Adjudication of Temporary and Seasonal Need for Herding and Production of Livestock on the Range Applications Under the H-2A Program, 71373-71382 [2021-26211]
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Federal Register / Vol. 86, No. 239 / Thursday, December 16, 2021 / Rules and Regulations
Mid-Atlantic Aviation Partnership (VT
MAAP) MOC Version 1.0 an acceptable
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demonstrating compliance with the
requirements of Category 2 and Category
3 small unmanned aircraft systems
(small UAS) operations over people.
DATES: December 16, 2021.
FOR FURTHER INFORMATION CONTACT:
FAA Contact: Jeffrey Bergson,
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AIR–632, Systems Policy Branch, Policy
and Innovation Division, Aircraft
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Independence Ave SW, Washington, DC
20591; telephone 206–231–3661; email:
jeffrey.bergson@faa.gov; telephone 1–
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VT MAAP Contact: Robert Briggs,
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SUPPLEMENTARY INFORMATION:
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Background
The FAA published Title 14 Code of
Federal Regulations, part 107, subpart D
permitting the routine operation of
small UAS at night or over people under
certain conditions. Subpart D also
provides aircraft eligibility and
operating requirements for categories of
operations over people. When
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To satisfy the eligibility requirements
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MOC as accepted and by informing the
applicant of its acceptance.1
Means of Compliance Accepted in This
Policy
VT MAAP published the Operation of
Small UAS Over People MOC Version
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acknowledged VT MAAP’s
performance-based MOC as an
acceptable MOC to the requirements of
§ 107.120(a) for operations in Category
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To utilize this MOC, an applicant
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Availability
This notice serves as a formal
acceptance by the Federal Aviation
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of Compliance Version 1.0.
Issued in Washington, DC, on December
10, 2021.
Brian E. Cable,
Manager, Systems Policy Branch, Policy and
Innovation Division, Aircraft Certification
Service.
[FR Doc. 2021–27188 Filed 12–15–21; 8:45 am]
BILLING CODE 4910–13–P
71373
DEPARTMENT OF LABOR
Employment and Training
Administration
20 CFR Part 655
[DOL Docket No. ETA–2020–0005]
RIN 1205–AB99
Adjudication of Temporary and
Seasonal Need for Herding and
Production of Livestock on the Range
Applications Under the H–2A Program
Employment and Training
Administration, Department of Labor.
ACTION: Final rule.
AGENCY:
The Department of Labor (the
Department or DOL) is amending its
regulations regarding the adjudication of
temporary need for employers seeking
to employ nonimmigrant workers in job
opportunities covering the herding or
production of livestock on the range.
Consistent with a court-approved
settlement agreement, this final rule
rescinds the regulatory provision that
governed the period of need for such job
opportunities under the H–2A visa
classification to ensure the Department’s
adjudication of temporary or seasonal
need is conducted in the same manner
for all applications for temporary
agricultural labor certification.
DATES: This final rule is effective
January 18, 2022.
FOR FURTHER INFORMATION CONTACT:
Brian Pasternak, Administrator, Office
of Foreign Labor Certification,
Employment and Training
Administration, Department of Labor,
200 Constitution Avenue NW, Room N–
5311, Washington, DC 20210, telephone:
(202) 693–8200 (this is not a toll-free
number). Individuals with hearing or
speech impairments may access the
telephone number above via TTY/TDD
by calling the toll-free Federal
Information Relay Service at 1 (877)
889–5627.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Table of Contents
1 Operation of Small Unmanned Aircraft Systems
Over People, 86 FR 4314 (January 15, 2021),
available at https://www.regulations.gov/document/
FAA-2018-1087-0968.
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I. Background on 20 CFR part 655, subpart
B
A. Statutory Framework
B. Regulatory Framework
C. The Hispanic Affairs Project Litigation
and Need for Rulemaking
II. Discussion of Proposed Revision to 20 CFR
part 655, subpart B
III. Public Comments Received
A. Comments Supporting Rescission of
§ 655.215(b)(2)
B. Out of Scope Comments
IV. Administrative Information
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Federal Register / Vol. 86, No. 239 / Thursday, December 16, 2021 / Rules and Regulations
I. Background on 20 CFR Part 655,
Subpart B
A. Statutory Framework
The H–2A nonimmigrant worker visa
program enables U.S. agricultural
employers to employ foreign workers on
a temporary basis to perform temporary
or seasonal agricultural labor or services
where the Secretary of Labor (Secretary)
certifies that (1) 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 (2) the employment of
foreign workers in such labor or services
will not adversely affect the wages and
working conditions of workers in the
United States similarly employed. See
section 101(a)(15)(H)(ii)(a) of the
Immigration and Nationality Act (INA),
as amended by the Immigration Reform
and Control Act of 1986 (IRCA), 8 U.S.C.
1101(a)(15)(H)(ii)(a); section 218(a)(1) of
the INA, 8 U.S.C. 1188(a)(1). The
Secretary has delegated the authority to
issue temporary agricultural labor
certifications to the Assistant Secretary,
Employment and Training
Administration (ETA), who in turn has
delegated that authority to ETA’s Office
of Foreign Labor Certification (OFLC).
Secretary’s Order 06–2010 (Oct. 20,
2010).1 Once OFLC issues a temporary
agricultural labor certification,
employers may then petition the U.S.
Department of Homeland Security
(DHS) to employ a nonimmigrant
worker in the United States in the H–2A
visa classification.
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B. Regulatory Framework
Since 1987, the Department has
operated the H–2A temporary
agricultural labor certification program
under regulations promulgated pursuant
to the INA.2 With limited exceptions,
including those set forth below, the
Department’s current regulations
governing the H–2A program were
published in 2010.3 The standards and
1 In addition, the Secretary has delegated to the
Department’s Wage and Hour Division the
responsibility under section 218(g)(2) of the INA, 8
U.S.C. 1188(g)(2), to assure employer compliance
with the terms and conditions of employment
under the H–2A program. Secretary’s Order 01–
2014 (Dec. 19, 2014).
2 The Immigration and Nationality Act of 1952
created the H–2 temporary worker program. Public
Law 82–414, 66 Stat. 163. In 1986, IRCA divided
the H–2 program into separate agricultural and
nonagricultural temporary worker programs. See
Public Law 99–603, section 301, 100 Stat. 3359
(1986). The H–2A agricultural worker program
designation corresponds to the statute’s agricultural
worker classification in 8 U.S.C.
1101(a)(15)(H)(ii)(a).
3 Temporary Agricultural Employment of H–2A
Aliens in the United States, 75 FR 6884 (Feb. 12,
2010).
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procedures applicable to the
certification and employment of
workers under the H–2A program are
found in 20 CFR part 655, subpart B and
29 CFR part 501.4
Historically, employers in a number
of States (primarily but not exclusively
in the western continental United
States) have used what is now the H–2A
program to bring in foreign workers to
work as sheep and goat herders.5
Beginning in 1989, and consistent with
Congress’ historical approach, the
Department established variances from
certain H–2A regulatory requirements
and procedures through sub-regulatory
guidance to allow employers of open
range sheep and goat herders to use the
H–2A program. The Department
established similar variances or ‘‘special
procedures’’ through sub-regulatory
guidance in 2007 for employers seeking
to employ H–2A workers for open range
herding or production of livestock
positions. In 2015, the Department
incorporated these ‘‘special procedures’’
provisions for the employment of
workers in the herding and production
of livestock on the range, with some
modifications, into its H–2A
regulations. Temporary Agricultural
4 The Department remains engaged in a separate
rulemaking that seeks to amend these regulations as
they pertain to the H–2A program. Through a
Notice of Proposed Rulemaking published in July
2019 (2019 NPRM), the Department proposed
amendments to the current regulations that focus on
modernizing the H–2A program and eliminating
inefficiencies. Temporary Agricultural Employment
of H–2A Nonimmigrants in the United States, 84 FR
36168 (July 26, 2019). The 2019 NPRM also
proposed to amend the regulations for enforcement
of contractual obligations for temporary foreign
agricultural workers and the Wagner-Peyser Act
regulations to provide consistency with proposed
revisions to H–2A program regulations governing
the temporary agricultural labor certification
process. Id.; see also Adverse Effect Wage Rate
Methodology for the Temporary Employment of H–
2A Nonimmigrants in Non-Range Occupations in
the United States, 85 FR 70445, 70447 (Nov. 5,
2020) (establishing a revised methodology for
determining the Adverse Effect Wage Rate (AEWR)
methodology for non-range occupations in one final
rule and explaining that ‘‘[t]he Department intends
to address all of the remaining proposals from the
July 26, 2019 proposed rule in a subsequent, second
final rule governing other aspects of the
certification of agricultural labor or services to be
performed by H–2A workers and enforcement of the
contractual obligations applicable to employers of
such nonimmigrant workers.’’).
5 As the Department explained in its 2015 herder
rulemaking, Congress enacted statutes during the
early 1950s authorizing the permanent admission of
a certain number of ‘‘foreign workers skilled in
sheepherding.’’ See Temporary Agricultural
Employment of H–2A Foreign Workers in the
Herding or Production of Livestock on the Open
Range in the United States, 80 FR 20300, 20301–
20302 (Apr. 15, 2015). Congress subsequently
permitted these special laws to expire and signaled
that sheepherders should be admitted under the
existing temporary (then H–2) program. Id.; see also
Changes to Requirements Affecting H–2A
Nonimmigrants, 73 FR 76891, 76906–76907 (Dec.
18, 2008).
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Employment of H–2A Foreign Workers
in the Herding or Production of
Livestock on the Range in the United
States, 80 FR 62958 (Oct. 16, 2015)
(2015 Rule).6 The 2015 Rule, codified at
§§ 655.200 through 655.235, continued
the agency’s recognition of the unique
occupational characteristics of herding
positions, which involve spending
extended periods of time herding
animals across remote range lands and
being on call to protect and maintain
herds for up to 24 hours a day, 7 days
a week.7
Section 101(a)(15)(H)(ii)(a) of the INA
permits only ‘‘agricultural labor or
services . . . of a temporary or seasonal
nature’’ to be performed under the H–
2A visa category. 8 U.S.C.
1101(a)(15)(H)(ii)(a). Thus, as part of the
Department’s adjudication of
applications for temporary agricultural
labor certification, the Department
assesses on a case-by-case basis whether
the employer has established a
temporary or seasonal need for the
agricultural work to be performed. See
20 CFR 655.161(a). In its initial
rulemaking on the H–2A program, the
Department explained that it would be
appropriate for an employer to apply
annually for recurring job opportunities
in the same occupation when it
involved ‘‘truly ‘seasonal’
employment,’’ but acknowledged that
‘‘the longer the employer needs a
‘temporary’ worker, the more likely it
would seem that the job has in fact
become a permanent one.’’ Labor
Certification Process for the Temporary
Employment of Aliens in Agriculture
and Logging in the United States, 52 FR
20496, 20498 (June 1, 1987). The
Department’s current regulations, which
adopted DHS’s definition of ‘‘temporary
6 The 2015 Rule followed litigation in Mendoza
v. Perez, in which the U.S. Court of Appeals for the
District of Columbia Circuit (D.C. Circuit) held the
special procedures pertaining to sheep, goat, and
other open range herding or production of livestock
were subject to the Administrative Procedure Act’s
notice and comment requirements. 754 F.3d 1002,
1024 (D.C. Cir. 2014); see Mendoza v. Perez, 72 F.
Supp. 3d 168, 175 (D.D.C. 2014) (remedial order
setting a rulemaking schedule).
7 The 2019 NPRM proposed clarifying and
technical revisions to certain provisions concerning
the employment of workers in herding and
production of livestock on the range (e.g., portions
of 20 CFR 655.205, 655.211, 655.220, and 655.225)
that are not the subject of this rulemaking. 84 FR
36168, 36220–21. The 2019 NPRM also proposed to
incorporate into the H–2A regulations, with some
modifications, the standards and procedures
currently found in Training and Employment
Guidance Letters related to animal shearing,
commercial beekeeping, and custom combining,
and to rescind the general provision that allows for
the creation of ‘‘special procedures’’ (i.e., subregulatory variances from the regulations). Id. at
36171–73. As explained above, the Department
remains engaged in a separate rulemaking
addressing these proposed changes.
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Federal Register / Vol. 86, No. 239 / Thursday, December 16, 2021 / Rules and Regulations
or seasonal nature,’’ specify that
employment is of a temporary nature
‘‘where the employer’s need to fill the
position with a temporary worker will,
except in extraordinary circumstances,
last no longer than 1 year,’’ and ‘‘of a
seasonal nature where it is tied to a
certain time of year by an event or
pattern, such as a short annual growing
cycle or a specific aspect of a longer
cycle, and requires labor levels far above
those necessary for ongoing operations.’’
20 CFR 655.103(d); 8 CFR
214.2(h)(5)(iv)(A); 75 FR 6884, 6890
(adopting DHS’s definition ‘‘was not
intended to create any substantive
change in how the Department
administers the program’’). DHS
regulations further provide that the
Department’s finding that employment
is of a temporary or seasonal nature is
‘‘normally sufficient’’ for the purpose of
an H–2A petition, but state that
notwithstanding this finding, DHS
adjudicators will not find employment
to be temporary or seasonal in certain
situations, such as when ‘‘substantial
evidence’’ exists that the employment is
not temporary or seasonal. 8 CFR
214.2(h)(5)(iv)(B).
Notwithstanding the regulatory
definition found in 20 CFR 655.103(d)
and 8 CFR 214.2(h)(5)(iv)(A), the 2015
Rule allowed employers of sheep and
goat herders to apply for a temporary
agricultural labor certification for a
period of up to 364 days. 80 FR 62958,
62999–63000; see 20 CFR 655.215(b)(2)
(‘‘The period of need identified on the
H–2A Application for Temporary
Employment Certification and job order
for range sheep or goat herding or
production occupations must be no
more than 364 calendar days.’’).
Conversely, the same rule limited
employers of range livestock work to a
temporary agricultural labor
certification with a period of need not
to exceed 10 months. 80 FR 62958,
63000; see 20 CFR 655.215(b)(2) (‘‘The
period of need identified on the H–2A
Application for Temporary Employment
Certification and job order for range
herding or production of cattle, horses,
or other domestic hooved livestock,
except sheep and goats, must be for no
more than 10 months.’’).
employers seeking temporary
agricultural labor certifications for
sheep or goat herder positions to apply
for periods of need that last up to 364
days at a time. See Hispanic Affairs
Project v. Acosta, 263 F. Supp. 3d 160,
182 (D.D.C. 2017) (citing 20 CFR
655.215(b)(2)). The plaintiffs also
challenged DHS’s alleged practice of
automatically approving sheep and goat
herder petitions for recurring periods up
to 364 days, asserting that the
Department’s regulation at
§ 655.215(b)(2) and DHS’s alleged
practice did not conform with the INA
or the Departments’ regulations, in
violation of the APA. See id.
