October 8, 2014

Department of Labor

Office of Foreign Labor Certification

Attn: Brian Pasternak

Re: Stakeholder Requests Regarding TEGL 15

- 06, Change 1 Special Procedures: Labor Certification Process for

Occupations Involved in the Open Range Production of Livestock under the H

- 2A Program

In light of the pending rulemaking process regarding the above me ntioned Special Procedures, Mountain

Plains Agricultural Service submit s the following information and requested changes to the above

mentioned Special Proc edures.

As with any industry, progress and advancement has created opportunities for improved production and

employment practices in the open range livestock industry, however, the unique occupational

characteristics of herding remain and are critical to the existence of open range livestock producers. The

complete lack of U.S. workers who are available for and capable of performing these jobs makes workable

Special Procedures for these jobs imperative.

Special Procedures, in various forms, have worked we ll for this industry in the past, the following changes

recommended are based on Special Procedures currently in effect. Stakeholder input is presented in bold

font throughout the text of current TEGL 15

- 06, Change 1

.

Attachment A: Labor Certification Proc ess for Application for Applications Involved in the Open Range Production

of Livestock in the H

- 2A Program

This document outlines special procedures for applications submitted by employers involved in the

open range production of livestock under the H

- 2A Program. Unless otherwise specified in this

attachment, applications submitted for open range livestock occupations must comply with the

requirements for processing H

- 2A applications outlined in 20 CFR Part 655, Subpart B. Similarly, unless

otherwise specified, job orders submitted for open range livestock occupations must comply with the

requirements of 20 CFR Part 655, Subpart B, 20 CFR Part 653, Subparts B and F, and 20 CFR Part

654.

I. PREFILING PROCEDURES

A. Offered Wage Rate (20 CFR 655.120(a)). The Department is continuing a special variance to the

offered wage rate requirements contained at 20 CFR 655.120(a). Because occupations involving

the open range production of livestock are characterized by other than a reasonably regular

workday or workweek, an employer must continue to offer, advertise in the course of its

recruitment, and pay the monthly, weekly, or semi

- monthly prevailing wage established by the

OFLC Administrator for each state listed in an approved itinerary. In establishing the offered

wage rate for the range production of livestock, the Department uses findings from prevailingwage surveys conducted by SW As in accordance with the procedures in the ETA Handbook No.

385. SWAs are required to transmit official wage rate findings covering the range production of

livestock to the OFLC between May 1st and June 1st of each calendar year. Following a review

of the SWA wage rate findings, the OFLC will publish the new agricultural prevailing wage rates

in a Federal Register notice with an immediate effective date.

SWA wage rate findings will continue to establish monthly, weekly, or semi

- monthly prevailing

wages for a statewide or other geographical area in a manner that is consistent with the wage

setting procedures applied to open range livestock occupations in the Western states. In

circumstances where a SWA is unable to produce a wage rate finding for an occupation, due to

an inadequate sample size or another valid reason, the wage setting procedures allow the

OFLC to continue to issue a prevailing wage rate for that state based on the wage rate findings

submitted by an adjoining or proximate SWA for the same or similar agricultural activities.

I f the OFLC cannot establish a prevailing wage rate by using comparable survey data from an

adjoining or proximate SWA, the OFLC will give consideration to aggregating survey data for

the range production of livestock activities across states to create regional prevailing wage

rates. When regional prevailing wages are considered, the OFLC may use the U.S.

Department of Agriculture's (USDA) production or farm resource regions or other groupings of

states used to conduct the USDA Farm Labor Survey.

Complete lack of U.S. workers that are available for and capable of performing these jobs translates into

lack of valid sample size for a prevailing wage survey. It is not possible to survey employers of domestic

herders if there are not any domestic herders. The inability to conduct a valid survey for years has resulted

in stagnate wage rates. Furthermore, the above mentioned alternate method of using geographic

proximately to determine wage rates has historically resulted in unrealistic and often disastrous wage

changes. A new wage determination methodology that provides a realistic monthly wa ge , offers

opportunity for annual wage adjustments , recognizes an on call 24/7 need, considers the additional costs

of providing and delivering a high quality diet is needed.

