16        2,632.95        2,727.73        2,825.93
SD..............................        1,626.09        2,267.85        2,965.21        3,101.61        3,244.29
TX..............................        1,206.44        1,639.16        2,087.87        2,127.54        2,167.97
UT..............................        1,331.84        1,818.41        2,327.56        2,383.43        2,440.63
WA..............................        1,471.89        2,033.16        2,632.95        2,727.73        2,825.93
WY..............................        1,306.18        1,785.11        2,287.17        2,344.35        2,402.96
----------------------------------------------------------------------------------------------------------------

    Exhibits 12 and 13 present the wage differential between the hourly 
wage under Alternative 2 and the baseline by State for sheep and goat 
herders and open range livestock production workers, respectively. In 
the case of California, the hourly wage under Alternative 2 was lower 
than the baseline wage for the first year. The Department assumed that 
the workers would continue to receive the baseline wage; 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 certified are denoted as ``N/A.'' Note that these values are 
for informational purposes only and were not used in the analysis.

         Exhibit 12--Hourly Wage Differential by State for Sheep and Goat Herders Phased In Over 3 Years
----------------------------------------------------------------------------------------------------------------
              State                    2016            2017            2018            2019          2020-2025
----------------------------------------------------------------------------------------------------------------
AL..............................           $2.20           $4.42           $6.74           $6.98           $7.22
AZ..............................            2.47            4.70            6.99            7.12            7.25
AR..............................            2.31            4.57            6.93            7.17            7.42
CA..............................  ..............            1.00            3.56            3.77            3.99
CO..............................            3.05            5.60            8.27            8.57            8.87
HI..............................            0.54            3.49            6.60            6.98            7.37
ID..............................            2.92            5.43            8.06            8.36            8.67
MO..............................            3.84            6.71            9.74           10.11           10.48
MT..............................            2.92            5.43            8.06            8.36            8.67
NM..............................            2.47            4.70            6.99            7.12            7.25
NV..............................            2.79            5.34            8.01            8.31            8.61
ND..............................             N/A             N/A             N/A             N/A             N/A
OK..............................            2.39            4.66            7.02            7.23            7.44
OR..............................            1.28            4.22            7.37            7.87            8.38
SD..............................            4.60            7.96           11.62           12.33           13.08

[[Page 20321]]

 
TX..............................            2.39            4.66            7.02            7.23            7.44
UT..............................            3.05            5.60            8.27            8.57            8.87
WA..............................            3.79            6.73            9.88           10.37           10.89
WY..............................            2.92            5.43            8.06            8.36            8.67
----------------------------------------------------------------------------------------------------------------


Exhibit 13--Hourly Wage Differential by State for Open Range Livestock Production Workers Phased In Over 3 Years
----------------------------------------------------------------------------------------------------------------
              State                    2016            2017            2018            2019          2020-2025
----------------------------------------------------------------------------------------------------------------
AL..............................             N/A             N/A             N/A             N/A             N/A
AZ..............................             N/A             N/A             N/A             N/A             N/A
AR..............................             N/A             N/A             N/A             N/A             N/A
CA..............................             N/A             N/A             N/A             N/A             N/A
CO..............................           $2.40           $4.95           $7.62           $7.91           $8.21
HI..............................             N/A             N/A             N/A             N/A             N/A
ID..............................            2.26            4.77            7.41            7.71            8.01
MO..............................             N/A             N/A             N/A             N/A             N/A
MT..............................            2.26            4.77            7.41            7.71            8.01
NM..............................            1.81            4.05            6.33            6.47            6.60
NV..............................            2.40            4.95            7.62            7.91            8.21
ND..............................            3.94            7.31           10.96           11.68           12.43
OK..............................             N/A             N/A             N/A             N/A             N/A
OR..............................            3.13            6.07            9.22            9.72           10.23
SD..............................            3.94            7.31           10.96           11.68           12.43
TX..............................            1.74            4.01            6.36            6.57            6.78
UT..............................            2.40            4.95            7.62            7.91            8.21
WA..............................             N/A             N/A             N/A             N/A             N/A
WY..............................            2.26            4.77            7.41            7.71            8.01
----------------------------------------------------------------------------------------------------------------

3. AEWR Values With No Phase-In
    Under this alternative wage rate determination methodology, the 
Department estimates each region's hourly wage rate using the same AEWR 
values presented in Exhibit 3 but does not use a phase-in schedule. To 
convert the hourly wage rate to a monthly wage rate, the Department 
multiplies the hourly wage rate by 44 hours and 4.333 weeks. With no 
phase-in, the monthly AEWR requirement each year would be 100 percent 
of that year's hourly AEWR converted to a monthly rate by multiplying 
the hourly wage rate by 44 hours and 4.333 weeks. Exhibit 14 presents 
the monthly wage rate by State.

                                  Exhibit 14--Forecasted Monthly AEWRS by State
                                                  [No phase-in]
----------------------------------------------------------------------------------------------------------------
              State                    2016            2017            2018            2019          2020-2025
----------------------------------------------------------------------------------------------------------------
AL..............................       $1,948.46       $1,991.33       $2,035.14       $2,079.91       $2,125.67
AZ..............................        2,033.59        2,057.99        2,082.68        2,107.68        2,132.97
AR..............................        1,983.54        2,027.17        2,071.77        2,117.35        2,163.93
CA..............................        2,198.97        2,238.55        2,278.84        2,319.86        2,361.62
CO..............................        2,219.74        2,273.01        2,327.56        2,383.43        2,440.63
HI..............................        2,541.48        2,610.10        2,680.57        2,752.95        2,827.28
ID..............................        2,176.96        2,231.38        2,287.17        2,344.35        2,402.96
MO..............................        2,470.99        2,537.71        2,606.23        2,676.59        2,748.86
MT..............................        2,176.96        2,231.38        2,287.17        2,344.35        2,402.96
NM..............................        2,033.59        2,057.99        2,082.68        2,107.68        2,132.97
NV..............................        2,219.74        2,273.01        2,327.56        2,383.43        2,440.63
ND..............................        2,710.14        2,834.81        2,965.21        3,101.61        3,244.29
OK..............................        2,010.74        2,048.94        2,087.87        2,127.54        2,167.97
OR..............................        2,453.14        2,541.46        2,632.95        2,727.73        2,825.93
SD..............................        2,710.14        2,834.81        2,965.21        3,101.61        3,244.29
TX..............................        2,010.74        2,048.94        2,087.87        2,127.54        2,167.97
UT..............................        2,219.74        2,273.01        2,327.56        2,383.43        2,440.63
WA..............................        2,453.14        2,541.46        2,632.95        2,727.73        2,825.93
WY..............................        2,176.96        2,231.38        2,287.17        2,344.35        2,402.96
----------------------------------------------------------------------------------------------------------------


[[Page 20322]]

    Exhibits 15 and 16 present the wage differential between the hourly 
wage under Alternative 3 and the baseline by State for sheep and goat 
herders and open range livestock production workers, respectively. The 
hourly 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.

                    Exhibit 15--Hourly Wage Differential by State for Sheep and Goat Herders
                                                  [No phase-in]
----------------------------------------------------------------------------------------------------------------
              State                    2016            2017            2018            2019          2020-2025
----------------------------------------------------------------------------------------------------------------
AL..............................           $6.29           $6.51           $6.74           $6.98           $7.22
AZ..............................            6.73            6.86            6.99            7.12            7.25
AR..............................            6.47            6.70            6.93            7.17            7.42
CA..............................            3.14            3.35            3.56            3.77            3.99
CO..............................            7.71            7.99            8.27            8.57            8.87
HI..............................            5.87            6.23            6.60            6.98            7.37
ID..............................            7.48            7.77            8.06            8.36            8.67
MO..............................            9.03            9.38            9.74           10.11           10.48
MT..............................            7.48            7.77            8.06            8.36            8.67
NM..............................            6.73            6.86            6.99            7.12            7.25
NV..............................            7.45            7.73            8.01            8.31            8.61
ND..............................             N/A             N/A             N/A             N/A             N/A
OK..............................            6.61            6.81            7.02            7.23            7.44
OR..............................            6.43            6.89            7.37            7.87            8.38
SD..............................           10.28           10.94           11.62           12.33           13.08
TX..............................            6.61            6.81            7.02            7.23            7.44
UT..............................            7.71            7.99            8.27            8.57            8.87
WA..............................            8.93            9.40            9.88           10.37           10.89
WY..............................            7.48            7.77            8.06            8.36            8.67
----------------------------------------------------------------------------------------------------------------


            Exhibit 16--Hourly Wage Differential by State for Open Range Livestock Production Workers
                                                  [No phase-in]
----------------------------------------------------------------------------------------------------------------
              State                    2016            2017            2018            2019          2020-2025
----------------------------------------------------------------------------------------------------------------
AL..............................             N/A             N/A             N/A             N/A             N/A
AZ..............................             N/A             N/A             N/A             N/A             N/A
AR..............................             N/A             N/A             N/A             N/A             N/A
CA..............................             N/A             N/A             N/A             N/A             N/A
CO..............................           $7.05           $7.33           $7.62           $7.91           $8.21
HI..............................             N/A             N/A             N/A             N/A             N/A
ID..............................            6.83            7.11            7.41            7.71            8.01
MO..............................             N/A             N/A             N/A             N/A             N/A
MT..............................            6.83            7.11            7.41            7.71            8.01
NM..............................            6.08            6.20            6.33            6.47            6.60
NV..............................            7.05            7.33            7.62            7.91            8.21
ND..............................            9.63           10.28           10.96           11.68           12.43
OK..............................             N/A             N/A             N/A             N/A             N/A
OR..............................            8.28            8.74            9.22            9.72           10.23
SD..............................            9.63           10.28           10.96           11.68           12.43
TX..............................            5.96            6.16            6.36            6.57            6.78
UT..............................            7.05            7.33            7.62            7.91            8.21
WA..............................             N/A             N/A             N/A             N/A             N/A
WY..............................            6.83            7.11            7.41            7.71            8.01
----------------------------------------------------------------------------------------------------------------

i. Transfers
    The proposed wage determination methodology and the two 
alternatives will each result in an increase in wages paid to H-2A 
workers and workers in corresponding employment, which represents a 
transfer from herding and open range livestock production 
employers.\28\
---------------------------------------------------------------------------

    \28\ For the purpose of this analysis, H-2A workers are 
considered non-residents.
---------------------------------------------------------------------------

1. Transfers Using the Forecasted AEWR Incrementally Phased In Over 
Five Years
    To estimate the transfer, the Department first subtracts the 
appropriate 2014 monthly AEWR value (i.e., the baseline as reflected in 
Exhibit 1) from the phased-in monthly AEWR to estimate the increase in 
monthly wages for each open range livestock production and 
sheepherding/goat herding job certified in FY 2012.\29\ Next, we 
calculate the average increase in monthly wages across all records in 
the certification dataset. We then convert the average increase in 
monthly wages per worker to the average increase in hourly wages per 
worker by dividing the

[[Page 20323]]

average increase in monthly wages per worker by the number of weeks in 
a month (4.333) as well as by the number of hours in a full-time 
workweek (44). Exhibit 17 presents the average increase in monthly and 
hourly wages per worker under Alternative 1--the proposed 5-year phase-
in.
---------------------------------------------------------------------------

    \29\ The FY 2012 certification dataset provides the most recent 
data available in a useable form. Data from FY 2013 was not 
available in a useable form due to the Department's settlement of 
litigation regarding prevailing wages during FY 2013:Q1 where the 
wage offers for many employers certified for H-2A open range workers 
changed post-certification and, therefore, the existing 
administrative did not accurately reflect the actual wage offers for 
purposes of conducting the analysis. Data for FY 2014 was not yet 
available in a useable form at the time the analysis was conducted.