Specifically, the plaintiffs argued
§ 655.215(b)(2) and DHS’s alleged
practice are inconsistent with 8 U.S.C.
1101(a)(15)(H)(ii)(a), which provides
that H–2A visas be only for ‘‘temporary’’
work, and conflicts with the
Departments’ regulations defining when
employment is of a ‘‘temporary or
seasonal nature.’’ See id.; compare 20
CFR 655.103(d) and 8 CFR
214.2(h)(5)(iv)(A) (employer’s ‘‘need to
fill the position with a temporary
worker will . . . last no longer than one
year’’) with 20 CFR 655.215(b)(2) (‘‘The
period of need identified on the
[application and job order] . . . must be
no more than 364 calendar days.’’). The
district court dismissed the challenge on
procedural grounds, concluding the
plaintiffs waived their claim against the
Department and did not properly or
timely raise their claim against DHS. Id.
at 185–86, 190.8
On appeal, the D.C. Circuit reversed
and remanded the district court’s
decision on these claims for a resolution
on the merits. Hispanic Affairs Project
v. Acosta, 901 F.3d 378, 396–97 (D.C.
Cir. 2018). The court held the plaintiffs
preserved their challenge to the
Department’s decision in the 2015 Rule
to classify sheep and goat herding as
‘‘temporary’’ employment. Id. at 385. In
dicta, the court noted the ‘‘agency has
no power under the statute—it is
actually forbidden—to include nontemporary or non-seasonal workers in
the H–2A program.’’ Id. at 389. The
court also held the complaint
C. The Hispanic Affairs Project
Litigation and Need for Rulemaking
On September 22, 2015, four
sheepherders and a nonprofit member
organization for immigrant workers filed
a lawsuit in federal court challenging
aspects of the 2015 Rule. Hispanic
Affairs Project v. Perez, 206 F. Supp. 3d
348 (D.D.C. 2016). As relevant to this
rulemaking, the plaintiffs challenged the
Department’s decision to allow
8 Plaintiffs also challenged two other aspects of
the 2015 Rule: (1) Certain definitions and
requirements that limit the scope and location of
work that H–2A workers in sheep and goat herding
positions may perform, 80 FR 62958, 62963–73; and
(2) the methodology by which the Department
calculates the minimum required wage that such
workers (and any non-H–2A workers in
corresponding employment) must be offered and
paid, id. at 62986–96. The Department and DHS
prevailed on these issues. See Hispanic Affairs
Project v. Acosta, 901 F.3d 378, 391–96 (D.C. Cir.
2018), aff’g in part 263 F. Supp. 3d 160, 190–207
(D.D.C. 2017).
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71375
adequately raised a challenge to DHS’s
alleged practice of extending
‘‘temporary’’ H–2A petitions beyond the
regulatory definition of temporary
employment. Id. at 385, 388. Taking the
evidence submitted by the plaintiffs as
true, the court concluded the plaintiffs
had ‘‘plausibly shown that [DHS]’s de
facto policy of authorizing long-term
visas is arbitrary, capricious, and
contrary to law, in violation of the APA
and [INA] because it ‘authorizes the
creation of permanent herder jobs that
are not temporary or seasonal.’ ’’ Id. at
386 (original alterations omitted).
The parties subsequently reached a
settlement in which the Department
agreed to engage in rulemaking to
propose to rescind § 655.215(b)(2) and
DHS, through U.S. Citizenship and
Immigration Services (USCIS), agreed to
publish a policy memorandum that
provided guidance on the determination
of temporary or seasonal need for H–2A
sheep and goat herder petitions. Joint
Status Report at 1, ECF No. 135,
Hispanic Affairs Project, et al. v. Scalia
et al., No. 15–cv–1562 (D.D.C. Nov. 8,
2019); see also Order Approving the
Parties’ Settlement Agreement, ECF No.
136, Hispanic Affairs Project, et al. v.
Scalia et al., No. 15–cv–1562 (D.D.C.
Nov. 12, 2019). Following a 30-day
public comment period, USCIS
published a final policy memorandum
on February 28, 2020, which became
effective on June 1, 2020. See USCIS,
Policy Memorandum: Updated
Guidance on Temporary or Seasonal
Need for H–2A Petitions Seeking
Workers for Range Sheep and/or Goat
Herding or Production (Feb. 28, 2020)
(USCIS Policy Memorandum).9 On May
6, 2021, the Department published a
NPRM that proposed to rescind
§ 655.215(b)(2).
II. Discussion of Proposed Revision to
20 CFR Part 655, Subpart B
The Department proposed to rescind
§ 655.215(b)(2) so that the temporary or
seasonal need of an employer seeking to
fill a herding or production of livestock
on the range position would be
adjudicated according to the
requirement in § 655.103(d) that governs
the adjudication of employment of a
temporary or seasonal nature for all
other H–2A applications. See 20 CFR
655.200(a) (noting that employers whose
job opportunities meet the qualifying
criteria under §§ 655.200–655.235 must
fully comply with all the requirements
of §§ 655.100–655.185 unless otherwise
specified in §§ 655.200–655.235).
9 See https://www.uscis.gov/sites/default/files/
USCIS/Laws/Memoranda/2020/2-PMH2A-Seasonal
SheepGoatHerder_PolicyMemo.pdf.
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The Department explained in the
NPRM that the proposed rescission of
§ 655.215(b)(2) would eliminate that
provision’s presumptive period of need
for employment involving range sheep
or goat herding and absolute restriction
on the period of need for employment
involving other range livestock
activities. As the NPRM acknowledged,
the 2015 Rule suggested the unique
nature and history of herding work
permitted a variance, on an
occupational basis, from the standard
H–2A requirements governing the
adjudication of an employer’s temporary
need. As such, § 655.215(b)(2) allowed
certification of a specific period of time
without requiring the Department to
assess the nature of the employer’s need
for the labor or services to be performed.
The NPRM, accordingly, proposed to
rescind § 655.215(b)(2) so that all
employers applying for temporary
agricultural labor certifications must
individually demonstrate a temporary or
seasonal need for the agricultural labor
or services to be performed, regardless
of occupation. As the Department
explained in the NPRM, this rescission
of § 655.215(b)(2) is not only consistent
with the D.C. Circuit’s decision in
Hispanic Affairs Project and the
guidance issued by USCIS, but also
better complies with the requirements of
the INA implemented in the
Departments’ regulations that define
when employment is of a ‘‘temporary or
seasonal nature.’’ 8 U.S.C.
1101(a)(15)(H)(ii)(A) (defining an H–2A
nonimmigrant as a foreign worker
coming to perform services of a
temporary or seasonal nature); 20 CFR
655.103(d); 75 FR 6884, 6890 (adopting
DHS’s definition of ‘‘temporary or
seasonal nature’’ set forth in 8 CFR
214.2(h)(5)(iv)(A)). The Department
sought public comment on all issues
related to its proposal to rescind
§ 655.215(b)(2), including economic or
other regulatory impacts of the proposed
rule on the public.10
10 As noted above, the 2019 NPRM proposed to
amend regulations governing the certification of
agricultural labor or services to be performed by
temporary foreign workers in H–2A nonimmigrant
status and the enforcement of contractual
obligations applicable to employers of such
nonimmigrant workers. 84 FR 36168. In particular,
the 2019 NPRM sought public comment on the
possibility of moving the adjudication of an
employer’s temporary or seasonal need exclusively
to DHS or exclusively to DOL. Id. at 36178. In the
NPRM to this rule, the Department explained that
comments on the proposals contained in the 2019
NPRM are outside of the scope of the limited
rulemaking here. 86 FR 24368, 24371. Given the
narrow scope of this rulemaking and because a rule
finalizing the non-AEWR provisions of the 2019
NPRM has not published, the rulemaking associated
with the 2019 NPRM does not affect the issuance
of this rule.
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III. Public Comments Received
The Department’s 30-day comment
period on its proposed rescission
§ 655.215(b)(2) opened on May 6, 2021
and closed on June 7, 2021, with
comments submitted electronically at
https://www.regulations.gov/ using
docket number ETA–1205–AB99.
During this comment period, ETA
received eight comments, none of which
opposed adopting the proposal. Some
contained comments outside of the
scope of this rulemaking, as discussed
below, while others were submitted on
behalf of multiple entities. Commenters
represented stakeholders from the
public, private, and not-for-profit
sectors and included industry
associations, worker advocacy
organizations, a State Department of
Agriculture, a think tank, and private
individuals. The Department
appreciates all of the comments it
received. After full consideration of the
comments and for the reasons explained
below, the Department is adopting the
proposal to rescind § 655.215(b)(2).
A. Comments Supporting Rescission of
§ 655.215(b)(2)
Commenters generally supported the
Department’s proposal to rescind
§ 655.215(b)(2), though some
commenters expressed potential
concerns with the Department’s
implementation of the change. Several
worker advocacy organizations and a
think tank stated that the proposed
revision more closely reflects statutory
requirements by limiting H–2A
employment to truly seasonal or
temporary work for which employers
are unable to find sufficient U.S.
workers. Some of these commenters
stated that the rescission of
§ 655.215(b)(2) would simplify the H–
2A program, promote consistency
between USCIS and DOL with regard to
the agencies’ adjudication of temporary
and seasonal need, and strengthen labor
protections, without imposing a
substantial or unfair burden on herding
employers. Industry associations and a
State Department of Agriculture did not
oppose the proposed change, though
they expressed concerns with its
implementation and employers’ ability
to fulfill their labor needs.
Commenters asked the Department to
address how it will assess temporary or
seasonal need under § 655.103(d), in
particular where an employer has a
history of filing under § 655.215(b)(2).
Some of the worker advocacy
organizations urged the Department to
remind employers that the H–2A
program is to be used only for
agricultural labor needs of a temporary
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or seasonal nature and that permanent
labor needs are not eligible for H–2A
certification but may be eligible for
employment-based immigrant visas.
These commenters also asked the
Department to guard against employers
fulfilling permanent job needs with H–
2A workers, by noting, for example, that
an employer must meet both parts of the
definition of seasonal need under
§ 655.103(d). In contrast, industry
associations and a State Department of
Agriculture asked the Department not to
weigh an employer’s filing history too
heavily, as employers were previously
not required to separate distinct
temporary or seasonal needs into
different applications under
§ 655.215(b)(2). These commenters
stressed that changes in how an
employer describes the services or labor
needed, including the period of
employment, on new applications may
demonstrate compliance with
§ 655.103(d) rather than changes in the
temporary or seasonal nature of an
employer’s labor needs. In addition,
these commenters noted difficulty
hiring sufficient U.S. workers to fulfill
employers’ labor needs and the
potential downstream effects of
downsizing range operations should
employers no longer be able to hire
foreign workers, which could
necessitate operational changes that
affect an employer’s temporary or
seasonal need for labor. Both worker
advocacy organizations and an industry
association asked the Department to
recognize USCIS’ Policy Memorandum
and adopt a similar approach to case-bycase assessment of an employer’s
temporary or seasonal need and filing
history.
The Department agrees that adopting
the proposal will simplify and promote
consistency within the H–2A program,
while acknowledging the concerns
expressed by commenters regarding
how the agency plans to assess an
employer’s seasonal or temporary need
under the standard at § 655.103(d). As
noted in the NPRM, the Department will
examine—on a case-by-case basis and
taking into consideration the totality of
the facts presented—whether an
employer’s need to fill a herding or
production of livestock on the range
position is of a temporary or seasonal
nature, as those terms are defined in the
Department’s and DHS’s regulations.
See 20 CFR 655.103(d); 8 CFR
214.2(h)(5)(iv)(A). Section 655.103(d)
states that employment ‘‘is of a
temporary nature where the employer’s
need to fill the position with a
temporary worker will, except in
extraordinary circumstances, last no
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longer than 1 year.’’ The same section
states that ‘‘employment is of a seasonal
nature where it is tied to a certain time
of year by an event or pattern, such as
a short annual growing cycle or a
specific aspect of a longer cycle, and
requires labor levels far above those
necessary for ongoing operations.’’
While this rule rescinds § 655.215(b)(2)
so that the Department’s adjudication of
temporary or seasonal need is
conducted in the same manner for all
H–2A applications pursuant to
§ 655.103(d), it does not alter the
regulatory definition and standards by
which the Department adjudicates
temporary or seasonal need under
§ 655.103(d).
In particular, though recurring yearround activities cannot be classified as
temporary, see 75 FR 6884, 6891, the
Department recognizes, as explained in
the NPRM, that some herder employers
may be able to establish a need to fill
positions on a recurring annual basis
consistent with the definition of
employment of a seasonal nature in
§ 655.103(d). See 86 FR 24368, 24371;
80 FR 62958, 62999–63000 (2015 Rule
describing comments that delineated
seasonal aspects of herder work); 52 FR
20496, 20498 (acknowledging it is
appropriate to apply annually for truly
‘‘seasonal’’ employment); see also
USCIS Policy Memorandum at 3 n.3
(explaining that an employer’s need for
workers that recurs annually at a given
time of year does not mean its need is
permanent in nature as employment of
a seasonal nature is defined as being
tied to a certain time of year). As some
commenters noted, such employers will
need to show they meet both parts of the
definition of seasonal need in
§ 655.103(d)—that is, the employment
(1) ‘‘is tied to a certain time of year by
an event or pattern, such as a short
annual growing cycle or a specific
aspect of a longer cycle’’ and (2)
‘‘requires labor levels far above those
necessary for ongoing operations.’’ The
Department also acknowledged in the
NPRM that some employers may have a
‘‘temporary’’ need to fill herding and
range livestock job opportunities, which
is permissible provided they can show
the nature of their need is temporary
under § 655.103(d). See Temporary
Workers Under § 301 of the Immigration
Reform and Control Act, 11 Op. O.L.C.
39, 40 & n.4 (1987) (noting ‘‘ ‘temporary’
means something other than seasonal’’
and explaining employers may fill
‘‘permanent jobs that an employer needs
to fill on a temporary basis—for
example, because the regular American
employee has fallen ill or extra hands
are needed during a busy period’’); 11
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Op. O.L.C. at 42 (‘‘The nature of the job
itself is irrelevant. What is relevant is
whether the employer’s need is truly
temporary.’’).