In recognition of the basic similarities that exist in all job descriptions for these occupations and the large

areas of intended employment that often cross state lines, a national wage rate is requested versus the

previous state wages that have been used historically.

Stakeholders recommend establishing a new updated base wage that would apply nationally. The method

to update the base wage and transition to a national wage would be used one time. In the future, annual

adjustments would be made to total herder compensation in accordance with objective measures. It

should be noted tha t annual adjustments to national base wage should NOT be applied in states that

already have a mandated wage methodology.

Additional information on stakeholder recommended wage methodology to be submitted separately.

B. Job Orders and SWA Review (20 CFR 622.121).

1. Basic Process

. An employer engaged in the range production of livestock is allowed to submit a

single Agricultural and Food Processing Clearance Order, ETA Form 790 (job order), Office ofManagement and Budget (OMB) control number 1205

- 0134, and all appropriate attachments

covering a planned itinerary of work in multiple states. If the job opportunity is located in more

than one state, either within the same area of intended employment or multiple areas of intended

employment, the employer must submit the job order and all attachments (including a detailed

itinerary) to the SW A having jurisdiction over the anticipated worksite(s) where the work is

expected to begin. The employer must submit the job order no more than 75 calendar days and

no less than 60 calendar days before the employer's first date of need.

The ability to submit a planned itinerary of work in multiple states is imperative. The vast areas of land

required in open range production often cross state lines while still existing in one area of intended

employment.

Unless otherwise specified in the se special procedures, the job order submitted to the SWA must

satisfy the requirements for agricultural clearance orders outlined in 20 CFR Part 653, subpart F and

the requirements set forth in 20 CFR 655.122. The SWA will review the job order for regulatory

compliance and will work with the employer to address any noted deficiencies. Upon clearance of the

job order, the SWA must promptly place the job order in intrastate clearance and commence

recruitment of U.S. workers.

The job order shall remain active until 50 percent of the work contract period has elapsed for all SWAs

in possession of the employer’s job order (including those receiving it in interstate clearance under 20

CFR 655.150), unless otherwise advised by the Chicago NPC

.

C. Contents of Job Offers (20 CFR 655.122), Unless otherwise specified in this section, the content of job

orders submitted to the SWAs and the Chicago for occupations involved in the open range production

of livestock must comply with all of the requirements of 20 CFR Part 655, Subpart B, 653 Subparts B

and F, and 20 CFR Part 654.

1. Job duties, qualifications and requirements.

Job Duties. Based on current industry practice, the SWA may rely on the following standard

description of the duties for a job opportunity in the open range livestock production industry :

Perform any combination of the following tasks to attend to livestock in open range livestock

production : feeds and waters livestock; herds livestock to pasture for grazing; examines animals

to detect diseases and injuries; assists with the vaccination of livestock by herding into corral

and/or stall or manually restraining animal ; applies medications to cuts and bruises; sprays

livestock with insecticide; assists with castration of livestock; clips identifying notches on or brands

animals; may assist with irrigating, planting, cultivating, and harvesting hay. Workers must be able

to ride and handle horses in a manner to assure the safety of the worker, co- workers, and

livestock. Must be able to find and maintain bearings to grazing areas. Must be willing and able to

occasionally live and work independently or in small groups of workers in isolated areas for extended

periods of time.

Although the bulk of this description is still applicable, the phrase “on the open range ” needs to be

removed. The duties listed are all valid duties in the occupation of herder.

Any additional job duties must be normal and accepted for the occupation, and the SWA andChicago NPC have the authority to request supporting documentation substantiating the

appropriateness of the duties prior to accepting the job order.