 Exhibit 17--Average Increase in Monthly and Hourly Wages per Worker for
                              Alternative 1
------------------------------------------------------------------------
                                              Monthly         Hourly
                                             increase        increase
                  Year                   -------------------------------
                                                 A        b = a/4.333/44
------------------------------------------------------------------------
2016....................................         $515.66           $2.70
2017....................................          771.28            4.05
2018....................................          883.09            4.63
2019....................................        1,159.61            6.08
2020....................................        1,447.96            7.59
2021....................................        1,447.96            7.59
2022....................................        1,447.96            7.59
2023....................................        1,447.96            7.59
2024....................................        1,447.96            7.59
2025....................................        1,447.96            7.59
------------------------------------------------------------------------

    The Department multiplies the average increase in hourly wages per 
H-2A worker under this wage determination option in 2016 ($2.70) by the 
number of hours in a full-time workweek (44) and the average duration 
of need (50 weeks) to obtain the total increase per H-2A worker in 2016 
($5,950). We then multiply the total increase per worker by the number 
of H-2A certified workers \30\ to obtain total transfer due to 
increased wages of $17.4 million in 2016. We repeat this calculation 
for each year of the analysis period using the average increases in 
hourly wages shown in Exhibit 17. Using an annual growth rate of two 
percent, the Department estimates that there will be 2,929 H-2A workers 
certified in 2016, which it estimates will increase to 3,500 in 2025. 
This results in an average annual transfer payment of $45.1 million. 
The Department invites comments from the public on its calculation of 
the number of affected workers using the number of H-2A workers 
certified.
---------------------------------------------------------------------------

    \30\ Using the number of H-2A workers certified may be an 
overestimate of the number of affected workers. Employers do not 
bring into the country all the workers for which they are certified 
each year, and the workers do not all stay for the entire period of 
the certification. However, there likely are some corresponding 
workers who would also receive the increased wages. In some cases, 
the Department estimates the number of affected workers using the 
approximate number of H-2A workers per employer. For example, in FY 
2012, there were 2,706 H-2A affected workers certified on 1,013 
applications for 517 estimated unique employers. The Department 
could approximate the average number of H-2A workers per small 
entity by dividing the total number of certified H-2A workers in FY 
2012 (2,706) by the total number of certified applications (1,013) 
to derive the estimate of approximately 3 H-2A workers per small 
entity (2,706/1,013).
---------------------------------------------------------------------------

2. Transfers Using the Forecasted AEWR Incrementally Phased In Over 
Three Years
    To estimate the transfer under the alternative wage option using a 
3-year phase-in, the Department first subtracts the appropriate 2014 
monthly AEWR value (i.e., the baseline) from the phased monthly AWER to 
estimate the increase in monthly wages for each record in the 
certification dataset for FY 2012. Next, we calculate the average 
increase in monthly wages across all records in the certification 
dataset. We then convert the average increase in monthly wages per 
worker to the average increase in hourly wages per worker by dividing 
the average increase in monthly wages per worker by the number of weeks 
in a month (4.333) as well as by the number of hours in a full-time 
workweek (44). Exhibit 18 presents the average increase in monthly and 
hourly wages per worker under Alternative 2.

 Exhibit 18--Average Increase in Monthly and Hourly Wages per Worker for
                              Alternative 2
------------------------------------------------------------------------
                                              Monthly         Hourly
                                             increase        increase
                  Year                   -------------------------------
                                                 a        b = a/4.333/44
------------------------------------------------------------------------
2016....................................         $515.66           $2.70
2017....................................          841.92            4.42
2018....................................        1,341.27            7.04
2019....................................        1,393.97            7.31
2020....................................        1,447.96            7.59
2021....................................        1,447.96            7.59
2022....................................        1,447.96            7.59
2023....................................        1,447.96            7.59
2024....................................        1,447.96            7.59
2025....................................        1,447.96            7.59
------------------------------------------------------------------------

    The Department multiplies the average increase in hourly wages per 
worker in 2016 ($2.70) by the number of hours in a full-time workweek 
(44 hours) and the average duration of need (50 weeks) to obtain the 
total increase per worker ($5,950). We then multiply the total increase 
per worker by the number of H-2A workers certified in 2016 (2,929) to 
obtain a total transfer in 2016 of $17.4 million. We repeat this 
calculation for each remaining year of the analysis period using the 
average increases in hourly wages shown in Exhibit 18. Using an annual 
growth rate of two percent, the Department estimates that there will be 
2,929 H-2A workers certified in 2016, which it estimates will increase 
to 3,500 in 2025. This results an average annual transfer payment due 
to increased wages of $47.8 million.
3. Transfers Using the Forecasted AEWR With No Phase-In
    To estimate the transfer under the alternative wage option using no 
phase-in, the Department first subtracts the appropriate 2014 monthly 
AEWR value (i.e., the baseline) from the monthly AWER to estimate the 
increase in monthly wages for each record in the certification dataset 
for FY 2012. Next, we calculate the average increase in monthly wages 
across all records in the certification dataset. We then convert the 
average increase in monthly wages per worker to the average increase in 
hourly wages per worker by dividing the average increase in monthly 
wages per worker by the number of weeks in a month (4.333) as well as 
by the number of hours in a full-time workweek (44). Exhibit 19 
presents the average increase in monthly and hourly wages per worker 
under Alternative 3.

 Exhibit 19--Average Increase in Monthly and Hourly Wages per Worker for
                              Alternative 3
------------------------------------------------------------------------
                                              Monthly         Hourly
                                             increase        increase
                  Year                   -------------------------------
                                                 a        b = a/4.333/44
------------------------------------------------------------------------
2016....................................       $1,239.56           $6.50
2017....................................        1,289.81            6.77
2018....................................        1,341.27            7.04
2019....................................        1,393.97            7.31
2020....................................        1,447.96            7.59
2021....................................        1,447.96            7.59
2022....................................        1,447.96            7.59
2023....................................        1,447.96            7.59
2024....................................        1,447.96            7.59
2025....................................        1,447.96            7.59
------------------------------------------------------------------------

    The Department multiplies the average increase in hourly wages per 
worker in 2016 ($6.50) by the number of hours in a full-time work (44) 
week and the average duration of need (50 weeks) to obtain the total 
increase per worker ($14,304) in 2016. We then multiply the total 
increase per worker by the number of H-2A workers certified in 2016 
(2,929) to obtain a total transfer in 2016 of $41.9 million. We repeat 
this calculation for each remaining year of the analysis period using 
the average increases in hourly wages shown in Exhibit 19. Using an 
annual growth rate of two percent, the Department estimates that there 
will be 2,929 H-2A workers certified in 2016, which it estimates will 
increase to 3,500 in 2025. This results in an average annual transfer 
payment due to increased wages of $51.8 million.

[[Page 20324]]

    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 new methodology for estimating the 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, on the 
margin, 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. Previously unemployed individuals who were not willing 
to accept a job at the lower wage may now be willing to accept the job 
and would not need to seek new or continued unemployment insurance 
benefits. The Department, however, is not able to quantify these 
transfer payments with precision.
    The Department invites comments regarding the assumptions and data 
sources used to estimate the value of these wage transfers.
c. Job Order Submissions
    The proposed rule extends the waiver of job order filing 
requirements in 20 CFR 655.121(a) through (d) to employers of H-2A 
workers in open range livestock production occupations. The Department 
is proposing that 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 sheep or goat herding positions. However, to ensure consistency in 
the handling of all employers eligible to use these special procedures, 
the Department is proposing to extend this existing practice to all 
employers involved in open range herding and livestock production.
i. Cost Reductions
    This change represents a minor cost reduction to employers of H-2A 
workers in open 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 form 
submission and communication with the SWA is required. The Department 
invites comments regarding possible data sources regarding the staff 
time and resource costs saved that could be used to estimate this cost 
reduction.
d. Filing Requirements
    The proposed 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 joint employer with its employer-members 
for sheep or goat herding positions. However, to ensure consistency in 
the handling of all employers eligible to use these special procedures, 
the Department is proposing to extend this existing practice to 
employers in the herding or production of other livestock.
i. Cost Reductions
    This change represents a minor cost reduction to employers of H-2A 
workers in open range livestock production occupations that file a 
master application as joint employer with its 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 
open 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. The Department 
invites comments regarding possible data sources regarding the time 
savings realized by filing a master application relative to separate 
applications and the extent to which open range livestock production 
employers would file master applications that could be used to estimate 
this cost reduction.
e. Job Order Duration
    The proposed 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 proposed 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 sheep and goat 
herding occupations. These employers were previously required to accept 
referrals throughout the work contract period. Under the proposed 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. The Department invites comments regarding 
possible data sources regarding the number of referrals that could be 
used to estimate this cost reduction.
f. Newspaper Advertisements
    The Department is proposing to continue for sheep and goat herding 
occupations and expand to production of livestock occupations on the 
open range 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 production of livestock on the open range 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

[[Page 20325]]

workers for these types of job opportunities.
i. Cost Reductions
    This change represents a cost reduction to employers of workers in 
open range livestock production occupations. The Department estimates 
this cost reduction by multiplying the estimated number of applications 
filed by open range livestock production employers in 2016 (157) by the 
average cost of placing a newspaper advertisement ($258.64) and the 
number of advertisements per employer (2).\31\ We repeat this 
calculation for each remaining year of the analysis period. Using an 
annual growth rate of two percent, the Department estimates that 157 
applications will be filed by open range livestock production employers 
in 2016, which it estimates will increase to 188 applications filed in 
2025. This results in an average annual cost reduction of $0.09 
million.
---------------------------------------------------------------------------

    \31\ 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 open range livestock 
production employers in 2016 (157) 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 ($75.90), and 
the number of advertisements per employer (2).\32\ Using the projected 
number of applications, we repeat the above calculation for each 
remaining year of the analysis period to obtain an average annual cost 
reduction of $0.01 million.
---------------------------------------------------------------------------

    \32\ The Department estimates that this work would be performed 
by a human resources manager at an agricultural employer at an 
hourly rate of $53.45 (as published by the Department's OES Survey, 
O*Net Online), which we multiply by 1.42 to account for employee 
benefits to obtain a total hourly labor cost of $75.90.
---------------------------------------------------------------------------

    In total, the cost reduction from not having to place the 
advertisement and saved labor yield an average annual cost reduction of 
$0.1 million. The Department invites comments regarding the assumptions 
and data sources used to estimate the value of this cost reduction.
g. Placement of Workers on Master Applications
    The proposed 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 U.S. workers. The 
proposed 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 proposed rule will yield a decrease in travel costs to arrive 
at and return from the work site. Due to data limitations regarding 
travels 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 Department invites 
comments regarding possible data sources regarding travel costs to 
arrive at and return from the work site for participating U.S. workers 
that could be used to estimate this cost reduction.
    The recruitment report requirement represents a cost to an 
association of employers of workers in open 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. The Department invites comment 
on whether there is an increased burden as a result of this 
requirement. This will likely lead to a marginal increase in costs for 
the association to prepare and maintain a more detailed 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 detailed recruitment 
report. The Department invites comments regarding possible data sources 
that could be used to estimate this additional cost.
h. Employer-Provided Items
    This provision requires that all herding and open range livestock 
production employers seeking temporary workers through the H-2A program 
must provide to their workers, free of charge, all tools, supplies, and 
equipment required to perform the duties assigned. The Department is 
proposing 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. Where the employer 
will not otherwise make contact with the worker (e.g., when delivering 
food or checking on the worker and herd in-person), the employer must 
establish a regular schedule when the workers will be geographically 
located in a place where the electronic communication device will 
function (e.g., mobile phone in an area with adequate reception) so 
that the workers' safety and needs can be monitored.
i. Costs
    This change represents a possible minor cost to herding or open 
range livestock production employers. The requirement that employers 
establish a regular schedule when the workers will be located in a 
place where the electronic communication device will work may impose 
restrictions on land use or the purchase of particular types of 
communication devices. The Department cannot, however, predict this 
impact or quantify it as a cost to employers. The Department invites 
comments regarding how this provision may impose a cost on employers 
and how that cost may be estimated, given the existing requirement in 
the TEGLs for an effective means of communicating in case of an 
emergency and the employers' normal methods of communicating with and 
visiting their workers.
i. Meals
    All H-2A employers must provide either three meals a day or free 
and convenient kitchen facilities. Currently, as required under the 
sheep and goat herding TEGL and pursuant to practice in the industry 
for open range production of livestock occupations, employers with 
these open range occupations provide food, free of charge, to their 
workers in the field. We are proposing to adopt this common practice as 
a requirement for both

[[Page 20326]]

employers engaged in herding and those engaged in the production of 
livestock on the open range and to require employers to disclose it in 
the job offer.
i. Costs
    Because this is a requirement of the sheep and goat herding TEGL, 
this provision does not represent a cost to sheep and goat herding 
employers. This provision does, however, represent a cost to open range 
livestock production employers. The Department estimates this cost by 
multiplying the number of meals required per worker on a weekly basis 
(21), the average cost of a meal ($3.86), and the average duration of 
need (50 weeks) to obtain the total cost of meals per worker 
($4,053).\33\ We then multiply the total cost of meals per worker by 
the estimated number of open range livestock production employers in 
2016 (131) and the average number of H-2A workers per employer needing 
meals on a weekly basis (3) to obtain a total cost in 2016 of $1.6 
million. We repeat the above calculation for each remaining year of the 
analysis period. Using an annual growth rate of two percent, the 
Department estimates that there will be 131 open range livestock 
production employers in 2016, which it estimates will increase to 157 
in 2025. This results in an average annual cost due to meals of $1.7 
million.
---------------------------------------------------------------------------