This final rule aligns the Department’s
adjudication of the temporary or
seasonal need of herder applications
with the guidance DHS has
implemented in the USCIS Policy
Memorandum, which the Department
encourages employers and other
interested parties to review. The
memorandum explains, for example,
that USCIS will adjudicate H–2A sheep
and goat herder petitions filed on or
after June 1, 2020, on a case-by-case
basis, taking into consideration the
totality of the facts presented, and in the
same manner as all other H–2A
petitions. USCIS Policy Memorandum at
1, 9. Past periods of need approved by
USCIS prior to June 1, 2020, will be one
element considered when determining
whether an H–2A petition demonstrates
a true temporary or seasonal need. Id. at
9. Similar to USCIS’ approach, and as
indicated above, the Department’s
adjudication will be conducted on a
case-by-case basis and will take into
consideration the totality of the facts
presented, of which past periods of need
will be one element that is considered
in determining whether an employer’s
need is truly temporary or seasonal.11
When an employer is unable to fulfill
its need for labor to perform herding
and production of livestock duties on
the range under the H–2A program, as
with any employer whose need is
neither temporary nor seasonal, the
employer may apply for labor
certification through the visa program
appropriate to its need. For example,
employers with permanent, rather than
temporary or seasonal, needs may wish
to petition for workers under
employment-based immigrant visa
programs. See, e.g., 8 U.S.C. 1153(b)(3);
see also 8 U.S.C. 1101(a)(15)(H)(ii)(a)
(INA permits only ‘‘agricultural labor or
services . . . of a temporary or seasonal
nature’’ to be performed under the H–
2A visa category).
11 In recognition of employers’ need to transition
from compliance with § 655.215(b)(2) to
§ 655.103(d) and similar to guidance in USCIS’
Policy Memorandum, employers seeking herding or
production of livestock on the range job
opportunities are encouraged, in describing their
temporary or seasonal needs in future filings, to
explain why any past filings history is not
indicative of a non-temporary and non-seasonal
need. Although the Department may consider the
fact of a past filing history before the effective date
of this rule, the Department will fully consider such
explanation and possible reliance on past
procedures in the totality of the circumstances
when making a temporary or seasonal need
determination. See USCIS Policy Memorandum, at
6 n.5, 9 n.11.
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71377
B. Out of Scope Comments
The NPRM invited comments related
to the Department’s proposal to rescind
§ 655.215(b)(2). Comments received that
are unrelated to the Department’s
proposal are beyond the scope of this
action and have not been considered in
the Department’s assessment of its
proposed rescission.
Several comments were beyond the
scope of this action. Two of the
commenters did not address the
Department’s proposal; instead, one
expressed general dissatisfaction with
the H–2A program and the other
appeared to be seeking a herding
position. Other commenters addressed
topics that are not the subject of this
rulemaking, including wage and
housing requirements for herders and
production of livestock workers on the
range as well as the definition of
‘‘temporary’’ or ‘‘seasonal’’ under 20
CFR 655.103(d), which reflects DHS’s
regulatory definition at 8 CFR
214.2(h)(5)(iv)(A) and has been in effect
for more than a decade. For example,
one comment requested the Department
clarify the definition of ‘‘temporary’’
and ‘‘seasonal’’ under § 655.103(d),
including how this definition applies
across recurring H–2A applications and
in situations where an employer has
maintained substantially similar
operations in previous seasons. Because
proposed changes to the wage and
housing requirements for herders and
the regulatory definition and standards
by which the Department adjudicates
temporary or seasonal need under
§ 655.103(d) are not the subject of this
regulatory action, the Department deems
the above comments as out of scope.
IV. Administrative Information
A. Executive Order 12866, Regulatory
Planning and Review; and Executive
Order 13563, Improved Regulation and
Regulatory Review
Under Executive Order (E.O.) 12866,
the Office of Management and Budget
(OMB)’s Office of Information and
Regulatory Affairs 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 an 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 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
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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. This
final rule is a significant, but not
economically significant, regulatory
action under Section 3(f) of E.O. 12866.
The Department has prepared a
Regulatory Impact Analysis (RIA) in
connection with this final rule, as
required under section 6(a)(3) of E.O.
12866.
E.O. 13563 directs agencies to propose
or adopt a regulation only upon a
reasoned determination that its benefits
justify its costs; the regulation is tailored
to impose the least burden on society,
consistent with achieving the regulatory
objectives; and in choosing among
alternative regulatory approaches, the
agency has selected 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.
Overview of This Final Rule
The Department has determined that
this final rule is necessary to clarify the
Department’s adjudication of temporary
or seasonal need for herding and range
livestock applications for temporary
agricultural labor certification under the
H–2A program, and to align that
adjudication with the requirements of
the INA. The final rule also standardizes
the Department’s adjudication of
temporary need under the H–2A
program. The Department’s definition of
‘‘temporary or seasonal nature’’ for the
H–2A program, with the exception of its
current definition of ‘‘temporary’’ for
herding and range livestock
occupations, is consistent with the
Department of Homeland Security’s
definition specifying that employment
is of a temporary nature ‘‘where the
employer’s need to fill the position with
a temporary worker will, except in
extraordinary circumstances, last no
longer than 1 year,’’ and ‘‘of a seasonal
nature where it is tied to a certain time
of year by an event or pattern, such as
a short annual growing cycle or a
specific aspect of a longer cycle, and
requires labor levels far above those
necessary for ongoing operations.’’ 20
CFR 655.103(d); 8 CFR
214.2(h)(5)(iv)(A).
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Notwithstanding the regulatory
definition found in 20 CFR 655.103(d)
and 8 CFR 214.2(h)(5)(iv)(A), the 2015
Rule allowed employers of sheep and
goat herders to apply for a temporary
agricultural labor certification for a
period of up to 364 days. Conversely,
the same rule limited employers of
range livestock occupations to a
temporary agricultural labor
certification with a period of need not
to exceed 10 months. As discussed
above, an appellate court held that
plaintiffs preserved their challenge to
the Department’s decision in the 2015
Rule to classify sheep and goat herding
as ‘‘temporary’’ employment. The court
additionally held the complaint
adequately raised a challenge to DHS’s
alleged practice of extending
‘‘temporary’’ H–2A petitions beyond the
regulatory definition of temporary
employment. Taking the evidence
submitted by the plaintiffs as true, the
court concluded the plaintiffs had
plausibly shown DHS’s alleged practice
of automatically extending H–2A
petitions is inconsistent with the APA
and the INA because it ‘‘ ‘authorizes the
creation of permanent herder jobs that
are not temporary or seasonal.’ ’’ 901
F.3d at 386 (original alterations
omitted). The parties subsequently
reached a settlement agreement in
which the Department agreed to engage
in rulemaking to propose to rescind
§ 655.215(b)(2) and DHS, through
USCIS, agreed to publish a policy
memorandum that provided guidance
on the determination of temporary or
seasonal need for H–2A sheep and goat
herder petitions.
In this final rule, the Department
rescinds § 655.215(b)(2), eliminating
that provision’s presumptive period of
need for employment involving range
herding and absolute restriction on the
period of need for employment
involving range livestock activities.
Instead, all employers applying for H–
2A temporary agricultural labor
certifications under the final rule must
individually demonstrate that their need
for workers is temporary or seasonal,
regardless of occupation.
Economic Impact
The Department estimates that this
final rule will result in costs to
employers associated with rule
familiarization requirements for all
herding and range livestock employers
utilizing the H–2A program. In addition,
the Department believes that employers
may incur other unquantifiable costs
from the implementation of the final
rule that can be attributed to changes in
business operations, transportation,
staffing turnover, and training
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requirements. As explained above,
though recurring year-round activities
cannot be classified as temporary, the
Department recognizes that there may
be seasonal aspects of herder work for
which employers may still establish a
need to fill positions on a recurring
annual basis consistent with the
definition of employment of a
‘‘seasonal’’ nature in § 655.103(d) and
that some herder employers may also
still present a need that is truly
‘‘temporary’’ under § 655.103(d) in
certain circumstances. The Department
qualitatively discusses the potential
costs to employers incurred by the
implementation of this final rule but
does not quantify them due to a lack of
available data and the wide spectrum of
possible responses by employers that
cannot be predicted with specificity.
Moreover, apart from some commenters
expressing concern about potential
downsizing for employers who may not
have a demonstrable ‘‘seasonal’’ or
‘‘temporary’’ need due to labor
shortages, the Department did not
receive public comments in response to
the NPRM request for feedback
regarding how these employers may be
impacted by the proposed change in
regulation.
Transfer payments under this final
rule will result from eliminating the
absolute restriction on the period of
need for employment involving other
range livestock activities and the
presumptive period of need for
employment involving range sheep or
goat herding. In particular, some
employers engaged in non-sheep and/or
goat herding activities 12 may
potentially extend their period of need
beyond 10 months, provided they can
show the nature of their need is
temporary.13 In addition, sheep and/or
goat herding employers whose need is
temporary or seasonal in nature and
whose period of need currently exceeds
10 months are generally expected to
reduce their period of need to 10
months or less.14 See the costs and
12 This includes range herding or production of
cattle, horses, or other domestic hooved livestock
except sheep and goats.
13 For the purpose of this analysis, employers
engaged in non-sheep and/or goat herding activities
with a minimum period of need of 300 days and
a maximum period of need of 308 days were used
to make the Department’s transfer estimates. The
Department used 300 days to represent a period of
10 months; in fewer than eight instances, employers
engaged in non-sheep and/or goat herding activities
requested a longer period of need but none of these
requests exceeded 308 days.
14 The Department’s records indicate that the
majority of employers engaged in sheep and/or goat
herding occupations would likely reduce their
requested period of need to 10 months or less.
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transfer payments subsections below for
a detailed explanation.
As shown in Exhibit 1, the
Department estimates this final rule will
result in a quantified annualized cost of
$3,144 at a discount rate of 7 percent
and $2,588 at a discount rate of 3
percent, as well as unquantified costs
associated with changes in business
operations, transportation, staffing
turnover, and training requirements.
Additionally, this final rule is expected
to result in transfers for all herding and
range livestock employers. Some
employers engaged in non-sheep and/or
goat herding activities will incur a
transfer from employers to employees
due to rescinding the restriction on the
period of need for employment
involving range livestock activities. The
Department also estimates that the final
rule will result in annualized transfers
of $95,556 at a discount rate of 7 percent
and $91,983 at a discount rate of 3
71379
percent for these employers.
Furthermore, employers engaged in
sheep and/or goat herding activities will
experience a transfer from employees to
employers due to a reduction in the
allowed period of need for the majority
of the aforementioned employers. The
Department estimates that the final rule
will result in annualized transfers of
$8.42 million at a discount rate of 7
percent and $8.11 million at a discount
rate of 3 percent for these employers.
EXHIBIT 1—ESTIMATED COSTS AND TRANSFER PAYMENTS OF THE FINAL RULE
Transfer
payments
from employers of nonsheep and/or
goat herding
Costs
Undiscounted 10-Year Total ........................................................................................................
10-Year total with a discount rate of 3% .....................................................................................
10-Year total with a discount rate of 7% .....................................................................................
Annualized at a discount rate of 3% ...........................................................................................
Annualized at a discount rate of 7% ...........................................................................................
The Department was unable to
quantify some costs and benefits of this
final rule, as discussed below.
i. Costs
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a. Rule Familiarization Costs
When the final rule takes effect,
herding and range livestock employers
will need to familiarize themselves with
the new regulations; consequently, this
will impose a one-time cost in the first
year upon implementation. The
Department’s analysis assumes that the
changes introduced by the rule would
be reviewed by Human Resources
Specialists (SOC 13–1071). The median
hourly wage for these workers is $29.77
per hour.15 In addition, the Department
assumes that benefits are paid at a rate
of 46 percent 16 and overhead costs are
paid at a rate of 17 percent of the base
wage, resulting in a fully-loaded hourly
wage of $48.53.17 This hourly wage was
multiplied by the estimated number of
herding and range livestock employers
(910) 18 and by the estimated amount of
15 Median hourly wage for Human Resources
Specialists were obtained from the Bureau of Labor
Statistics Occupational Employment Statistics
Survey, May 2019, https://www.bls.gov/oes/current/
oes131071.htm.
16 The benefits-earnings ratio is derived from the
Bureau of Labor Statistics’ Employer Costs for
Employee Compensation data using variables
CMU1020000000000D and CMU1030000000000D.
17 $29.77 + $29.77(0.46) + $29.77(0.17) = $48.53.
18 The Department’s estimate of 910 unique
employers is based on H–2A certification data from
Fiscal Years (FYs) 2017, 2018, and 2019. The
Department identified the average number of
unique applicants engaged in sheep and/or goat
herding activities across FYs 2017, 2018, and 2019
(744). This was then added to the average number
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time required to review the rule (.5
hours). This calculation results in a onetime cost of $22,079 in the first year
after this final rule takes effect. The
annualized cost over the 10-year period
is $2,588 and $3,144 at discount rates of
3 and 7 percent, respectively.
b. Other Costs
The Department assumes some
employers will experience increased
costs associated with changes in
business operations, transportation,
staffing turnover, and training
requirements under this final rule. In
accordance with the Department’s
current regulation, employers of sheep
and goat herders are permitted to apply
for a temporary agricultural labor
certification for a period of up to 364
days. Under this final rule, sheep and
goat herding employers whose need is
temporary or seasonal in nature and
whose period of need currently exceeds
10 months are generally expected to
reduce their period of need to 10
months or less. Although the
Department does not anticipate the final
rule will have a significant adverse
effect, as employers have already
adjusted to USCIS’ policy
memorandum,19 the Department
of unique applicants engaged in non-goat/sheep
and/or goat herding activities across the same time
period (166). 744 + 166 = 910.