Additionally, the SWA or Chicago NPC may request modifications to the job duties if additional

information, such as climatic conditions and/or the size of herd, n ecessitates the use of pack and

saddle horses to reach the range, in order to fully apprise U.S. workers of the nature of the work

to be performed.

Experience

. Due to the unique nature of the work to be performed, the job offer may specify that

applicants possess up to 6 months of experience in similar occupations involving the range

tending or production of livestock covering multiple seasons and may require reference(s) to

verify experience in performing these activities.

Applicants must provide the name, address, and telephone number of any previous employer

being used as a reference. The appropriateness of any other experience requirements must be

substantiated by the employer and approved by the Chicago NPC.

Herders are entrusted with valuable livestock and required to live in wilderness locations. Experience

and skill are necessary for the safety of the herder and the livestock therefore, it is essential for

employers to be able to require the above mentioned experience.

Hours

. The description of anticipated hours of work must show " on call for up to 24 hours per

day, 7 days per week" in the job order. If an application filed for an open range livestock

worker does not include the requirements of being on call 24 hours per day, 7 days per week,

the Chicago NPC may not process the employer's application under the special procedures

enumerated in this TEGL, and must instead require compliance with all the requirements of

the H

- 2A regulations outlined in 20 CFR 655, Subpart B.

It is critical for workers to be “on call for up to 24 hours per day, 7days per week”. A herder is not

expected to work 24 hours per day and in fact works 4

- 8 hours per day on average. However, herder

duties include protecting livestock from predators and severe weather changes. Neither entity limits

activity to a normal working day so a herder needs to on hand to deal with developing situations.

Bold language in the following sections has been added for clarification and to create consistency

throughout S

pecial Procedures.

2. Housing. The employer must state in its job order that sufficient housing will be provided at no cost

to H

- 2A workers and any workers in corresponding employment who are not reasonably able to

return to their residence within the same day. Except for long

- established standards for mobile

housing as set out in Attachment B, all employer

- provided housing must comply with requirements

set out in 20 CFR 655.122(d) for the entire period of occupancy. An employer whose itinerary

requires mobile housing may provide mobile housing to its workers throughout the contract

.

3. Workers’ compensation

. The employer must provide workers' compensation insurance

coverage as described in 20 CFR 655.122(e) in all states where open range work will beperformed. Prior to the issuance of the Temporary Labor Certification, the employer must

provide the Certifying Officer (CO) with proof of workers' compensation coverage, including the

name of the insurance carrier, the insurance policy number, and proof of insurance for the

dates of need, or if appropriate, proof of state law coverage for each state where the open

range work will be performed. In the event that the current coverage will expire before the end

of the certified work contract period or the insurance statement does not include all of the

regulatory information required under the regulations at 20 CFR 655.122(e), the employer will

be required to supplement its proof of workers' compensation for that state before a final

determination is due. Where the employer's coverage will expire before the end of the

certified work contract period, the employer may submit as proof of renewed coverage a

signed and dated statement or letter showing proof of intent to renew and maintain coverage

for the dates of need. The employer must maintain evidence that its workers' compensation

was renewed, in the event the Department requests it.

4. Employer

- provided items

. Due to the remote and unique nature of the work to be performed, the

employer must also specify in the job order and provide at no cost to workers an effective means of

communicating with persons capable of responding to the worker’s needs in case of an emergency.

These means are necessary to perform the work and can include, but are not limited to, satellite

phones, cell phones, wireless devices, radio transmitters, or other types of electronic communication

systems. Employees are responsible for the cost of personal communication.

5. Provision of Food. Based on long standing practice in the industry, t he employer may

deliver to workers, food to prepare their own meals. Deduction for cost of food will be

mandated by wage rate.

6. Transportation; daily subsistence

. Based on long standing practice in the industry, the

employer may advance inbound transportation and subsistence costs to worker being

recruited and extend the same benefit to workers in corresponding employment, consistent

with 20 CFR 655.122(h).