    \33\ The meal cost estimate of $3.86 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 Dec. 8, 2014).
---------------------------------------------------------------------------

    In addition to the cost incurred by open range livestock production 
employers to purchase food, open 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 invites comments regarding the 
assumptions and data sources used to estimate the value of this cost.
j. Potable Water
    The proposed rule requires that employers provide to workers an 
adequate supply of water for drinking, cooking, bathing, cleaning and 
laundry that complies with State or local health standards of which 
cooking and drinking water must also be potable, or easily rendered 
potable. The proposed rule expands upon the current TEGLs, which 
require sufficient water that meets the standards of the State health 
authority for drinking, cooking, and bathing, by requiring employers 
also to provide sufficient water for cleaning and laundry. In addition 
it requires that drinking and cooking water be potable or easily 
rendered potable.
i. Costs
    This change represents a cost to herding and open range livestock 
production employers. The Department estimates the cost of providing 
potable water to workers as the sum of the cost of the potable water, 
the cost of purchasing utility trailers to transport the water and 
meals, the cost of mileage for the vehicles transporting the water and 
meals, and the labor costs to transport the water and meals.
    The Department estimates the cost of purchasing the water by 
multiplying the estimated number of employers in 2016 (560) by the 
average number of H-2A workers per employer needing potable water on a 
weekly basis (3), the number of gallons of potable water needed per 
worker on a weekly basis (28), the average cost of a gallon of potable 
water ($0.005), and the average duration of need (50 weeks).\34\ This 
results in a cost of $0.01 million in 2016. We repeat this calculation 
for each remaining year of the analysis period. Using an annual growth 
rate of two percent, the Department estimates that there will be 560 
employers in 2016, which it estimates will increase to 669 in 2025. 
This results in an average annual cost of $0.01 million.
---------------------------------------------------------------------------

    \34\ 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 
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 proposed 
rule, we estimate the number of existing H-2A participants that would 
need to purchase a trailer in 2016, which we calculate by multiplying 
the number of existing participants (560) by the assumed percentage of 
employers that would need to purchase a trailer (10%). We then multiply 
the number of employers needing to purchase a trailer (56) by the 
average cost of a trailer ($838.34) to estimate the total cost of 
purchasing utility trailers in 2016 ($46,971).\35\ We repeat this 
calculation for each remaining year in the analysis time period using 
the following numbers of new participants: 11 in years 2017-2018, 12 in 
years 2019-2022, and 13 in years 2023-2025. This calculation results in 
an average annual cost of $5,613. The Department also estimates the 
cost of mileage on the employers' vehicles. We estimate this cost by 
multiplying the estimated number of employers in 2016 (560) by the 
average cost per mile of owning and operating an automobile ($0.59), 
the number of miles driven (roundtrip) to deliver the water and meals 
(100), and the number of roundtrips expected per year (50).\36\ This 
calculation results in a cost of $1.7 million in 2016. We repeat this 
calculation for each remaining year of the analysis period. Using an 
annual growth rate of two percent, the Department estimates that there 
will be 560 employers in 2016, which it estimates will increase to 669 
in 2025. This results in an average annual cost of $1.8 million.
---------------------------------------------------------------------------

    \35\ 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.
    \36\ 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 
Nov. 13, 2014). 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.
---------------------------------------------------------------------------

    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 2016 
(560) by the assumed time required to transport the potable water and 
food (2.86 hours), the hourly labor compensation rate of an 
agricultural worker ($13.01), and the number of roundtrips per year 
(50).\37\

[[Page 20327]]

This calculation results in a cost of $1.0 million in 2016. We repeat 
this calculation for each year of the analysis period. Using an annual 
growth rate of two percent, the Department estimates that there will be 
560 employers in 2016, which it estimates will increase to 669 in 2025. 
This results in an average annual cost of $1.1 million.
---------------------------------------------------------------------------

    \37\ The Department assumes that the water delivery will be 
performed by an agricultural worker at an hourly rate of $9.16 (as 
published by the Department's OES Survey, O*Net Online), which we 
multiply by 1.42 to account for employee benefits to obtain a total 
hourly labor cost of $13.01. 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 $3.0 million for 
the cost of the water, utility trailers, vehicle mileage, and labor to 
deliver the water and food.
    The Department has considered several alternatives in addition to 
the methodology presented above. While the estimation methodology 
described above produces an overestimate because it assumes that no 
herding or open range livestock production employers are currently 
delivering water or food to their workers and that some herding and 
open range livestock production employers will be required to purchase 
trailers to transport the water to workers in remote locations, we also 
considered the scenario in which herding and open range livestock 
production employers already deliver supplies to workers and simply add 
the additional potable water to the bed of a truck already owned by the 
ranch. This alternative scenario would yield a cost estimate that does 
not include the full roundtrip cost of mileage on the truck or the 
purchase of a trailer. This methodology would, however, include a cost 
incurred due to the decreased fuel efficiency of the truck because of 
the weight of the water in the bed of the truck. The Department invites 
comments regarding which of these scenarios is more likely to occur.
k. Expanded Cooking/Cleaning Facilities
    The Department recognizes that there are times when the mobile 
housing is located at or near the ranch or farm (or a similar central 
location) that has fixed housing for workers for certain operations 
that are a normal part of the herding cycle, such as birthing (in some 
cases), shearing, or branding. We acknowledge that the mobile housing 
may in such instances continue to be used, or even preferred, by 
workers, even where access to fixed housing exists.
    Where a worker continues to use the mobile housing provided for 
open range work while temporarily stationed at or near the ranch, the 
proposed rule obligates the herding or open range livestock production 
employer to provide the workers with access to facilities such as 
toilets and showers with hot and cold water under pressure. Similarly, 
the workers must be provided access to cooking and cleaning facilities. 
Herding and open range livestock production employers do not need to 
maintain full housing in such cases, but must provide access to 
toilets, kitchens, and cleaning facilities for both person and 
clothing.
i. Costs
    The Department expects that farm kitchens will be able to increase 
production to a sufficient extent to provide for the additional 
workers; thus, we do not anticipate herding and open range livestock 
production employers incurring a cost for constructing or expanding 
cooking facility space.
    The requirement to provide access to cleaning facilities, however, 
will likely impose a cost on herding and open range livestock 
production employers that do not have cleaning facilities for worker 
use. This change represents a cost to employers. To estimate the cost 
of constructing or expanding the cleaning facilities for the first year 
of the proposed 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 (560) 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 (112) by the average cost per square foot to construct or 
expand cleaning facilities ($270.00) and the assumed size of the 
cleaning facility (100 sq. ft.). \38\ This calculation results in a 
cost of $3.0 million in 2016.
---------------------------------------------------------------------------

    \38\ 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).
---------------------------------------------------------------------------

    We repeat this calculation for each of the remaining years using 
the following numbers of new participants: 11 in years 2017-2018, 12 in 
years 2019-2022, and 13 in years 2023-2025. Over the 10-year period, 
this calculation yields an average annual cost of $0.4 million to 
existing and new employers.
    The Department invites comments regarding the assumptions used for 
the average size of the cleaning facilities to be constructed or 
expanded and the average cost per square foot to construct or expand 
the cleaning facilities.
l. Earnings Records
    The proposed rule requires that employers generate a daily record 
of the site of the employee's work, or availability to work, whether it 
was on the open range or on the ranch or farm. The proposed rule also 
requires that employers retain records of hours worked and duties 
performed when the worker is performing work on the ranch or farm. This 
provision is new and will allow the Department to monitor compliance 
with and enforce H-2A program obligations.
i. Costs
    This change represents a possible minor cost to herding or open 
range livestock production employers who are not already retaining 
hours worked records. The Department estimates the cost by multiplying 
the time required to prepare and store timesheets 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 timesheets, which amounts to approximately 
$379.50 ($75.90 x 5) in labor costs per year.\39\ The Department 
invites comments regarding the assumptions and data sources used to 
estimate the value of this cost.
---------------------------------------------------------------------------

    \39\ The Department estimates that herding and open range 
livestock production employers will spend 6 minutes each week to 
record and store worker time sheets. 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 $53.45 (as published by the Department's 
OES survey, O*Net Online), which we multiply by 1.42 to account for 
private-sector employee benefits (Source: Bureau of Labor 
Statistics). This calculation yields an hourly labor cost of $75.90.
---------------------------------------------------------------------------

m. Time To Read and Review the Rule
    During the first year that this rule would be in effect, herding 
and open range livestock production employers would need to learn about 
the new requirements.
i. Costs
    This requirement represents a cost to herding and open range 
livestock production employers in the first year of the rule. The 
Department estimates this cost by multiplying the time required to read 
and review the new rule, application, compliance processes, and 
outreach materials explaining the program (2 hours) by the average 
compensation of a human resources manager at an agricultural business 
($75.90).\40\ This amounts to

[[Page 20328]]

approximately $151.80 in labor costs in the first year and an average 
annual cost of $15.18 over the 10-year analysis period. The Department 
invites comments regarding the assumptions and data sources used to 
estimate the value of this cost.
---------------------------------------------------------------------------

    \40\ The median hourly wage for a human resources manager is 
$53.45 (as published by the Department's OES survey, O*Net Online), 
which we multiply by 1.42 to account for private-sector employee 
benefits (source: Bureau of Labor Statistics). This calculation 
yields an hourly labor cost of $75.90.
---------------------------------------------------------------------------

5. Summary of Impacts
Costs and Transfers
    Exhibit 20 presents a summary of first-year, the sixth-year, and 
average annual costs and transfers by affected entity. The Department 
estimates the total first-year costs and transfers of the proposed rule 
to be $7.45 million and $17.43 million, respectively. The transfer from 
all herding and open range livestock production employers to workers 
due to the revised wage determination methodology based on the 
forecasted AEWR phased in over five years amounts to $17.43 million. 
The largest first-year cost is the cost to expand cooking/cleaning 
facilities at $3.02 million, followed by the cost of providing water to 
workers, the cost of providing food to workers, and the time required 
to read and review the NPRM. These costs and transfers are incurred by 
all herding and open range livestock production employers with the 
exception of the cost of providing food to workers, which is incurred 
only by open range livestock production employers. Open range livestock 
production employers experience a cost reduction of approximately $0.09 
million in the first year of the rule due to the proposed elimination 
of the newspaper advertising requirement.
    The Department included the total costs and transfers of the 
proposed rule in the sixth year of the analysis. These are the costs 
and transfers that would prevail once the 5-year phase-in is complete. 
The Department estimates the total sixth-year costs and transfers of 
the proposed rule to be $4.81 million and $54.03 million, respectively. 
The transfer from all herding and open range livestock production 
employers to workers due to the revised wage determination methodology 
based on the forecasted AEWR phased in over five years amounts to 
$54.03 million. The largest sixth-year cost is the cost to provide 
water to workers at $2.99 million, followed by the cost of providing 
food to workers, and the cost to expand cooking/cleaning facilities. 
Open range livestock production employers experience a cost reduction 
of approximately $0.10 million in the first year of the rule due to the 
proposed elimination of the newspaper advertising requirement.
    In general, average annual costs and transfers are larger than 
those in the first year because of the phase-in of the wage increases 
and because the Department estimates the H-2A participant population to 
increase over the 10-year analysis period. The exceptions to this are 
the impacts that include fixed costs in the first year of the rule 
(i.e., Expanded Cooking/Cleaning Facilities, Time to Read and Review 
NPRM). The average annual transfer from employers to employees due to 
the revised wage determination methodology amounts to $45.08 million 
per year. The largest cost is providing water to workers at $2.97 
million per year, followed by the cost of providing meals to workers at 
$1.74 million per year, the cost of expanding cooking/cleaning 
facilities at $0.36 million per year, and the time required to read and 
review the NPRM at $0.01 million per year. The Department estimates the 
average annual cost of the proposed rule to be $5.08 million. Open 
range livestock production employers experience an average annual cost 
reduction of approximately $0.10 million.

