RECORD OF CONTACT WITH OUTSIDE PARTY TO 

DISCUSS ISSUES RELATED TO 

INFORMAL RULEMAKING

This form should be filed with the agency maintaining the rulemaking docket.

AGENCY KEEPING 

RULEMAKING DOCKET

Employment and Training Administration, Department of Labor

TITLE OF RULE Temporary Agricultural Employment of H-2A Foreign Workers in 

the Herding or Production of Livestock on the Open Range in the 

United States

RIN 1205-AB70

STAGE OF RULEMAKING Pre-Notice of Proposed Rulemaking

DATE OF DISCUSSION

April 3, 2015

NATURE OF DISCUSSION

PHONE MEETING _X__ 

Party(ies)/Title(s)/Organization(s) Present or Represented

NAME TITLE/ORGANIZATION

Kelli Griffith Mountain Plains Agricultural Services (MPAS)

Carl Hampe Counsel to Mountain Plains Agricultural Services (MPAS)

Mr. Truman Rancher, H-2A User

Dennis Richins Western Range Association

Chris Schulte CJ Lake, LLC

Department of Labor Representatives Participating

NAME TITLE

Whitney Ford Senior Policy Advisor, Immigration and Farm Labor – Wage and Hour 

Division (in person)

Kathleen Franks Director, Office of Regulatory and Programmatic Policy – Office of the 

Assistant Secretary for Policy (on phone)

Milica Zimonjic Immigration Policy Analyst – Employment and Training 

Administration/Office of Foreign Labor Certification (on phone)

Heather Filemyr Attorney – Solicitor of Labor/Employment and Training Legal Services 

(on phone)

Description of Factual Materials or Information Presented

Availability of US workers: Counsel to MPAS started the meeting by stating that DOL has made 

unreasonable arguments during the Mendoza litigation, and they are concerned DOL will make similarly 

unreasonable arguments in the NPRM

 MPAS stated that no US workers are available for these jobs: only 3 have applied in the last few 

years

 WRA stated that they may have 1 applicant per month but they generally either don’t want to 

work the hours (24/7 on call) or they don’t meet the qualifications/experience requirements, or if 
This form should be filed with the agency maintaining the rulemaking docket.

they do, they don’t complete the contract

 OIRA asked if they think it’s the wage rate or the qualifications requirement that causes US 

workers to not be available

o MPAS discussed how they offer over $1600/month in CA and don’t have very many 

more applicants than they do in other states where the rate is $750

Wage rate: MPAS recognizes that the wage rate should not be stagnant, but explained that any increase 

needs to be reasonable

 They expressed several constraints

o They cannot pay an hourly wage, specifically when the worker is 4 hours away and the 

employer can’t track the hours of work

o They cannot use fixed-site housing since most of this work is performed on public land, 

and Department of Interior’s Bureau of Land Management (BLM) won’t allow them to 

build fixed-site housing there

o They are price takers – very slim profit margins

 Concern about the economic impact of increased wages and little flexibility

o Claim that many employers would go out of business – only asset is the sheep since most 

use public land

o Asserted that DOL should consider that for every herder job, 8 US jobs are created 

throughout the industry (American Sheep Industry Association statistic)

 Truman mentioned a model used by BLM of paying more when the prices they receive are 

higher and less when the prices are not as good

2011 TEGLS: They mentioned that these TEGLS appeared without an opportunity for the public to 

comment

 Stated that this prohibits melting snow for ice, but that in Wyoming, the water they bring to the 

worker will turn into a block of ice

 They understood the 2011 TEGLs to mean that there could only be 1 worker per herd

o Mentioned that the workers prefer to stay in a mobile camper together

o They want 2 men in a camp, especially in the winter, for safety concerns

o Expressed difficulty moving two camps during winter because there aren’t enough 

daylight hours

Safety concerns: In addition to their point about two workers preferring to stay in a camp together for safety 

concerns, they also showed the group a picture of a worker holding up a giant wolf who might have 

attacked the herd. They tied this into the fact that these workers may need to shoot a gun (and this was also 

a point they made previously about qualifications/experience requirements).

Mendoza litigation: They asserted that DOL has “flip flopped” in its position on whether the TEGLs will 

remain in effect

 They claimed that DOL was trying to shorten the comment period so the regulated community 

has less time to express their concerns to OIRA

Time spent on the range vs. the range: Truman mentioned that his workers spend 365 days/year on horses 

with the sheep

 “100% of their time on the open range”...but bring them in to shear once per year
RECORD OF CONTACT WITH OUTSIDE PARTY TO 

DISCUSS ISSUES RELATED TO 

INFORMAL RULEMAKING

This form should be filed with the agency maintaining the rulemaking docket.

 Stated that the work is very migratory – spend time on the winter range, the summer range (for 

lambing), the forest, and the desert

o Move at least once per week, so they need mobile housing

o Radius of about 150 miles

Overall: They stated that the industry is “sensitive” and interaction with the regulated community is in 

everyone’s interest