7. Earnings records and statements

. The employer must keep accurate and adequate records with

respect to the workers' earnings and furnish to the worker on or before each payday a statement of

earnings. Because the unique circumstances of employing range livestock workers (i.e., on call

24/7 in remote locations) prevent the monitoring and recording of hours actually worked each day

as well as the time the worker began and ended each workday, the employer is exempt from

reporting on these two specific requirements at 20 CFR 655.122(j) and (k). However, all other

regulatory requirements related to earnings records and statements apply.

8. Frequency of pay

. Consistent with 20 CFR 655.122(m), the employer must state in the job offer the

frequency with which the worker will be paid, which must be at least twice monthly or according to

the prevailing practice in the area of intended employment, whichever is more frequent. Due to the

unique circumstances of employing range livestock workers, the employer may, upon mutualagreement with the worker, pay the worker once per month as long as the monthly payment

arrangement is reflected in the job offer and work contract, if any. Employers must pay wages

when due

.

9. Period of Employment and Work Contract

. The total period of employment (Item No. 9 on

ETA Form 790) contained in a job offer must be for no more than one year.

Employers whose original certified period of employment is less than the maximum

permissible duration, may negotiate a longer

- term contract with an H

- 2A or a U.S. worker after

workers arrive at the job site consistent with 20 CFR 655.170. An extension of the work

contract period that is negotiated between the H

- 2A employer and a worker which would

extend the work contract period beyond the 12 months permitted by the Department’s H

- 2A

regulations, requires that the employer obtain a new labor certification from the Department.

Short term extensions which do not exceed two weeks may be submitted directly to the

Department of Homeland Security for approval. However, the employer must first submit for

approval any change in the period of employment to the Chicago NPC, consistent with 20 CFR

655.170, if the change would result in an extension of the work contract period in excess of two

weeks.

When a longer term contract is negotiated with a worker, the employer is not relieved of the

responsibility for reimbursement to the worker for travel and subsistence expenses incurred in

getting to the job site which were advanced by the employer and subsequently withheld from

the worker's pay until 50 percent of the original contract period elapsed. These payments

must be made at the 50 percent completion point of the original certified period of

employment. The employer is also responsible for transportation and subsistence expenses

from the place of employment if the worker successfully fulfills his/her obligations under the

original certified terms of employment or is terminated without cause and has no subsequent

H

- 2A employment. The employer must provide or pay for the worker’s return transportation

and subsistence whenever the employment relationship is severed after the completion of the

original certified work contract period or where the worker is terminated without cause.

Similarly, an employer is not relieved of its obligation to pay for return transportation and

subsistence if an H

- 2A worker is displaced as a result of the employer’s compliance with the 50

percent rule. Successful completion of the original certified work contract period or job order

entitles the worker to return transportation and subsistence regardless of performance under

any short or long

- term extension of the contract.

The historical need for herders to be present for up to one year at a time, has not changed and is critical

to the existence of open range live stock production. It is respectfully requested this “ special procedure ”

be granted to occupation involved in the open range production of livestock.

II. APPLICATION FOR TEMPORARY EMPLOYMENT CERTIFICATION FILING PROCEDURESA. Application Filing Requirements (20 CFR 655.130)

. An individual employer that desires to apply for

temporary employment certification for one or more nonimmigrant foreign workers must file the following

documentation with the Chicago NPC no less than 45 calendar days before the employer’s date of need:

 ETA Form 9142 (OMB control number 1205

- 0466), Application for Temporary Employment

Certification, and Appendix A.2;

 Copy of the ETA Form 790 and all attachments previously submitted to the SWA;

 A planned itinerary listing the worksites and identifying, with as much geographic

specificity as possible

, all of the physical locations and estimated start and end dates of

ne ed where work will be performed; and

 All other required documentation supporting the application.