                                   Exhibit 20--Summary of Costs and Transfers
----------------------------------------------------------------------------------------------------------------
                                                       Monetized year 1    Monetized year 6     Average annual
         Required action            Entity affected     costs/transfers     costs/transfers     costs/transfers
                                                          ($millions)         ($millions)         ($millions)
----------------------------------------------------------------------------------------------------------------
                                                      Costs
----------------------------------------------------------------------------------------------------------------
1 Proportion/type of work         All Employers.....  Not Monetized.....  Not monetized.....  Not Monetized.
 permitted at the ranch.
2 Filing requirements...........  Open Range          Not Monetized.....  Not Monetized.....  Not Monetized.
                                   Employers.
3 Job order submissions.........  Open Range          Not Monetized.....  Not Monetized.....  Not Monetized.
                                   Employers.
4 Job order duration............  Herding Employers.  Not Monetized.....  Not Monetized.....  Not Monetized.
5 Newspaper advertisements......  Open Range          ($0.09)...........  ($0.10)...........  ($0.10).
                                   Employers.
6 Placement of workers on master  All Employers.....  Not Monetized.....  Not Monetized.....  Not Monetized.
 applications.
7 Employer-provided items.......  All Employers.....  Not Monetized.....  Not Monetized.....  Not Monetized.
8 Meals.........................  Open Range          $1.59.............  $1.76.............  $1.74.
                                   Employers.
9 Water.........................  All Employers.....  2.76..............  2.99..............  2.97.
10 Expanded cooking/cleaning      All Employers.....  3.02..............  0.07..............  0.36.
 facilities.
11 Earnings records.............  All Employers.....  Not Monetized.....  Not Monetized.....  Not Monetized.
12 Time required to read and      All Employers.....  0.08..............  0.00..............  0.01.
 review the NPRM.
                                                     -----------------------------------------------------------
    Total Costs.................  ..................  7.36..............  4.71..............  4.98.
----------------------------------------------------------------------------------------------------------------
                                                    Transfers
----------------------------------------------------------------------------------------------------------------
1 New wage determination          All Employers.....  17.43.............  54.03.............  45.08.
 methodology based on the phased-
 in AEWR.
                                                     -----------------------------------------------------------
    Total Transfers.............  ..................  17.43.............  54.03.............  45.08.
----------------------------------------------------------------------------------------------------------------
Note: Totals may not sum due to rounding.


[[Page 20329]]

    Exhibit 21 presents a summary of the economic impact analysis of 
the proposed 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 $49.82 million and $450.84 million over the 10-year 
analysis period, respectively. This amounts to an average annual cost 
and transfer of $4.98 million and $45.08 million per year, 
respectively. In total, the 10-year discounted costs of the proposed 
rule range from $35.35 million to $42.67 million (with 7 and 3 percent 
discounting, respectively). In total, the 10-year discounted transfers 
of the proposed rule range from $298.33 million to $374.97 million 
(with 7 and 3 percent discounting, respectively).
    Because the Department was not able to quantify any benefits of the 
proposed rule, the costs and transfers exceed the benefits at both 7 
percent and 3 percent discounting.

            Exhibit 21--Summary of Monetized Costs/Transfers
------------------------------------------------------------------------
                                     Net costs            Transfers
             Year                 ($millions/year)     ($millions/year)
------------------------------------------------------------------------
1 2016........................                 7.36                17.43
2 2017........................                 4.35                26.59
3 2018........................                 4.44                31.05
4 2019........................                 4.53                41.59
5 2020........................                 4.62                52.97
6 2021........................                 4.71                54.03
7 2022........................                 4.81                55.11
8 2023........................                 4.90                56.22
9 2024........................                 5.00                57.34
10 2025.......................                 5.10                58.49
                               -----------------------------------------
    Undiscounted total........                49.82               450.84
    Average annual impact.....                 4.98                45.08
    Total with 7% discounting.                35.35               298.33
    Total with 3% discounting.                42.67               374.97
------------------------------------------------------------------------
Note: Totals may not sum due to rounding.

Benefits
    The Department was able to identify cost reductions of the proposed 
rule due to the elimination of the newspaper advertising requirement, 
which range from $0.09 million to $0.11 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 
proposed rule.
    Due to data limitations, the Department also did not quantify 
several of the important benefits to society provided by the proposed 
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).\41\
---------------------------------------------------------------------------

    \41\ 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.
---------------------------------------------------------------------------

    This potential retention of U.S. workers may reduce the need to 
import 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) \42\ 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.
---------------------------------------------------------------------------

    \42\ 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, proposed 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. The Department invites comments regarding possible 
data sources or calculation methodologies for the estimation of this 
protective benefit. In addition, the Department invites comments 
regarding other benefits that may arise from the rule and how these 
benefits may be estimated.
6. Alternatives
    The Department conducted economic analyses of the alternatives 
discussed above to better understand their costs relative to the 
baseline. For each of the analyses, the baseline is the 2010 Final 
Rule, TEGL 32-10, and TEGL 15-06, Change 1.

[[Page 20330]]

a. Policy Changes in the NPRM Using the AEWR Values by USDA Region, 
Which Are Incrementally Phased In Over Five Years
    The first alternative--this NPRM--retains the most effective 
features of the 2010 Final Rule, TEGL 32-10, TEGL 15-06, Change 1, and 
proposes provisions to best achieve the Department's policy objectives. 
The analysis presented above lays out the calculations of the costs and 
benefits of the proposed regulation. The proposed regulation increases 
the responsibilities of the employers in herding and open range 
production occupations by establishing required wage rates using the 
AEWR values by USDA region, which are incrementally phased in over five 
years and by codifying special procedures in the H-2A program. As 
calculated above, the 10-year monetized costs of this alternative range 
from $35.35 million to $42.67 million (with 7 and 3 percent 
discounting, respectively). The 10-year monetized transfers of this 
alternative range from $298.33 million to $374.97 million (with 7 and 3 
percent discounting, respectively).
b. Policy Changes in the NPRM Using the AEWR Values by USDA Region, 
Which Are Incrementally Phased In Over Three Years
    The second alternative retains the same features of the 2010 Final 
Rule, TEGL 32-10, TEGL 15-06, Change 1, and proposes the same 
provisions as the first alternative; the only difference is that the 
AEWR-based wage determination is incrementally phased in over three 
years. As calculated above, the 10-year monetized costs of this 
alternative range from $35.35 million to $42.67 million (with 7 and 3 
percent discounting, respectively). The 10-year monetized transfers of 
this alternative range from $320.03 million to $399.48 million (with 7 
and 3 percent discounting, respectively).
c. Policy Changes in the NPRM Using the AEWR Values by USDA Region With 
no Phase-in Period
    The third alternative retains the same features of the 2010 Final 
Rule, TEGL 32-10, TEGL 15-06, Change 1, and proposes the same 
provisions as the first alternative; the only difference is that the 
AEWR-based wage determination does not utilize a phase-in schedule. As 
calculated above, the 10-year monetized costs of this alternative range 
from $35.35 million to $42.67 million (with 7 and 3 percent 
discounting, respectively). The 10-year monetized transfers of this 
alternative range from $356.38 million to $437.79 million (with 7 and 3 
percent discounting, respectively).

B. Initial Regulatory Flexibility Analysis

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq., 
establishes ``as a principle of regulatory issuance that agencies shall 
endeavor, consistent with the objectives of the rule and of applicable 
statutes, to fit regulatory and informational requirements to the scale 
of the business, organizations, and governmental jurisdictions subject 
to regulation.'' Pub. L. 96-354, Sec. 2(b). To achieve that objective, 
the Act requires agencies promulgating proposed rules to prepare an 
initial regulatory flexibility analysis, and to develop alternatives 
whenever possible, when drafting regulations that will have a 
significant economic impact on a substantial number of small entities. 
The Act requires the consideration of the impact of a proposed 
regulation on a wide range of small entities, including small 
businesses, not-for-profit organizations, and small governmental 
jurisdictions.
    Agencies must perform a review to determine whether a proposed or 
final rule would have a significant economic impact on a substantial 
number of small entities. See 5 U.S.C. 603. If the determination is 
that it would, the agency must prepare a regulatory flexibility 
analysis as described in the RFA. Id.
    However, if an agency determines that a proposed or final rule is 
not expected to have a significant economic impact on a substantial 
number of small entities, the RFA provides that the head of the agency 
may so certify and a regulatory flexibility analysis is not required. 
See 5 U.S.C. 605. The certification must include a statement providing 
the factual basis for this determination, and the reasoning should be 
clear.
    The Department believes that this proposed rule will have a 
significant economic impact on a substantial number of small entities 
and is therefore publishing this initial regulatory flexibility 
analysis as required, and to aid stakeholders in understanding the 
small entity impacts of the proposed rule and to obtain additional 
information on the small entity impacts. The Department invites 
interested persons to submit comments on the following estimates, 
including the number of small entities affected by the proposed rule, 
the compliance cost estimates, and whether alternatives exist that will 
reduce the burden on small entities while still remaining consistent 
with the objectives of the proposed rule.
 1. Why the Department Is Considering Action
    As explained earlier in this preamble, the Department has concluded 
that developments in the H-2A program, including the APA violation 
found by the Court of Appeals in Mendoza and the continuing difficulty 
the Department experiences in determining an appropriate AEWR using the 
current wage setting methodology, require additional notice and comment 
rulemaking on proper regulatory standards and minimum wage setting 
methodology for these occupations in the H-2A program. The Department 
continues to evaluate its policy choices in light of additional public 
input and program experience. As a result, the Department publishes 
this NPRM on the proper standards and wage methodology for open range 
herding and livestock production occupations in the H-2A program, and 
we seek public input on all aspects of the proposals presented here.
 2. Objectives of and Legal Basis for Rule
    The Department is proposing to establish the standards that 
employers seeking H-2A workers to perform open range herding and 
livestock production work must meet to comply with H-2A program 
obligations, including wage rates determined under a new wage setting 
methodology that allows the Department to fulfill its statutory 
obligations. Sections 214(c)(1) and 218 of the INA, 8 U.S.C. 1184(c)(1) 
and 1188, require an H-2A employer to petition DHS for classification 
of a prospective temporary worker as an H-2A nonimmigrant. The INA 
authorizes the DHS to admit foreign workers to the United States under 
the H-2A visa classification if the Secretary of Labor certifies both 
that 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 that 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). Accordingly, DHS 
regulations require employers to obtain certification from DOL that 
these conditions are met before submitting a petition to DHS. 8 CFR 
214.2(h)(5)(i).
    The Secretary of Labor has delegated the responsibility for making 
the factual determinations necessary to issue certifications, through 
the Assistant Secretary, ETA, to ETA's OFLC. Sec. Order 06-2010, 75 FR 
66268 (Oct. 27,

[[Page 20331]]

2010). The Department's regulations governing H-2A certifications 
authorize the OFLC Administrator to establish, continue, revise, or 
revoke special procedures for processing certain H-2A applications, 
including H-2A applications for open range herders and livestock 
production occupations. 20 CFR 655.102.
 3. Compliance Requirements of the Proposed Rule, Including Reporting 
and Recordkeeping
    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 proposed rule. We have estimated the 
costs of (a) the new methodology for determining the monthly Adverse 
Effect Wage Rate (AEWR) of workers engaged in the herding or production 
of livestock on the open range; (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 
additional water for laundry and cleaning, and the provision of potable 
water for drinking and cooking; (e) provision of cooking/cleaning 
facilities at the ranch; and (f) time to read and review the rule. This 
analysis includes the incremental cost of this proposed 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 proposed rule are consistent with those presented in 
the EO 12866 section.
    The Department identified the following provisions of the proposed 
rule to have an impact on 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 open range); filing requirements; job order 
submissions; job order duration; placement of workers on master 
applications; employer-provided items; and retaining earnings records.
a. New Methodology for Estimating the Wages of Workers
    Through this rulemaking, the Department is proposing to change the 
methodology for determining the monthly AEWR for workers engaged in the 
herding or production of livestock on the open range by using the FLS 
conducted by the USDA NASS. Specifically, the Department proposes to 
create a single monthly minimum AEWR for all occupations subject to 
this part by converting the hourly AEWRs into monthly rates by using 44 
hours per week and 4.333 weeks per month to arrive at the monthly AEWR 
for each State.
b. Newspaper Advertisements
    The Department is proposing to continue for sheep and goat herding 
occupations and expand to production of livestock occupations on the 
open range the TEGL practice of granting a waiver of the regulatory 
requirement to place two advertisements in a newspaper of general 
circulation serving the area of intended employment. Because both 
herding and production of livestock on the open range cover multiple 
areas of intended employment within one or more States, this regulatory 
requirement is impractical and ineffective for recruiting domestic 
workers for these types of job opportunities.
c. Meals
    All H-2A employers must provide either three meals a day or free 
and convenient kitchen facilities. Currently, as required under the 
sheep and goat herding TEGL and practice in the industry for herding or 
production of livestock on the open range, employers provide, at no 
cost to the worker, provisions (food), utensils, and other kitchen 
facilities for workers to use in preparing their own meals. During 
certain seasons of the year, the employer may provide workers with 
prepared meals, at no cost to the worker. The proposed rule codifies 
this common practice as a requirement for both employers engaged in 
herding and those engaged in the production of livestock on the open 
range that must be disclosed in the job offer, and employers must 
provide H-2A workers and workers in corresponding employment either 
three sufficient meals a day, free of charge, or free food provisions 
and free and convenient cooking and kitchen facilities.
d. Water
    In addition to providing three sufficient meals per day or 
furnishing free food and convenient cooking and kitchen facilities, the 
proposed rule also requires that employers provide to workers a supply 
of water sufficient to meet the needs of the worker(s), including not 
only cooking, consumption, and bathing, but also for cleaning and 
laundry requirements. The water for drinking and cooking must be 
potable or easily rendered potable, and the employer must provide the 
means necessary to render adequate quantities of water potable.
e. Provision of Cooking/Cleaning Facilities at the Ranch
    The Department recognizes that there are times when the mobile 
housing is located at or near the ranch or a central location that has 
fixed housing for workers for certain operations that are a normal part 
of the herding cycle, such as birthing (in some cases), shearing, or 
branding. We acknowledge that the mobile housing may in such instances 
continue to be used, even preferred, by workers, even where access to 
fixed housing exists.
    Where a worker continues to use the mobile housing provided for 
open range work while temporarily stationed at the ranch, the proposed 
rule obligates the herding or open range livestock production employer 
to provide the workers with access to facilities such as toilets and 
showers with hot and cold water under pressure.
    In situations in which the workers are near the ranch (reasonably 
able to return to it each night) but choose not to do so, they must 
still be provided access to cooking and cleaning facilities. Herding 
and open range livestock production employers do not need to maintain 
full housing in such cases, but must provide access to toilets, 
kitchens, and cleaning facilities for both person and clothing.
f. Time To Read and Review the Rule
    During the first year that this rule would be in effect, herding 
and open range livestock production employers would need to learn about 
the new requirements.
 4. Calculating the Impact of the Proposed Rule on Small Business Firms
    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 proposed rule. We have estimated the 
costs of (a) the new methodology for determining the monthly AEWR of 
workers engaged in the herding or production of livestock on the open 
range; (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 cooking/cleaning facilities at the ranch; and (f) time to 
read and review the rule. This analysis includes the incremental cost 
of this proposed rule as it adds to the requirements in the 2010 Final 
Rule, TEGL 32-10, and TEGL 15-6, Change 1. The Department was not able 
to quantify the impacts of the following provisions of the proposed 
rule: Proportion/type of work permitted