19 Based on OFLC’s H–2A public disclosure data
that is accessible at https://www.dol.gov/agencies/
eta/foreign-labor/performance, employers seeking
range sheep and/or goat herding job opportunities
filed 914 applications with OFLC from June 1,
2020—the date USCIS’ policy memorandum went
into effect—until June 30, 2021 (i.e., the end of the
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$22,079
22,079
22,079
2,588
3,144
$893,043
784,637
671,143
91,983
95,556
Transfer
payments to
employers of
sheep and/or
goat herding
$78,731,848
69,174,659
59,168,812
8,109,380
8,424,308
acknowledges that some employers of
sheep and goat herders may need to
replenish their labor supply by hiring
additional U.S. workers to account for
the reduced period of need, petitioning
for permanent workers through the
appropriate visa programs as necessary,
or extending the work schedule for U.S.
workers that they employ if they are
available. The Department also notes
that, in instances where employers have
recurring year-round labor needs that
are actually permanent, rather than
temporary or seasonal in nature, the
Department expects some employers to
utilize the employment-based
immigrant petition process to hire
foreign workers, which includes options
for skilled workers, professionals, and
other workers under 8 U.S.C. 1153(b)(3).
In response to the Department’s
analysis of costs in the NPRM,
commenters including two industry
associations and a State Department of
Agriculture disagreed with the
Department’s assessment that some
employers of sheep and goat herders
will replenish their labor supply by
hiring additional U.S. workers. For
example, one industry association stated
that DOL’s proposed regulatory changes
and economic analysis misconstrue the
idea that U.S. workers are willing and
third quarter in FY 2021). Of these applications, 99
percent requested periods of need that were 10
months or less. In addition, the average period of
need for unique certified employers of sheep and
goat herding was approximately 166 days, in
contrast to FY 2017 to FY 2019, in which the
average period of need exceeded 10 months,
ranging from 356 days in FY 2019 to 360 days in
FY 2017. See Exhibit 3.
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able to perform the jobs agricultural
employers are seeking throughout the
different times of the year, as ranchers
have often found that they cannot find
domestic help where the domestic labor
force is in short supply. Other
commenters noted the skillset to
perform herding work is not available
domestically and that range
management plans on Federal lands and
many State and tribal lease lands
require at least one herder, without
providing additional explanation. Due
to the dynamic nature of the labor
market, the Department acknowledges
that the domestic workforce may not
entirely offset the personnel changes
that could occur following the
implementation of this final rule and
anticipates that agricultural employers
may also adopt changes to their
business practices, such as extending
the work schedules for U.S. workers that
they currently employ or petitioning for
permanent workers through the
appropriate visa programs as necessary.
Several industry associations
indicated that the cost effects of this
final rule are likely to be experienced
over time due to industries involved in
the production of sheep, goats, and
livestock needing time to adapt to the
requirements of the new rule. One of
these comments suggested that
downstream effects on jobs in the
agricultural supply chain are those most
likely to be impacted over time and
should be addressed in the economic
analysis of this rulemaking. The
Department did not receive any data or
information from commenters to allow
for a quantification of such impacts. As
noted above, however, because USCIS’
policy memorandum became effective
on June 1, 2020 and—based on recent
filing data, employers have already
adjusted to this guidance—the
Department anticipates the change in
operation costs for most employers and
any corresponding downstream effects
due to the issuance of this final rule to
be limited.
Transfers
The first category of transfers
associated with this final rule is an
employer to employee transfer incurred
due to a potential increase in the
maximum period of need from 10
months up to 1 year, or longer in
extraordinary circumstances, for a small
number of employers engaged in nonsheep and/or goat herding who can
demonstrate that their need is
temporary.
Exhibit 2 presents the distribution of
the period of need on approved
applications filed by unique employers
of non-sheep and/or goat herders during
FYs 2017, 2018, and 2019.
EXHIBIT 2—DISTRIBUTION OF PERIOD OF NEED FOR UNIQUE CERTIFIED EMPLOYERS OF NON-SHEEP/GOAT HERDING BY
YEAR
[FY 17–19]
Year
Period of need
(days)
2017
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0–70 .........................................................................................................................................................
71–140 .....................................................................................................................................................
141–210 ...................................................................................................................................................
210–299 ...................................................................................................................................................
300–308 ...................................................................................................................................................
>308 .........................................................................................................................................................
Number of Unique Employers .................................................................................................................
Average Period of Need ..........................................................................................................................
Transfer payments were calculated by
identifying unique employers engaged
in non-sheep and/or goat herding from
FYs 2017, 2018, and 2019.20 The
Department then identified employers
within this group of unique employers
whose applications contained periods of
need between 300 and 308 days. The
Department identified this subset
because some employers whose
applications contained periods of need
that fall within this range are likely to
extend their period of need up to a year,
or longer in extraordinary
circumstances, if they can demonstrate
their need is temporary in nature (e.g.,
their need is not for recurring yearround activities). The Department
expects that a small number of
employers of non-sheep and/or goat
herders will extend their period of need
20 Based
on FYs 2017, 2018, and 2019
performance data obtained from OFLC, the
Department estimates that the number of non-sheep
and/or goat herding employers is unlikely to
increase over the rule’s 10-year time forecast.
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16:14 Dec 15, 2021
Jkt 256001
beyond 10 months. For this analysis, the
Department conservatively assumes that
no more than 10 percent of the unique
employers who were identified to have
a period of need between 300 and 308
days will apply, and be approved by
OFLC, to extend their period of
temporary need beyond a 10-month
period.21 In the NPRM, the Department
sought public comment regarding the
assumptions on the percentage of
unique employers affected. As
discussed above, some commenters
noted that changes in how an employer
describes the services or labor needed,
including the period of employment, on
new applications filed under this rule
may demonstrate compliance with
§ 655.103(d) rather than changes in the
temporary (or seasonal) nature of an
21 The Department assumes a small percentage of
the unique employers who were identified to have
a period of need between 300 and 308 days will
apply to extend their period of temporary need
beyond a 10-month period up to 1 year, or longer
in extraordinary circumstances.
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5
15
10
27
72
0
129
254
2019
5
16
10
47
103
0
181
260
10
17
7
48
107
0
189
257
employer’s labor needs. Based on
OFLC’s performance data, the
Department estimated the impact of
extending the period of need by
multiplying the number of workers
certified for each of the unique nonsheep and/or goat herding employers by
the basic rate of pay offered to these
workers each year. The figures for each
year were then multiplied by 2 in order
to estimate the impact from an
additional 2 months of need, which
yields an annualized transfer of $95,556
at a discount rate of 7 percent and
$91,983 at a discount rate of 3 percent.
The second category of transfers
associated with this final rule is an
employee to employer transfer incurred
due to potential reductions in sheep
and/or goat herding employers’ period
of need from a maximum of 364 days to
10 months or less for annually recurring
applications.22
22 The Department’s analysis of employers of
sheep and goat herders represents the transfer from
employer to employee. The Department assumes
E:\FR\FM\16DER1.SGM
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Federal Register / Vol. 86, No. 239 / Thursday, December 16, 2021 / Rules and Regulations
Exhibit 3 presents the distribution of
the period of need on approved
applications filed by unique employers
71381
of sheep and/or goat herders during FYs
2017, 2018, and 2019.
EXHIBIT 3—DISTRIBUTION OF PERIOD OF NEED FOR UNIQUE CERTIFIED EMPLOYERS OF SHEEP/GOAT HERDING BY YEAR
[FY 17–19]
Year
Period of need (days)
2017
0–70 .........................................................................................................................................................
71–140 .....................................................................................................................................................
141–210 ...................................................................................................................................................
210–299 ...................................................................................................................................................
>299 .........................................................................................................................................................
Number of Unique Employers .................................................................................................................
Average Period of Need ..........................................................................................................................
Transfer payments were calculated by
identifying unique employers engaged
in sheep and/or goat herding from FYs
2017, 2018, and 2019.23 The Department
identified employers within this group
of unique employers whose applications
contained a period of need of 300 days
or more. Based on OFLC’s performance
data, the Department estimated the
impact of reducing the period of
eligibility by multiplying the number of
workers certified for each of the unique
sheep and/or goat herding employers by
the basic rate of pay offered to these
workers each year. The figures for each
year were then multiplied by the
number of days requested for the period
of need of 300 days or more in order to
estimate the impact from reducing the
period of need to 10 months or less,
which yields an annualized transfer of
$8,424,308 at a discount rate of 7
percent and $8,109,380 at a discount
rate of 3 percent.
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ii. Benefits
By rescinding 20 CFR 655.215(b)(2),
the Department standardizes the
adjudication of temporary need under
the H–2A program and aligns the
Department’s adjudication of the
temporary or seasonal need of herder
applications with the guidance DHS has
implemented in the USCIS Policy
Memorandum. Furthermore, the
rescission of § 655.215(b)(2) better
complies with pertinent provisions of
the INA and the Departments’
applicable implementing regulations
that define when employment is of a
‘‘temporary or seasonal nature.’’
Therefore, this final rule aims to help
ensure the employment of H–2A
workers in herding and range livestock
operations does not adversely affect the
that in some instances employers will seek to
replace H–2A employees who have met the period
of need threshold with U.S. employees, which
would constitute a transfer between H–2A
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16:14 Dec 15, 2021
Jkt 256001
wages and working conditions of
workers in the United States similarly
employed.
B. Regulatory Flexibility Analysis and
Small Business Regulatory Enforcement
Fairness Act and Executive Order
13272: Proper Consideration of Small
Entities in Agency Rulemaking
The Regulatory Flexibility Act of 1980
(RFA), 5 U.S.C. 601 et seq., as amended
by the Small Business Regulatory
Enforcement Fairness Act of 1996,
Public Law 104–121 (March 29, 1996),
requires Federal agencies engaged in
rulemaking to consider the impact of
their proposals on small entities,
consider alternatives to minimize that
impact, and solicit public comment on
their analyses. The RFA requires the
assessment of the impact of a regulation
on a wide range of small entities,
including small businesses, not-forprofit 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. 5
U.S.C. 603, 604. 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.
employees and U.S. employees. This potential
transfer could not be evaluated due to data
limitations.
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2018
0
1
6
4
743
754
360
2019
2
4
5
7
673
691
357
3
9
3
7
761
783
356
The Department collected industry
data from the Bureau of Labor Statistics’
Quarterly Census for Employment and
Wage for FY 2020. This process allowed
the Department to identify the number
of entities impacted by this final rule for
two North American Industry
Classification System (NAICS) Codes
that frequently request H–2A
certification for herding and livestock
production job opportunities: NAICS
112410: Sheep Farming, and NAICS
112111: Beef Cattle Ranching, and
Farming. The Department was able to
identify 9,329 establishments that are
classified as part of the beef cattle
ranching, and farming industry, and 233
Establishments that are classified as part
of the sheep farming industry. Next, the
Department used the Small Business
Administration (SBA) size standards to
classify the vast majority of these
employers (approximately 99 percent)
as small.
The Department has estimated the
cost of the time to read and review the
final rule. In addition, the Department
assumes some employers will
experience increased costs associated
with changes in business operations,
transportation, staffing turnover, and
training requirements under this final
rule.
The Department estimates that small
businesses engaged in herding and
livestock production will incur a onetime cost of $48.53 to familiarize
themselves with the changes in this
rule. Other costs that employers could
incur are attributed to the potential need
to adjust their staffing and business
operations as well as employing more
U.S. workers to offset the loss of H–2A
workers. However, the Department does
not expect that these costs will be
23 Based on FYs 2017, 2018, and 2019
performance data obtained from OFLC.
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significant. As discussed above, the
Department reviewed the impacts of this
final rule for two NAICS Codes that
frequently request H–2A certification for
herding and livestock production job
opportunities: NAICS 112410: Sheep
Farming, and NAICS 112111: Beef Cattle
Ranching, and Farming.
The SBA estimates that revenue for a
small business with NAICS Code
112410 is $1.0 million and for NAICS
Code 112111 is $1.0 million. The rule
familiarization cost of $48.53 will be far
less than one percent of the average
revenue for small businesses with the
two NAICS Codes. Although the
Department does not anticipate the final
rule will have a significant adverse
effect as employers have already
adjusted to USCIS’ policy
memorandum, the Department
acknowledges that some employers of
sheep and goat herders may need to
replenish their labor supply by hiring
additional U.S. workers to account for
the reduced period of need, petitioning
for permanent workers through the
appropriate visa programs as necessary,
or extending the work schedule for U.S.
workers that they employ. The
Department did not receive any public
comments on this Initial Regulatory
Flexibility Analysis. The Department
certifies that this rule will not have a
significant impact on a substantial
number of small entities affected.
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C. Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(PRA), 44 U.S.C. 3501 et seq., and its
attendant regulations, 5 CFR part 1320,
require the Department to consider the
agency’s need for its information
collections and their practical utility,
the impact of paperwork and other
information collection burdens imposed
on the public, and how to minimize
those burdens. This final rule does not
require a collection of information
subject to approval by OMB under the
PRA, or affect any existing collections of
information.
D. Congressional Review Act
The Office of Information and
Regulatory Affairs has determined that
this final rule is not a major rule, as
defined by 5 U.S.C. 804, for purposes of
congressional review of agency
rulemaking pursuant to the
Congressional Review Act, Public Law
104–121, sec. 251, 110 Stat. 868, 873
(codified at 5 U.S.C. 804). This rule will
not result in an annual effect on the
economy of $100 million or more; a
major increase in costs or prices; or
significant adverse effects on
competition, employment, investment,
productivity, innovation, or the ability
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16:14 Dec 15, 2021
Jkt 256001
of U.S.-based companies to compete
with foreign-based companies in
domestic and export markets.
E. Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995 (UMRA) is intended, among
other things, to curb the practice of
imposing unfunded Federal mandates
on State, local, and tribal governments.
Title II of the UMRA requires each
Federal agency to prepare a written
statement assessing the effects of any
Federal mandate in a proposed or final
agency rule that may result in $100
million or more in expenditures
(adjusted annually for inflation) in any
1 year by State, local, and tribal
governments, in the aggregate, or by the
private sector. A Federal mandate is
defined in 2 U.S.C. 658, in part, as any
provision in a regulation that imposes
an enforceable duty upon State, local, or
tribal governments, or the private sector.
Following consideration of these factors,
the Department has concluded that this
final rule contains no unfunded Federal
mandates, including no ‘‘Federal
intergovernmental mandate’’ or
‘‘Federal private sector mandate.’’
This final rule will not exceed the
$100 million in expenditures in any 1
year when adjusted for inflation, and
this rulemaking does not contain such a
mandate. The requirements of Title II of
the UMRA, therefore, do not apply, and
the Department is not required to
prepare a statement under the UMRA.
F. Executive Order 13132, Federalism
The Department has concluded that
this final rule does not have federalism
implications, because it will not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Accordingly, E.O.
13132 requires no further agency action
or analysis.
G. Executive Order 13175, Consultation
and Coordination With Indian Tribal
Governments
After consideration, the Department
has determined that this final rule will
not result in ‘‘tribal implications,’’
because it will 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 tribal governments.