III. POST

- ACCEPTANCE REQUIREMENTS

A. Newspaper advertisements

. Because of the unique nature of open range livestock herding work, and the

consistent lack of qualified applicants responding to newspaper advertisements, all applications filed by an

individual employer and/or an association are exempt from the regulatory requirements at 20 CFR 655.151

to place advertisements in a newspaper of general circulation.

S ignificant money is spent to recruit using print advertising. This advertising has been incredibly

expensive and yet highly ineffective. It is requested an exemption for this requirement be granted.

Additional information to follow.

Attachment B: Standards for Mobile Housing Applicable to Occupations Involved in the Open Range

Production of Livestock

.

I. Procedures. Occupations involving the open range production of livestock generally require workers to live in

remote housing units of a mobile nature, rather than “a fixed

- site farm, ranch or similar establishment.” This

type of housing is typically referred to as mobile housing units

. For purposes of these special procedures,

mobile housing is any housing that is capable of being moved from one worksite to another . The employer

must provide housing at no cost to the H

– 2A workers and those workers in corresponding employment who

are not reasonably able to return to their residence within the same day.

Language removed

. The regulations at 20 CFR 655.122(d)(2) require that such housing meet standards of

the DOL Occupational Safety and Health Administration (OSHA). In the absence of such standards, mobile

housing units must meet guidelines issued by OFLC. Due to the fact that OSHA standards currently do not

cover mobile housing units, Section II of this attachment establishes the standards for determining the

adequacy of employer

- provided mobile housing units

.

Both mobile housing units and fixed

- site farm or ranch housing units may be self

- c ertified by an employer.

Employers must submit a signed statement to the SWA and the Chicago NPC with the application for labor

certification assuring that the housing is available, sufficient to accommodate the number of workers being

requested, and meets all applicable standards. However, any other type of housing used by an employer to

house the workers engaged in open range production activity must meet the standards applicable to such

housing under 20 CFR 655.122(d).SWAs must develop and implement a schedule which ensures that each employer’s self

- certified housing is

inspected no less frequently than at least once every 3 years. These inspections may be performed either

before or after a request is submitted for nonimmigrant workers on the open r ange. Before referring a worker

who is entitled to such housing, the SWA office must ensure that the housing is available and has been

inspected in accordance with the inspection schedule. If the SWA determines that an employer’s housing

cannot be inspected in accordance with the inspection schedule or, when it is inspected, does not meet all

the applicable standards, the Chicago NPC may deny the H

- 2A application in full or in part or require

additional inspections in order to satisfy the regulatory requirement.

II. Mobile Housing Standards. An employer may use a mobile unit, camper, other similar mobile vehicle or tent

for housing workers that meets the following standards:

A. Housing Site : Mobile housing sites shall be well drained and free from depressions in which water may

stagnate.

B. Water Supply:

i. An adequate and convenient supply of water that meets standards of the state health authority shall

be provided. The amount of water provided must be enough for normal drinking, cooking, and

bathing needs of each worker; and

ii. Individual drinking cups shall be provided.

C. Excreta and Liquid Waste Disposal

i. Facilities shall be provided and maintained for effective disposal of excreta and liquid waste in

accordance with requirements of the state health authority or involved Federal agency; and

ii. If pits are used for disposal by burying of excreta and liquid waste, they shall be kept fly

- tight when

not filled in completely after each use. The maintenance of disposal pits must be in accordance

with state and local health and sanitation requirements.

D. Housing Structure

i. Housing shall be structurally sound, in good repair, in sanitary condition and shall provide protection

to occupants against the elements;

ii. Housing, other than tents, shall have flooring constructed of rigid materials easy to clean and so

located as to prevent ground and surface water from entering;

iii. Each housing unit shall have at least one window which can be opened or skylight opening direct ly to

the outdoors; and

iv. Tents may be used where terrain and/or land regulations do not permit use of other more substantial

mobile housing which provides facilities and protection closer in conformance with the Department's

intent.