[[Page 20332]]

at the ranch; filing requirements; job order submissions; job order 
duration; placement of workers on master applications; employer-
provided items; and retaining earnings records. Thus, the total cost to 
small entities is likely higher than the total cost presented in this 
analysis, although the Department believes those additional costs are 
minor.
    To examine the impact of this proposed rule on small entities, the 
Department evaluates the impact of the incremental costs on the average 
small entity in the relevant industries, which is assumed to apply for 
certification to employ 3 H-2A workers. The Department estimates this 
value based on the number of H-2A workers requested by employers in 
these industries using data from the FY 2012 H-2A certification 
dataset. In FY 2012, there were 2,706 H-2A workers certified on 1,013 
applications. Not all of these 2,706 certified workers entered the U.S. 
to work for the 517 estimated unique employers, and some of the 
employers had multiple applications that were fully certified, 
resulting in the double counting of workers in some cases. Therefore, 
the Department approximated the average number of H-2A workers per 
small entity by dividing the total number of certified H-2A workers in 
FY 2012 (2,706) by the total number of certified applications (1,013) 
to derive the estimate of approximately 3 H-2A workers per small entity 
(2,706/1,013). The Department invites comments from the public on its 
calculation of the average number of H-2A workers per small entity. 
Additionally, the Department estimates that the farms in these 
industries have average annual revenues of approximately $252,050.\43\
---------------------------------------------------------------------------

    \43\ 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. Adjusting for inflation using the Consumer Price Index for 
All Urban Consumers (CPI-U), the average revenue per farm in the 
relevant industries is $252,050 in 2013 dollars. Thus, the 
Department estimates that a small farm in the relevant industries 
will have average annual revenues of approximately $252,050. As 
discussed in section 5, the SBA defines a small entity in these 
industries as an establishment with annual revenues of less than 
$0.75 million.
---------------------------------------------------------------------------

a. New Methodology for Determining the Monthly AEWR
    As discussed above, under the proposed wage determination 
methodology, the use of the five year phased-in hourly AEWR to 
determine an average hourly wage results in an increase of $2.70 in 
hourly wages paid to H-2A workers in 2016. Please refer to Section 
A(4)(b) above (New Methodology for Determining Wages of Workers) for a 
discussion of the baseline and new wage determination methodology. The 
Department multiplies this average hourly wage increase by 44 hours per 
week to obtain a weekly cost per worker of $118.80 ($2.70 x 44) in 
2016. The Department then multiplies this weekly cost by 50, which is 
the average period of need for workers in these industries. This 
results in a total cost of $5,940.00 ($118.80 x 50) per H-2A worker in 
2016. For employers hiring the average number of H-2A workers (3), this 
results in a total cost of $17,820.00 ($5,940.00 x 3) due to the 
increase in wages in 2016.
    To estimate the average annual cost of increased wages paid to H-2A 
workers under the first wage determination methodology alternative, the 
Department calculates the average annual hourly wage increase over the 
period of analysis using the following average hourly wage increases 
relative to the appropriate 2014 monthly AEWR decomposed into hourly 
wage rates $2.70 for 2016, $4.05 for 2017, $4.63 for 2018, $6.08 for 
2019, and $7.59 for 2020 to 2025. Given the average annual hourly wage 
increase ($6.30), a 44-hour workweek, and an average period of need for 
workers of 50 weeks, the Department estimates an average annual cost of 
$13,860.00 ($6.30 x 44 x 50) per H-2A worker. For employers hiring the 
average number of H-2A workers (3), this results in an average annual 
cost of $41,580.00 ($13,860.00 x 3) per small entity due to the 
increase in wages.
    Under the wage determination methodology alternative applying the 
forecasted AEWR phased in over three years, the use of the phased-in 
hourly AEWR to estimate an average hourly wage results in an increase 
of $2.70 in hourly wages paid to H-2A workers in 2016. The Department 
multiplies this average hourly wage increase by 44 hours per week to 
obtain a weekly cost per worker of $118.80 ($2.70 x 44) in 2016. The 
Department then multiplies this weekly cost by 50, which is the average 
period of need for workers in these industries. This results in a total 
cost of $5,940.00 ($118.80 x 50) per H-2A worker in 2016. For employers 
hiring the average number of H-2A workers (3), this results in a total 
cost of $17,820.00 ($5,940.00 x 3) per small entity due to the increase 
in wages in 2016.
    To estimate the average annual cost of increased wages paid to H-2A 
workers under the 3-year alternative, the Department calculates the 
average annual hourly wage increase over the period of analysis using 
the following average hourly wage increases relative to the appropriate 
2014 monthly AEWR decomposed into hourly wage rates: $2.70 for 2016, 
$4.42 for 2017, $7.04 for 2018, $7.31 for 2019, and $7.59 for 2020 to 
2025. Given the average annual hourly wage increase ($6.70), a 44-hour 
workweek, and an average period of need for workers of 50 weeks, the 
Department estimates an average annual cost of $14,742.20 ($6.70 x 44 x 
50) per H-2A worker. For employers hiring the average number of H-2A 
workers (3), this results in an average annual cost of $44,226.60 
($14,742.20 x 3) per small entity due to the increase in wages.
    Under the wage determination methodology alternative applying the 
forecasted AEWR with no phase-in, the use of the hourly AEWR to 
estimate an average hourly wage results in an increase of $6.50 in 
hourly wages paid to H-2A workers in 2016. The Department multiplies 
this average hourly wage increase by 44 hours per week to obtain a 
weekly cost per worker of $286.00 ($6.50 x 44) in 2016. The Department 
then multiplies this weekly cost by 50, which is the average period of 
need for workers in these industries. This results in a total cost of 
$14,300.00 ($286.00 x 50) per H-2A worker in 2016. For employers hiring 
the average number of H-2A workers (3), this results in a total cost of 
$42,900.00 ($14,300.00 x 3) per small entity due to the increase in 
wages in 2016.
    To estimate the average annual cost of increased wages paid to H-2A 
workers under the alternative using no phase-in, the Department 
calculates the average annual hourly wage increase over the period of 
analysis using the following average hourly wage increases relative to 
the appropriate 2014 monthly AEWR decomposed into hourly wage rates: 
$6.50 for 2016, $6.77 for 2017, $7.04 for 2018, $7.31 for 2019, and 
$7.59 for 2020 to 2025. Given the average annual hourly wage increase 
($7.32), a 44-hour workweek, and an average period of need for workers 
of 50 weeks, the Department estimates an average annual cost of 
$16,095.20 ($7.316 x 44 x 50) per H-2A worker. For employers hiring the 
average number of H-2A workers (3), this results in an average annual 
cost of $48,285.60 ($16,095.20 x 3) per small entity due to the 
increase in wages.
b. Newspaper Advertisements
    Through this proposed rule, the Department is proposing to expand 
to production of livestock occupations on the open range the TEGL 
practice for sheep and goat herding occupations of granting a waiver of 
the requirement to place two advertisements in a newspaper serving the 
area of intended

[[Page 20333]]

employment. This would result in a minor cost reduction. To estimate 
this cost reduction, the Department multiplies the number of newspaper 
advertisements required per open range livestock production employer 
(2) by the average cost of placing a newspaper advertisement ($258.64) 
to obtain an avoided cost of purchasing advertising space equal to 
$517.28 (2 x $258.64) per open range livestock production employer per 
year.\44\ 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 manager 
($75.90), which amounts to $75.90 (2 x 0.5 x $75.90) in avoided labor 
costs per open range livestock production employer per year.\45\ In 
total, this requirement would result in a cost reduction of $593.18 
($517.28 + $75.90) per year for employers of open range livestock 
production occupations.
---------------------------------------------------------------------------

    \44\ The newspaper advertisement cost estimate is based on an 
advertisement of 158 words placed in The Salt Lake Tribune for one 
day; it is available at http://placead.yourutahclassifieds.com/webbase/en/std/jsp/WebBaseMain.do. (accessed on November 13, 2014).
    \45\ The Department estimates that the median hourly wage for a 
human resources manager is $53.45 (as published by the Department's 
OES survey, O*Net Online), which we increased by 1.42 to account for 
private-sector employee benefits (source: Bureau of Labor 
Statistics) for an hourly compensation rate of $75.90.
---------------------------------------------------------------------------

c. Meals
    Under the proposed rule, the Department is proposing to 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 open range livestock production employers 
but not to sheep or goat herding employers because this is already a 
requirement under TEGL 32-10. To estimate this cost, the Department 
multiplies the number of meals required per open range livestock 
production worker per week (21) by the average cost of a meal ($3.86) 
and the average duration of need in weeks (50) to obtain a cost of 
$4,053.00 (21 x $3.86 x 50) per open range livestock production worker 
per year.\46\
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    \46\ The meal cost estimate of $3.86 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 December 8, 2014).
---------------------------------------------------------------------------

    In addition to the cost to purchase food, open 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.
d. Water
    The proposed rule requires that the herding or open range livestock 
production employer continue to provide to the workers adequate 
provision of water for drinking, cooking and bathing; the proposed rule 
adds requirements for sufficient water for laundry and cleaning. In 
addition, the rule proposes to require that drinking and cooking water 
be potable or easily rendered potable. The Department estimates this 
cost 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.
    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 (28) and the average duration 
of need in weeks (50). This calculation yields a cost of providing 
potable water equal to $7.00 ($0.005 x 28 x 50) per worker per 
year.\47\
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    \47\ The Department estimated the potable water cost using data 
published in the 2014 Water and Wastewater Survey by the Texas 
Municipal League. (Source: http://www.tml.org/surveys; accessed on 
November 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.\48\ This results in a one-time cost of $839.34 for the 
average employer in the first year of the rule. This value yields an 
average annual cost of $83.93 over the 10-year analysis period.
---------------------------------------------------------------------------

    \48\ The trailer cost estimate is based on the average cost for 
a 5 x 8 ft. utility trailer from Tractor Supply Company, Lowes, and 
Home Depot.
---------------------------------------------------------------------------

    The Department estimates the cost of vehicle mileage per employer 
by multiplying the average vehicle mileage cost ($0.59) by the number 
of miles driven to transport the potable water and meals roundtrip 
(100) and the average number of roundtrips per year (50).\49\ This 
calculation yields a mileage cost equal to $2,960.00 ($0.592 x 100 x 
50) per employer per year.
---------------------------------------------------------------------------