Accordingly, E.O. 13175 requires no
further agency action or analysis.
PO 00000
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Fmt 4700
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List of Subjects in 20 CFR Part 655
Administrative practice and
procedure, Employment, Employment
and training, Enforcement, Foreign
workers, Forest and forest products,
Fraud, Health professions, Immigration,
Labor, Longshore and harbor work,
Migrant workers, Nonimmigrant
workers, Passports and visas, Penalties,
Reporting and recordkeeping
requirements, Unemployment, Wages,
Working conditions.
For the reasons set forth above, the
Department amends part 655 of title 20
of the Code of Federal Regulations as
follows:
PART 655—TEMPORARY
EMPLOYMENT OF FOREIGN
WORKERS IN THE UNITED STATES
1. The authority citation for part 655
continues to read as follows:
■
Authority: Section 655.0 issued under 8
U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i)
and (ii), 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. 1733, 1748 (8 U.S.C. 1101
note); sec. 323(c), Pub. L. 103–206, 107 Stat.
2428; sec. 412(e), Pub. L. 105–277, 112 Stat.
2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L.
106–95, 113 Stat. 1312, 1316 (8 U.S.C. 1182
note); 29 U.S.C. 49k; Pub. L. 107–296, 116
Stat. 2135, as amended; Pub. L. 109–423, 120
Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR
214.2(h)(6)(iii); and sec. 6, Pub. L. 115–218,
132 Stat. 1547 (48 U.S.C. 1806).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8
CFR 214.2(h).
Subpart E issued under 48 U.S.C. 1806.
Subparts F and G issued under 8 U.S.C.
1288(c) and (d); sec. 323(c), Pub. L. 103–206,
107 Stat. 2428; and 28 U.S.C. 2461 note,
Pub. L. 114–74 at section 701.
Subparts H and I issued under 8 U.S.C.
1101(a)(15)(H)(i)(b) and (b)(1), 1182(n) and
(t), and 1184(g) and (j); sec. 303(a)(8), Pub.
L. 102–232, 105 Stat. 1733, 1748 (8 U.S.C.
1101 note); sec. 412(e), Pub. L. 105–277, 112
Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C.
2461 note, Pub. L. 114–74 at section 701.
Subparts L and M issued under 8 U.S.C.
1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d),
Pub. L. 106–95, 113 Stat. 1312, 1316 (8
U.S.C. 1182 note); Pub. L. 109–423, 120 Stat.
2900; and 8 CFR 214.2(h).
§ 655.215
[Amended]
2. Amend § 655.215 by removing
paragraph (b)(2) and redesignating
paragraph (b)(3) as paragraph (b)(2).
■
Angela Hanks,
Acting Assistant Secretary for Employment
and Training, Labor.
[FR Doc. 2021–26211 Filed 12–15–21; 8:45 am]
BILLING CODE 4510–FP–P
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]]>Agencies
[Federal Register Volume 86, Number 239 (Thursday, December 16, 2021)]
[Rules and Regulations]
[Pages 71373-71382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26211]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
[DOL Docket No. ETA-2020-0005]
RIN 1205-AB99
Adjudication of Temporary and Seasonal Need for Herding and
Production of Livestock on the Range Applications Under the H-2A
Program
AGENCY: Employment and Training Administration, Department of Labor.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Labor (the Department or DOL) is amending
its regulations regarding the adjudication of temporary need for
employers seeking to employ nonimmigrant workers in job opportunities
covering the herding or production of livestock on the range.
Consistent with a court-approved settlement agreement, this final rule
rescinds the regulatory provision that governed the period of need for
such job opportunities under the H-2A visa classification to ensure the
Department's adjudication of temporary or seasonal need is conducted in
the same manner for all applications for temporary agricultural labor
certification.
DATES: This final rule is effective January 18, 2022.
FOR FURTHER INFORMATION CONTACT: Brian Pasternak, Administrator, Office
of Foreign Labor Certification, Employment and Training Administration,
Department of Labor, 200 Constitution Avenue NW, Room N-5311,
Washington, DC 20210, telephone: (202) 693-8200 (this is not a toll-
free number). Individuals with hearing or speech impairments may access
the telephone number above via TTY/TDD by calling the toll-free Federal
Information Relay Service at 1 (877) 889-5627.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background on 20 CFR part 655, subpart B
A. Statutory Framework
B. Regulatory Framework
C. The Hispanic Affairs Project Litigation and Need for
Rulemaking
II. Discussion of Proposed Revision to 20 CFR part 655, subpart B
III. Public Comments Received
A. Comments Supporting Rescission of Sec. 655.215(b)(2)
B. Out of Scope Comments
IV. Administrative Information
[[Page 71374]]
I. Background on 20 CFR Part 655, Subpart B
A. Statutory Framework
The H-2A nonimmigrant worker visa program enables U.S. agricultural
employers to employ foreign workers on a temporary basis to perform
temporary or seasonal agricultural labor or services where the
Secretary of Labor (Secretary) certifies that (1) 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 (2) the employment of foreign
workers in such labor or services will not adversely affect the wages
and working conditions of workers in the United States similarly
employed. See section 101(a)(15)(H)(ii)(a) of the Immigration and
Nationality Act (INA), as amended by the Immigration Reform and Control
Act of 1986 (IRCA), 8 U.S.C. 1101(a)(15)(H)(ii)(a); section 218(a)(1)
of the INA, 8 U.S.C. 1188(a)(1). The Secretary has delegated the
authority to issue temporary agricultural labor certifications to the
Assistant Secretary, Employment and Training Administration (ETA), who
in turn has delegated that authority to ETA's Office of Foreign Labor
Certification (OFLC). Secretary's Order 06-2010 (Oct. 20, 2010).\1\
Once OFLC issues a temporary agricultural labor certification,
employers may then petition the U.S. Department of Homeland Security
(DHS) to employ a nonimmigrant worker in the United States in the H-2A
visa classification.
---------------------------------------------------------------------------
\1\ In addition, the Secretary has delegated to the Department's
Wage and Hour Division the responsibility under section 218(g)(2) of
the INA, 8 U.S.C. 1188(g)(2), to assure employer compliance with the
terms and conditions of employment under the H-2A program.
Secretary's Order 01-2014 (Dec. 19, 2014).
---------------------------------------------------------------------------
B. Regulatory Framework
Since 1987, the Department has operated the H-2A temporary
agricultural labor certification program under regulations promulgated
pursuant to the INA.\2\ With limited exceptions, including those set
forth below, the Department's current regulations governing the H-2A
program were published in 2010.\3\ The standards and procedures
applicable to the certification and employment of workers under the H-
2A program are found in 20 CFR part 655, subpart B and 29 CFR part
501.\4\
---------------------------------------------------------------------------
\2\ The Immigration and Nationality Act of 1952 created the H-2
temporary worker program. Public Law 82-414, 66 Stat. 163. In 1986,
IRCA divided the H-2 program into separate agricultural and
nonagricultural temporary worker programs. See Public Law 99-603,
section 301, 100 Stat. 3359 (1986). The H-2A agricultural worker
program designation corresponds to the statute's agricultural worker
classification in 8 U.S.C. 1101(a)(15)(H)(ii)(a).
\3\ Temporary Agricultural Employment of H-2A Aliens in the
United States, 75 FR 6884 (Feb. 12, 2010).
\4\ The Department remains engaged in a separate rulemaking that
seeks to amend these regulations as they pertain to the H-2A
program. Through a Notice of Proposed Rulemaking published in July
2019 (2019 NPRM), the Department proposed amendments to the current
regulations that focus on modernizing the H-2A program and
eliminating inefficiencies. Temporary Agricultural Employment of H-
2A Nonimmigrants in the United States, 84 FR 36168 (July 26, 2019).
The 2019 NPRM also proposed to amend the regulations for enforcement
of contractual obligations for temporary foreign agricultural
workers and the Wagner-Peyser Act regulations to provide consistency
with proposed revisions to H-2A program regulations governing the
temporary agricultural labor certification process. Id.; see also
Adverse Effect Wage Rate Methodology for the Temporary Employment of
H-2A Nonimmigrants in Non-Range Occupations in the United States, 85
FR 70445, 70447 (Nov. 5, 2020) (establishing a revised methodology
for determining the Adverse Effect Wage Rate (AEWR) methodology for
non-range occupations in one final rule and explaining that ``[t]he
Department intends to address all of the remaining proposals from
the July 26, 2019 proposed rule in a subsequent, second final rule
governing other aspects of the certification of agricultural labor
or services to be performed by H-2A workers and enforcement of the
contractual obligations applicable to employers of such nonimmigrant
workers.'').
---------------------------------------------------------------------------
Historically, employers in a number of States (primarily but not
exclusively in the western continental United States) have used what is
now the H-2A program to bring in foreign workers to work as sheep and
goat herders.\5\ Beginning in 1989, and consistent with Congress'
historical approach, the Department established variances from certain
H-2A regulatory requirements and procedures through sub-regulatory
guidance to allow employers of open range sheep and goat herders to use
the H-2A program. The Department established similar variances or
``special procedures'' through sub-regulatory guidance in 2007 for
employers seeking to employ H-2A workers for open range herding or
production of livestock positions. In 2015, the Department incorporated
these ``special procedures'' provisions for the employment of workers
in the herding and production of livestock on the range, with some
modifications, into its H-2A regulations. Temporary Agricultural
Employment of H-2A Foreign Workers in the Herding or Production of
Livestock on the Range in the United States, 80 FR 62958 (Oct. 16,
2015) (2015 Rule).\6\ The 2015 Rule, codified at Sec. Sec. 655.200
through 655.235, continued the agency's recognition of the unique
occupational characteristics of herding positions, which involve
spending extended periods of time herding animals across remote range
lands and being on call to protect and maintain herds for up to 24
hours a day, 7 days a week.\7\
---------------------------------------------------------------------------
\5\ As the Department explained in its 2015 herder rulemaking,
Congress enacted statutes during the early 1950s authorizing the
permanent admission of a certain number of ``foreign workers skilled
in sheepherding.'' See Temporary Agricultural Employment of H-2A
Foreign Workers in the Herding or Production of Livestock on the
Open Range in the United States, 80 FR 20300, 20301-20302 (Apr. 15,
2015). Congress subsequently permitted these special laws to expire
and signaled that sheepherders should be admitted under the existing
temporary (then H-2) program. Id.; see also Changes to Requirements
Affecting H-2A Nonimmigrants, 73 FR 76891, 76906-76907 (Dec. 18,
2008).
\6\ The 2015 Rule followed litigation in Mendoza v. Perez, in
which the U.S. Court of Appeals for the District of Columbia Circuit
(D.C. Circuit) held the special procedures pertaining to sheep,
goat, and other open range herding or production of livestock were
subject to the Administrative Procedure Act's notice and comment
requirements. 754 F.3d 1002, 1024 (D.C. Cir. 2014); see Mendoza v.
Perez, 72 F. Supp. 3d 168, 175 (D.D.C. 2014) (remedial order setting
a rulemaking schedule).
\7\ The 2019 NPRM proposed clarifying and technical revisions to
certain provisions concerning the employment of workers in herding
and production of livestock on the range (e.g., portions of 20 CFR
655.205, 655.211, 655.220, and 655.225) that are not the subject of
this rulemaking. 84 FR 36168, 36220-21. The 2019 NPRM also proposed
to incorporate into the H-2A regulations, with some modifications,
the standards and procedures currently found in Training and
Employment Guidance Letters related to animal shearing, commercial
beekeeping, and custom combining, and to rescind the general
provision that allows for the creation of ``special procedures''
(i.e., sub-regulatory variances from the regulations). Id. at 36171-
73. As explained above, the Department remains engaged in a separate
rulemaking addressing these proposed changes.
---------------------------------------------------------------------------
Section 101(a)(15)(H)(ii)(a) of the INA permits only ``agricultural
labor or services . . . of a temporary or seasonal nature'' to be
performed under the H-2A visa category. 8 U.S.C. 1101(a)(15)(H)(ii)(a).
Thus, as part of the Department's adjudication of applications for
temporary agricultural labor certification, the Department assesses on
a case-by-case basis whether the employer has established a temporary
or seasonal need for the agricultural work to be performed. See 20 CFR
655.161(a). In its initial rulemaking on the H-2A program, the
Department explained that it would be appropriate for an employer to
apply annually for recurring job opportunities in the same occupation
when it involved ``truly `seasonal' employment,'' but acknowledged that
``the longer the employer needs a `temporary' worker, the more likely
it would seem that the job has in fact become a permanent one.'' Labor
Certification Process for the Temporary Employment of Aliens in
Agriculture and Logging in the United States, 52 FR 20496, 20498 (June
1, 1987). The Department's current regulations, which adopted DHS's
definition of ``temporary
[[Page 71375]]
or seasonal nature,'' specify that employment is of a temporary nature
``where the employer's need to fill the position with a temporary
worker will, except in extraordinary circumstances, last no longer than
1 year,'' and ``of a seasonal nature where it is tied to a certain time
of year by an event or pattern, such as a short annual growing cycle or
a specific aspect of a longer cycle, and requires labor levels far
above those necessary for ongoing operations.'' 20 CFR 655.103(d); 8
CFR 214.2(h)(5)(iv)(A); 75 FR 6884, 6890 (adopting DHS's definition
``was not intended to create any substantive change in how the
Department administers the program''). DHS regulations further provide
that the Department's finding that employment is of a temporary or
seasonal nature is ``normally sufficient'' for the purpose of an H-2A
petition, but state that notwithstanding this finding, DHS adjudicators
will not find employment to be temporary or seasonal in certain
situations, such as when ``substantial evidence'' exists that the
employment is not temporary or seasonal. 8 CFR 214.2(h)(5)(iv)(B).
Notwithstanding the regulatory definition found in 20 CFR
655.103(d) and 8 CFR 214.2(h)(5)(iv)(A), the 2015 Rule allowed
employers of sheep and goat herders to apply for a temporary
agricultural labor certification for a period of up to 364 days. 80 FR
62958, 62999-63000; see 20 CFR 655.215(b)(2) (``The period of need
identified on the H-2A Application for Temporary Employment
Certification and job order for range sheep or goat herding or
production occupations must be no more than 364 calendar days.'').
Conversely, the same rule limited employers of range livestock work to
a temporary agricultural labor certification with a period of need not
to exceed 10 months. 80 FR 62958, 63000; see 20 CFR 655.215(b)(2)
(``The period of need identified on the H-2A Application for Temporary
Employment Certification and job order for range herding or production
of cattle, horses, or other domestic hooved livestock, except sheep and
goats, must be for no more than 10 months.'').