E. Heating

i. Where the climate in which the housing will be used is such that the safety and health of a worker

requires heated living quarters, all such quarters shall have properly installed operable heating

equipment which supplies adequate heat. Unnecessary language removed

. If the climate in which

the housing will be used is mild and not reasonably expected to drop below 50 degrees Fahrenheit

continuously for 24 hours, no separate heating equipment is required if proper protective clothing and

bedding are made available;

ii. Any stoves or other sources of heat using combustible fuel shall be installed and vented in such a

manner as to prevent fire hazards and a dangerous concentration of gases. Portable electricalheaters may be used, and if approved by Underwriters' Laboratory, kerosene heaters may be used

according to manufacturer's instructions. If a solid or liquid fuel stove is used in a room with wooden

or other combustible flooring, there shall be a concrete slab, insulated metal sheet, or other fireproof

material on the floor under each stove, extending at least 18 inches beyond the perimeter of the

base of the stove;

iii. Any wall or ceiling within 18 inches of a solid or liquid fuel stove or stove pipe shall be made of

fireproof material. A vented metal collar shall be installed around a stovepipe or vent passing

through a wall, ceiling, floor or roof; and

iv. When a heating system has automatic controls, the controls shall be of the type which cuts off the

fuel supply when the flame fails or is interrupted or whenever a predetermined safe temperature or

pressure is exceeded.

F. Lighting

i. In areas where it is not feasible to provide electrical service to mobile housing, including tents,

lanterns or other forms of portable lighting shall be provided (kerosene wick lights meet the

definition of lantern);

ii. Lanterns or other forms of portable lighting

, where used, shall be provided in a minimum ratio of

one per occupant of each unit, including tents.

G. Bathing, Laundry and Hand Washing. Portable bathing, laundry and hand washing eq uipment shall be

provided when it is not feasible to provide hot and cold water under pressure.

H. Food Storage. When mechanical refrigeration of perishable food is not feasible, the worker must be

provided with another means of keeping food fresh and preventing spoilage. Unnecessary language

removed.

I. Cooking and Eating Facilities

i. When workers or their families are permitted or required to cook in their housing unit

, a space

shall be provided with adequate lighting and ventilation; and

ii. Wall surfaces next to all food preparation and cooking areas shall be of nonabsorbent, easy to clean

material. Wall surfaces next to cooking areas shall be of fire

- resistant material.

J. Garbage and Other Refuse

i. Durable, fly

- tight, clean containers shall be provided to each housing unit, including tents,

for storing garbage and other refuse; and

ii. Provision shall be made for collecting or burying refuse, which includes garbage, at least twice a

week or more often if necessary. Refuse disposal shall conform to Federal, state, or local law,

whichever applies.

K. Insect and Rodent Control. Appropriate materials, including sprays, must be provided to aid housing

occupants in combating insects, rodents and other vermin.

L. Sleeping Accommodations within a Housing unit. A bed, bunk or cot shall be provided for each

person, except in a family arrangement. When requesting a housing inspection and only where it is

demonstrated to the SWA inspector that it is impractical to set up a separate bed, bunk or cot, the

employer may request a variance to allow a second worker to temporarily share the bed, bunk or

cot upon provision of individual sleeping bag or bed roll, free of charge.

M. Fire, Safety and First Aid

i. All units in which people sleep or eat shall be constructed and maintained according to

applicable state or local fire and safety law;

ii. No flammable or volatile liquid or materials shall be stored in or next to rooms used for livingpurposes, except for those needed for current household use;

iii. Mobile housing units for range use must have a second means of escape. Language regarding

the size of a custom combiner removed

. iv. Tents are not required to have a second means of escape, except when large tents with walls of rigid

material are used. A heat er may be used in a tent if the heater is approved by a testing service, such

as Underwriters’ Laboratory, and if the tent is fireproof; and

v. Adequate fire extinguishers in good working condition and first aid kits shall be provided in the

mobile housing.