    \49\ The cost per mile of owning and operating an automobile is 
based on the average costs in the U.S. Department of Transportation, 
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 
on November 13, 2014).
---------------------------------------------------------------------------

    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 (2.86 hours) and the hourly compensation of an 
agricultural worker ($13.01), which amounts to $1,860.03 (50 x 2.86 x 
$13.01) in labor costs per employer per year.50 51
---------------------------------------------------------------------------

    \50\ 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). The Department 
assumes the workers are 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.
    \51\ The Department estimates that the median hourly wage for an 
agricultural worker is $9.16 (as published by the Department's OES 
survey, O*Net Online), which we increased by 1.42 to account for 
private-sector employee benefits (source: Bureau of Labor 
Statistics) for an hourly compensation rate of $13.01.
---------------------------------------------------------------------------

    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 would result in a 
cost of $5,666.37 ($7.00 + $839.34 + $2,960.00 + $1,860.03) 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 $4,910.96 ($7.00 + $83.93 + $2,960.00 + $1,860.03) over 
the 10-year analysis period. For employers hiring the average number of 
H-2A workers (3), the first-year cost increases to $5,680.37 ($7.00 x 3 
+ $839.34 + $2,960.00 + $1,860.03), and the average annual cost 
increases to $4,924.96 ($7.00 x 3 + $83.93 + $2,960.00 + $1,860.06). 
This is an upper-bound estimate because employers currently are 
required to provide water that meets State health requirements that is 
sufficient to meet the employees' needs for drinking, cooking, and 
bathing. Therefore, employers likely already have trailers and are 
making trips to deliver the water.
e. Expanded Cooking/Cleaning Facilities
    Where a worker continues to use the mobile housing provided for 
open range work while temporarily stationed at the ranch, the proposed 
rule obligates the herding or open range livestock production employer 
to provide the worker with access to facilities such as toilets and 
showers with hot and cold water with pressure. To estimate this

[[Page 20334]]

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 would be required to be constructed/expanded (100 
square feet). This calculation results in a one-time cost of $27,000.00 
($270.00 x 100) for the average employer, which amounts to an average 
annual cost of $2,700.00 over the 10-year analysis period.\52\
---------------------------------------------------------------------------

    \52\ The Department assumes that the average employer will 
require a cleaning facility of approximately 100 square feet.
---------------------------------------------------------------------------

f. Time To Read and Review the Proposed Rule
    During the first year that the proposed rule would be in effect, 
herding and open range livestock production employers would need to 
learn about the rule provisions and the activities necessary to remain 
compliant. In the first year of the rule, the Department estimates that 
the average small farm would spend approximately 2 hours of staff time 
to read and review the new rule, which amounts to approximately $151.80 
($75.90 x 2) in labor costs per employer in the first year of the rule. 
This amounts to an average annual cost of $15.18 ($151.80/10) over the 
10-year analysis period.\53\
---------------------------------------------------------------------------

    \53\ The Department estimates that the median hourly wage for a 
human resources manager is $53.45 (as published by the Department's 
OES survey, O*Net Online), which we increased by 1.42 to account for 
private-sector employee benefits (source: Bureau of Labor 
Statistics) for an hourly compensation rate of $75.90.
---------------------------------------------------------------------------

g. Total Cost Burden for Small Entities
    The Department's calculations indicate that the total average 
annual cost of this proposed rule is $49,220 (or 19.5 percent of annual 
revenues) for the average small entity employing three workers in sheep 
or goat herding occupations.\54\ The total average annual cost of this 
proposed rule is $60,786 (or 24.1 percent of annual revenues) for the 
average small entity employing workers in open range livestock 
production occupations.\55\
---------------------------------------------------------------------------

    \54\ For illustration, the total average annual cost of $49,220 
for the average small entity applying for 3 workers in sheep or goat 
herding occupations results from summing the totals for the various 
rule requirements described above as follows: $49,220 = $13,860.00 x 
3 + $7.00 x 3 + $83.93 + $2,960.00 + $1,860.03 + $2,700.00 + $15.18.
    \55\ For illustration, the total average annual cost of $60,786 
for the average small entity applying for 3 workers in open range 
livestock production occupations results from summing the totals for 
the various rule requirements described above as follows: $60,786 = 
$13,860.00 x 3 + $4,053.00 x 3 + $7.00 x 3 + $83.93 + $2,960.00 + 
$1,860.03 + $2,700.00 + $15.18-$593.18.
---------------------------------------------------------------------------

    For small entities that apply for 1 worker instead of 3--
representing the smallest of the small farms that hire workers--the 
Department estimates that the total average annual cost of the proposed 
rule is $21,486 (or 8.5 percent of annual revenues) for entities 
employing a worker in a sheepherding or goat herding occupation.\56\ 
The total average annual cost of the proposed rule is $24,946 (or 9.9 
percent of annual revenues) for small entities employing a worker in an 
open range livestock production occupation.\57\
---------------------------------------------------------------------------

    \56\ For illustration, the total average annual cost of $21,486 
for the average small entity applying for 1 worker in a sheep or 
goat herding occupation results from summing the totals for the 
various rule requirements described above as follows: $21,486 = 
$13,860.00 + $7.00 + $83.93 + $2,960.00 + $1,860.03 + $2,700.00 + 
$15.18.
    \57\ For illustration, the total average annual cost of $24,946 
for the average small entity applying for 1 worker in an open range 
livestock production occupation results from summing the totals for 
the various rule requirements described above as follows: $24,946 = 
$13,860.00 + 4,053.00 + $7.00 + $83.93 + $2,960.00 + $1,860.03 + 
$2,700.00 + $15.18-$593.18.
---------------------------------------------------------------------------

    Exhibit 22 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 phasing of 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/goat herding employer or an open range 
livestock production employer. The Department defines a ``significant 
economic impact'' as an impact that amounts to at least 3 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.

                                    Exhibit 22--Summary of Costs per Employer
----------------------------------------------------------------------------------------------------------------
                                                                              Average annual cost per employer
                 Provision                          Entity affected        -------------------------------------
                                                                             Hiring 1 worker    Hiring 3 workers
----------------------------------------------------------------------------------------------------------------
(a) New wage determination methodology       All Employers................        $13,860.00         $41,580.00
 based on the five-year phased-in AEWR.
(b) Newspaper advertisements...............  Open Range Employers.........           (593.18)           (593.18)
(c) Meals..................................  Open Range Employers.........          4,053.00          12,159.00
(d) Potable water..........................  All Employers................          4,910.96           4,924.96
(e) Expanded cooking/cleaning facilities...  All Employers................          2,700.00           2,700.00
(f) Time required to read and review the     All Employers................             15.18              15.18
 NPRM.
----------------------------------------------------------------------------------------------------------------
                          Average annual revenue                 $252,050
----------------------------------------------------------------------------------------------------------------
Total Annual Cost Per Sheep/Goat herding Employer.........................           $21,486             49,220
Average Annual Cost as a Percentage of Revenue............................              8.5%              19.5%
Total Annual Cost Per Open Range Employer.................................           $24,946            $60,786
Average Annual Cost as a Percentage of Revenue............................              9.9%              24.1%
----------------------------------------------------------------------------------------------------------------

    The Department seeks feedback on the estimated total summary of 
compliance costs of this rule for small businesses, and the estimates 
for the individual requirements listed above. The Department seeks 
input on the data and assumptions that the agency utilized to make this 
calculation. In particular, the Department seeks feedback on its 
estimates regarding the annual revenues for small entities, the 
baseline utilized for this analysis and the estimates of the numbers of 
H-2B workers and corresponding workers per employer. In addition, the 
Department seeks comments on whether there is a better data source 
available to use for wage information, or alternatives to reduce the 
paperwork burden or other costs of the proposed rule.

[[Page 20335]]

 5. Estimating the Number of Small Businesses Affected by the 
Rulemaking
    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 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).\58\ The Department has adopted the SBA definition for these 
industries, which is an establishment with annual revenues of less than 
$0.75 million.\59\
---------------------------------------------------------------------------

    \58\ Animal Aquaculture (NAICS 1125) is not considered a 
relevant industry for this proposed rulemaking. However, the IRFA 
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 IRFA analysis. In addition, the Department excludes farms in 
the Cattle Feedlots (NAICS 112112) industry because cattle in 
feedlots do not graze on the open range; therefore, employers in the 
cattle feedlot industry would not be affected by the proposed rule.
    \59\ 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 
on November 13, 2014).
---------------------------------------------------------------------------

    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.\60\ 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 greater than 15 percent of the relevant universe of 
small entities affected in a given industry. Therefore, the Department 
concludes that the proposed rule will have a significant economic 
impact on a substantial number of small entities. In 2012, there were 
517 employers participating in the H-2A program in the industries 
subject to the proposed rule. Using an annual growth rate of 2 percent, 
the Department estimates that there will be approximately 669 
participants by 2025.
---------------------------------------------------------------------------

    \60\ The relevant industries include the following: Beef Cattle 
Ranching and Farming (112111), Dairy Cattle and Milk Production 
(11212), Sheep and Goat Farming (1124), Animal Aquaculture (1125), 
and Other Animal Production (1129).
---------------------------------------------------------------------------

6. Relevant Federal Rules Duplicating, Overlapping, or Conflicting With 
the Rule
    The Department is not aware of any relevant Federal rules that 
conflict with this NPRM.
7. Alternatives to the Proposed Rule
    The Department has considered three alternatives: (1) To make the 
policy changes contained in the proposed rule in which the wage 
determination is based on forecasted AEWR values by U.S. Department of 
Agriculture (USDA) region, which are incrementally phased in over five 
years; (2) to make the policy changes contained in the proposed rule in 
which the wage determination is based on forecasted AEWR values by USDA 
region, which are incrementally phased in over three years; or (3) to 
make the policy changes contained in the proposed rule in which the 
wage determination is based on forecasted AEWR values by USDA region, 
which do not utilize a phase-in schedule. The Department believes that 
the first alternative--to make the policy changes contained in the 
proposed rule using the wage based on forecasted AEWR values by USDA 
region, which are incrementally phased in over five years--is the most 
consistent with its dual statutory mandate to ensure that there are not 
sufficient workers who are able, willing, qualified and available to 
perform the labor or services required, and that the employment of the 
foreign workers will not adversely affect the wages and working 
conditions of workers in the United States similarly employed and 
appropriately accounts for labor market concerns. The Department does 
not consider the 3-year phase in and no phase in period alternatives 
appropriate because they do not appropriately account for the unique 
characteristics of these occupations that have historically resulted in 
a limited number of U.S. workers interested in performing the jobs and 
raise concerns about labor market disruption, such as loss of jobs and 
lack of labor when and where it is needed. The Department invites 
comments from the public on other possible alternatives to consider, 
including alternatives to the specific provisions contained in this 
NPRM.
    The Department estimated the total cost burden on small entities 
for each of the alternatives as follows.
Wage Methodology Calculation
a. Policy Changes in the NPRM Using the AEWR Values by USDA Region, 
Which Are Incrementally Phased In Over Five Years
    The first alternative--this NPRM--retains the most effective 
features of the 2010 Final Rule, TEGL 32-10, TEGL 15-06, Change 1 and 
proposes provisions to best achieve the Department's policy objectives. 
The Department's calculations indicate that the total average annual 
cost of this proposed rule is $49,220 (or 19.5 percent of annual 
revenues) for the average small entity employing three workers in sheep 
or goat herding occupations.\61\ The total average annual cost of this 
proposed rule is $60,786 (or 24.1 percent of annual revenues) for the 
average small entity employing three workers in open range livestock 
production occupations.\62\
---------------------------------------------------------------------------

    \61\ For illustration, the total average annual cost of $49,220 
for the average small entity applying for 3 workers in sheepherding 
or goat herding occupations results from summing the totals for the 
various rule requirements described above as follows: $49,220 = 
$13,860.00 x 3 + $7.00 x 3 + $83.93 + $2,960.00 + $1,860.03 + 
$2,700.00 + $15.18.
    \62\ For illustration, the total average annual cost of $60,786 
for the average small entity applying for 3 workers in open range 
livestock production occupations results from summing the totals for 
the various rule requirements described above as follows: $60,786 = 
$13,860.00 x 3 + $4,053.00 x 3 + $7.00 x 3 + $83.93 + $2,960.00 + 
$1,860.03 + $2,700.00 + $15.18-$593.18.
---------------------------------------------------------------------------

    For small entities that apply for 1 worker instead of 3--
representing the smallest of the small farms that hire workers--the 
Department estimates that the total average annual cost of the proposed 
rule is $21,486 (or 8.5 percent of annual revenues) for entities 
employing a worker in a sheep or goat herding occupation.\63\ The total 
average annual cost of the proposed rule is $24,946 (or 9.9 percent of 
annual revenues) for small entities employing a worker in an open range 
livestock production occupation.\64\
---------------------------------------------------------------------------

    \63\ For illustration, the total average annual cost of $21,486 
for the average small entity applying for 1 worker in a sheep or 
goat herding occupation results from summing the totals for the 
various rule requirements described above as follows: $21,486 = 
$13,860.00 + $7.00 + $83.93 + $2,960.00 + $1,860.03 + $2,700.00 + 
$15.18.
    \64\ For illustration, the total average annual cost of $24,946 
for the average small entity applying for 1 worker in an open range 
livestock production occupation results from summing the totals for 
the various rule requirements described above as follows: $24,946 = 
$13,860.00 + 4,053.00 + $7.00 + $83.93 + $2,960.00 + $1,860.03 + 
$2,700.00 + $15.18 - $593.18.