C. The Hispanic Affairs Project Litigation and Need for Rulemaking
On September 22, 2015, four sheepherders and a nonprofit member
organization for immigrant workers filed a lawsuit in federal court
challenging aspects of the 2015 Rule. Hispanic Affairs Project v.
Perez, 206 F. Supp. 3d 348 (D.D.C. 2016). As relevant to this
rulemaking, the plaintiffs challenged the Department's decision to
allow employers seeking temporary agricultural labor certifications for
sheep or goat herder positions to apply for periods of need that last
up to 364 days at a time. See Hispanic Affairs Project v. Acosta, 263
F. Supp. 3d 160, 182 (D.D.C. 2017) (citing 20 CFR 655.215(b)(2)). The
plaintiffs also challenged DHS's alleged practice of automatically
approving sheep and goat herder petitions for recurring periods up to
364 days, asserting that the Department's regulation at Sec.
655.215(b)(2) and DHS's alleged practice did not conform with the INA
or the Departments' regulations, in violation of the APA. See id.
Specifically, the plaintiffs argued Sec. 655.215(b)(2) and DHS's
alleged practice are inconsistent with 8 U.S.C. 1101(a)(15)(H)(ii)(a),
which provides that H-2A visas be only for ``temporary'' work, and
conflicts with the Departments' regulations defining when employment is
of a ``temporary or seasonal nature.'' See id.; compare 20 CFR
655.103(d) and 8 CFR 214.2(h)(5)(iv)(A) (employer's ``need to fill the
position with a temporary worker will . . . last no longer than one
year'') with 20 CFR 655.215(b)(2) (``The period of need identified on
the [application and job order] . . . must be no more than 364 calendar
days.''). The district court dismissed the challenge on procedural
grounds, concluding the plaintiffs waived their claim against the
Department and did not properly or timely raise their claim against
DHS. Id. at 185-86, 190.\8\
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\8\ Plaintiffs also challenged two other aspects of the 2015
Rule: (1) Certain definitions and requirements that limit the scope
and location of work that H-2A workers in sheep and goat herding
positions may perform, 80 FR 62958, 62963-73; and (2) the
methodology by which the Department calculates the minimum required
wage that such workers (and any non-H-2A workers in corresponding
employment) must be offered and paid, id. at 62986-96. The
Department and DHS prevailed on these issues. See Hispanic Affairs
Project v. Acosta, 901 F.3d 378, 391-96 (D.C. Cir. 2018), aff'g in
part 263 F. Supp. 3d 160, 190-207 (D.D.C. 2017).
---------------------------------------------------------------------------
On appeal, the D.C. Circuit reversed and remanded the district
court's decision on these claims for a resolution on the merits.
Hispanic Affairs Project v. Acosta, 901 F.3d 378, 396-97 (D.C. Cir.
2018). The court held the plaintiffs preserved their challenge to the
Department's decision in the 2015 Rule to classify sheep and goat
herding as ``temporary'' employment. Id. at 385. In dicta, the court
noted the ``agency has no power under the statute--it is actually
forbidden--to include non-temporary or non-seasonal workers in the H-2A
program.'' Id. at 389. The court also held the complaint adequately
raised a challenge to DHS's alleged practice of extending ``temporary''
H-2A petitions beyond the regulatory definition of temporary
employment. Id. at 385, 388. Taking the evidence submitted by the
plaintiffs as true, the court concluded the plaintiffs had ``plausibly
shown that [DHS]'s de facto policy of authorizing long-term visas is
arbitrary, capricious, and contrary to law, in violation of the APA and
[INA] because it `authorizes the creation of permanent herder jobs that
are not temporary or seasonal.' '' Id. at 386 (original alterations
omitted).
The parties subsequently reached a settlement in which the
Department agreed to engage in rulemaking to propose to rescind Sec.
655.215(b)(2) and DHS, through U.S. Citizenship and Immigration
Services (USCIS), agreed to publish a policy memorandum that provided
guidance on the determination of temporary or seasonal need for H-2A
sheep and goat herder petitions. Joint Status Report at 1, ECF No. 135,
Hispanic Affairs Project, et al. v. Scalia et al., No. 15-cv-1562
(D.D.C. Nov. 8, 2019); see also Order Approving the Parties' Settlement
Agreement, ECF No. 136, Hispanic Affairs Project, et al. v. Scalia et
al., No. 15-cv-1562 (D.D.C. Nov. 12, 2019). Following a 30-day public
comment period, USCIS published a final policy memorandum on February
28, 2020, which became effective on June 1, 2020. See USCIS, Policy
Memorandum: Updated Guidance on Temporary or Seasonal Need for H-2A
Petitions Seeking Workers for Range Sheep and/or Goat Herding or
Production (Feb. 28, 2020) (USCIS Policy Memorandum).\9\ On May 6,
2021, the Department published a NPRM that proposed to rescind Sec.
655.215(b)(2).
---------------------------------------------------------------------------
\9\ See https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2020/2-PMH2A-SeasonalSheepGoatHerder_PolicyMemo.pdf.
---------------------------------------------------------------------------
II. Discussion of Proposed Revision to 20 CFR Part 655, Subpart B
The Department proposed to rescind Sec. 655.215(b)(2) so that the
temporary or seasonal need of an employer seeking to fill a herding or
production of livestock on the range position would be adjudicated
according to the requirement in Sec. 655.103(d) that governs the
adjudication of employment of a temporary or seasonal nature for all
other H-2A applications. See 20 CFR 655.200(a) (noting that employers
whose job opportunities meet the qualifying criteria under Sec. Sec.
655.200-655.235 must fully comply with all the requirements of
Sec. Sec. 655.100-655.185 unless otherwise specified in Sec. Sec.
655.200-655.235).
[[Page 71376]]
The Department explained in the NPRM that the proposed rescission
of Sec. 655.215(b)(2) would eliminate that provision's presumptive
period of need for employment involving range sheep or goat herding and
absolute restriction on the period of need for employment involving
other range livestock activities. As the NPRM acknowledged, the 2015
Rule suggested the unique nature and history of herding work permitted
a variance, on an occupational basis, from the standard H-2A
requirements governing the adjudication of an employer's temporary
need. As such, Sec. 655.215(b)(2) allowed certification of a specific
period of time without requiring the Department to assess the nature of
the employer's need for the labor or services to be performed. The
NPRM, accordingly, proposed to rescind Sec. 655.215(b)(2) so that all
employers applying for temporary agricultural labor certifications must
individually demonstrate a temporary or seasonal need for the
agricultural labor or services to be performed, regardless of
occupation. As the Department explained in the NPRM, this rescission of
Sec. 655.215(b)(2) is not only consistent with the D.C. Circuit's
decision in Hispanic Affairs Project and the guidance issued by USCIS,
but also better complies with the requirements of the INA implemented
in the Departments' regulations that define when employment is of a
``temporary or seasonal nature.'' 8 U.S.C. 1101(a)(15)(H)(ii)(A)
(defining an H-2A nonimmigrant as a foreign worker coming to perform
services of a temporary or seasonal nature); 20 CFR 655.103(d); 75 FR
6884, 6890 (adopting DHS's definition of ``temporary or seasonal
nature'' set forth in 8 CFR 214.2(h)(5)(iv)(A)). The Department sought
public comment on all issues related to its proposal to rescind Sec.
655.215(b)(2), including economic or other regulatory impacts of the
proposed rule on the public.\10\
---------------------------------------------------------------------------
\10\ As noted above, the 2019 NPRM proposed to amend regulations
governing the certification of agricultural labor or services to be
performed by temporary foreign workers in H-2A nonimmigrant status
and the enforcement of contractual obligations applicable to
employers of such nonimmigrant workers. 84 FR 36168. In particular,
the 2019 NPRM sought public comment on the possibility of moving the
adjudication of an employer's temporary or seasonal need exclusively
to DHS or exclusively to DOL. Id. at 36178. In the NPRM to this
rule, the Department explained that comments on the proposals
contained in the 2019 NPRM are outside of the scope of the limited
rulemaking here. 86 FR 24368, 24371. Given the narrow scope of this
rulemaking and because a rule finalizing the non-AEWR provisions of
the 2019 NPRM has not published, the rulemaking associated with the
2019 NPRM does not affect the issuance of this rule.
---------------------------------------------------------------------------
III. Public Comments Received
The Department's 30-day comment period on its proposed rescission
Sec. 655.215(b)(2) opened on May 6, 2021 and closed on June 7, 2021,
with comments submitted electronically at https://www.regulations.gov/
using docket number ETA-1205-AB99. During this comment period, ETA
received eight comments, none of which opposed adopting the proposal.
Some contained comments outside of the scope of this rulemaking, as
discussed below, while others were submitted on behalf of multiple
entities. Commenters represented stakeholders from the public, private,
and not-for-profit sectors and included industry associations, worker
advocacy organizations, a State Department of Agriculture, a think
tank, and private individuals. The Department appreciates all of the
comments it received. After full consideration of the comments and for
the reasons explained below, the Department is adopting the proposal to
rescind Sec. 655.215(b)(2).
A. Comments Supporting Rescission of Sec. 655.215(b)(2)
Commenters generally supported the Department's proposal to rescind
Sec. 655.215(b)(2), though some commenters expressed potential
concerns with the Department's implementation of the change. Several
worker advocacy organizations and a think tank stated that the proposed
revision more closely reflects statutory requirements by limiting H-2A
employment to truly seasonal or temporary work for which employers are
unable to find sufficient U.S. workers. Some of these commenters stated
that the rescission of Sec. 655.215(b)(2) would simplify the H-2A
program, promote consistency between USCIS and DOL with regard to the
agencies' adjudication of temporary and seasonal need, and strengthen
labor protections, without imposing a substantial or unfair burden on
herding employers. Industry associations and a State Department of
Agriculture did not oppose the proposed change, though they expressed
concerns with its implementation and employers' ability to fulfill
their labor needs.
Commenters asked the Department to address how it will assess
temporary or seasonal need under Sec. 655.103(d), in particular where
an employer has a history of filing under Sec. 655.215(b)(2). Some of
the worker advocacy organizations urged the Department to remind
employers that the H-2A program is to be used only for agricultural
labor needs of a temporary or seasonal nature and that permanent labor
needs are not eligible for H-2A certification but may be eligible for
employment-based immigrant visas. These commenters also asked the
Department to guard against employers fulfilling permanent job needs
with H-2A workers, by noting, for example, that an employer must meet
both parts of the definition of seasonal need under Sec. 655.103(d).
In contrast, industry associations and a State Department of
Agriculture asked the Department not to weigh an employer's filing
history too heavily, as employers were previously not required to
separate distinct temporary or seasonal needs into different
applications under Sec. 655.215(b)(2). These commenters stressed that
changes in how an employer describes the services or labor needed,
including the period of employment, on new applications may demonstrate
compliance with Sec. 655.103(d) rather than changes in the temporary
or seasonal nature of an employer's labor needs. In addition, these
commenters noted difficulty hiring sufficient U.S. workers to fulfill
employers' labor needs and the potential downstream effects of
downsizing range operations should employers no longer be able to hire
foreign workers, which could necessitate operational changes that
affect an employer's temporary or seasonal need for labor. Both worker
advocacy organizations and an industry association asked the Department
to recognize USCIS' Policy Memorandum and adopt a similar approach to
case-by-case assessment of an employer's temporary or seasonal need and
filing history.
The Department agrees that adopting the proposal will simplify and
promote consistency within the H-2A program, while acknowledging the
concerns expressed by commenters regarding how the agency plans to
assess an employer's seasonal or temporary need under the standard at
Sec. 655.103(d). As noted in the NPRM, the Department will examine--on
a case-by-case basis and taking into consideration the totality of the
facts presented--whether an employer's need to fill a herding or
production of livestock on the range position is of a temporary or
seasonal nature, as those terms are defined in the Department's and
DHS's regulations. See 20 CFR 655.103(d); 8 CFR 214.2(h)(5)(iv)(A).
Section 655.103(d) states that employment ``is of a temporary nature
where the employer's need to fill the position with a temporary worker
will, except in extraordinary circumstances, last no
[[Page 71377]]
longer than 1 year.'' The same section states that ``employment is of a
seasonal nature where it is tied to a certain time of year by an event
or pattern, such as a short annual growing cycle or a specific aspect
of a longer cycle, and requires labor levels far above those necessary
for ongoing operations.'' While this rule rescinds Sec. 655.215(b)(2)
so that the Department's adjudication of temporary or seasonal need is
conducted in the same manner for all H-2A applications pursuant to
Sec. 655.103(d), it does not alter the regulatory definition and
standards by which the Department adjudicates temporary or seasonal
need under Sec. 655.103(d).
In particular, though recurring year-round activities cannot be
classified as temporary, see 75 FR 6884, 6891, the Department
recognizes, as explained in the NPRM, that some herder employers may be
able to establish a need to fill positions on a recurring annual basis
consistent with the definition of employment of a seasonal nature in
Sec. 655.103(d). See 86 FR 24368, 24371; 80 FR 62958, 62999-63000
(2015 Rule describing comments that delineated seasonal aspects of
herder work); 52 FR 20496, 20498 (acknowledging it is appropriate to
apply annually for truly ``seasonal'' employment); see also USCIS
Policy Memorandum at 3 n.3 (explaining that an employer's need for
workers that recurs annually at a given time of year does not mean its
need is permanent in nature as employment of a seasonal nature is
defined as being tied to a certain time of year). As some commenters
noted, such employers will need to show they meet both parts of the
definition of seasonal need in Sec. 655.103(d)--that is, the
employment (1) ``is tied to a certain time of year by an event or
pattern, such as a short annual growing cycle or a specific aspect of a
longer cycle'' and (2) ``requires labor levels far above those
necessary for ongoing operations.'' The Department also acknowledged in
the NPRM that some employers may have a ``temporary'' need to fill
herding and range livestock job opportunities, which is permissible
provided they can show the nature of their need is temporary under
Sec. 655.103(d). See Temporary Workers Under Sec. 301 of the
Immigration Reform and Control Act, 11 Op. O.L.C. 39, 40 & n.4 (1987)
(noting `` `temporary' means something other than seasonal'' and
explaining employers may fill ``permanent jobs that an employer needs
to fill on a temporary basis--for example, because the regular American
employee has fallen ill or extra hands are needed during a busy
period''); 11 Op. O.L.C. at 42 (``The nature of the job itself is
irrelevant. What is relevant is whether the employer's need is truly
temporary.'').