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

[[Page 20336]]

b. Policy Changes in the NPRM Using the AEWR Values by USDA Region, 
Which Are Incrementally Phased In Over Three Years
    The second alternative retains the same features of the 2010 Final 
Rule, TEGL 32-10, TEGL 15-06, Change 1, and proposes the same 
provisions as the first alternative; the only difference is that the 
AEWR-based wage determination is incrementally phase in over three 
years. The Department's calculations indicate that the total average 
annual cost of this alternative would be $51,867 (or 20.6 percent of 
annual revenues) for the average small entity employing sheep or goat 
herding occupations.\65\ The total average annual cost of this 
alternative would be $63,433 (or 25.2 percent of annual revenues) for 
the average small entity employing open range livestock production 
occupations.\66\
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    \65\ For illustration, the total average annual cost of $51,867 
for the average small entity applying for 3 workers in sheep or goat 
herding occupations results from summing the totals for the various 
rule requirements described above as follows: $51,867 = $14,742.20 x 
3 + $7.00 x 3 + $83.93 + $2,960.00 + $1,860.03 + $2,700.00 + $15.18.
    \66\ For illustration, the total average annual cost of $63,433 
for the average small entity applying for 3 workers in open range 
livestock production occupations results from summing the totals for 
the various rule requirements described above as follows: $63,433 = 
$14,742.20 x 3 + $4,053.00 x 3 + $7.00 x 3 + $83.93 + $2,960.00 + 
$1,860.03 + $2,700.00 + $15.18-$593.18.
---------------------------------------------------------------------------

    For small entities that apply for 1 worker instead of 3--
representing the smallest of the small farms that hire workers--the 
Department estimates that the total average annual cost of this 
alternative would be $22,368 (or 8.9 percent of annual revenues) for 
entities employing a worker in a sheep or goat herding occupation.\67\ 
The total average annual cost of this alternative would be $25,828 (or 
10.2 percent of annual revenues) for small entities employing a worker 
in an open range livestock production occupation.\68\
---------------------------------------------------------------------------

    \67\ For illustration, the total average annual cost of $22,368 
for the average small entity applying for 1 worker in a sheep or 
goat herding occupation results from summing the totals for the 
various rule requirements described above as follows: $22,368 = 
$14,742.20 + $7.00 + $83.93 + $2,960.00 + $1,860.03 + $2,700.00 + 
$15.18.
    \68\ For illustration, the total average annual cost of $25,828 
for the average small entity applying for 1 worker in an open range 
livestock production occupation results from summing the totals for 
the various rule requirements described above as follows: $25,828 = 
$14,742.20 + 4,053.00 + $7.00 + $83.93 + $2,960.00 + $1,860.03 + 
$2,700.00 + $15.18 - $593.18.
---------------------------------------------------------------------------

c. Policy Changes in the NPRM Using the AEWR Values by USDA Region With 
No Phase-In Period
    The third alternative retains the same features of the 2010 Final 
Rule, TEGL 32-10, TEGL 15-06, Change 1, and proposes the same 
provisions as the first alternative; the only difference is that the 
AEWR-based wage determination does not utilize a phase-in schedule. The 
Department's calculations indicate that the total average annual cost 
of this alternative would be $55,926 (or 22.2 percent of annual 
revenues) for the average small entity employing sheep or goat herding 
occupations.\69\ The total average annual cost of this alternative 
would be $67,492 (or 26.8 percent of annual revenues) for the average 
small entity employing open range livestock production occupations.\70\
---------------------------------------------------------------------------

    \69\ For illustration, the total average annual cost of $55,926 
for the average small entity applying for 3 workers in sheep or goat 
herding occupations results from summing the totals for the various 
rule requirements described above as follows: $55,926 = $16,095.20 x 
3 + $7.00 x 3 + $83.93 + $2,960.00 + $1,860.03 + $2,700.00 + $15.18.
    \70\ For illustration, the total average annual cost of $67,492 
for the average small entity applying for 3 workers in open range 
livestock production occupations results from summing the totals for 
the various rule requirements described above as follows: $67,492 = 
$16,095.20 x 3 + $4,053.00 x 3 + $7.00 x 3 + $83.93 + $2,960.00 + 
$1,860.03 + $2,700.00 + $15.18 - $593.18.
---------------------------------------------------------------------------

    For small entities that apply for 1 worker instead of 3--
representing the smallest of the small farms that hire workers--the 
Department estimates that the total average annual cost of this 
alternative would be $23,721 (or 9.4 percent of annual revenues) for 
entities employing a worker in a sheep or goat herding occupation.\71\ 
The total average annual cost of this alternative would be $27,181 (or 
10.8 percent of annual revenues) for small entities employing a worker 
in an open range livestock production occupation.\72\
---------------------------------------------------------------------------

    \71\ For illustration, the total average annual cost of $23,721 
for the average small entity applying for 1 worker in a sheep or 
goat herding occupation results from summing the totals for the 
various rule requirements described above as follows: $23,721 = 
$16,095.20 + $7.00 + $83.93 + $2,960.00 + $1,860.03 + $2,700.00 + 
$15.18.
    \72\ For illustration, the total average annual cost of $27,181 
for the average small entity applying for 1 worker in an open range 
livestock production occupation results from summing the totals for 
the various rule requirements described above as follows: $27,181 = 
$16,095.20 + 4,053.00 + $7.00 + $83.93 + $2,960.00 + $1,860.03 + 
$2,700.00 + $15.18-$593.18.
---------------------------------------------------------------------------

    The Department seeks feedback on its chosen method for the wage 
determination, and seeks input on other wage methodologies that would 
minimize the economic impact of this rule for small entities while 
protecting against adverse effect. For example, is there a better data 
source that should be utilized? Is the 5-year phase-in period 
appropriate?
d. Differing Compliance and Reporting Requirements for Small Entities
    The NPRM provides for no differing compliance requirements and 
reporting requirements for small entities. As discussed above, 
approximately 99 percent of the U.S. firms in the relevant industries 
fall within the SBA's definition of a small entity.
    However, DOL is interested in receiving feedback on alternatives to 
the proposed compliance and reporting requirements for all regulated 
entities that would minimize the costs of this rulemaking while still 
achieving the objectives of the rulemaking. For example, are there any 
significant alternatives for any of the following requirements: (a) 
Recording the type of work performed at the ranch (i.e., not on the 
open range); (b) filing requirements; (c) job order submissions; (d) 
job order duration; (e) newspaper advertisements; (f) placement of 
workers on master applications; (g) employer-provided items; (h) meals; 
(i) potable water; (j) expanded cooking/cleaning facilities; (k) 
provision of communication access, (l) earnings records; and (m) time 
to read and review the rule?
e. Clarification, Consolidation, and Simplification of Compliance and 
Reporting Requirements for Small Entities
    This NPRM was drafted to clearly state the compliance requirements 
for all small entities subject to this proposed rule. The paperwork 
burden associated with the reporting burden related to the proposed 
recordkeeping requirements is addressed below in section N.
    The Department seeks feedback on any ways it can clarify, 
consolidate or simplify the requirements in this regulation.
f. Use of Performance Rather Than Design Standards
    The NPRM was written to provide clear guidelines to ensure 
compliance with the proposed rule's requirements. Under the proposed 
rule, small entities may achieve compliance through a variety of means. 
The Department makes available a variety of resources to small entities 
for understanding their obligations and achieving compliance.
g. Exemption From Coverage of the Rule for Small Entities
    All small entities that avail themselves of the H-2A program and 
seek H-2A workers to perform open range herding and livestock 
production occupations must comply with the proposed procedures and 
standards, including wage rate determinations

[[Page 20337]]

using the proposed wage methodology, if finalized. The Department has 
no authority to exempt small businesses from the proposed regulation. 
Furthermore, as noted above, approximately 99 percent of the U.S. firms 
in the relevant industries fall within the SBA's definition of a small 
entity.

C. Unfunded Mandates Reform

    Executive Order 12875--This 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 Proposed 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 NPRM 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 NPRM and the 
publication of a final regulation, 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 proposed rulemaking will 
impose a significant impact on a substantial number of small entities 
under the RFA; therefore, if the rule is finalized as proposed, the 
Department will be required to produce a Compliance Guide for Small 
Entities as mandated by the SBREFA. The Department has concluded that 
this Proposed Rule is not a major rule requiring review by the Congress 
under the 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. If implemented as 
proposed, we will submit to Congress and the Comptroller General of the 
United States a report regarding the issuance of the 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 NPRM in accordance with E.O. 13132 
regarding federalism and has determined that it does not have 
federalism implications. The NPRM 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 NPRM will not have a sufficient federalism 
implication to warrant the preparation of a summary impact statement.

G. Executive Order 13175--Indian Tribal Governments

    This NPRM was reviewed under the terms of E.O. 13175 and determined 
not to have Tribal implications. The NPRM 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 NPRM 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 NPRM 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 NPRM 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 NPRM in plain language.

L. Executive Order 13211--Energy Supply

    This NPRM 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

    This NPRM proposes a new information collection to the H-2A program 
and seeks approval from the Office of Management and Budget (OMB) under 
OMB Control Number 1205-NEW. The Department is not creating a specific 
form for this new collection requirement. Rather, the Department's 
proposal would require that employers keep and maintain records that 
reflect each day that the worker works, whether the work was performed 
on the open range or at the employer's ranch or farm. In addition,

[[Page 20338]]

for work that is conducted at the ranch or farm, the employer must keep 
records of the days worked and the nature of the work performed. 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 and that the work at the 
ranch that does not constitute the production of livestock was minor, 
sporadic, and incidental (i.e., closely and directly related to herding 
and the production of livestock and occurred on no more than 20 percent 
of the workdays at the ranch).
    This proposal constitutes a new information collection and creates 
an associated paperwork burden on the employers that must be assessed 
under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3521. Based on 
the number of current applications for H-2A workers to perform herding 
work, the Department estimates that by 2016 the proposed information 
collection will affect 560 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 560 employers is 2,800 minutes (560 employers x 5 
minutes) per week, or 47 hours per week. When annualized, the total 
reporting burden is 2,444 hours per year (47 hours per week x 52 
weeks). The total record keeping burden for 560 employers is 560 
minutes (560 employers x 1 minute) per week, or 9 hours per week. When 
annualized, the total recordkeeping burden is 468 hours per year (9 
hours per week x 52 weeks). When these two sums are added together, the 
total employer reporting and recordkeeping burden is 2,912 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 ($53.45), from the U.S. Department of Labor, Bureau 
of Labor Statistics, Occupational Employment Statistics survey wage 
data,\73\ and increased by a factor of 1.42 to account for employee 
benefits and other compensation, for a total hourly cost of $75.90. 
This number was multiplied by the total hourly annual burden created 
for this new requirement proposed by this NPRM, which, as noted above, 
is 2,912 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:
---------------------------------------------------------------------------

    \73\ Source: Bureau of Labor Statistics. Occupational Employment 
Statistics: May 2013 National Occupational Employment and Wage 
Estimates; Management Occupations
    .

Total Burden Cost of This Provision is 2,912 hours x $75.90 = 
---------------------------------------------------------------------------
$221,021 per year

    As noted above, this collection of information is subject to the 
PRA. Accordingly, this information collection in this proposed rule has 
been submitted to OMB for review under 44 U.S.C. 3507(d) of the PRA. 
The PRA package for OMB Control Number 1205-NEW can be obtained by 
contacting the office listed below or in the ADDRESSES section of this 
Notice of Proposed Rulemaking or at the Web site: http://www.reginfo.gov/public/dol/pramain.
    Written comments are encouraged and will be accepted until June 15, 
2015.
    When submitting comments on the new information collection, your 
comments should address one or more of the following four points:
     Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
     evaluate the accuracy of the agency's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used;
     enhance the quality, utility, and clarity of the 
information to be collected; and
     minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submissions of responses.