This final rule aligns the Department's adjudication of the
temporary or seasonal need of herder applications with the guidance DHS
has implemented in the USCIS Policy Memorandum, which the Department
encourages employers and other interested parties to review. The
memorandum explains, for example, that USCIS will adjudicate H-2A sheep
and goat herder petitions filed on or after June 1, 2020, on a case-by-
case basis, taking into consideration the totality of the facts
presented, and in the same manner as all other H-2A petitions. USCIS
Policy Memorandum at 1, 9. Past periods of need approved by USCIS prior
to June 1, 2020, will be one element considered when determining
whether an H-2A petition demonstrates a true temporary or seasonal
need. Id. at 9. Similar to USCIS' approach, and as indicated above, the
Department's adjudication will be conducted on a case-by-case basis and
will take into consideration the totality of the facts presented, of
which past periods of need will be one element that is considered in
determining whether an employer's need is truly temporary or
seasonal.\11\
---------------------------------------------------------------------------
\11\ In recognition of employers' need to transition from
compliance with Sec. 655.215(b)(2) to Sec. 655.103(d) and similar
to guidance in USCIS' Policy Memorandum, employers seeking herding
or production of livestock on the range job opportunities are
encouraged, in describing their temporary or seasonal needs in
future filings, to explain why any past filings history is not
indicative of a non-temporary and non-seasonal need. Although the
Department may consider the fact of a past filing history before the
effective date of this rule, the Department will fully consider such
explanation and possible reliance on past procedures in the totality
of the circumstances when making a temporary or seasonal need
determination. See USCIS Policy Memorandum, at 6 n.5, 9 n.11.
---------------------------------------------------------------------------
When an employer is unable to fulfill its need for labor to perform
herding and production of livestock duties on the range under the H-2A
program, as with any employer whose need is neither temporary nor
seasonal, the employer may apply for labor certification through the
visa program appropriate to its need. For example, employers with
permanent, rather than temporary or seasonal, needs may wish to
petition for workers under employment-based immigrant visa programs.
See, e.g., 8 U.S.C. 1153(b)(3); see also 8 U.S.C. 1101(a)(15)(H)(ii)(a)
(INA permits only ``agricultural labor or services . . . of a temporary
or seasonal nature'' to be performed under the H-2A visa category).
B. Out of Scope Comments
The NPRM invited comments related to the Department's proposal to
rescind Sec. 655.215(b)(2). Comments received that are unrelated to
the Department's proposal are beyond the scope of this action and have
not been considered in the Department's assessment of its proposed
rescission.
Several comments were beyond the scope of this action. Two of the
commenters did not address the Department's proposal; instead, one
expressed general dissatisfaction with the H-2A program and the other
appeared to be seeking a herding position. Other commenters addressed
topics that are not the subject of this rulemaking, including wage and
housing requirements for herders and production of livestock workers on
the range as well as the definition of ``temporary'' or ``seasonal''
under 20 CFR 655.103(d), which reflects DHS's regulatory definition at
8 CFR 214.2(h)(5)(iv)(A) and has been in effect for more than a decade.
For example, one comment requested the Department clarify the
definition of ``temporary'' and ``seasonal'' under Sec. 655.103(d),
including how this definition applies across recurring H-2A
applications and in situations where an employer has maintained
substantially similar operations in previous seasons. Because proposed
changes to the wage and housing requirements for herders and the
regulatory definition and standards by which the Department adjudicates
temporary or seasonal need under Sec. 655.103(d) are not the subject
of this regulatory action, the Department deems the above comments as
out of scope.
IV. Administrative Information
A. Executive Order 12866, Regulatory Planning and Review; and Executive
Order 13563, Improved Regulation and Regulatory Review
Under Executive Order (E.O.) 12866, the Office of Management and
Budget (OMB)'s Office of Information and Regulatory Affairs 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 an 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 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
[[Page 71378]]
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. This final rule is a significant, but not economically
significant, regulatory action under Section 3(f) of E.O. 12866. The
Department has prepared a Regulatory Impact Analysis (RIA) in
connection with this final rule, as required under section 6(a)(3) of
E.O. 12866.
E.O. 13563 directs agencies to propose or adopt a regulation only
upon a reasoned determination that its benefits justify its costs; the
regulation is tailored to impose the least burden on society,
consistent with achieving the regulatory objectives; and in choosing
among alternative regulatory approaches, the agency has selected 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.
Overview of This Final Rule
The Department has determined that this final rule is necessary to
clarify the Department's adjudication of temporary or seasonal need for
herding and range livestock applications for temporary agricultural
labor certification under the H-2A program, and to align that
adjudication with the requirements of the INA. The final rule also
standardizes the Department's adjudication of temporary need under the
H-2A program. The Department's definition of ``temporary or seasonal
nature'' for the H-2A program, with the exception of its current
definition of ``temporary'' for herding and range livestock
occupations, is consistent with the Department of Homeland Security's
definition specifying that employment is of a temporary nature ``where
the employer's need to fill the position with a temporary worker will,
except in extraordinary circumstances, last no longer than 1 year,''
and ``of a seasonal nature where it is tied to a certain time of year
by an event or pattern, such as a short annual growing cycle or a
specific aspect of a longer cycle, and requires labor levels far above
those necessary for ongoing operations.'' 20 CFR 655.103(d); 8 CFR
214.2(h)(5)(iv)(A).
Notwithstanding the regulatory definition found in 20 CFR
655.103(d) and 8 CFR 214.2(h)(5)(iv)(A), the 2015 Rule allowed
employers of sheep and goat herders to apply for a temporary
agricultural labor certification for a period of up to 364 days.
Conversely, the same rule limited employers of range livestock
occupations to a temporary agricultural labor certification with a
period of need not to exceed 10 months. As discussed above, an
appellate court held that plaintiffs preserved their challenge to the
Department's decision in the 2015 Rule to classify sheep and goat
herding as ``temporary'' employment. The court additionally held the
complaint adequately raised a challenge to DHS's alleged practice of
extending ``temporary'' H-2A petitions beyond the regulatory definition
of temporary employment. Taking the evidence submitted by the
plaintiffs as true, the court concluded the plaintiffs had plausibly
shown DHS's alleged practice of automatically extending H-2A petitions
is inconsistent with the APA and the INA because it `` `authorizes the
creation of permanent herder jobs that are not temporary or seasonal.'
'' 901 F.3d at 386 (original alterations omitted). The parties
subsequently reached a settlement agreement in which the Department
agreed to engage in rulemaking to propose to rescind Sec.
655.215(b)(2) and DHS, through USCIS, agreed to publish a policy
memorandum that provided guidance on the determination of temporary or
seasonal need for H-2A sheep and goat herder petitions.
In this final rule, the Department rescinds Sec. 655.215(b)(2),
eliminating that provision's presumptive period of need for employment
involving range herding and absolute restriction on the period of need
for employment involving range livestock activities. Instead, all
employers applying for H-2A temporary agricultural labor certifications
under the final rule must individually demonstrate that their need for
workers is temporary or seasonal, regardless of occupation.
Economic Impact
The Department estimates that this final rule will result in costs
to employers associated with rule familiarization requirements for all
herding and range livestock employers utilizing the H-2A program. In
addition, the Department believes that employers may incur other
unquantifiable costs from the implementation of the final rule that can
be attributed to changes in business operations, transportation,
staffing turnover, and training requirements. As explained above,
though recurring year-round activities cannot be classified as
temporary, the Department recognizes that there may be seasonal aspects
of herder work for which employers may still establish a need to fill
positions on a recurring annual basis consistent with the definition of
employment of a ``seasonal'' nature in Sec. 655.103(d) and that some
herder employers may also still present a need that is truly
``temporary'' under Sec. 655.103(d) in certain circumstances. The
Department qualitatively discusses the potential costs to employers
incurred by the implementation of this final rule but does not quantify
them due to a lack of available data and the wide spectrum of possible
responses by employers that cannot be predicted with specificity.
Moreover, apart from some commenters expressing concern about potential
downsizing for employers who may not have a demonstrable ``seasonal''
or ``temporary'' need due to labor shortages, the Department did not
receive public comments in response to the NPRM request for feedback
regarding how these employers may be impacted by the proposed change in
regulation.
Transfer payments under this final rule will result from
eliminating the absolute restriction on the period of need for
employment involving other range livestock activities and the
presumptive period of need for employment involving range sheep or goat
herding. In particular, some employers engaged in non-sheep and/or goat
herding activities \12\ may potentially extend their period of need
beyond 10 months, provided they can show the nature of their need is
temporary.\13\ In addition, sheep and/or goat herding employers whose
need is temporary or seasonal in nature and whose period of need
currently exceeds 10 months are generally expected to reduce their
period of need to 10 months or less.\14\ See the costs and
[[Page 71379]]
transfer payments subsections below for a detailed explanation.
---------------------------------------------------------------------------
\12\ This includes range herding or production of cattle,
horses, or other domestic hooved livestock except sheep and goats.
\13\ For the purpose of this analysis, employers engaged in non-
sheep and/or goat herding activities with a minimum period of need
of 300 days and a maximum period of need of 308 days were used to
make the Department's transfer estimates. The Department used 300
days to represent a period of 10 months; in fewer than eight
instances, employers engaged in non-sheep and/or goat herding
activities requested a longer period of need but none of these
requests exceeded 308 days.
\14\ The Department's records indicate that the majority of
employers engaged in sheep and/or goat herding occupations would
likely reduce their requested period of need to 10 months or less.
---------------------------------------------------------------------------
As shown in Exhibit 1, the Department estimates this final rule
will result in a quantified annualized cost of $3,144 at a discount
rate of 7 percent and $2,588 at a discount rate of 3 percent, as well
as unquantified costs associated with changes in business operations,
transportation, staffing turnover, and training requirements.
Additionally, this final rule is expected to result in transfers for
all herding and range livestock employers. Some employers engaged in
non-sheep and/or goat herding activities will incur a transfer from
employers to employees due to rescinding the restriction on the period
of need for employment involving range livestock activities. The
Department also estimates that the final rule will result in annualized
transfers of $95,556 at a discount rate of 7 percent and $91,983 at a
discount rate of 3 percent for these employers. Furthermore, employers
engaged in sheep and/or goat herding activities will experience a
transfer from employees to employers due to a reduction in the allowed
period of need for the majority of the aforementioned employers. The
Department estimates that the final rule will result in annualized
transfers of $8.42 million at a discount rate of 7 percent and $8.11
million at a discount rate of 3 percent for these employers.
Exhibit 1--Estimated Costs and Transfer Payments of the Final Rule
----------------------------------------------------------------------------------------------------------------
Transfer
payments from Transfer
employers of payments to
Costs non-sheep and/ employers of
or goat sheep and/or
herding goat herding
----------------------------------------------------------------------------------------------------------------
Undiscounted 10-Year Total...................................... $22,079 $893,043 $78,731,848
10-Year total with a discount rate of 3%........................ 22,079 784,637 69,174,659
10-Year total with a discount rate of 7%........................ 22,079 671,143 59,168,812
Annualized at a discount rate of 3%............................. 2,588 91,983 8,109,380
Annualized at a discount rate of 7%............................. 3,144 95,556 8,424,308
----------------------------------------------------------------------------------------------------------------
The Department was unable to quantify some costs and benefits of
this final rule, as discussed below.
i. Costs
a. Rule Familiarization Costs
When the final rule takes effect, herding and range livestock
employers will need to familiarize themselves with the new regulations;
consequently, this will impose a one-time cost in the first year upon
implementation. The Department's analysis assumes that the changes
introduced by the rule would be reviewed by Human Resources Specialists
(SOC 13-1071). The median hourly wage for these workers is $29.77 per
hour.\15\ In addition, the Department assumes that benefits are paid at
a rate of 46 percent \16\ and overhead costs are paid at a rate of 17
percent of the base wage, resulting in a fully-loaded hourly wage of
$48.53.\17\ This hourly wage was multiplied by the estimated number of
herding and range livestock employers (910) \18\ and by the estimated
amount of time required to review the rule (.5 hours). This calculation
results in a one-time cost of $22,079 in the first year after this
final rule takes effect. The annualized cost over the 10-year period is
$2,588 and $3,144 at discount rates of 3 and 7 percent, respectively.
---------------------------------------------------------------------------
\15\ Median hourly wage for Human Resources Specialists were
obtained from the Bureau of Labor Statistics Occupational Employment
Statistics Survey, May 2019, https://www.bls.gov/oes/current/oes131071.htm.
\16\ The benefits-earnings ratio is derived from the Bureau of
Labor Statistics' Employer Costs for Employee Compensation data
using variables CMU1020000000000D and CMU1030000000000D.
\17\ $29.77 + $29.77(0.46) + $29.77(0.17) = $48.53.
\18\ The Department's estimate of 910 unique employers is based
on H-2A certification data from Fiscal Years (FYs) 2017, 2018, and
2019. The Department identified the average number of unique
applicants engaged in sheep and/or goat herding activities across
FYs 2017, 2018, and 2019 (744). This was then added to the average
number of unique applicants engaged in non-goat/sheep and/or goat
herding activities across the same time period (166). 744 + 166 =
910.
---------------------------------------------------------------------------
b. Other Costs
The Department assumes some employers will experience increased
costs associated with changes in business operations, transportation,
staffing turnover, and training requirements under this final rule. In
accordance with the Department's current regulation, employers of sheep
and goat herders are permitted to apply for a temporary agricultural
labor certification for a period of up to 364 days. Under this final
rule, sheep and goat herding employers whose need is temporary or
seasonal in nature and whose period of need currently exceeds 10 months
are generally expected to reduce their period of need to 10 months or
less. Although the Department does not anticipate the final rule will
have a significant adverse effect, as employers have already adjusted
to USCIS' policy memorandum,\19\ the Department acknowledges that some
employers of sheep and goat herders may need to replenish their labor
supply by hiring additional U.S. workers to account for the reduced
period of need, petitioning for permanent workers through the
appropriate visa programs as necessary, or extending the work schedule
for U.S. workers that they employ if they are available. The Department
also notes that, in instances where employers have recurring year-round
labor needs that are actually permanent, rather than temporary or
seasonal in nature, the Department expects some employers to utilize
the employment-based immigrant petition process to hire foreign
workers, which includes options for skilled workers, professionals, and
other workers under 8 U.S.C. 1153(b)(3).