 Overview of Information Collection for the New Provision Proposed by 
This NPRM

    Type of Review: New Collection.
    Agency: Employment and Training Administration.
    Title: H-2A Temporary Labor Certification Program.
    OMB Number: 1205-NEW.
    Affected Public: Farm businesses.
    Form(s): None.
    Total Annual Respondents: 560.
    Annual Frequency: Weekly.
    Total Annual Responses: 29,120.
    Average Time per Response: 6 minutes.
    Estimated Total Annual Burden Hours: 2,912 hours per year.
    Total Annual Start-up/Capital/Maintenance Costs for Respondents: 
$0.
    The Department invites comments on all aspects of the PRA analysis. 
Comments submitted in response to this request will be summarized and/
or included in the request for OMB approval of the information 
collection. They will also be included on the administrative record of 
this rulemaking, and we will consider them in developing the final 
rule.
    All comments and suggestions or question regarding additional 
information should be directed to the Federal e-Rulemaking Portal at: 
http://www.regulations.gov and a copy sent to the Office of Information 
and Regulatory Affairs of the Office of Management and Budget, 
Washington, DC 20503, Attention: Desk Officer for Employment and 
Training Administration, AND to Michel Smyth, Departmental Clearance 
Officer, Department of Labor, 200 Constitution Ave. NW., Washington, DC 
20210 or email: [email protected]. The information collection 
aspects of the proposed rulemaking will not take effect until published 
in a final rule and approved by OMB. 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(k)(1).

List of Subjects in 20 CFR Part 655

    Administrative practice and procedure, Foreign workers, Employment, 
Employment and training, Enforcement, 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, Department of Labor 
proposes to amend 20 CFR part 655 as follows:

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

0
1. The authority citation for part 655 continues to read in part as 
follows:

    Authority: Section 655.0 issued under 8 U.S.C. 
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 
1103(a)(6), 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. 733, 1748 (8 U.S.C. 1101 note);

[[Page 20339]]

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); 29 U.S.C. 49k; 
Pub. L. 109-423, 120 Stat. 2900; 8 CFR 214.2(h)(4)(i); and 8 CFR 
214.2(h)(6)(iii).
* * * * *
0
2. Subpart C is added to read as follows:
Subpart C--Labor Certification Process for Temporary Agricultural 
Employment in Open Range Sheepherding, Goat Herding, and Production of 
Livestock Occupations
Sec.
655.200 Scope and purpose.
655.201 Definition of terms.
655.205 Job orders.
655.210 Contents of job orders.
655.211 Wage rate.
655.215 Procedures for filing applications for temporary employment 
certification.
655.220 Processing applications for temporary employment 
certification.
655.225 Post-acceptance requirements.
655.230 Mobile housing.
655.235 Standards for mobile housing.

Subpart C--Labor Certification Process for Temporary Agricultural 
Employment in Open Range Sheepherding, Goat Herding, and Production 
of Livestock Occupations


Sec.  655.200  Scope and purpose.

    (a) Purpose. The purpose of this subpart 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 open range, as 
defined in this subpart. Unless otherwise specified in this subpart, 
employers whose job opportunities meet the qualifying criteria under 
this subpart must fully comply with all of the requirements of part 
655, subpart B; part 653, subparts B and F; and part 654 of this 
chapter.
    (b) Jobs subject to this subpart. These procedures apply to job 
opportunities with the following unique characteristics:
    (1) The work activities involve the herding or production of 
livestock, as defined under Sec.  655.201. Any additional job duties 
performed by the worker 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, as defined under Sec.  655.201, for at least 50 percent 
of the workdays in the work contract period because the worker is not 
reasonably able to return to his or her place of residence or to 
employer-provided fixed site housing within the same day. Any 
additional work performed at a place other than the open range (e.g., 
an enclosed farm or ranch) that does not constitute the production of 
livestock must be minor, sporadic, and incidental 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 a week.


Sec.  655.201  Definition of terms.

    The following are terms that are not defined in subpart B of this 
part and are specific to applications for labor certifications 
involving the herding or production of livestock on the open range.
    Herding. Activities associated with the caring, controlling, 
feeding, gathering, moving, tending, and sorting of livestock on the 
open range.
    Livestock. An 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.
    Minor, sporadic, and incidental work. Work 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.
    Mobile housing. Housing meeting the standards articulated under 
Sec.  655.235 that can be moved from one area to another area on the 
open range.
    Open range. Unenclosed 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.
    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 open range; and assisting with the breeding, 
birthing, raising, weaning, castration, branding, and general care of 
livestock.


Sec.  655.205  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 a job order, 
Form ETA 790, directly to the National Processing Center (NPC) 
designated by the Office of Foreign Labor Certification (OFLC 
Administrator) along with a completed Application for Temporary 
Employment Certification, Form ETA 9142, as required in Sec.  655.130.


Sec.  655.210  Contents of job orders.

    (a) Content of job offers. Unless otherwise specified in this 
subpart, 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 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. 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. 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. 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 open range. Any such requirements must 
be applied equally to both U.S. and foreign workers. Each job

[[Page 20340]]

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) Mobile range housing. The employer must specify in the job 
order mobile housing will be provided. The housing must meet the 
requirements set forth in Sec.  655.235.
    (d) Employer-provided items. 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. Because of the unique nature of the herding 
or production of livestock on the open range, this equipment must 
include 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. 
Although there may be periods of time when the workers are in locations 
where electronic communication devices may not operate effectively, the 
employer must 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. The employer must specify in the job order that it 
will make contact with the worker in-person or using an electronic 
communication device regularly.
    (e) Meals. The employer must specify in the job offer and provide 
to the worker, without charge or deposit charge, three sufficient meals 
a day, or furnish free and convenient cooking facilities and adequate 
provision of food to enable the worker to prepare his own meals, and 
adequate potable water, or water that can be easily rendered potable 
and the means to do so.
    (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 as well as the time the worker begins and ends each workday when 
the worker is performing duties on the open range, but all other 
regulatory requirements in Sec.  655.122(j) and (k) apply.
    (2) The employer must keep daily records indicating the site of the 
employee's work, whether it was on the open range or on the ranch or 
farm. The employer must also 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. If the employer prorates a 
worker's monthly 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 specific to the 
occupation(s) 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, and must be paid to each worker free and clear 
without any unauthorized deductions no less than monthly.
    (2) If the worker is paid by the month, the employer may prorate 
the monthly wage for the initial and final months of the job order 
period, if its pay period does not match the beginning or ending dates 
of the job order (such as if the employer pays on a calendar month 
basis and the job order starts or ends in the middle of the month). The 
employer also may prorate the monthly wage if an employee is 
voluntarily unavailable for 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 no less 
frequently than monthly. Employers must pay wages when due.


Sec.  655.211  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 this subpart a wage that 
is the highest of the monthly AEWRs established under this section, the 
agreed-upon collective bargaining wage, or the applicable minimum wage 
specific to the occupation(s) imposed by Federal or State law or 
judicial action.
    (2) If the monthly AEWR for a State established under this section 
is adjusted under the FLS during a work contract, and is higher than 
the highest of the monthly AEWR, the agreed-upon collective bargaining 
wage, or the applicable minimum wage specific to the occupation(s) 
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) Determining the monthly AEWRs. The monthly AEWRs are calculated 
using the hourly AEWRs, as defined under Sec.  655.103(b), multiplied 
by 44 hours per week, and then multiplied by 4.333 weeks per month.
    (c) Publication of the monthly AEWRs. 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, 
the monthly AEWRs for each State.
    (d) Implementation Schedule for the monthly AEWRs. The monthly 
AEWRs shall be determined using the method specified in paragraph (b) 
of this section and published in the Federal Register, as specified in 
paragraph (c) of this section, according to the following schedule:
    (1) For calendar year 2016, the Department shall determine the 
monthly AEWRs using 60 percent of the hourly AEWRs established for each 
State based on wage surveys conducted for the preceding calendar year.
    (2) For calendar year 2017, the Department shall determine the 
monthly AEWRs using 70 percent of the hourly AEWRs established for each 
State based on wage surveys conducted for the preceding calendar year.
    (3) For calendar year 2018, the Department shall determine the 
monthly AEWRs using 80 percent of the hourly AEWRs established for each 
State based on wage surveys conducted for the preceding calendar year.
    (4) For calendar year 2019, the Department shall determine the 
monthly AEWRs using 90 percent of the hourly AEWRs established for each 
State based on wage surveys conducted for the preceding calendar year.
    (5) For calendar year 2020 and all subsequent calendar years, the 
Department shall determine the monthly AEWRs using 100 percent of the 
hourly AEWRs established for each State based on wage surveys conducted 
for the preceding calendar year.


Sec.  655.215  Procedures for filing applications for temporary 
employment certification.

    (a) Compliance with subpart B of this part. Unless otherwise 
specified in this subpart, the employer must satisfy the requirements 
for filing an Application for Temporary Employment Certification with 
the NPC designated

[[Page 20341]]

by the OFLC Administrator as required under Sec. Sec.  655.130-655.132.
    (b) What to file. An employer must file a completed Application for 
Temporary Employment Certification (Form ETA 9142), job 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 Application for Temporary Employment Certification and job 
order 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 total period of need identified on the Application for 
Temporary Employment Certification and job order for open range sheep 
or goat herding or production occupations must be no more than 364 
calendar days. The total period of need identified on the Application 
for Temporary Employment Certification and job order for open 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 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. Unless modifications to a sheep or goat herding or production 
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 
job order during the calendar year with its Application for Temporary 
Employment Certification.


Sec.  655.220  Processing applications for temporary employment 
certification.

    (a) NPC review. Unless otherwise specified in this subpart, the CO 
will review and process the Application for Temporary Employment 
Certification and the job order 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 job order 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 
job order on behalf of its employer-members, the CO will transmit a 
copy of the job order 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.

    (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 job order 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.


Sec.  655.230  Mobile housing.

    (a) Housing for work performed on the open range must be provided 
in accordance with this part. The regulations at Sec.  655.122(d)(2) 
require that housing for work performed on the open range meet 
standards of the DOL Occupational Safety and Health Administration 
(OSHA). Since such standards do not currently exist, range housing must 
meet the minimum standards contained in Sec.  655.235.
    (b) The SWA with jurisdiction over the location of the mobile 
housing must inspect and certify that the mobile housing used on the 
open 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 mobile housing it seeks 
to use within the past 36 months.
    (2) To self-certify the mobile 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 mobile housing contained in Sec.  
655.235.
    (d) The use of mobile housing at a location other than the open 
range (e.g., at the farm or ranch), where fixed site employer-provided 
housing would otherwise be required, is permissible

[[Page 20342]]

only when the worker occupying the housing is performing work that 
constitutes the production of livestock or is minor, sporadic, and 
incidental to the herding or 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 or is not minor, 
sporadic, and incidental to the herding or production of livestock, 
workers must be housed in housing that meets all the requirements of 
Sec.  655.122(d).


Sec.  655.235  Standards for mobile housing.

    An employer employing workers under this subpart may use a mobile 
unit, camper, or other similar mobile housing vehicle that meets the 
following standards:
    (a) Housing site. Mobile 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. 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
    (2) Individual drinking cups must be provided.
    (c) Excreta and liquid waste disposal. (1) Facilities 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 which 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 mobile 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 not reasonably 
expected to drop below 50 degrees Fahrenheit continuously for 24 hours, 
no separate heating equipment is required as long as proper protective 
clothing and bedding are made available, free of 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 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 which 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 mobile housing, 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. Movable 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 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.
    (k) Insect and rodent control. Appropriate materials, including 
sprays, must be provided to aid housing occupants in combating insects, 
rodents and other vermin.
    (l) Sleeping facilities. A separate sleeping facility must be 
provided for each person, except in a family arrangement. A sleeping 
facility or sleeping accommodation must include a comfortable bed, cot, 
or bunk with a clean mattress. When filing an application for 
certification and only where it is demonstrated to the CO that it is 
impractical to set up a second sleeping facility, the employer may 
request a variance from the separate sleeping facility requirement to 
allow for a second worker to temporarily join the open range operation. 
The second worker may be temporarily housed in the same sleeping 
facility for no more than 3 consecutive days, and the employer must 
supply a sleeping bag or bed roll for the second occupant free of 
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.

[[Page 20343]]

    (3) Mobile 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 fire extinguishers in good working condition and first 
aid kits must be provided in the mobile housing.

Portia Wu,
Assistant Secretary, Employment and Training Administration.
[FR Doc. 2015-08505 Filed 4-14-15; 8:45 am]
 BILLING CODE 4510-FP-P