---------------------------------------------------------------------------
\19\ Based on OFLC's H-2A public disclosure data that is
accessible at https://www.dol.gov/agencies/eta/foreign-labor/performance, employers seeking range sheep and/or goat herding job
opportunities filed 914 applications with OFLC from June 1, 2020--
the date USCIS' policy memorandum went into effect--until June 30,
2021 (i.e., the end of the third quarter in FY 2021). Of these
applications, 99 percent requested periods of need that were 10
months or less. In addition, the average period of need for unique
certified employers of sheep and goat herding was approximately 166
days, in contrast to FY 2017 to FY 2019, in which the average period
of need exceeded 10 months, ranging from 356 days in FY 2019 to 360
days in FY 2017. See Exhibit 3.
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In response to the Department's analysis of costs in the NPRM,
commenters including two industry associations and a State Department
of Agriculture disagreed with the Department's assessment that some
employers of sheep and goat herders will replenish their labor supply
by hiring additional U.S. workers. For example, one industry
association stated that DOL's proposed regulatory changes and economic
analysis misconstrue the idea that U.S. workers are willing and
[[Page 71380]]
able to perform the jobs agricultural employers are seeking throughout
the different times of the year, as ranchers have often found that they
cannot find domestic help where the domestic labor force is in short
supply. Other commenters noted the skillset to perform herding work is
not available domestically and that range management plans on Federal
lands and many State and tribal lease lands require at least one
herder, without providing additional explanation. Due to the dynamic
nature of the labor market, the Department acknowledges that the
domestic workforce may not entirely offset the personnel changes that
could occur following the implementation of this final rule and
anticipates that agricultural employers may also adopt changes to their
business practices, such as extending the work schedules for U.S.
workers that they currently employ or petitioning for permanent workers
through the appropriate visa programs as necessary.
Several industry associations indicated that the cost effects of
this final rule are likely to be experienced over time due to
industries involved in the production of sheep, goats, and livestock
needing time to adapt to the requirements of the new rule. One of these
comments suggested that downstream effects on jobs in the agricultural
supply chain are those most likely to be impacted over time and should
be addressed in the economic analysis of this rulemaking. The
Department did not receive any data or information from commenters to
allow for a quantification of such impacts. As noted above, however,
because USCIS' policy memorandum became effective on June 1, 2020 and--
based on recent filing data, employers have already adjusted to this
guidance--the Department anticipates the change in operation costs for
most employers and any corresponding downstream effects due to the
issuance of this final rule to be limited.
Transfers
The first category of transfers associated with this final rule is
an employer to employee transfer incurred due to a potential increase
in the maximum period of need from 10 months up to 1 year, or longer in
extraordinary circumstances, for a small number of employers engaged in
non-sheep and/or goat herding who can demonstrate that their need is
temporary.
Exhibit 2 presents the distribution of the period of need on
approved applications filed by unique employers of non-sheep and/or
goat herders during FYs 2017, 2018, and 2019.
Exhibit 2--Distribution of Period of Need for Unique Certified Employers
of Non-Sheep/Goat Herding by Year
[FY 17-19]
------------------------------------------------------------------------
Year
Period of need (days) --------------------------------------
2017 2018 2019
------------------------------------------------------------------------
0-70............................. 5 5 10
71-140........................... 15 16 17
141-210.......................... 10 10 7
210-299.......................... 27 47 48
300-308.......................... 72 103 107
>308............................. 0 0 0
Number of Unique Employers....... 129 181 189
Average Period of Need........... 254 260 257
------------------------------------------------------------------------
Transfer payments were calculated by identifying unique employers
engaged in non-sheep and/or goat herding from FYs 2017, 2018, and
2019.\20\ The Department then identified employers within this group of
unique employers whose applications contained periods of need between
300 and 308 days. The Department identified this subset because some
employers whose applications contained periods of need that fall within
this range are likely to extend their period of need up to a year, or
longer in extraordinary circumstances, if they can demonstrate their
need is temporary in nature (e.g., their need is not for recurring
year-round activities). The Department expects that a small number of
employers of non-sheep and/or goat herders will extend their period of
need beyond 10 months. For this analysis, the Department conservatively
assumes that no more than 10 percent of the unique employers who were
identified to have a period of need between 300 and 308 days will
apply, and be approved by OFLC, to extend their period of temporary
need beyond a 10-month period.\21\ In the NPRM, the Department sought
public comment regarding the assumptions on the percentage of unique
employers affected. As discussed above, some commenters noted that
changes in how an employer describes the services or labor needed,
including the period of employment, on new applications filed under
this rule may demonstrate compliance with Sec. 655.103(d) rather than
changes in the temporary (or seasonal) nature of an employer's labor
needs. Based on OFLC's performance data, the Department estimated the
impact of extending the period of need by multiplying the number of
workers certified for each of the unique non-sheep and/or goat herding
employers by the basic rate of pay offered to these workers each year.
The figures for each year were then multiplied by 2 in order to
estimate the impact from an additional 2 months of need, which yields
an annualized transfer of $95,556 at a discount rate of 7 percent and
$91,983 at a discount rate of 3 percent.
---------------------------------------------------------------------------
\20\ Based on FYs 2017, 2018, and 2019 performance data obtained
from OFLC, the Department estimates that the number of non-sheep
and/or goat herding employers is unlikely to increase over the
rule's 10-year time forecast.
\21\ The Department assumes a small percentage of the unique
employers who were identified to have a period of need between 300
and 308 days will apply to extend their period of temporary need
beyond a 10-month period up to 1 year, or longer in extraordinary
circumstances.
---------------------------------------------------------------------------
The second category of transfers associated with this final rule is
an employee to employer transfer incurred due to potential reductions
in sheep and/or goat herding employers' period of need from a maximum
of 364 days to 10 months or less for annually recurring
applications.\22\
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\22\ The Department's analysis of employers of sheep and goat
herders represents the transfer from employer to employee. The
Department assumes that in some instances employers will seek to
replace H-2A employees who have met the period of need threshold
with U.S. employees, which would constitute a transfer between H-2A
employees and U.S. employees. This potential transfer could not be
evaluated due to data limitations.
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[[Page 71381]]
Exhibit 3 presents the distribution of the period of need on
approved applications filed by unique employers of sheep and/or goat
herders during FYs 2017, 2018, and 2019.
Exhibit 3--Distribution of Period of Need for Unique Certified Employers
of Sheep/Goat Herding by Year
[FY 17-19]
------------------------------------------------------------------------
Year
Period of need (days) --------------------------------------
2017 2018 2019
------------------------------------------------------------------------
0-70............................. 0 2 3
71-140........................... 1 4 9
141-210.......................... 6 5 3
210-299.......................... 4 7 7
>299............................. 743 673 761
Number of Unique Employers....... 754 691 783
Average Period of Need........... 360 357 356
------------------------------------------------------------------------
Transfer payments were calculated by identifying unique employers
engaged in sheep and/or goat herding from FYs 2017, 2018, and 2019.\23\
The Department identified employers within this group of unique
employers whose applications contained a period of need of 300 days or
more. Based on OFLC's performance data, the Department estimated the
impact of reducing the period of eligibility by multiplying the number
of workers certified for each of the unique sheep and/or goat herding
employers by the basic rate of pay offered to these workers each year.
The figures for each year were then multiplied by the number of days
requested for the period of need of 300 days or more in order to
estimate the impact from reducing the period of need to 10 months or
less, which yields an annualized transfer of $8,424,308 at a discount
rate of 7 percent and $8,109,380 at a discount rate of 3 percent.
---------------------------------------------------------------------------
\23\ Based on FYs 2017, 2018, and 2019 performance data obtained
from OFLC.
---------------------------------------------------------------------------
ii. Benefits
By rescinding 20 CFR 655.215(b)(2), the Department standardizes the
adjudication of temporary need under the H-2A program and aligns the
Department's adjudication of the temporary or seasonal need of herder
applications with the guidance DHS has implemented in the USCIS Policy
Memorandum. Furthermore, the rescission of Sec. 655.215(b)(2) better
complies with pertinent provisions of the INA and the Departments'
applicable implementing regulations that define when employment is of a
``temporary or seasonal nature.'' Therefore, this final rule aims to
help ensure the employment of H-2A workers in herding and range
livestock operations does not adversely affect the wages and working
conditions of workers in the United States similarly employed.
B. Regulatory Flexibility Analysis and Small Business Regulatory
Enforcement Fairness Act and Executive Order 13272: Proper
Consideration of Small Entities in Agency Rulemaking
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121 (March 29, 1996), requires Federal agencies
engaged in rulemaking to consider the impact of their proposals on
small entities, consider alternatives to minimize that impact, and
solicit public comment on their analyses. The RFA requires the
assessment of the impact of a 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. 5 U.S.C.
603, 604. 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 collected industry data from the Bureau of Labor
Statistics' Quarterly Census for Employment and Wage for FY 2020. This
process allowed the Department to identify the number of entities
impacted by this final rule for two North American Industry
Classification System (NAICS) Codes that frequently request H-2A
certification for herding and livestock production job opportunities:
NAICS 112410: Sheep Farming, and NAICS 112111: Beef Cattle Ranching,
and Farming. The Department was able to identify 9,329 establishments
that are classified as part of the beef cattle ranching, and farming
industry, and 233 Establishments that are classified as part of the
sheep farming industry. Next, the Department used the Small Business
Administration (SBA) size standards to classify the vast majority of
these employers (approximately 99 percent) as small.
The Department has estimated the cost of the time to read and
review the final rule. In addition, the Department assumes some
employers will experience increased costs associated with changes in
business operations, transportation, staffing turnover, and training
requirements under this final rule.
The Department estimates that small businesses engaged in herding
and livestock production will incur a one-time cost of $48.53 to
familiarize themselves with the changes in this rule. Other costs that
employers could incur are attributed to the potential need to adjust
their staffing and business operations as well as employing more U.S.
workers to offset the loss of H-2A workers. However, the Department
does not expect that these costs will be
[[Page 71382]]
significant. As discussed above, the Department reviewed the impacts of
this final rule for two NAICS Codes that frequently request H-2A
certification for herding and livestock production job opportunities:
NAICS 112410: Sheep Farming, and NAICS 112111: Beef Cattle Ranching,
and Farming.
The SBA estimates that revenue for a small business with NAICS Code
112410 is $1.0 million and for NAICS Code 112111 is $1.0 million. The
rule familiarization cost of $48.53 will be far less than one percent
of the average revenue for small businesses with the two NAICS Codes.
Although the Department does not anticipate the final rule will have a
significant adverse effect as employers have already adjusted to USCIS'
policy memorandum, the Department acknowledges that some employers of
sheep and goat herders may need to replenish their labor supply by
hiring additional U.S. workers to account for the reduced period of
need, petitioning for permanent workers through the appropriate visa
programs as necessary, or extending the work schedule for U.S. workers
that they employ. The Department did not receive any public comments on
this Initial Regulatory Flexibility Analysis. The Department certifies
that this rule will not have a significant impact on a substantial
number of small entities affected.
C. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq.,
and its attendant regulations, 5 CFR part 1320, require the Department
to consider the agency's need for its information collections and their
practical utility, the impact of paperwork and other information
collection burdens imposed on the public, and how to minimize those
burdens. This final rule does not require a collection of information
subject to approval by OMB under the PRA, or affect any existing
collections of information.
D. Congressional Review Act
The Office of Information and Regulatory Affairs has determined
that this final rule is not a major rule, as defined by 5 U.S.C. 804,
for purposes of congressional review of agency rulemaking pursuant to
the Congressional Review Act, Public Law 104-121, sec. 251, 110 Stat.
868, 873 (codified at 5 U.S.C. 804). This rule will not result in an
annual effect on the economy of $100 million or more; a major increase
in costs or prices; or significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based companies to compete with foreign-based companies in
domestic and export markets.
E. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of the UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in $100 million or more in expenditures (adjusted
annually for inflation) in any 1 year by State, local, and tribal
governments, in the aggregate, or by the private sector. A Federal
mandate is defined in 2 U.S.C. 658, in part, as any provision in a
regulation that imposes an enforceable duty upon State, local, or
tribal governments, or the private sector. Following consideration of
these factors, the Department has concluded that this final rule
contains no unfunded Federal mandates, including no ``Federal
intergovernmental mandate'' or ``Federal private sector mandate.''
This final rule will not exceed the $100 million in expenditures in
any 1 year when adjusted for inflation, and this rulemaking does not
contain such a mandate. The requirements of Title II of the UMRA,
therefore, do not apply, and the Department is not required to prepare
a statement under the UMRA.
F. Executive Order 13132, Federalism
The Department has concluded that this final rule does not have
federalism implications, because it will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Accordingly,
E.O. 13132 requires no further agency action or analysis.
G. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments
After consideration, the Department has determined that this final
rule will not result in ``tribal implications,'' because it will 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 tribal governments. Accordingly, E.O. 13175 requires no
further agency action or analysis.
List of Subjects in 20 CFR Part 655
Administrative practice and procedure, Employment, Employment and
training, Enforcement, Foreign workers, Forest and forest products,
Fraud, Health professions, Immigration, Labor, Longshore and harbor
work, Migrant workers, Nonimmigrant workers, Passports and visas,
Penalties, Reporting and recordkeeping requirements, Unemployment,
Wages, Working conditions.
For the reasons set forth above, the Department amends part 655 of
title 20 of the Code of Federal Regulations as follows:
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES
0
1. The authority citation for part 655 continues to read as follows:
Authority: Section 655.0 issued under 8 U.S.C.
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 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. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206,
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat.
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR
214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218,
132 Stat. 1547 (48 U.S.C. 1806).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c),
and 1188; and 8 CFR 214.2(h).
Subpart E issued under 48 U.S.C. 1806.
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec.
323(c), Pub. L. 103-206,
107 Stat. 2428; and 28 U.S.C. 2461 note, Pub. L. 114-74 at
section 701.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
(b)(1), 1182(n) and
(t), and 1184(g) and (j); sec. 303(a)(8), Pub. L. 102-232, 105
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), Pub. L. 105-277,
112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 note, Pub. L.
114-74 at section 701.
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and
1182(m); sec. 2(d),
Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub.
L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
Sec. 655.215 [Amended]
0
2. Amend Sec. 655.215 by removing paragraph (b)(2) and redesignating
paragraph (b)(3) as paragraph (b)(2).
Angela Hanks,
Acting Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2021-26211 Filed 12-15-21; 8:45 am]
BILLING CODE 4510-FP-P
